Black-listing conservatives, then and now

NOTE: Last week, Adam’s column was preempted so that it could appear on Entitled “Pryor Convictions,” it contrasted Bill Pryor with such proponents of judicial activism as Roy Moore, Laurence Tribe, and Charles Schumer. It can be read here.

AMIDST FEBRUARY’S ANNUAL Black History Month observances, Harvard Law Students should turn their attention to the achievements of blacks in the history of American law:

  • Hiram Revels: The first black U.S. Senator.
  • Thurgood Marshall: The first black U.S. Supreme Court justice.
  • Derrick Bell: The first black professor at HLS.
  • Lani Guinier: The first black woman to join the HLS faculty.
  • William Hastie: The first black contender for the Supreme Court bench blocked by Democrats for being “too conservative.”

I suspect that that last name won’t make it into the official program for this month’s commemoration. I’ll fill in the blanks.

William Hastie was born in Tennessee. He graduated first in his class from Amherst College. He collected two law degrees from Harvard Law School (LL.B ’27; S.J.D. ’32) and edited the Law Review. After teaching at Howard University (where he was later Dean) he advised President Roosevelt, and became the first black federal magistrate (at the Federal District Court in the Virgin Islands). Later, he was the Islands’ governor.

He was Thurgood Marshall’s mentor at Howard and in the early battles of the NAACP. He became the first black Article III judge, sitting on the Third Circuit.

When Justice Charles Whittaker retired from the high bench in 1962, the Kennedy Administration considered Judge Hastie for the Court. His qualifications, as sketched above, were unquestionable. Unfortunately for him, his Liberal credentials were not.

Robert Kennedy was Judge Hastie’s most vocal proponent. He later noted that Hastie “was about the only good one, really, that we could come up with.” But he was no match for Hastie’s opposition, which found him to be “too conservative.”

Among his most vocal opponents was none other than Chief Justice Earl Warren. According to RFK, Warren responded to the Hastie proposal with marked rejection: “He’s not a liberal, and he’ll be opposed to all the measures that we are interested in, and he just would be completely unsatisfactory.” Warren’s “liberal” peer, Justice William Douglas, told Kennedy that Hastie would be “just one more vote for Frankfurter.”

Thus, two Supreme Court “liberals” (and an array of Kennedy Administration officials suspicious of Judge Hastie’s political leanings) spiked the ascent of the would-be first black Justice. And five years later Thurgood Marshall broke through the glass ceiling, becoming the first black man on the High Court.

Had President Kennedy awarded the Whittaker spot to an even more qualified jurist, Hastie’s dismissal would have been justified. But instead, the spot was given to Byron “Whizzer” White – a man whose dedication to the Kennedy administration was as proven as were his talents on the gridiron, but whose “qualifications for the bench” placed him far behind Judge Hastie in 1962.

It is right to celebrate Thurgood Marshall’s achievement. But it is wrong to forget that another black man, more highly qualified than the Kennedy insider who received the nod, should have achieved the honor first. But he was a black man alleged to have been caught in the wrong neighborhood: Conservatism. Not able to prove his liberal credentials to Earl Warren and William Douglas – men whose names are still revered as promoters of civil rights – Judge Hastie was cast off to the ashbin of history. He won’t be found on any “Celebrate Black History Month” posters – then again, conservative blacks rarely are.

But his portrait does enjoy prominent placement in the HLS library.

On the top floor.

By the men’s room.

This year’s celebrations of “diversity” are marked by an episode eerily similar to the rejection of Judge Hastie: the attack on Miguel Estrada, the D.C. Circuit nominee and Supreme Court short-lister who “liberals” blocked for being “too conservative” for his Hispanic skin.

The language bandied about by Democrats opposing his nomination harks back to the Hastie debate. We know this today, of course, because Democrat staffers on the Senate Judiciary Committee left their strategy memos (reprinted here) on bipartisan computers. Democrat staffers inadvertently publicized the smearing of Estrada.

In the opinion of “various civil rights groups” in a meeting with Senator Kennedy, Estrada was “especially dangerous, because he has a minimal paper trail, he is Latino, and the White House seems to be grooming him for a Supreme Court appointment.”

According to another Democrat memo, Ralph Neas, of the People for the American Way, said that Senator Ted Kennedy was “anxious to develop a strategy for the Supreme Court and a strategy for dealing with conservative Latino Circuit Court nominees that are hostile to constitutional and civil rights.” (Not that there was evidence of any such “hostility,” of course.) The memo said nothing about “hostile” white or black nominees. Just Hispanic ones with a shot at the Supreme Court.

The stakes, of course, were huge. As another memo warned, “We can’t repeat the mistake we made with Clarence Thomas.”

The memos recounting the Estrada battle will join the tales of the Hastie battle in the unwritten history of American civil rights – the sorts of tales not trotted out during Black History Month, not during any month. They serve to remind that such “liberal” groups as the People for the American Way, the Democrat wing of the Senate, and even our most famous “liberal” Supreme Court justices championed the advancement of minority jurists not out of principle, but out of political interest. Thanks to their ilk, years from now Democrats surely will celebrate Hispanic History Month with nary a mention of the soon-forgotten Miguel Estrada.

Should race trump ideology in appointments? Of course not. Race should be a nonfactor. But should we continue to allow some to pay lip service to “diversity” when their true cause is the advancement of Liberal minorities and the active obstruction of minorities “too conservative” for their “liberal” sensibilities?

No more Clarence Thomases? Update your bullet points, Democrats. No more William Hasties – your forgotten contribution to Black History Month.

Adam White is The Record’s Editorial Page Editor. His column appears weekly.

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