Awaiting O’Connor

How The Justice Left Her Mark on HIstory and On My Heart

By David A. Martinez

Contributing Writer, CMC ’11

Pomona College officially announced that Sandra Day O’Connor, the first female justice appointed and confirmed to the United States Supreme Court, will deliver the 2010 Distinguished Speaker Series Lecture on Tuesday, March 30. I anxiously await the opportunity to hear what she has to say, after having had the occasion to discuss her historical significance – not merely as the first woman to serve but as a dedicated lifelong jurist – with two renowned legal scholars that also spoke at Pomona.

Chai R. Feldblum, who visited the college amidst the Prop 8 debacle, spoke first. Feldblum, sister of Pomona Dean of Students Miriam Feldblum, teaches at the Georgetown University Law Center. A champion for disabled and LGBTQ people, she has worked most notably on drafting and negotiating both the Americans with Disabilities Act of 1990 and this Congress’s Employment Non-Discrimination Act. In September, President Barack Obama announced Feldblum’s nomination to the Equal Employment Opportunity Commission; her Senate confirmation, however, remains pending.

As a staff member at the Queer Resource Center at the time, I had the privilege of meeting Feldblum before her talk that evening. I asked her about Lawrence v. Texas, the 2003 case that many legal scholars consider “the most important gay civil rights case yet decided by the United States Supreme Court,” and about Justice O’Connor’s role in particular. Feldblum mentioned that although the law was rarely enforced, it was used as a means to discriminate against homosexuals in areas such as employment. Although O’Connor voted with the majority in Lawrence, her ruling is notable because she filed a separate concurrence asserting that the legality of state bans on sodomy depends on whether the bans are applied uniformly in both theory (written form of the law) and practice; the state cannot, in this regard, discriminate against same-sex couples. O’Connor, unlike the dissenters in the case, strongly believes in the equality of individuals under the Fourteenth Amendment.

Legal scholar Kenji Yoshino visited the college next. Undoubtedly influenced by the passage of Prop 8 last November, Pomona invited freshmen to read and discuss Yoshino’s Covering: The Hidden Assault on Our Civil Rights. After teaching at Yale Law School for ten years, Yoshino currently serves as the Chief Justice Earl Warren Professor of Constitutional Law at the NYU School of Law, where he specializes in constitutional law, anti-discrimination law, and the connection between law and literature. In conjunction with the selection of his book, Yoshino spoke at Big Bridges on August 30, two days before the fall semester officially began.

Covering offers a hybrid between a heartfelt memoir and a critical history of U.S. jurisprudence. In his fascinating book, Yoshino puts forth a simple yet elegant theoretical framework by which to assess the demands that society makes of individuals – and that individuals make of themselves – with regards to stigmatized traits and behaviors. Individuals, with special attention given to LGBTQ people and racial minorities in the book, must mediate between three different demands from the self and/or society: “conversion,” “passing,” and “covering.” The first two terms are self-explanatory; the third derives from sociologist Erving Gordon’s book Stigma. “Covering,” then, refers to people “who are ready to admit possession of a stigma” but still go to great lengths to downplay the element, to keep it “from looming large” within a person’s identity. To use Yoshino’s apt example, the world says to the gay person: “Be gay… Be openly gay, if you want. But don’t flaunt.”

I again had the opportunity to interact with Yoshino at a reception at the QRC following his talk. Though I found his proposed theory captivating given my studies in Spanish literature, I decided instead to ask about how he surmised history would remember O’Connor, either praising her judicial restraint or resenting her problematic rulings on important civil rights issues of our time. He answered that he considered her an excellent justice because she really understood during her tenure the importance and proper role of the judiciary within a democracy; historians, however, would probably have a hard time getting excited about a judge that in most cases did not deem the courts a proper venue for the instant societal rectification that civil rights advocates seek.

Now retired, O’Connor spends her time speaking about the importance of a sovereign judicial branch in a democratic system of governance. In her view, the biggest threat to democracy as we know it is the practice of electing judges, especially in light of the recent Supreme Court ruling granting corporations a bigger voice in our system. For better or worse, O’Connor has left an indelible mark on U.S. jurisprudence and, thanks to Pomona, her upcoming talk will be a logical development to my intellectual journey, as I hope it will be for others.

One Response to “Awaiting O’Connor”

  1. David A. Martinez says:

    UPDATE: Feldblum’s appointment to join Obama’s administration as part of the EEOC is no longer pending. Today a revitalized President Obama took full advantage of Congress’s spring recess to install 15 appointees, among them Feldblum, thereby bypassing the constitutional requirement to obtain “Advice and Consent” from the Senate. The interim appointees will be able to serve without Senate confirmation until the end of 2011. An article on the New York Times website mentions that “[g]ay rights advocates were elated to see Chai R. Feldblum, a Georgetown University Law professor who advocates on gay issues, claim a spot on the Equal Employment Opportunity Commission as a result of Mr. Obama’s action.” You can find the full article here:

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