Rev. Al Sharpton’s speech electrified the Democratic convention last night, providing a long awaited call to arms to the party’s faithful and a passionate response to President Bush’s suggestion last week that African Americans should rethink their loyalty to the Democratic Party. Sharpton’s rhetorical performance was a chapter torn directly out of the Black Baptist tradition, but predictably, Sharpton’s urgent delivery was mistakenly interpreted as angry and off-key, leaving network pundits apoplectic and verbally scorched. Not only did journalists such as Wolf Blitzer and others perform a questionable disciplinary role in denouncing Sharpton as being “off message” -- CNN’s Jeff Greenfield went further to declare that Sharpton had delivered the most incendiary comment of the entire convention. In reminding delegates about the importance of this election with respect to the battle over the courts, Sharpton mused that in 1954, a Supreme Court filled with the likes of George Bush appointees would not have opened the doors of opportunity for someone like Clarence Thomas to have attended law school.

One wonders whether the umbrage taken at Sharpton’s speculation is simply the product of another messaging script that all political actors must now perform, one that requires a feigned consensus around Brown v. Board, the landmark Supreme Court decision that in reality continues to be the subject of scathing criticism within conservative judicial circles. Stepping out of this script to acknowledge that a frightening number of federal judges remain hostile to this case and to other measures promoting racial equality is apparently a political faux pas. Apparently, politics has now caught up with an emerging social sensibility in which the person who denounces the history of racial exclusion carries a greater stigma that the person who does the excluding.

The insult expressed by pundits seems to reflect a page out of this script rather than a slice of judicial reality. Indeed, one needn’t go back as far as 50 years ago, as Sharpton did, to find support for his proposition. If it had been today’s Republican appointees who held the keys to Thomas’ future say, thirty years ago, he certainly would not have enjoyed the access to higher education that affirmative action and other policies provided him at the time. Take Clarence Thomas himself as an example. In perhaps the strangest twist of “back to the future” historicism, the contemporary Clarence Thomas who is now enjoying a stellar career made possible by affirmative action would have closed the door on the young Clarence Thomas, an applicant whose potential would not have been noticed or rewarded without the race-sensitive admissions that Thomas and his ilk now deride. Sharpton made no blunder and brooked no exaggeration in reminding us that the world we inherit is not a world that contemporary conservative justices would have bequeathed us in 1974, much less earlier.

Nor is it a stretch to assert that this is not a world that they would have created had they been in the majority in 1954 deciding Brown v. Board. The smoking gun is of course Chief Justice Rehnquist’s memo urging Justice Jackson to uphold Plessy v. Ferguson and the massive system of segregation that this 19th century case engendered. As Univ. of Chicago Law Professor Cass Sunstein writes,

“Rehnquist's memo unambiguously stated that ‘Plessy vs. Ferguson was right and should be reaffirmed.’ It acknowledged that this ‘is an unpopular and unhumanitarian position for which I have been excoriated by 'liberal' colleagues.’ But in its key passage, it insisted that “one hundred and fifty years of attempts on the part of this court to protect minority rights of any kind -- whether those of business, slaveholders, or Jehovah's Witnesses -- have all met the same fate. One by one the cases establishing such rights have been sloughed off, and crept silently to rest. If the present court is unable to profit by this example, it must be prepared to see its work fade in time, too, as embodying only the sentiments of a transient majority of nine men.’"

Some would say that the current Chief Justice was prescient in his prediction given the gradual erosion of the Brown precedent and the stubborn resistance of non-minority Americans to maintaining fully integrated education. It is now a virtual article of faith among conservative legal theorists that Brown is the cornerstone to virtually all the Supreme Court decisions that they denounce as unprincipled and antidemocratic, cases that include the rights to reproductive choice and sexual autonomy. The specter of being tarred as unrepentant segregationists presents somewhat of an embarrassment for Bush’s stable of conservative judges that muffles their assault on Brown’s outcome. Yet the harangue against Brown’s so-called lawless and unprincipled rationale and the denunciation of Brown’s remedial reach as “social engineering” leaves little realistic room to believe that Bush’s judges would have struck down segregation.

Added to the Chief Justice’s lobbying against Brown was the pitched conservative opposition to the Civil Rights Acts of 1964 and 1965, leaving little doubt that Sharpton’s assertion about the consequences of courts filled with Bush appointees is in full accord with both history and contemporary judicial politics.

Thus, a moment’s reflection reveals the truth of Sharpton’s assertion, yet a troubling public expectation has emerged that yearns for a denial of America’s racial history as well as its contemporary consequences. That denial is apparent not only in shrill responses to Rev. Sharpton’s impassioned reminder of the Democratic Party’s role in re-shaping opportunity in America, but in the readiness of the pundits to embrace newcomer Barack Obama’s call for “one America” as some sort of transcendence of the very concerns that minority politicians have championed in the Party for decades. The impulse to escape this history is a mistake that should be resisted, not the least because the expectation itself is racially coded. In fact, the anxious hopes that Barack Obama will read himself as raceless—something projected upon him rather than expressed by him—reveals the operation of a racial lens. Virtually every speaker has sounded the theme of “one America” but only Obama’s “one America” was gleefully interpreted to constitute a substantive position on the irrelevance of race. The lens through which Obama was celebrated is far from the colorblind sensibilities that party operatives and pundits invoke. Indeed, in their race-inflected interpretations Obama’s message, they inadvertently reveal that race still has meaning. The natural trajectory of this attempt to divide African American politicians into the old who regard race as significant and the new who do not will potentially heighten the price for inclusion in party leadership, imposing on African American hopefuls a determined silence on the very issues that hold the core constituents to the party.

Equally troubling is that the flap over Sharpton’s judicial comments reveals a shameful Democratic silence about the pitched Republican campaign to re-shape the federal courts in their ideological image. Obviously, the media and broad swaths of the American electorate are illiterate when it comes to the significance of the federal courts. Few can possibly know how significant the unraveling of the fabric of their legal protections is. The Democrats squandered a valuable opportunity to educate the public about the consequences of the activist conservative agenda on virtually every aspect of contemporary American life. Regardless of the outcome of the election, judicial education is crucial in garnering the necessary support for the long battle to reclaim the eroded individual rights and other liberties that all Americans simply take for granted. Rev. Sharpton’s so-called “off message” comments stood out as a lonely marker of one of the most significant issues that could galvanize millions of Democrats underwhelmed by Kerry’s position on the war.

The Party’s failure to educate the media and the American public about the long term threat to the rights that most Americans believe to be their birthright is potentially one of the biggest mistakes that the producers behind this tightly scripted convention could have made. If the Democrats go on to lose this election because they failed to energize their base and to reach out to Americans wholly unaware of the revolutionary rollbacks of their rights, the blame will not rest on what Rev. Sharpton did say, but on what the rest of the Democrats didn’t.

Kimberle Williams Crenshaw (crenshaw@law.columbia.edu) is a Professor of Law at Columbia and UCLA Law Schools and is a regular commentator on NPR’s The Tavis Smiley Show.

###