Allan Brownfeld

Allan C. Brownfeld is the author of five books, the latest of which is The Revolution Lobby (Council for Inter-American Security). He has been a staff aide to a U.S. Vice President, Members of Congress, and the U.S. Senate Internal Security Subcommittee. He is associate editor of The Lincoln Review and a contributing editor to such publications as Human Events, The St. Croix Review, and The Washington Report on Middle East Affairs.

The Sotomayor Nomination -- Hopefully a Last Gasp for Identity Politics

When Judge Sonia Sotomayor was nominated for a position on the U.S. Supreme Court, newspapers across the country -- including The Washington Post and The New York Times -- did not even put her name in the headline, proclaiming instead that, "Hispanic Woman Named to Supreme Court." She was viewed not as an individual with particular merits and demerits, but as a representative of an entire group of people. This of course, is the essence of what has come to be known as "identity politics."

Identity politics is hardly confined to the Sotomayor nomination. Consider the case of Senator Roland Burris (D-Ill). Writing in The Politico, Roger Simon provides this analysis:

You can see why Democrats are nervous. Roland Burris, a political hack, muscled his way into the U.S. Senate by nakedly playing the race card, and now everybody is jumpy about any comments that seem to indicate that one race should be favored over another. . . . Burris, whose main claim to fame was that in 16 years of holding office in Illinois he had not been indicted even once, was appointed to the U.S. Senate by Illinois Governor Rod Blagojevich, who a few weeks earlier had been led away in handcuffs for trying to sell that Senate seat.

Initially, the White House and the Democratic leadership of the Senate wanted to delay Burris' appointment until Blagojevich was impeached so that the new, untainted governor could fill the seat. But Burris' team quickly played the race card. Rep. Bobby Rush (D-IL) dared the Senate to deny a black man the seat that had been held by Barack Obama:

There are no African-Americans in the Senate, and I don't think that anyone, any U.S. senator who is sitting right now, would want to go on record to deny one African-American from being seated in the U.S. Senate. . . . I don't think they want to go on record doing that.

When Burris stood outside the Senate in the rain after being rebuffed from taking his seat on January 6, Rush went on "Hardball with Chris Matthews" and said, "It reminded me of the dogs being sicced on children in Birmingham, Alabama. That's what it reminded me of." After that, opposition to the quick seating of Burris collapsed.

According to Roger Simon:

All has not gone well. . . . The transcript of a secretly recorded phone call between Burris and the brother of Blagojevich was released in federal court. In the phone call, Burris offers to write a check to the Rod Blagojevich campaign and says, "I'm very much interested in, in trying to replace Obama. OK?" The Senate Ethics Committee is looking into all of this, but some senators are now nervous and angry. They folded in the face of the race card when it came to Burris, but some are now aflame over what they see as Sonia Sotomayor's playing the same race card.

Senator John Cornyn (R-TX), a member of the Judiciary Committee, said, "We need to know whether she's going to be a justice for all of us or just a justice for a few of us." Senator Jeff Sessions (R-AL), the ranking Republican of the Judiciary Committee, said of Sotomayor, "I think that she is a person who believes that her background can influence her decision. That's what troubles me."

Many critics of Sotomayor's nomination cite a speech she gave at the University of California at Berkeley in 2001 in which she said:

I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.

The fact is, however, that this speech was hardly atypical for Judge Sotomayor. The Washington Post reported that:

President Obama has said that she regretted the wording in hindsight, but the speeches released . . . suggest that while she had not used the precise words before, the sentiments behind the remark were hardly isolated. In a 1999 speech to the Women's Bar Association of New York State, Sotomayor invoked "sister power," called for the selection of a third woman Supreme Court Justice -- which she would now be -- and used phrasing similar to that in the Berkeley speech. "I would hope that a wise woman with the richness of her experiences would, more often than not, reach a better conclusion." She said.

In an address published in the Berkeley La Raza Law Journal," which titled the symposium "Raising the Bar: Latino and Latina Presence in the Judiciary and the Struggle for Representation," she pointedly rejected the ideal "that judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity, based on the reason of law," calling that a mere "aspiration" that is not achievable "in most cases."

Judge Sotomayor's apparent obsession with racial and ethnic identity politics has not been taken out of context -- it is the context. In her 2001 Berkeley address she talks about her "Latina soul." And her "Latina voice," and her "Latina identity" over and over. She ends with the statement that she is "a Latina voice on the bench." What, one wonders, is a Latina voice, or an Irish voice, or an Italian voice?

Justice, she seems to forget, wears a blindfold. She seems to want to transform it into some kind of tribal symbol.

In some ways, Judge Sotomayor's stress on racial and ethnic identity flies in the face of President Obama's goal of transcending such notions. New York Times columnist David Brooks points out that:

It's interesting to compare Sotomayor's thinking with Barack Obama's. On the grand matters of race in America, they are quite different. Sotomayor has given a series of speeches arguing that it is not possible or even desirable to transcend our racial or gender sympathies and prejudices. During the presidential campaign, Obama gave a speech in Philadelphia arguing for precisely that, calling on America to move beyond the old categories and arguments. Sotomayor sometimes draws a straight line between ethnicity, gender, and behavior. Obama emphasizes our multiple identities and the complex blend of influences on an individual life.

Many men and women of good will thought that we had now moved beyond identity politics, particularly with the election of our first African-American president. This, however, does not yet quite seem to be the case. The history of Supreme Court appointments is instructive. In 1836, Andrew Jackson made Roger B. Taney the first occupant of what became known as the Catholic seat on the court, and that tradition carried forward intermittently for more than a century, with Edward White, Joseph McKenna, Pierce Butler, Frank Murphy and William J. Brennan, Jr. occupying the chair. In 1916, Woodrow Wilson nominated Louis D. Brandeis, establishing the Jewish seat, which later went, with brief overlapping periods, to Benjamin N. Cardozo, Felix Frankfurter and Abe Fortas. In our own era, we have seen women and African-Americans appointed to the court.

Jeffrey Toobin, a close observer of the Supreme Court, points out that:

By the time Bill Clinton named Ruth Bader Ginsburg and Stephen G. Breyer to the Court, the fact that both are Jewish (and replaced non-Jewish predecessors) was little more than a curiosity. If Sotomayor is confirmed, there will be six Catholics on the Court, which is also of minor significance. George W. Bush appointed John G. Roberts, Jr. and Samuel A. Alito, Jr., because they are conservative, not because they are Catholic. (The Catholic Brennan was the Court's greatest liberal.)

Sonia Sotomayor's nomination seems to be a throwback to the identity politics that most Americans thought we had moved beyond. Let us hope that this is the last gasp of such a notion and that in the future men and women will be judged on their individual abilities -- not on the basis of race, gender, religion, or ethnicity.

The Ricci Decision and a More Color-blind Society

Late in June, the U.S. Supreme Court moved our country in the direction of a genuinely color-blind society -- a goal long sought by men and women of good will.

The court ruled for white firefighters in New Haven, Connecticut, who said that city officials violated their rights when it threw out the results of a promotions test on which few minorities did well.

"No individual should face workplace discrimination based on race," Justice Anthony M. Kennedy wrote for the five-member majority. Kennedy said that the New Haven test properly evaluated what candidates would need to know to perform their jobs, and that it was equally applied to candidates of all races and ethnic backgrounds.

Kennedy declared that:

The process was open and fair. The problem, of course, is that after the tests were completed, the raw racial results became the predominant rationale for the city's refusal to certify the results.

The court's decision overturned one of the most closely scrutinized cases of Supreme Court nominee Judge Sonia Sotomayor. The case has been used by Sotomayor's critics as evidence that she allowed her personal preferences to influence her rulings.

The case has been brought by white firefighters in New Haven who were denied promotions after an examination yielded no black firefighters eligible for advancement. The city decided to throw out the test, calling its action "racially neutral."

In Ricci v. DeStefano, 19 white firefighters and one Hispanic say they should have been promoted based on their successful scores. The city argued that certifying the tests would have left it vulnerable to lawsuits for violating Title VII of the Civil Rights Act if the white firemen were promoted.

Judge Sotomayor voted to uphold the rejection of the white firemen.

"Racial classifications are inherently pernicious and, if not checked, lead as they did in New Haven to regrettable and socially destructive racial politics," said Gregory S. Coleman, who represents the group of 20 firefighters. "Neither equal protection nor Title VII justified New Haven's race-based scuttling of the promotions petitioners earned through the civil service process mandated by Connecticut law."

Frank Ricci was one of more than 130 firefighters who took written and oral tests in 2003 to fill a few promotion slots. An oral component accounted for 40 percent of the score, while the written component, designed at a tenth-grade reading level, accounted for 60 percent of the test.

Ricci's personal story cannot be separated from the case. He prepared for the 2003 exams by quitting his second job; buying more than $1,000 worth of books the city recommended; paying to have them read onto audiotapes because he is dyslexic; taking practice tests; and submitting to practice interviews. His hard work earned him the sixth highest grade on the examination. It is his claim that denying him promotion violates the 1964 Civil Rights Act and the Constitutional guarantee of equal protection of the law.

While New Haven claims that the 1964 act compelled it to disregard the results of the examination, the fact is that the act makes it unlawful for employers to discriminate against an individual regarding the "terms, conditions, or privileges of employment because of such individual's race."

In the 1964 debate over passage of the Civil Rights Act, two of the act's supporters, Senators Joseph Clark (D-PA) and Clifford Case (R-NJ), insisted that it would not require "that employers abandon bona fide qualifications tests where, because of differences in background and educations, members of some groups are able to perform better on these tests than members of other groups."

In supporting the legislation, Senator Hubert Humphrey (D-MN) declared that the act "does not require an employer to achieve any kind of racial balance in his work force by giving any kind of preferential treatment to any individual or group." He said that there must be an "intention to discriminate" before an employer can be considered to be in violation of the law.

Over the years, with the introduction of a variety of race-based affirmative action programs, the color-blind standard clearly enunciated in the Civil Rights Act has been seriously eroded. Any test that distinguishes between individuals and results in a statistical disproportion between whites and blacks has been considered suspect by the Equal Employment Opportunity Commission (EEOC). An employer using such a test has to go to extraordinary lengths to defend its use.

Professor Nathan Glazer of Harvard points out:

Any test that distinguishes between individuals (which is, after all, their purpose) will also, willy-nilly, distinguish between groups. If it tests for vocabulary, or knowledge of rules, or ability to understand instructions, it will clearly be affected by the differing degrees of education and educational achievement that are characteristic of different groups at a moment in time. If it tests for nonverbal capacities, it will also, owing to the complex and subtle effects of history and culture, distinguish between groups. Even if tests for height -- as is the case for some occupational tests -- it will distinguish between groups.

Our legal tradition mandates individual rights, not group rights. This has, in fact, been the goal of civil rights organizations for many years. Thurgood Marshall, arguing for the NAACP in the case of Sipuel v. Board of Regents of the University of Oklahoma (332 U.S. 631, 1948), declared, "Classifications and distinctions based on race or color have no moral or legal validity in our society."

Beyond this, affirmative action programs based on race are demeaning to the very groups they are meant to serve, implying that members of these groups cannot compete successfully in the marketplace.

Many thoughtful black critics have long opposed such programs. Professor Orlando Patterson, writing in The Public Interest (Summer, 1973), declared:

There can be no moral equality where there is a dependency relationship among men. There will always be a dependency relationship where the victim strives for equality by vainly seeking the assistance of his victimizer. In situations like these we can expect sympathy, even magnanimity from men, but never -- and it is unfair to expect otherwise -- the genuine respect which one feels for another.

More than 25 years ago -- long before the dramatic progress we have seen in race relations -- Professor Patterson said that judging individuals on the basis of race legitimizes "atavistic sentiments" and "awakens and lends respectability to the most primordial of group identities -- race."

In 1980, this writer was a member of President Ronald Reagan's transition team at the EEOC. That team was headed by the respected black conservative J. A. Parker, editor of The Lincoln Review, and included Clarence Thomas, long before he was named to the U.S. Supreme Court. The report we issued concluded that:

The goal of all Americans of good will should be the creation of a society which is both color-blind and committed to economic growth and advancement. A system of racial quotas and classifications in a declining economy is the prescription for inter-group tensions and social dislocation. It violates our basic principles of individual freedom and our hope for continuing progress.

Those words are as true -- and as relevant -- today as they were when written. The New Haven case has moved us an important step away from the racial spoils system of recent years and toward the genuinely color-blind society the vast majority of Americans of all races seek to achieve.

The Time Has Come to Finally Confront an Unresolved Act of Radical Violence: the 1970 San Francisco Police Station Bombing

Many Americans have forgotten the violence that shook our society in the 1960s and 1970s at the hands of the Weather Underground and other radical organizations. Sadly, those who led that effort are still with us, and appear to be unrepentant. And some of their most violent crimes have still not been properly addressed by the legal system.

Former Weather Underground member William Ayres, who became a household name during Barack Obama's presidential campaign because of his involvement -- and that of his wife, another Weather Underground leader Benardine Dohrn -- with Mr. Obama -- is back in the news.

Officers of the San Francisco Police Officers Association charge that Ayres and Dohrn are largely responsible for the bombing of a San Francisco police station in 1970 that killed Sgt. Brian McDonnell and injured eight other officers on February 16, 1970.

San Francisco police leaders say there are "irrefutable and compelling reasons" that establish that Ayres and Dohrn are responsible for the bombing.

No one has ever been charged with this attack. Former FBI undercover agent Larry Gratwohl, however, has implicated both Ayers and Dohrn in sworn testimony and in his 1976 book.

In testimony before the Internal Security Subcommittee of the U.S. Senate Judiciary Committee on October 18, 1974, Gratwohl testified under oath about a meeting he had with Ayres:

Bill started off telling us about the need to raise the level of the struggle and for stronger leadership inside . . . the Weatherman organization as a whole. And he cited as one of the real problems that someone like Bernardine Dohrn had to plan, develop, and carry out the bombing of the police station in San Francisco, and he specifically named her as the person that committed the act.

In his book Bringing Down America: An FBI Informer with the Weathermen, Gratwohl writes:

When he (Ayres) finished outlining our new codes, he tore into a fiery criticism of the passiveness of most members of the organization. "Too many of you are relying on your leaders to do everything," he said sternly. Then, in a departure from relating individuals to specific acts, he mentioned the Park Police Station bombing in San Francisco. "It was a success," he said, "but it's a shame when someone like Bernardine has to make all the plans, make the bomb, and then place it herself. She should have to do only the planning." He charged us to become more aggressive in working out details and executing plans by ourselves.

At a recent Washington press conference organized by journalist Cliff Kincaid and the organization he heads, America's Survival, Inc., Gratwohl described his 1970 meeting with Ayres:

He reminded us of the commitment all of us had made to overthrow the U.S. Government at the National Council meeting in Flint the previous December and how our inactivity was harming the Cubans, the Vietnamese, and the Chinese. Bill went on to describe how Bernardine Dohrn . . . considered the leader of the Weather Underground, had to plan and commit the bombing of the Park Station in San Francisco. This bomb contained fence staples and was placed on a window ledge during a shift change, ensuring the presence of the greatest number of police officers and the greatest possibility of death and injury. . . . At the National Council meeting which took place in Flint, Michigan, in late December of 1969, Bernardine Dohrn had praised mass murderer Charles Manson and said "The Weatherman is about a Communist revolution to destroy the white racist's society and establish a democratic centralist's government." Furthermore, Bernardine Dohrn wanted everyone at the council meeting to "bring the war home and off (kill) their parents.

In February, 1970, an explosion took place at the Weatherman bomb factory in Greenwich Village, killing three Weathermen. The bombs being built were for use at a dance at the Ft. Dix Army base in New Jersey on a Saturday night and contained roofing mails for the shrapnel effect.

The most complete statement of the Weather Underground philosophy was in their publication on Prairie Fire, the Politics of Revolutionary Anti-Imperialism, published in 1974. It described itself as the "Political Statement of the Weather Underground," and was signed by, among others, Weathermen leaders Bernardine Dohrn and Bill Ayers. It was dedicated to a page-long list of violent criminals, including Sirhan Sirhan, the murderer of Senator Robert Kennedy. It declared:

We are a guerrilla organization. We are Communist women and men, underground in the United States for more than four years. . . . We made the choice to become a guerrilla organization at a time when the Vietnamese were fighting a heroic people's war. . . . In our own hemisphere, Che Guevara urged that we "create two, three, many Vietnams to destroy U.S. imperialism.". . . Armed struggle has come into being in the United States.

The Weathermen engaged in many acts of violence, including bombings at the U.S. Capitol, the Pentagon, Harvard University, and draft and recruiting stations. On October 20, 1981, a group of Weather Underground radicals with their colleagues from the Black Liberation Army attacked a Brinks armored car in Rockland County, New York. In the course of the shoot-out, one Brinks guard and two policemen were murdered. Among those arrested were Kathy Boudin and David Gilbert, who fathered Kathy Boudin's child -- to be brought up by Ayers and Dohrn when the parents went to prison.

Ayres, during the presidential campaign, said that Weathermen activities did not kill anyone. This, as we can see, was not the case. Ayers and Dohrn still appear to be the radicals they once were. Both, as college professors, are in a position to spread their ideas to a new generation. Cliff Kincaid notes that:

Ayers is free not only to brainwash college students but to travel to Marxist-controlled Venezuela, at least four times . . . Chesa Boudin, raised by Ayers and Dorhn, describes himself as "a foreign policy advisor to President Hugo Chavez in 2005." It was in Venezuela that Ayers openly talked about his role in academia, saying that education is the "motor-force" for revolution. He was described by Venezuelan authorities . . . as a former leader of a "revolutionary and anti-imperialist group" that "brought an armed struggle to the U.S.A. for more than ten years from within the womb of the empire."

The violent radicals of the past remain in the news. In March, Sara Jane Olsen, 62, was freed from the Central California Women's facility. Olsen served only seven years -- half her sentence, after spending 25 years as a fugitive, after pleading guilty to placing pipe bombs under Los Angeles Police Department patrol cars, and participating in the robbery of a bank in a Sacramento suburb during which a woman was shot to death. Los Angeles Police Protective League President Paul Weber declared that:

I think today is a slap in the face of California law enforcement and other law enforcement . . . with her release and the governor's abdicating his responsibility. . . . The police officers here and around the state are outraged.

Sara Jane Olsen, formerly Kathleen Solia, was a member of Symbionese Liberation Army, the 1970s militant group best known for kidnapping the newspaper heiress Patty Hearst. Discussing Olsen's role, Caitlin Flanagan writes in The New York Times that:

Ms. Soliah robbed a bank in Carmichael, California, during which a mother of four was murdered and a young pregnant bank teller was kicked in the belly and later had a miscarriage. According to Ms. Hearst, who has proved to be a reliable informant on the actions of the SLA (and who was driving the getaway car), it was Ms. Soliah who did the kicking. Furthermore, bullets found in the dead woman's body and scattered on the floor of the bank matched a gun found in a dresser drawer in Ms. Soliah's room in the SLA safehouse. . . . Ms. Soliah was indicted, but then fled to Zimbabwe. Eventually, she returned under her new alias and married a well-to-do and highly respected doctor in St. Paul.

A spokesman for the Los Angeles police union, Eric Rose, points out that Olsen's family in Minnesota has not only refused to acknowledge her guilt, but also harbored her as a fugitive for more than two decades. Under the kind of scrutiny the justice system would put a family through if the parolee had committed some other kind of crime -- such as drug dealing -- Olsen's family would not be approved. What, one wonders, is California Governor Arnold Schwarzenegger thinking?

When Bill Ayers and Bernardine Dohrn re-emerged during the 2008 presidential campaign, the media failed to report the real nature of their crimes in the past, and their unrepentant radicalism of today. Now, with the San Francisco police calling for a review of the Park Police Station bombing, the time has come for Attorney General Eric Holder to launch a real investigation of Ayers and Dohrn and the 1970 bombing. There is no statute of limitations for murder and it is high time that justice was done.

In 1968, this writer was the author of the U.S. Senate Internal Security Subcommittee's study of the New Left. It is hard to believe that now, in 2009, the sad chapter of radical violence that shook our society in those days, has still not properly been addressed. Resolving the 1970 San Francisco bombing would be an important step in that direction. *

Lady Astor once remarked to Winston Churchill at a Dinner Party, "Winston, if you were my husband, I would poison your coffee!" Winston replied, "Madam, if I were your husband I would drink it!"

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