Tag Archives: Harvard Law School

Point of View Columns

In the Matter of Judge Ketanji Brown Jackson

It has never been seriously suggested that being Black in America was, is or will be easy. It has never been seriously suggested that being a Black woman in America was, is or will be easy. And therefore it cannot be a surprise that the Supreme Court nomination of Judge Ketanji Brown Jackson, one of the most highly qualified nominees in recent history, will be facing serious opposition in the U.S. Senate.

Most of the opposition will, of course, come from the Republicans. But it should be clear that this opposition reflects a certain train of thought, a viral strain really, that exists in America.

This viral strain presupposes the inferiority of Black Americans. When a Black man or woman achieves at a high level that person is seen as being exceptional, out of the ordinary and certainly not representative of the overall talent pool in the Black community. Because, after all, it is not useful, so the thinking goes, to expect exceptional achievement from any Black man, woman or child.

Further, even when a Black woman or Black man does achieve, very often there is an unspoken question mark. Is this person the beneficiary of affirmative action or a lower bar for achievement forgetting the fact that the legacy admissions to elite colleges has been the inheritance of white girls and boys for centuries.

It seems that there is always a reason why the qualifications of a Black woman or a Black man must be questioned – or praised as being exceptional from the perspective of race rather than being exceptional from the perspective of humanity.

As we come to the matter of Judge Ketanji Brown Jackson, we see that the American racist myopia is still very much with us. The fact that she graduated from Harvard University and Harvard Law School should make her credentials bullet proof. Instead they represent a bullseye for those who would question her credentials by use of the false lens of affirmative action. The fact that she graduated with honors seems to make no difference to the likes of Ted Cruz and John Kennedy and never will.

That fact never will make a difference because the basic proposition of white supremacy and black inferiority is omnipresent as a virus in the American intellectual bloodstream – and there seems to be no way to immunize the vast portion of this of the American bloodstream. And the virus makes itself known in obvious ways as seen in cases like those involving George Floyd and Breonna Taylor and Ahmaud Arbery.

Less obvious, but arguably more virulent are the way the virus presents itself in corporate America that cannot find even five (5) Black women or Black men to be CEO’s in the Fortune 500, and in the American electorate that can only find three (3) Black people out of one hundred to serve in the United States Senate as you are reading these words.

Now we will watch the members of the United States Senate try to denigrate the qualifications and abilities and experience and expertise of Ketanji Brown Jackson while claiming that they are being fair. It is a baptism of fire that Judge Jackson has experienced before and the good news is that in this case – it is not a fair fight.

Judge Ketanji Brown Jackson will prevail.

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Point of View Columns

Fast Backward

When Barack Obama was inaugurated as the first American president of African descent in the history of the United States, many observers proclaimed the beginning of something called a “post-racial America”. By now, in the midst of seven years of Teapublican dog whistle symphonies that have aroused the most malignant racist demons of this country, very few are making that claim. However, in 2009 few would have thought that an Obama presidency would mark a regression in racial attitudes in White America. But that is exactly what has happened.

A facile explanation of Supreme Court Justice Antonin Scalia’s racist screed in the recent Fisher case would be that he was just channeling his inner Angry White Man. But Justice Scalia simply said what too many people actually think – black people are inherently inferior to white people.

In that regard Justice Scalia was consistent with his ideological ancestors on the Supreme Court who ruled in the infamous Dred Scott decision in 1857 that “a black man has no rights which a white man need respect”. The majority opinion in spectacular and outrageous judicial endorsement of white supremacy was written by Scalia’s fellow Harvard Law School alumnus, Roger B. Taney.

And Scalia’s opinion was also fully consistent with the Plessy v. Ferguson Supreme Court decision in 1896 which upheld the constitutionality of state laws mandates racial separation in all public facilities. This endorsement of Jim Crow institutionalized and guaranteed the suffering and degradation of black Americans deep into the 20th century.

And now, in the second decade of the 21st century, we are forced to witness the regurgitation of debunked and abandoned concepts of white supremacy and black inferiority by no less than a Supreme Court Justice of the United States of America. By using the selective argument that less prepared black students underperform at predominantly white universities and colleges, he conveniently neglects to note that this is also true for less prepared white students and the affirmative action process has also enabled absolutely prepared black students to evenly compete at these institutions.

A bit of history is useful here. The National Scholarship Service and Fund for Negro Students – NSSFNS – was founded in 1955 in an effort to provide admissions opportunity for qualified black students who were traditionally barred from most predominantly white colleges and universities in America. There are exceptions that can be cited prove the rule, but there are too many pathetic examples of one or two black students in classes of 1000+ white students in the 1950’s and 1960’s to avoid the unfortunate conclusion that there was an unspoken policy in American higher education that black Americans simply would not be admitted regardless of their qualifications.

By 1970 NSSFNS had identified thousands of young black men and women who were qualified to compete with young white men and women at colleges and universities throughout the country, including the vaunted Ivy League schools, those last bastions of presumed white intellectual superiority. The results provided evidence that intellectual superiority was never a matter of racial capabilities. And the sky did not fall. The laws of gravity were not repealed.

The only slightly recognized efforts of NSSFNS that provided the opportunity for change  as well as the basis for further initiatives that opened college doors that had been welded shut when black Americans applied. These initiatives included affirmative action programs that recognized the subjectivity of college admissions and the importance of diversity on the college campus.

The reality is the rationale for affirmative action programs is no different than the justification for admitting veterans, star athletes or sons and daughters of alumni. However, to the extent that affirmative action programs provided opportunities for black Americans, there has been and continues to be simmering outrage in the national white community. And Justice Scalia gave voice to that outrageous outrage while sitting on the bench of the highest court in the land.

It is not the first time, nor will it be the last time, that vile and hateful words are cloaked in the black robes of a Supreme Court justice. It is also clear that the tools of racism and injustice will not be easily pried from the grip of those who stand in the way of justice.

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Point of View Columns

The Difference Between White Robes and Black Robes

Sometimes irony just isn’t very funny. The Supreme Court is currently considering a case where it is contended that the Voting Rights Act of 1964 should be overturned as it is no longer necessary. Wouldn’t you know that the case is being brought by the State of Alabama. And wouldn’t you know that Supreme Court Justice Antonin Scalia thinks that is just fine.

A quick tutorial – the Voting Rights Act was passed in 1964 to provide a legal framework that would protect black people in the South who were regularly lynched, bombed and massacred for trying to exercise their right to vote. The fact that much of the violence directed against black men and women (and their white supporters) was sanctioned by the southern state and local governments made it absolutely necessary for the federal government to step in.

The law has stated that before any state can make any fundamental changes in the voting process those changes have to be approved by the United States Department of Justice. Not surprisingly, there are nine states on the federal government’s “watch list”, and all nine states are southern states, each with a bloody and grisly history of violence against black people, especially when it comes to voting.

We now fast forward to 2013 and the attorney general of the state of Alabama comes before the Supreme Court of the United States and argues with a straight face that the Voting Rights Act of 1964 is no longer needed because Alabama, like the rest of this country is in a post-racial era and there need be no further worry about government-sponsored discrimination against black people or other minorities.

Incredibly, if you are reading this during the daytime, the state flag of Alabama, a St. Andrew’s Cross modeled after the Confederate flag is flying over the state capital in Montgomery. For some perspective, imagine a German provincial government disavowing anti-Semitism while flying a flag “modeled after the Nazi swastika” and you can understand why the United States Department of Justice along with black people of Alabama look at that state’s post-racial contention with something less than confidence.

Now comes Supreme Court Justice Antonin Scalia, he of the ScaliaRobertsAlitoThomas right wing cabal. Although he had a singularly undistinguished career as a lawyer he somehow has stumbled onto the pages of American history as one of the architects of the highjacking and theft of an American presidential election in 2000.

Not satisfied with that unfortunate distinction, Justice Scalia is now taking the lead in rolling back the legal and legislative accomplishments of the civil rights movement. During oral arguments he had the temerity and reptilian insensitivity to refer to the Voting Rights Act of 1964 as another example of “racial entitlement”.

Where does one begin with racism soaked in stupidity and ignorance? In 1964 Justice Scalia was 28 years old and a lawyer who had already graduated from Georgetown University and Harvard Law School. It is impossible that he was not aware of that Birmingham, Alabama was known as “Bombingham” because of the relentless bombing attacks carried out by white citizens against black people who sought to exercise their right to vote.

Antonin Scalia may feign ignorance, but he had to know about the four black girls that were killed in a Birmingham church bomb because that church was the base for civil rights efforts. He had to know about Schwerner, Cheney and Goodman and Medgar Evers and Viola Liuzzo and the Ku Klux Klan and George Wallace standing in the doorway of the University of Alabama blocking the entry of a black woman who wanted to attend school.

To term the Voting Rights Act or any civil rights legislation “racial entitlement” is either ignorant or racist. That is because one would have to be ignorant of the institutional racism that consistently denied civil rights and humanity to black people since the ratification of the Constitution that sanctioned slavery in 1789.

One would have to be a racist to think that dismantling an legal and legislative infrastructure that imperfectly protects the rights of blacks and minorities could possibly be a good thing. Antonin Scalia is the son of an Italian immigrant family that never faced obstacles to the exercise of his civil rights as his father could literally get off a boat from Sicily and immediately walk a paved road to citizenship.

How dare Antonin Scalia and the AlitoRobertsScaliaThomas cabal try to deny that right to black Americans or anyone else? There may be a day when specific civil rights legislation to protect the rights of blacks other minorities and women is not necessary.

This is not that day and Antonin Scalia should know that.

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Excerpts from "The Pride"

The Pride – Chapters 5 & 6

CHAPTER 5
Paul
What a tangled web….

It was O.K. because no number of sit ups or pushups or bench presses could make me forget that there was something worse for me than delivering the eulogy for my father. That’s because six months after my father died, my younger brother died in a freak hang-gliding accident in the hills east of Monterey, California.

For almost a year, I spent almost all of my nonbillable time on estate matters, insurance matters, closing down residences, selling furniture and poring over endless piles of personal effects. There is certainly worse torture; I just don’t want any part of them.
A psychoanalyst might say that these serial deaths were the reason that I pursued such a self-indulgent lifestyle, but the truth is much simpler – I like to have a good time. And someone like Lisette Bailey could make a man forget almost anything.

It was almost as if she realized that there was this cloud, this burden, and she seemed to dedicate her time with me to make it all go away. At least that’s how it seemed to me. She probably was just having a good time too. Her angelic smile and endless, eternally creative, devilish desires always made me want to forget.

I could never forget the pain and sadness that I have felt in losing my father and brother that way. And she could never make me forget Samantha Gideon, although I never would have dreamed that Samantha would be gone from my life someday.

Even now, married and with a son, a day does not go by that I don’t think about her. I have grown accustomed to the reality that her memory will be with me as long as I live.

There are a lot of theories about true love, and none of them are wrong and none of them are right. I believe that it’s all about time and space and circumstance and serendipity and the lottery-like happenstance of romance. I love my wife and my son, but who knows?

If Samantha hadn’t gone away so suddenly, maybe she would have been the mother of my son. How different would my life be now? I have no regrets at this stage of my life, but still, I can’t help but think about these things from time to time.

Finishing my shower, I still had time to get dressed and attend to my home computer and the attendant e-mail messages before leaving for the funeral, which was to be held at the Riverside Church, no more than a ten minute taxi ride from my house.

Before going to my home office, which was on the second floor of my townhouse, I went down to the first floor kitchen, with its appointments of a Garland industrial range and a Norge refrigerator/freezer.
It had a free standing island of marble-faced counter space, rubber tiled floors and indirect halogen lighting. I had to begin my morning have a blended shake of yogurt, fruit juice and soy powder to go along with a veritable pharmacopoeia of vitamins and herbal supplements. I took my cup of Kenyan mountain roast coffee back up the stairs and logged onto my computer.

In the relatively few years of its existence in my world, I have found e-mail to be virtually indispensable. There was a point in my life when there was no e-mail, I just can’t remember it anymore. Just like I can’t remember when there were no faxes or overnight mail. I must admit that I do remember Special Delivery letters.

When I sat down to check e-mail that morning, I had no idea that a note from one of my classmates at Harvard Law School would give me a perspective and then an idea, that would change my life and the lives of many other members of The Pride.

Joel Rosenblatt was one of those people who saw public service as something more than an avocation. He had been in government since we graduated from Harvard, and he now worked as a senior staff member of the United States Senate Finance Committee’s Subcommittee on Banking.

He worked there because he wanted to and liked it, not because he was looking for a platform for a partnership in some K Street or Wall Street law firm. And, he was a good guy.

Paul:
There is no easy way to put this – so consider this a word to the wise. The shit is really about to hit the fan for some of your investment banking colleagues “of color”. The Securities and Exchange Commission and the Justice Department are working with my subcommittee to hold hearings about the rise of black investment banking firms and the correlation of that rise to their political campaign contributions to black politicians around the country.

Can you believe it? There would be no Merrill Lynch or First Boston or Lehman Brothers without all of the contributions, cash and otherwise, that they have made to various government officials over the years. But it looks like your people are going to have to play the game by another set of rules.

The worst part is that these hypocrites have wrapped themselves in so many veils of self-righteousness that going after these black firms is going to seem like a holy crusade if they ever get any momentum going.

As I write this I realize that I should have some kind of advice or suggestions for you – and I don’t.

But I thought that you should know this, and I knew that you would know what to do with this information.

Take care.
Joel

Like I have said, memory is so strange. It can be so unreliable and useless at times, and then there are other times, like now, late at night in my Harlem brownstone, when it seems like I am the only one in the world who is awake, that I can remember every detail of something that, at the time, I didn’t even realize was so important.

For example, I remember that I stared at Joel’s e-mail message, understanding it, and, at the same time, trying to comprehend its greater meaning for a long, long time. While thinking, I sent an e-mail back to my former classmate and current friend.

Joel:
Thanks for passing on the information. I know that you have a lot more to do than worry about the fate of black investment bankers (and their lawyers) who don’t know where their next BMW is coming from, but you should know (if you don’t already) that its a lot more important than that.

We both know that on a per capita basis, there are as many white knuckleheads on Wall Street as there are black knuckleheads. We also know that without some real power and influence and an institutional presence on Wall Street, the black experience in America will continue to be a series of parallel stories of individual achievements and collective frustration. You have to control sources of capital in this country to be able to play the game.

And, speaking of playing the game, it is so ironic that the moment black investment banking firms start to get a little traction that the SEC and Justice and the U.S. Congress (!!!!) start to jump on them for so-called ethical violations. What a crock of shit!

I guess that my clients can be more discrete in their future forays into the adjoining worlds of politics and municipal finance. But I would hope that I could give them more advice than that. If you have any bright ideas, let me know.

Hasta
Paul

The note from Joel Rosenblatt set in motion a Rube Goldberg-like series of levers and pulleys in my mind that finally dredged up the bright idea that would change the life of so many.
As I logged off the computer, I remember thinking that Joel’s note, while newsworthy, was hardly surprising.

There were a lot of reasons for members of The Pride to be paranoid, not the least of them was that their very existence offended too many white people in these United States. There were otherwise intelligent, well-meaning and God-fearing white men and women in America who had grown up their whole lives with a certain sense of the natural order of things.

In their universe, black men as principals and partners in Wall Street investment banking firms and law firms simply didn’t exist. Black men and women who were chief executives and senior officers of major corporations simply could not exist. Black women with law degrees, MBA’s and partnerships in major law firms offended the Laws of Nature as much as a flying pig or a talking mule. Some things simply could not exist in their world.

And their response upon encountering this unnatural reality – after the initial shock – has been to deny. And then, if denial did not reassert their conception of reality, then it was time to take more aggressive and even violent actions.

Sometimes those actions might be as simple as not hiring someone for a job for which they might be overqualified. It could be a peremptory no at the meeting of a coop board in a particularly exclusive address on Park Avenue or Central Park West. Country club memberships and law firm partnerships and investment banking firm partnerships do not stay all white in New York City or the rest of America by accident or for the lack of qualified and interested black men and black women. All of these things are simply puny and pitiful attempts by some people to maintain the natural order of things as they had always known them and would like for them to be.

If I had let the antipathy and hurt feelings of white people determine my fate, I imagine that I would be lucky to be pumping gas somewhere far from Wall Street. Still, Joel’s note was not to be dismissed or ignored.

This guerilla warfare against key members of The Pride could have disastrous results. Municipal finance-based revenues were an important part of the financial foundation of a number of black investment banking firms and law firms. Whether that business resulted in the sale of mortgage revenue bonds or the investment of pension fund assets, this income represented the base upon which other business could be built.

Or should be built, I thought wryly, because now it really was time for me to start getting dressed for the funeral. Going through the eternal ritual of selecting a dark suit, white shirt and subdued tie, I thought about the fact that too many of my friends and colleagues in investment banking were content to frolic in the high cotton of municipal finance, never heeding the common sense thought that their success would eventually bring about serious institutional reprisals. But more than a few members of The Pride perceived the obvious – it was time to diversify and to solidify gains that have already been made.

That morning I finished dressing and called a local Dominican car service to send one of its seemingly infinite number of new Lincoln Continentals to come by get me to the church on time.

I decided that I would make it my business to invite a few insightful friends to a post funeral lunch. After all, Winner was to be buried near his birthplace in Alabama so there would be no need to endure an interminable ride to some suburban cemetery.

As I settled into the back seat of the car, salsa music gently tapping at the door of my consciousness, I started to think about a guest list. The right mix would be important as a plan started to take form in my mind. As I tried to sort these matters out, the always awesome and bold presence of the Riverside Church insinuated itself into view.

I was glad that I was early. This was going to be a very busy morning and, as the cliché goes, it really was going to be the first day of the rest of my life. Of course, at the time, I just had no idea how right I was going to be.

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CHAPTER 6
Sture
Through the looking glass

In retrospect, it would seem that I knew about The Pride before I knew learned about it. After all, Paul Taylor was not the first or only black patron of the Water Club. However, since there were so few blacks who were customers of the restaurant, I would always notice them. And since far fewer were anything like regular customers, it was hard not to remember the repeat visitors. And in any event it would have been almost impossible to forget Paul Taylor.

Working at the Water Club was an education for me in many ways. I learned, for example, that clowns and idiots come in any and all colors – that there were as many black idiots and clowns as white idiots and clowns. There were the kinds who were too loud, too ostentatious, too ready to treat the waiters and restaurant staff as their own personal servants, or worse.

I always have thought that such people were insecure about something in their lives, but then of course, no one ever asked me. My job has been to see to it that my patrons are well fed and satisfied with sufficient libations. Their manners and deportment have never been my department.

And, since the Water Club (and now Dorothy’s By the Sea) has always been an upscale establishment, during the past decade I have spent my working hours with people with decidedly high income lifestyles – or at least pretending to do so. And, I have found that the size of your income and the amount of disposable cash that a person might have has nothing to do with having class or even knowing how to spell the word decorum.

Paul Taylor always brought a certain amount of class with him when he came to the Water Club. He took the time to say hello to the coat check girl and was never superior or dismissive of waiters, sommeliers or the busboys.

I don’t want to make him sound like Mother Teresa in a pinstripe suit, but he was always a classy and decent person. I remember he would come with his (then) wife Diedre, and they would celebrate anniversaries, birthdays and the like, and he was always solicitous of her without being a phony romantic.

When you work at a fine restaurant, you get to see all the types. And you get to know the pseudo-Romeos who want to be sure that the whole world sees that they are making a big deal over the woman who is their companion for the evening -wife, girlfriend, escort, it doesn’t matter- regardless of whether any of the pomp and circumstance is meaningful to her. Paul was never like that.

I guess it was that something about Paul that gave me the nerve to talk to him about a serious problem that I was having at the time. And the way he helped me through it certainly gave me all the reason that I ever needed to talk to him a few years later about my idea which later became Dorothy’s By the Sea. But that came later.

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