It is 2011, and the death of Justice John Paul Stevens has brought another opportunity for President Obama to nominate someone to the Supreme Court. Following his success with Sonia Sotomayor, the President has determined that the best path is the one that brought him success with her. The Senate Judiciary Committee is holding hearings on the nominee, federal court of appeals judge Pat Queen. Some excerpts:
Sen. Pat Leahy (D-Vt.): You certainly have a compelling life story, a story that has been misrepresented by your opponents as “freakish” and a result of “identity politics.” They make the scurrilous charge that you were chosen for reasons of your ethnicity and the like. Here is your chance to refute those critics.
Judge Queen: Thank you, Senator. I believe that I represent so many ingredients in the beautiful salad that is America. I was going to say “stew” but, as a vegan, I believe that conjures up images of the genocide, or I should say faunicide, of so many Bovine-Americans. The blood of so many cultures runs through my veins, from my mother’s pinoy father, who came to work in the sugar fields in Hawaii, to my mother’s mother who is half-native Hawaiian, half-African. Then there is my father’s father, Salvador Reyes, who came from Mexico to work in the strawberry fields in California and married his bride, a half-Cheyenne, half-Ukrainian. Not that we are conscious of such things….
Sen. Jeff Sessions (R-AL): Judge Queen, you said that your paternal grandfather’s name was Reyes. Yet your name is Queen. How did that come to be?
Judge Queen: Senator, this is another example of how I represent the aspirations of all Americans. Denying my grandfather’s proud mestizo heritage, my father changed his name to King, in a squalid attempt to “assimilate.” He always told us that he disliked the whole hyphenated-American label, and that the U.S. was a melting pot. There were even rumors he was a Republican. As I explain in my autobiography, My Nightmare Of A Father, we considered him a “coconut,” brown on the outside, white on the inside.
Sen. Sessions: But how did you get your name, “Pat Queen”?
Judge Queen: As you know, I was born a male, but became part of our community of Transgendered-Americans.
Sen. Sessions: Are those “drag queens” that wear female clothing? Is that why you changed your name?
Judge Queen: No, Senator, wrong on several levels. That is not why I changed my name. You are referring not to the Transgendered-American community to which I belong, but to the Transvestite-American community to which I once belonged. And “drag queen” is offensive to them. It makes them sound flamboyant, as if they were exhibitionists appearing in Vegas shows or something. So, I changed my name to reflect my new sense of self as a female. Also, I was lucky. I didn’t have to change my first name.
Sen. Sessions: So, you are still male genetically? Have you finished the process of becoming female physically?
Judge Queen: Not entirely. I have chosen not to make the, ahh, final cut. I prefer to have both female and male characteristics. I’m all about choice.
Sen. Sessions: Now, you have a life partner, who is female. Am I correct?
Judge Queen: Yes. My attraction has always been towards women.
Sen. Sessions: Then, why did you not just stay fully male?
Judge Queen: Senator, as scholarship in Feminist Studies and Queer Studies has shown, male and female are merely roles assigned to individuals by the dominant patriarchy to oppress and exclude the “Other.” Such concepts are not hard-wired. Biology is not destiny. Without such roles, we are free to choose. On the other hand, we cannot help for whom we have physical attraction. That is hard-wired into us; Biology is destiny. Choice is not an option. The idea that we choose whom we love is something imposed by the dominant patriarchy to oppress and exclude the “Other” by enforced heteronormativity.
Sen. Sessions: So, let me get this straight. I fully choose, despite my physiology, whether I am male or female. But I have no choice, because of my physiology, as to whether I am attracted to males or females. As a general proposition, my sex is what I choose, but with whom I have sex is beyond my control?
Judge Queen: Yes, that has been shown by groundbreaking articles such as one law review article by a professor at a Los Angeles law school. The article argues for a fundamental constitutionally-protected right of hairstyle, dress, make-up, tattoos, and piercings as an aspect of gender role preferences or projecting outward one’s sexual relations orientation. That is the post-structuralist, anti-essentialist insight provided by the legal academy whose conferences I attend. And, please, Senator your use of the word “straight” itself has revealed you to be freighted with preconceptions about your heteronormativity in opposition to the “Other,” which in your mind is somehow confused or mistaken, not “straight.” This is internal to you, and you are helpless, really, to overcome it.
Sen. Sessions: I’m just a poor Alabama country lawyer. I have no idea what you are talking about, and this is a half-hour I’d really like to get back at the end of my life. My time for questions mercifully is up.
Senator Schumer (D-NY): Where are the cameras? Why aren’t they working? I don’t have any questions until the cameras are working.
Sen. Kyl (R-AZ): I want to ask you about a speech you made at UC Berkeley. You said, “With my rich experience as a, by definition, wise, Filipino-African-Hawaiian-Mexican-Cheyenne-Ukrainian-some drops of Armenian-a dash of German-and a hint of Italian-Transgendered-Lesbian-Unitarian-Human-American, I can make a heck of a lot better decisions than some boring Wonder-bread Christian heterosexual White guy with a wife and kids. Really, those breeders ought to be neutered and not be permitted to overpopulate the world with their irrational faith and their addiction to bourgeois notions of freedom and responsibility.” Judge, I am very disturbed by what that tells me about you. You seem to have a very violent mindset, and you focus excessively on tribal characteristics that bode ill for a job that requires you to apply the law impartially to all.
Judge Queen: You have to look at my record as a judge for seventeen years and my fealty to the law. That speech was one instance.
Sen. Kyl: You made the speech seven times, and it was reprinted in the “Filipino-African-Hawaiian-Mexican-Cheyenne-Ukrainian-some drops of Armenian-a dash of German-and a hint of Italian-Transgendered-Lesbian-Unitarian-Human-American Law Journal.”
Judge Queen: Well, they needed something else to publish besides a review of Pinay Power: Peminist Critical Theory: Theorizing the Filipina/American Experience. I just have found that making that kind of comparison and putting down Christian heterosexual White males always is a crowd pleaser at law school conferences, as it reflects the dominant theme of what gets published as scholarship. The White professors love it because, well, I don’t quite get why they love it. Maybe some guilt thing. And for the others, it appeals to their sense of grievance-based entitlement. Also to their racial, and whatever else, superiority. You have to look at my record as a judge for seventeen years and my fealty to the law.
Sen. Kyl: But those are very disturbing words.
Judge Queen: As I said, Senator, you have to look at my record as a judge for seventeen years and my fealty to the law. I can see how those words may sound harsh to some, but if you look at the context, I was just trying to inspire the students to achieve what I have achieved….
Sen. Schumer: Have they got those cameras fixed yet? No? Mr. Chairman, I find these conditions intolerable and can’t work with this. I’ll have to pass again.
Sen. Cornyn (R-TX): But the conference to which Sen. Kyle referred, where you first made the speech, and then six more times, was on “How To Get Rid of a Constitution Made by Dead White European Males and Create a Socialist Paradise with Rights to Government-Funded Everything, Including Abortion.” That suggests to us that you are not able to live up to your oath to support the Constitution.
Judge Queen: Senator, that’s a very typical conference or symposium put on by law schools and attended by professors and by lawyers from organizations affiliated with or supported by the American Bar Association. By the way, the ABA is a wonderful group and, as you know, judged me the most brilliant jurist ever, nominated by the most brilliant President ever. They were able to see those qualities despite the plodding and inelegant writing style that has been my hallmrk all my life. That is the highest rating they have ever given anyone and is certainly higher than the “barely qualified with reservations” ranking they typically give Republican nominees. So, you have to take that speech in the context it was given. It was far less controversial than most of the speeches there, which advocated speech restriction, property forfeiture, confinement, and even worse for those heterosexual White Christian males I mentioned. Compared to the usual law professors, students, and attorneys who attend these things, I was the conservative on that panel. You have to look at my record as a judge for seventeen years and my fealty to the law.
Sen. Cornyn: Do you stand by those words, then?
Judge Queen: As I believe I said before, you have to look at my record as a judge for seventeen years and my fealty to the law. I can see how someone might take those words to mean exactly what they say formally, as you do. But you are proving my point. As a heterosexual White Christian male, you are thinking linearly, as all of you do. So you think that words mean what they say. Ninety-nine percent of the population probably reads them the same as you do. But that is simply the result of the centuries-long oppression of such groups by the White patriarchy. Left to their own devices, by their inherent physiological characteristics, the collection of “Other” naturally thinks more holistically and comprehensively. We lawyers and law professors know that words do not mean what they say. We prove that everyday by confusing law students and by bringing successful law suits that challenge the generally-understood meaning of words in contracts, wills, statutes, and Constitutions. Such words are nothing until the judge in a lawsuit declares them to be so.
Sen. Cornyn: So, are you saying now that our thinking is determined by our physiological characteristics divided by race, gender, sexual proclivity, and religion?
Judge Queen: No. Of course not. It may seem to you as if I’m saying that, because those are the words I used. You need to look at the context of the words for their meaning. You just misunderstood them because your pituitary gland causes you to secrete a heterosexual White Christian male hormone. But, I can understand how someone like you might read them that way. Again, I was trying to inspire the students then, just as I am trying to inspire everyone now. You have to look at my record as a judge for seventeen years and my fealty to the law.
Sen. Cornyn: My pituitary gland?
Judge Queen: Look, Senator, I did not intend those words to mean what they say when read in their obvious meaning. That was the point of my speech. We need people to become judges who know what contracts, wills, statutes, and Constitutions really mean beyond the meaning of those words as commonly understood when written. If figuring out the meaning of laws were that easy, ordinary individuals who have not received years of training at college and law school would understand what the law requires. If that happened, where would we be?
Sen. Schumer: I have just been told there is a working television camera at a press conference outside the Capitol. I’m going to go over there and see if I can ask my questions from there. If you can’t hear them, Judge, don’t worry. They are very lengthy questions so I can get camera time, and your answers don’t really matter. I’m voting for you.
Sen. Graham (R-SC): Hello, Judge. I like you, and I’ll vote for you. But there are some things that really disturb me. Let me go back to your words that a wise person of your physiological characteristics will make better decisions than a White male.
Judge Queen: Only a heterosexual White Christian male. Again, you have to look at my record as a judge for seventeen years and my fealty to the law. You have to look at the context of the speech. I was only trying to inspire. That is how everyone there understood those words. Since you are voting on my nomination, from your context I will say the words were poorly chosen, and I do not think that any group can come to a better decision than any other. I certainly would have chosen my words differently if I had any inkling that the country would elect a President so radical he’d even consider nominating someone with a record of my speeches. But the speeches were made during the Bush administration, and for a long time it looked as if the Republicans would be running things until I was retired. Who knew?
Sen. Graham: Do you believe that, as the President said, that judges must exercise empathy when deciding cases?
Judge Queen: You have to look at my record as a judge for seventeen years and my fealty to the law. Judges decide according to the law. They do not make law. Congress makes law. The judges just interpret the law. Judges do not decide cases based on empathy. If the President meant what the obvious meaning of those words is, then I disagree with him. But, I don’t think that he meant what you think he did when he said those words. He is thoroughly post-modern and does not believe in Truths. He went to Harvard Law and taught at an American Bar Association law school, after all. Only as a part-timer, and he only taught equal protection law, which is what they commonly have professors they classify as “minorities” teach. But still. You have to look at the context of the words. He was only trying to inspire. Besides, there are no mistakes, only differing degrees of being right. And, as his supporters know, President Obama is not just President, he is the embodiment of all hope and salvation. Since he really can’t make a mistake, then, his words cannot mean what you think.
Sen. Graham: My time is up.
Sen. Franken (D-MN): Say, did you see that episode of L.A. Law, where they had the guy with multiple personalities who had committed murder, and he got off when some of his personalities fought with the other one and turned him in to the police? At least I think it was L.A. Law.
Judge Queen: Umh, no.
Sen. Franken: Me, neither. Say, did you watch the Ally McBeal episode where the guy has the affair with the judge? At least I think it was Ally McBeal.
Judge Queen: No.
Sen. Franken: Me, neither. Say, did you watch the Boston Legal episode where the guy adopted his gay lover so that his kids wouldn’t get his money? At least I think it was Boston Legal.
Judge Queen: No.
Sen. Franken: OK, then. What do think of Justice Scalia’s theory of orgasm?…No, wait. [Turning to an aide for help.] Oh, the word is originalism. Have you ever heard of that?
Judge Queen: Yes, I have. Justice Scalia takes the position that….
Sen. Franken: Whatever. I don’t want to hear about some old guy’s “positions.” That stuff’s boring. Have you heard of the case of New York Workers’ Compensation Board v. Alan Franken, Inc.?
Judge Queen: No.
Sen. Franken: Good. Just some problems with not paying workers’ comp on my employees. They were independent contractors, I swear. Thought we’d have some time for you to give me advice. I’m new here. I don’t know what I’m doing. They’re gonna cancel the show. I’m gonna die homeless and penniless and twenty pounds overweight. But really, I’m good enough, I’m smart enough, and doggone it, people like me….And that’s…okay.
Sen. Leahy: We’re going to take a break to escort Sen. Franken back to the changing room.
* * *
Sen. Leahy: OK, thank God that’s over and done. Why couldn’t he be one of yours, Senator Coburn?
Sen. Coburn (R-OK): Even I might have advised abortion to his mother, Mr. Chairman. Judge Queen, do you believe, as you have stated, that words mean only what judges say they mean? That suggests that you believe that judges can make law and ignore the words of the Constitution.
Judge Queen: Senator, you have to look at my record as a judge for seventeen years and my fealty to the law. Judges do not make law. Congress makes law. Judges interpret laws. We cannot ignore words.
Sen. Coburn: But what does that mean, to “interpret laws”?
Judge Queen: It means that laws are interpreted. You have to look at the context of the words. For example, just because the Second Amendment protects “the right to keep and bear arms” does not mean that people have the right to have weapons to defend themselves. It just means they can keep their arms. I would look at that word as not just protecting arms. From the context I would say that the amendment also protects one’s right to legs, torso, head, liver, tonsils, spleen, and so on. Except perhaps for a certain racial group that has used up its historical allotment of enjoying this right. The wording of that amendment has nothing to do with weapons. It is really a prohibition against capital punishment and dismemberment. To take another example. Looking at the due process clauses in the Fifth and Fourteenth Amendments, they protect “liberty.” Well, not every liberty can be protected, however. For example, government could not exist without heavily taxing the fruits of your labor, and any judge who overturned a tax law or a regulatory law passed by Congress would be making law. At the same time, as everyone knows, the word liberty is related to libertinism. Contextually speaking, then, a judge would interpret liberty to protect anything that relates to libertinism. So laws that restrict sexual behavior, drug use, abortion, so-called vice laws are prohibited by the Constitution. Well, except anti-smoking laws that exclude weed. Those are OK. A judge overturning 100-year-old abortion laws in dozens of states is not making law. That’s for Congress to do. That judge is interpreting the law, which is what judges do. Judges do not make law. We interpret law and apply law to cases. It isn’t our view of what’s good policy that we are imposing. It just happens that the Constitution always commands what we judges and the law professors prefer as good policy. That only shows the wisdom of the well-selected judges. Referring to wise judges, please remember I am only trying to inspire students.
Sen. Coburn: One last question. You wrote an article that said that you thought the Constitution to be “hopelessly Eurocentric, a toxic condition that can only be mitigated by using foreign authorities to bring its terms more in line with the jurisprudence of courts in other countries.” You specifically cited favorably the forced abortion doctrine of the Communist Chinese to be applied to families who have a heterosexual White Christian male. You also lauded Canadian “hate speech” law to silence speech “offensive to any minority group.” Then you noted approvingly the Cuban and Venezuelan approaches to people’s rights to their own property. Other than in cases dealing with treaties or international contracts, do you believe that judges should use foreign law? Specifically, in applying the Constitution.
Judge Queen: No, I do not believe that judges should use foreign law made by the “Other,” that is, non-heterosexual White Christian males, when deciding cases under the American Constitution, a product of just such a heteronormative White patriarchy, if that use would be to “make law.” That is for Congress to do. Judges do not make law. You have to look a the context of what I am saying. You have to look at my record as a judge for seventeen years and my fealty to the law. Judges interpret the law. So, in that sense, judges should not “use” foreign law. But I have always said, and taken in context, the words in the article you mention can be read that way, judges can use foreign law to help them understand American law. They only decide the case based on American law, but they use foreign law to see whether their understanding of the words and of American law is consistent with that of the “Other.” The judge’s use of foreign law then is just “thinking aloud.” It’s the same as when the judge puts in references to law review articles, books on Oprah’s list of fiction, recipes from Martha Stewart, or David Letterman jokes. None of them have any connection to the reality lived in by most people. But it gets the judge noticed by those he or she quotes or cites. Maybe some invitation for a trip, conference, or appearance will come of it. But a judge must never use foreign law to limit the American Constitution’s protection of abortion in the various ways that all but six of the other countries in the world do. That would be making law, and doing so on the basis of foreign law. And judges are very careful not to make law. Congress does that. Judges interpret the law and apply law to the facts.
Sen. Kohl (D-WI): Judge Queen, in reviewing your judicial temperament, you have received many glowing reports. But there are also a lot of complaints from lawyers about what they perceive as your short temper and your bullying.
Judge Queen: Senator, we have an “active bench.” We ask lots of questions.
Sen. Kohl: But your colleagues don’t receive such reports.
Judge Queen: Well, then, those complaints come from the heterosexual White Christian male lawyers. They cannot handle having their superiority challenged by the “Other,” especially a Filipino-African-Hawaiian-Mexican-Cheyenne-Ukrainian-some drops of Armenian-a dash of German-and a hint of Italian-Transgendered-Lesbian-Unitarian-Human-American judge. They may perceive that to be bullying, but if you look at the context, you will see that the opposing lawyers in those cases probably came from some historically-disadvantaged and now-protected minority group. I was trying to inspire those lawyers by my alleged bullying of their opponents. So, again, these are relative concepts. What may have been bullying to one side’s lawyers may well have been inspiring to the other side’s. You have to look at my record as a judge for seventeen years and my fealty to the law.
Sen. Kohl: Thank you. That makes sense to me….
Sen. Leahy: Judge Green, you have said many words of wisdom and have shown yourself to be a true representative of the state of the legal profession in the United States today. Have you any last message for this committee?
Judge Queen: My name is Queen. But thank you, Senator. I would just ask the committee not to consider speeches I have given or books and articles I have written during my life. I ask that even if those efforts appear to show a coherent philosophy based on the generally-understood meaning of the words I used. Rather, I would ask the committee to look at my record as a judge for seventeen years and my fealty to the law; at the context not the content of anything I’ve said or written; at my goal to inspire others; and at the fact that I have said numerous times before this committee that, unlike what appears to you to be the result of my decisions, judges do not make law. We only decide cases and faithfully apply the law Congress makes. Swear.