Constance Baker Motley, First Lady of American Justice, 1921-2005

At today's swearing-in ceremony for Supreme Court Chief Justice John Roberts, as Pres. Bush hailed the historical import of Roberts' ascension, he expressed regret that Roberts' mentor, the late Chief Justice William Rehnquist, did not live to see Roberts elevated to lead the High Court. Bush also acknowledged the presence of the widow of Thurgood Marshall, the Court's first black justice, and the man who led the legal team that destroyed Court-sanctioned legal segregation. Ironically, Bush took no notice of the passing of Judge Constance Baker Motley -- a woman who, as an indispensable part of Marshall's legal team -- helped to build a body of precedents in favor of equal opportunity and minority rights that many feel may now be in jeopardy.

Constance Baker Motley was a brilliant civil rights litigator, but she was much more than that. She was America's first Black female federal judge, appointed in 1966. Constance Baker Motley paved the way for the two women who currently sit on the High Court, and for potential nominees to follow. She was also the first black woman to win election to the New York State Senate. She was still serving as a senior Federal judge when she succumbed to congestive heart failure Wednesday.

Beyond all of her accomplishments, Motley was a model of strength, grace and integrity that many younger men and women looked to in fashioning their own careers. Her record offers an interesting counterpoint to that of her generational peer and philosophical opposite, William Rehnquist.

Motley wrote the original complaint in the group of cases that became known as Brown v. Board, as principal trial attorney for the NAACP Legal Defense and Education fund, she argued many of the most important desegregation cases of the post-World War II era. Motley later recalled in an interview that in commenting on the ten cases that she argued before the Supreme Court,

"Justice [William] Douglas in his auto-biography, The Court Years compared me to Charles Houston and said that the quality of the arguments would place me in the top 10 of any group of advocates at the appellate level."

While Motley was building a record she was proud to stand on, Rehnquist was crafting legal arguments that he spent much of his later career disavowing. In particular, in 1952, while assisting Justice Robert Jackson in his preparation for the Brown cases, Rehnquist, then a clerk, wrote a memorandum asserting that "Plessy vs. Ferguson [which upheld racial apartheid] was right and should be reaffirmed." He also dismissed legal opponents of Plessy as "liberals" insisting on "special rights" because they "disliked segregation."

In his 1971 confirmation hearing for the Supreme Court, and again in his 1986 confirmation hearing to become Chief Justice, Rehnquist said that the memo did not represent his views. However, as Derrick Z. Jackson argued at the time of Rehnquist's death, "To Rehnquist, justice meant just us white men, preferably connected, preferably straight and preferably with all limbs functioning." Jackson noted that Rehnquist's aversion to "minority rights" was so strong that his last legal opinion was a dissent arguing that a paraplegic man's rights had not been violated when he was arrested for not responding to a court summons in a building with no elevator. To comply with the summons, the man would have had to drag himself up 24 steps.

Like his late mentor, Chief Justice John Roberts spent much of his time during his confirmation hearing assuring members of the Senate Judiciary Committee that memos that he wrote during his years as an attorney for the Reagan administration do not reflect his current views. Those who have observed him over the years expect otherwise -- that like Rehnquist, Roberts will be a solid member of the Scalia-Thomas wing of the High Court.

In a fair world, perhaps Motley would have been the first female justice. In the real world, her passing went unremarked by a President who lionized a man whose legal positions supported designed to ensure that Constance Baker Motley -- or any woman or person of color -- laboring under the burden of legally-sanctioned sex and race discrimination.