Ginsburg, Kaepernick, Thompson

This reflection was originally posted on October 10, 2016.

CW: police violence/structural racism, cancer

So if you’re reading this, you’ve probably reacted to Justice Ginsburg’s remarks about Colin Kaepernick the same way I initially did—surprised that the same person who wrote about throwing away umbrellas in rainstorms seemed perfectly willing to throw a broader movement for racial justice under the bus and characterize it as “arrogance”. To me (and hopefully to you), it seems like a pretty glaring hole in the umbrella to ignore during such a severe downpour.

But it reminded me of another recent happening—the passing of Ken Thompson this weekend, the district attorney for Brooklyn (and NYU alum) who was elected to an office surrounded by controversy and distrust and built a reputation as one of the most progressive head prosecutors in the country. Thompson was diagnosed earlier this year with advanced-stage cancer that was deemed incurable, but only disclosed his illness six days ago.

Thompson’s tenure should be seen as a major step forward and will hopefully catalyze a broader movement toward criminal justice reform, but from my own perspective as a former public defender, his decisions were not perfect either. The Brooklyn DA’s office, in a narrative that is still unusual even with prolonged national attention to the issue, secured an indictment AND a conviction in the shooting of Akai Gurley in 2014. (My own roots in Cleveland make me quick to remind people that most prosecutors are not likely to follow suit, even when the victim is a twelve-year-old boy.) However, Thompson recommended that Peter Liang, the officer who shot Gurley, receive no jail time as a result of his conviction. And indeed, Liang was sentenced, largely on the basis of the DA’s recommendation, to probation and community service. (The judge also further reduced Liang’s conviction from a class-C felony to a class-E felony, but this was not at the request of the prosecutor’s office.)

Does this mean that Thompson’s other reforms, such as his internal review of questionable convictions and his policy of not prosecuting low-level drug arrests, were illusory? Not at all. These are real and courageous reforms that are a large part of why I, as a former public defender, hope that Thompson does not fade from the national consciousness as issues of policing continue to be scrutinized. But does that necessarily mean that those who had been calling for Thompson’s defeat in the upcoming 2017 election were off base? Also no. I disagree with the idea that prison terms should be lengthened in order for justice to be served, but I also believe that Liang’s case represented a strong outlier from the current realities of sentencing in New York State, and that that disconnect must be addressed by any prosecutor that wishes to maintain community trust. It is not clear to me which part of that Thompson disagreed with, but I certainly would treat either as a concern.

But in this discussion, I would argue that this is not the point: none of us is, or can be, perfect. David Simon, a brilliant writer who has shed light on some of the gravest injustices present in state and local power structures, famously told protesters to “go home” during the Freddie Gray protests in Baltimore (which I have previously written about), and only walked those sentiments back partially in the aftermath. I’ve also written about Hamilton, the too-good-for-this-world cinnamon roll of musical theater, working hard to include women in the narrative but still writing them in a way that doesn’t let them stand on their own in a way that makes solid internal sense.

Justice Ginsburg, after a career fighting for civil rights, has vast experience with many of these issues. Her brief concurrence in Hellerstedt this past term demonstrates her understanding of the nuances of the arguments for and against a woman’s right to choose—she did not have to add more than the well-documented propensity for women to seek out less safe abortion methods when legal abortion is not easily accessible. She had to forge her own path to bring women’s rights in front of the Supreme Court several times in the 1970s; as a result, she has seen over a long career effective (and less effective) ways to wield a judicial opinion.

We hope, in a world that has transformed so thoroughly in the last decades, that those that have had to fight through such institutional barriers to acquire power can recognize and support the powerless once they have done so. Justice Ginsburg has generally done a very good job of this in the context of her current job as well as previous ones (consider not only her Shelby dissent and numerous others, but the Pauli Murray nod from her early career as well). However, this does not mean that she is free of white privilege entirely, nor should we expect her to be. After all, even if she is notorious, she is still human. We have already seen her create controversy this year with the increased interview exposure that comes with added, well, notoriety.

My goal is not to silence the critics of Justice Ginsburg’s sentiments. Quite the opposite, in fact—the past 60 years has shown that she will be receptive to changing her mind on this issue with discussion and debate, which I personally hope she will do publicly. But we should recognize that blind spots are problems for all of us.

None of us have all the answers. Justice Sotomayor’s recent solo dissent in Utah v. Strieff, for example, is personal in a way that only she of the current eight-member Court could and would write; Justice Ginsburg, who joined the remainder of Justice Sotomayor’s dissent, could have written substantively the same opinion, but expecting her to be able to speak so personally about “the talk” that “black and brown parents [give] their children” would not have been as effective.

But that is why we must continue fight for progress together. The RBGs, the Ken Thompsons, the DeRay Mckessons, the Colin Kaepernicks. We cannot always be perfect, but we will have each other to learn from. Hopefully we can all take advantage of that invaluable resource.

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