A divided federal appeals court Thursday reversed itself, ruling that the Pledge of Allegiance doesn’t violate the constitutional prohibition against state-mandated religious exercise even though it contains the phrase “one nation under God.”
Also decided Thursday was a challenge brought by the same plaintiff, Michael Newdow, to the phrase “In God We Trust” printed on the national money. The same three-judge panel ruled that an earlier case had found the phrase to be a national motto and that its placement on U.S. coins and currency wasn’t required by any government statute.
The context of the quote still leaves it in the ranks of racism or reverse racism:
Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O’Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O’Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, 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.
Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case. I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown.
However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Other simply do not care. Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.
AllahPundit is waiting for answers:
I’m looking forward to hearing whether she thinks any of the white men on the Court currently aren’t devoting the “time and effort” needed to neutralize their white-male-ness, and to whether she’s devoted any of her own to understanding the “experiences” of people who aren’t female and Latino.
NPR says it’s out of the bag. Justice Souter will retire. President Obama will have his chance to change things once again. Hopefully he’ll be more circumspect in his appointment. Souter was appointed by Bush but proved to be something of a surprise with liberal leanings.
Michelle Malkin writes, “Now, we’ll get an out liberal as opposed to a stealth one.”
What’s next? Will Obama shape the court in his image?
Glenn Reynolds points us here for an interesting take by Legal Insurrection highlighting Prof. Michael Dorf and rewritten 2 days before the retirement announcement:
Does Arlen Specter’s defection from R to D strengthen the President’s hand in Congress? Perhaps overall but not on judicial appointments because breaking (the equivalent of) a filibuster in the Senate Judiciary Committee requires the consent of at least one member of the minority. Before today, Specter was likely to be that one Republican. Now what?
