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Thursday, February 03, 2011

Arguing Angela Onwuachi-Willig's merits to the right audience

My friend and former colleague Angela Onwuachi-Willig is one of the nine finalists for three spots on the Iowa Supreme Court.  Over at Concurring Opinions, Kaimipono Wenger provides "[a] few reasons) why [she] should be appointed to the Iowa Supreme Court," but it really reads like "a few reasons why Kaimipono Wenger thinks he would be happy if she is appointed to the Iowa Supreme Court":

Angela is a leading scholar on topics of racial justice and critical race theory.  She is the only woman on the shortlist, as well as the only person of color

In addition, Angela is a longstanding supporter of LGBT rights who has written eloquently in favor of marriage equality and who signed a brief supporting marriage equality in Varnum v. Brien.

Given the backdrop of the current Iowa vacancies — they are the direct result of a homophobic right-wing smear campaign — I am thrilled to see Angela’s name on the shortlist.  I can think of no better way to respond to the anti-gay hate machine than to fill a court vacancy with a smart, articulate, energetic Black woman who is committed to LGBT rights — and to a principled and progressive feminist and antiracist legal philosophy as well.

Um . . . this might be the kind of argument to make to someone like Chet Culver, the Democratic governor of Iowa from 2006-2010, who while personally not supporting same-sex marriage, seemed at least to support the Varnum decision and opposed any efforts to amend the state constitution to overturn it.

However, elections matter.  Culver lost his bid for re-election to Terry Branstad, a Republican former governor of Iowa  from 1982 to 1998.  I wasn't in Iowa at the time, but my sense from listening to my former colleagues was that he was kind of a moderate Republican.  Branstad is the only audience to whom arguments about Angela Onwuachi-Willig's merits matter.  

Is there reason to believe that Branstad would be positively influenced by her support for same-sex marriage -- including her signing the pro-same-sex marriage amicus brief in Varnum?  Perhaps not, considering that Branstad said recently, "What the people of Iowa want is an opportunity to vote on marriage defined as one man and one woman."  

For similar reasons, I do not think that Branstad will be at all moved to appoint her as a way to respond to those who booted the three Justices for supporting Varnum.  Nor does it seem like a good way to advocate for her by noting that she is committed "to LGBT rights — and to a principled and progressive feminist and antiracist legal philosophy."  Antiracist legal philosophy?  It strikes me that denying any room for reasonable minds, as Professor Wenger does, to disagree on legal issues by characterizing anyone who disagrees as racist is not a persuasive tactic, especially when you're calling out some (not all) of Branstad's supporters -- and hence, in a sense, Branstad -- as racist.

Moreover, while Professor Wenger is free himself to characterize the opposition to the Varnum decision as "a homophobic right-wing smear campaign," the danger is that readers may assume that this accurately describes how Professor Onwuachi-Willig would herself characterize that opposition.  Based in general on her scholarly approach and the way that she and I have chatted about various subjects over the years, I do not see her using such inflammatory and imprecise terms.

Indeed, as I will explain shortly, Angela Onwuachi-Willig's legal scholarship -- and indeed, her general legal philosophy -- are far more nuanced and independent than the near-caricature depicted in Professor Wenger's post.  Arguing for Branstad to appoint someone who is committed "to a principled and progressive feminist and antiracist legal philosophy" is sort of like arguing to Barack Obama that he should nominate John Yoo to the Supreme Court because Professor Yoo is committed "to a principle of a robust executive with broad, unfettered discretion to best protect the public."  I mean, that's an exaggeration, but not too much of one.

Here are my reasons for why I think Governor Branstad should appoint Professor Onwuachi-Willig to the Iowa Supreme Court, based on my having been her colleague and friend for several years:

Personal Qualities: She is smart, hard-working, conscientious, and a delight to have as a colleague, all of which I think are important considerations for a small deliberative body like the Iowa Supreme Court.

Independence: As noted above, Professor Wenger's description of Angela Onwuachi-Willig's views strikes me as something of a distorted caricature, much like those fun house mirrors.  One of her articles that garnered a lot of attention is Just Another Brother on the SCT?: What Justice Clarence Thomas Teaches Us About the Influence of Racial Identity, 90 Iowa Law Review 931 (2005), in which she makes the case that Justice Clarence Thomas's conservative legal views are based on a unique, black conservative perspective. Remember that liberals often derided Justice Thomas as a Justice Scalia-clone, or as Scalia's second vote.  In this article, Professor Onwuachi-Willig clearly distinguishes herself from that trite -- and inaccurate -- assessment to provide a bold and new way of looking at Justice Thomas:

A review of Justice Thomas's jurisprudence reveals that there is no basis for the claim that Justice Thomas is a “Scalia clone” or “Scalia puppet” and supports the proposition that Justice Thomas has been unfairly subjected to the stereotype of black incompetence. In fact, Justice Thomas has developed his own jurisprudence as a black conservative, directly and indirectly weaving his own “raced” ideologies into his opinions.

In my interactions with Professor Onwuachi-Willig, I haven't always agreed with her conclusions (though I often have).  But I've always felt that her conclusions were the product of serious thinking and research.  On more than one occasion, she has shown me new ways of thinking about an issue.  This independence will be a valuable trait for a Supreme Court Justice.

Judicial Integrity: Presumably, much might be made of her signing the amicus brief in Varnum or her scholarship (particularly as caricatured by Professor Wenger).  But I think it is important to keep in mind the difference between being an advocate -- especially as a scholar -- and being a judge.  I do not think she would be an activist judge in the mold of, say, the recently thrice-reversed (in one week!) Stephen Reinhardt.  This is not to say that one can't divine some inkling of her judicial philosophy from her writings, though Governor Branstad can simply ask her directly about that during his interview of her.  The point is that I would use her scholarship primarily to assess her critical thinking and analytical skills, her clarity of writing, and her logical reasoning, all of which are top-notch.

* * *

In short, I think Governor Branstad should focus carefully on Angela Onwuachi-Willig's merits, and not dismiss her based on some inaccurate characterizations (and caricatures).  Like most of us, she holds complex and nuanced views on a variety of issues.  What is important is that she has the intelligence, work ethic, and integrity to be a Justice on the Iowa Supreme Court.

Posted by Tung Yin on February 3, 2011 at 07:46 PM in Blogging, Kaimi Wenger, Law and Politics | Permalink

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Why is praise for an "antiracist legal philosophy" equivalent to "characterizing anyone who disagrees as racist?" Obviously Wenger and Branstad disagree on SSM. Wenger observes that O-W is both supportive of LGB civil rights and antiracist. I see no effort by him to call anti-SSM people racist.

Also, are you saying that diversity on the court would only appeal to a Democrat? That seems like a rather judgmental attitude about Republicans. Or is your reference to "this might be the kind of argument" above only referring to SSM issues?

Posted by: Anon | Feb 4, 2011 3:32:16 PM

Is antidiscrimination scholarship the same thing as "antiracist legal philosophy"? No one would call themselves "pro-racist legal philosophers," yet reasonable minds can disagree, for example, on matters such as affirmative action, the ADA, technical aspects of Title VII, Title IX, and so on. I think it's the characterization of her work as "antiracist" rather than "antidiscrimination" that is the root issue.

I drew the inference, perhaps unfairly, though I don't think so, that Professor Wenger was ascribing all of what he saw positive about Angela's scholarship as a response to the Iowa voters who ousted the three Supreme Court justices. The "homophobic right-wing smear campaign" comment is not exactly the best way to engage in any kind of meaningful discussion with the anti-SSM crowd. (And I say that as a supporter of SSM.)

Regarding diversity, I suppose I could've clipped Wenger's post to exclude that part. I don't think that racial and gender diversity appeal only to Democrats, as witnessed by the fact that President George W. Bush had a very racially diverse Cabinet. In general, though, I suspect that Republicans are less concerned about diversity than Democrats (which is not the same as "not concerned").

Posted by: Tung Yin | Feb 4, 2011 7:53:45 PM

Well, this is certainly an interesting take on the post.

First, I'm thankful that anon already pointed out that noting that Angela is committed to an antiracist legal philosophy is not at all the same as characterizing anyone who disagrees as racist. This seems pretty basic to me, but let's walk through it.

David Duke is an anti-Semite, but it would be silly to say that anyone who disagrees with David Duke is a Jew. The nutballs at Westboro Baptist are strongly anti-gay, but that doesn't mean that their critics are all gay. Angela is antiracist, but of course it's possible to disagree with her, on any number of issues, without being racist.

TY writes, "No one would call themselves 'pro-racist legal philosophers,'"

Are you making the argument that as a general matter one cannot be anti-X unless there are other scholars calling themselves pro-X?

This seems to be an odd position to take. Can't one be "anti-censorship," for instance, even in the absence of a group actively owning the pro-censorship label? The same would apply to "political correctness," "hate groups," and a variety of other areas.

TY writes, "I drew the inference, perhaps unfairly, though I don't think so, that Professor Wenger was ascribing all of what he saw positive about Angela's scholarship as a response to the Iowa voters who ousted the three Supreme Court justices."

No, no, no.

I started and ended a rather short post by pointing out her very strong background in critical race theory and race-and-law scholarship. That's undoubtedly the backbone of her standing as a scholar. And it's a very good backbone. She won the Derrick Bell award, for Heaven's sake. And she has also written in favor of LGBT rights; but it would be silly to say that the major positive in her nomination is that she signed a brief in Varnum.

I did enjoy the further detail on her qualifications, which is always helpful. I would have prefered that you hadn't chosen to use such a mischaracterization of my own post as a launching-off point.

Posted by: Kaimi Wenger | Feb 24, 2011 2:22:59 AM

A very brief follow up to note that Professor Yin's own (correct) statement about Angela's antidiscrimination work illustrates the problems with his suggested analytical approaches (both "a statement that Angela is anti-X implies that anyone who disagrees with her is X," and also "Angela can't be anti-X unless other scholars are pro-X").

It is true that Angela is a scholar of antidiscrimination law. She does so despite the lack of opposing voices writing pro-discrimination scholarship; also, calling her an antidiscrimination scholar does not by any means imply that her critics must favor discrimination.

Posted by: Kaimi Wenger | Feb 24, 2011 2:39:14 AM

Isn't this all water under the bridge now, seeing that Branstad has made his choices?

http://blogs.desmoinesregister.com/dmr/index.php/2011/02/23/branstad-taps-waterman-for-iowa-supreme-court-justice/

Posted by: dubuked | Feb 24, 2011 6:27:01 AM

Yes, Angela's nomination is moot at this point. I did want to clarify my own views on her scholarship, which I thought were mischaracterized here. (And I saw this post late, which is why I was late to the discussion.) But yes, the governor has now made his choices.

Posted by: Kaimi Wenger | Feb 24, 2011 12:26:20 PM

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