Monday, February 7, 2022

All Rise

Last week dredged up aspects of the professional trauma I have been working very hard to overcome for the past two decades. It is the trauma that fuels my imposter syndrome--what makes me think that I am somehow not where I am supposed to be, or what I claim to be at this point in my life and career.

I also must mention this (because it is significant), that January kinda went straight to Hell as soon as my Mom got sick mid-month. The last piece I finished (and posted) is more than a month old, and I'm sure that given the state of the world, most of you have better things to do than wait around for me to get my mind right to write. But please bear with me...we all are doing the best we can.

To the matter at hand, my initial impulse was to pop in here to try to write a quick piece about the retirement announcement for Supreme Court Associate Justice Stephen Breyer, his likely successor, and a bunch of other stuff related to being a Black woman in the legal profession. (A whole week later, you probably surmised, there was nothing quick about the writing of this piece.) Some of the early musings and shit takes on this announcement have triggered me...I am reminded that I have been hearing much of this same skepticism and open contempt for nearly 25 years, going back to my law student days, and I'm just getting to the place where it doesn't feel like an auction block inspection.


No, I didn't stutter and yes, I said what I said. Now that I have captured the accumulated microaggressions and frustrations of my career in one exasperated utterance, allow me to illustrate with a memory from sometime in 1996, when a student mutiny was threatened in one of my law school classes. Several students had expressed their discontent with the teaching style of our Constitutional Criminal Law professor. I don't recall all of the details or complaints, but I remember several basic points: (1) she was the only Black woman on the faculty; (2) no one else had been the recipient of as many complaints; (3) she found out; (4) she addressed it in class but that still didn't satisfy the mob; and (5) I clearly had NO idea what that must have been like for her, so at some point I plan to track her down and send her a note that simply says, DAMN. NOTHING has changed Sis.

Mere hours after the retirement announcement, Roger Wicker, the senior Senator from Mississippi (yeah, of all places) declared that he wouldn't vote for a Black woman to ascend to the high court because he doesn't support affirmative action, so we're already in for one helluva confirmation process. No doubt he speaks for at least half of his Colleagues who can't fathom such a notion either. As a matter of fact, I am certain that he speaks for many of the deplorables that found this meme so hilarious and spot on ----->

Yeah, the quiet parts said aloud is the type of exhausting bullshit that we've been subjected to for years. The questions of competency. The lack of support. The set ups for failure. The blame game. The system that requires you to clear hurdles and when you do, they increase the length of the race, increase the height of the hurdles, pour oil on the track, and then swear that any teetering or stumbles are proof of your lack of talent, ability, and intellect. By calling out any of these additional barriers and complications as the racist/sexist impediments that they are, we get branded as the Angry Black Woman who is requesting special favors. Ask me how I know...

Or ask Charlotte E. Ray (1850-1911), the first Black woman to receive a law degree in this country in 1872 from Howard University. Ask her what it must have been like to have finished school, passed the bar exam, but not have enough clients to sustain her legal practice due to the systematic racism and sexism of the times. Undaunted, she returned to her original profession of teaching and became an activist in the Black clubwoman and suffrage movements. Or you might ask abolitionist, journalist, and educator Mary Ann Shadd Cary (1823-1893), the second Black woman to receive her law degree from Howard University in 1883. She turned to the law after a lifetime of activism, including time she spent in Canada working with the formerly enslaved. Imagine the obstacles faced by these two women, both of whom were alive when Chief Justice Robert B. Taney (1777-1864) issued the Dred Scott decision in 1857 that declared Black people had no rights that whites were bound to respect. What kind of special favors did they receive in a country where they weren't even regarded as American citizens?

What special favors benefitted Pauli Murray (1910-1985) when she graduated at the top of her law school class at Howard University in 1944, 60+ years after Ray, but was denied the Rosenwald fellowship for graduate work at Harvard Law School because of her gender? Murray penned the term "Jane Crow" and wrote the foundation for the arguments that future jurist Ruth Bader Ginsburg (1933-2020) would use to build her legal advocacy against gender distinctions in the law. Ginsburg, admitted to Harvard Law a decade after Murray was denied admission, was preceded by Lila Fenwick (1932-2020), the first Black woman to graduate from the law school in 1956. How special must it have been for Fenwick, who lived in segregated housing as a student, to be summoned along with the other women in her class before the dean to justify occupying a seat that could have gone to a male student. 

I imagine it must have felt as special as the humiliation I experienced when one of my classmates penned the same query in our law school newsletter after the Hopwood decision (1996) emboldened him to challenge our right to matriculate.

Because of such incredulity, I internalized the false belief that a Black woman who did not make law review or moot court or get a prestigious clerkship after law school or make partner by the age of 30 was somehow a professional failure. Nevermind that I wasn't the only twenty-something idealist who had a little too much fun in the restaurants and bars of New Orleans during the mid 90s. According to that classmate, Black women were occupying space that some better qualified white student deserved. Driven by the need to disprove that sentiment, my career path has involved working on Capitol Hill, working at two civil rights organizations, teaching American History and Government, representing the indigent, running a solo practice, writing, and advocating for social justice. Yet, it took me years to redefine what a successful attorney should be in my own words. 

Which brings me to Amy Coney Barrett, newest Associate justice on the Supreme Court. Even though I am almost two years younger, we were in school at the same time and can both claim membership in the law school class of 1997. I read her biography and see a few parallels to my own story, including the all-girls' Catholic high school to the English degree from a private undergraduate college. Where our lives diverge is law school and the subsequent trajectories of our careers. She graduated at the top of her law school class from Notre Dame, had two prestigious federal clerkships, a coveted law firm job, a tenured professorship at her alma mater, and then her most recent stint as a federal judge before she was tapped to ascend to the high court. In the midst of that all that, she found the time to be a mother to seven children. Regardless of my concerns about her ideology, the rushed nomination process, and my reverence for the justice whom she replaced, the fact is that Justice Barrett is extraordinary.

Did I mention she has seven children?

Sonia Sotomayor is also extraordinary, as is Elena Kagan and as was Sandra Day O'Connor. In death, we've practically canonized Ruth Bader Ginsburg to judicial sainthood. A quick look at the top candidates for this next opening reveals a very specific pathway to this particular job, and most, if not all of the potential nominees possess similar experience. Therefore, why should a Black woman with an equally impressive and substantial resume not be a top contender? In a twitter thread, I pointed out that in the last 25 years, Black women have been claiming space at every level of the profession as elected officials, judges, corporate counsels in the Fortune 500, partners at prestigious law firms, professors in the Ivy League towers, and leading civil rights organizations. So there is no reason to question if one of us is qualified to serve on the Court. 

Thus, when Senator Kennedy from Louisiana wonders out loud if a Black woman with a law degree can distinguish between one of those heavy ass hornbooks and a J. Crew catalog, we aren't misinterpreting the implication. He didn't stutter or misspeak or make a bad joke. Similar to when he asked Justice Barrett, mother of seven, about the division of labor in her household, it is that special brand of black letter bullshit called sexism that would give him the impression that those kinds of musings and questions were appropriate or harmless. The same sexism that would never question the competency of the male lawyer who couldn't figure out how to re-adjust his Zoom filters.

When you decry the President's intention to nominate a Black woman as affirmative action, Senator Cruz-to-Cancun-when-it-gets-too-cold-in-Texas, can you explain why taking an affirmative act to increase diversity in our government is a bad thing? Since you know exactly how many Black women there are in this country, are you suggesting that representation does not matter in the makeup of the federal judiciary? It didn't matter when Justice Barrett was nominated to replace the late Ruth Bader Ginsburg or when Justice Thomas was nominated to replace the late Thurgood Marshall? When you exclaim applicants who aren't Black women need not apply, surely you are not calling for Supreme Court vacancies to be posted on or LinkedIn...

Does it terrify these Senators that times have changed such that a Black woman within a heartbeat of the Presidency, a Black woman poised to become Governor of Georgia (yeah, we are claiming it), and Black women in various leadership positions throughout the country, it has gotten a lot harder to credibly denounce our intellect, talent, or abilities? Who honestly believes that Justice Sonia Sotomayor misinterprets the law because of her ethnicity (while voting with the departing "nice stately liberal" Stephen Breyer on most cases)? Are they worried about how best to pronounce Ketanji Brown Jackson or Leondra Kruger should one of them emerge as the preferred candidate? Or is it the realization that within a generation, and in spite of the best efforts to thwart and forestall progress, every revolutionary step towards freedom has been made because some Black woman got fed up and said, oh yeah (with an added muthafucka under her breath)...

In the same patronizing vein that some on the left thought Michelle Obama and Kamala Harris were legitimate suggestions, others on the right floated the notion that their favorite college dropout Candace Owens would be a good choice. Some of those same folks circulated that Aunt Jemima meme on Twitter...but girlfriend was genuinely flattered so I won't even bother to burst that bubble except to point out that at least Obama and Harris finished college and have law degrees. Anita Hill is the other suggestion I found rather problematic, for obvious reasons, but also because this vacancy isn't like the Academy Awards (it isn't an honor just to be nominated).

It is a lifetime appointment to the highest court in the land. It is a call to service in a co-equal branch of government, endowed with the power to interpret the Constitution. The same document that included a three-fifths clause and had to be amended twice to extend voting rights to Black men and then to women. A Black woman in that seat won't undo historical atrocities or systemic racism, but she'll have a vote. One vote can save our democracy. Her voice will speak to future generations and form the basis of how the law will be interpreted. Who knows what long-term impact she will have on the Court? 

Will she be as significant as Justice Joseph Rucker Lamar (1857-1916) or his cousin Justice Lucius Quintus Cincinnatus Lamar (1825-1893), whose name deserves to be common knowledge even if his tenure on the Court was brief? In all of this faux outrage about the perceived unfair advantage race will play in this process, has anyone addressed how most of these past justices were appointed because of their political connections, not for their legal expertise? Several justices served in all three branches of government, with the Court serving as the final career capstone. Did you know that two Chief Justices William Howard Taft (1857-1930), the 27th President of the United States, and Earl Warren (1891-1974), 30th Governor of California, both asked for the job? 

In 1971, the aforementioned Renaissance woman, the Rev. Pauli Murray "applied" for the vacancy created by the retirement and death of Justice Hugo Black (1886-1971). Again, Murray was a decade ahead of her time since we know she didn't get the job. Instead, in fulfillment of his campaign pledge to appoint the first woman to the Court, President Ronald Reagan tapped Sandra Day O'Connor in 1981. In the forty years since her historic appointment and tenure, thirteen justices have been confirmed: eight have been white men, four have been women, and two were people of color. Two of thirteen since 1981. Two.

Therefore, it isn't affirmative action that minimizes and marginalizes the accomplishments of Black women in the legal profession. It is racism and sexism. It is the virtue signaling from Senators Cruz, Kennedy, and Wicker before a name has even been announced that she is the beneficiary of unearned privileges--notwithstanding the privilege of being white, male, and well-connected that benefitted most of her predecessors. Nor the fact that affirmative action has been most beneficial to white women like Justices O'Connor and Barrett, both of whom were chosen because of their race and gender. No one besmirches O'Connor for having been a classmate and former girlfriend of the late Chief Justice William Rehnquist (1924-2005), nor does anyone attempt to shame Justice Barrett for having a career and seven kids. Recall the backlash Madame VP faced for having dated former San Francisco Mayor Willie Brown? And to keep it real, a Black or Latinx nominee with seven children would NEVER (and I don't even need to complete that thought)!

The race may be longer, the hurdles are more cumbersome, the oil on the track is slick; yet I have NO DOUBT that a Black woman prepared for a moment such as this will not only finish the race--she will triumph. Oyez, oyez, oyez!