A Puerto Rican, Sonia Sotomayor is the first Latina to serve on the United States Supreme Court. But as Mehdi Hasan understands, that's simply not good enough.
...it is time to remember Ruth Bader Ginsburg. To recall how
RBG, who had survived two bouts of cancer, refused to quit the court despite
calls to do so from leading liberals during Barack Obama’s second term office.
To hark back to her insistence, in multiple interviews, that it was “misguided”
to insist she retire and that she would only stand down “when it’s time”. To
recollect how, on her deathbed in 2020, she told her granddaughter that her
“most fervent wish is that I will not be replaced until a new president is
installed” – and how it made no difference whatsoever! Donald Trump nominated
Amy Coney Barrett as RBG’s replacement just eight days after her death, and
Senate Republicans confirmed Barrett to RBG’s vacant seat just eight days
before election day.
With Joe Biden trailing Trump in several swing states and
Democrats also in danger of losing their razor-thin majority in the Senate, are
we really prepared for history to repeat itself? Sotomayor will turn 70 in
June. Of course, only Sotomayor knows the full status of her health, still it
is public knowledge that she has had type 1 diabetes since she was seven; had
paramedics called to her home; and is the only sitting justice to have,
reportedly, traveled with a medic. To be clear: she could easily – and God
willing – survive a potential Trump second term and still be dishing out
dissents from the bench come 2029.
But why take that risk? Why not retire now? Why not quit the
bench at the same age that justices in Belgium, Australia and Japan are forced
to do so?
"I have PTSD from 2020 [& RBG]...The Republicans are very good at stacking courts... Democrats aren't very good at seeing the power of the Supreme Court."
I debated & defended my Guardian piece calling for Justice Sotomayor to retire so a Dem president + Senate can replace her. pic.twitter.com/JEPMWaA2g2
Unfortunately, Sotomayor could not announce a retirement effective January 1, 2025 or January 7, 2025, the day after Congress presumably will certify the presidential election results, reserving the option to withdraw her resignation if Trump prevails. There is nearly a 50% chance that Biden will be re-elected while the math for Democrats holding on to the Senate is clearly absent.
Also unfortunate: Sotomayor is unlikely to retire, in part because there will be little pressure on her to do so. Hasan notes
In 2021, the progressive group Demand Justice sent a
billboard truck to circle the supreme court building with the message: “Breyer,
retire.” I joined in, too. “Retire, retire, retire,” I said in a monologue for
my Peacock show in 2021. “Or history may end up judging you, Justice Breyer.”
So why is it okay to pressure Breyer to retire but not
Sotomayor?
There is no good reason, but thee is a reason and
This time round, Demand Justice isn’t taking a position on whether
an older liberal justice should quit while a Democratic president and Senate
can still replace them and, as HuffPost reports, “on the left, there is little
open debate about whether she should retire.”
Well, of course, there isn't. And the reason there isn't echoes the reason why there is no push at all for Kamala Harris to step down. Karen Finney, the Democratic strategist who is quite pleased this state of affairs, believes that the risk of losing the presidency is an acceptable price to pay to maintain demographic purity. Citing an initial interest in a presidential bid
When you had people who were trying to test the waters, the party rose up and made it clear to those individuals —
who were mostly white men — that to disrespect the vice president would not be
well received by women and people of color within the party. They got a little bit of a smack in
the face.
There are powerful figures in or about the Democratic Party who are less concerned with turning over the presidency to Donald Trump- or losing another Supreme Court seat to a selection made by a President Trump- than they are to the idea of losing a first. That would be the first black Vice President or the chance of the first black female President, and the first American of Latin descent to serve on the USA Supreme Court.
As Hasan advocates, Ginsburg might make the courageous and patriotic decision to step down. But Ruth Bader Ginsburg didn't, Kamala Harris won't, and it's not likely that Sonia Sotomayor will, either.
On Friday's episode of "The View," host Caryn Elaine Johnson,
known professionally as Whoopi Goldberg, took exception to ridicule by
Washington Examiner reporter Eddie Scarry of Alexandria Ocasio-Cortez. Scarry
had tweeted out a photograph of the incoming freshman member of Congress along
with "Hill staffers sent me this pic of Ocasio-Cortez they took just
now. I'll tell you something- that jacket and coat don't look like a girl who
struggles."
Justifiably, the vice-hosts of The View also criticized Scarry (who later deleted the tweet), though oddlynone pointed out that
Ocasio-Cortez's outfit was professional and that she is no more a
"girl" than, say, Matt Gaetz (R-Fl) is a "boy."
That is a concept which probably escapes Goldberg, given
that she condescendingly warned the reporter "hush, boy."
This incident, admittedly, is a trivial one. However,
Goldberg made a much more serious error when- either ignorantly or
disingenuously- she appeared to correct Sunny Hostin. The latter, while defending
Ocasio-Cortez, had made the mistake of having prepared for the topic and stated
... and if you look at all of Congress, I mean, the Senate
is filled with gazillionaires, the Representatives, the House, filled with
gazillionaires. And do you know if you look, at all the money, working class
people have never ever been able to- I found this stat, that no one from the
working class has gotten into politics and gone on to become governor or
Supreme Court Justice or the President. That is unbelievable- unbelievable.
Goldberg, undeterred by a panel member having done research,
responded "Sonia Sotomayor was a working class woman. That's- that- they
flash that stat."
Whether Hoskins' information applies to every Representative, Senator,
President, and Supreme Court Justice, we'll never know. In a flash, Hostin remembered who the star is and quickly backtracked.
It's unfortunate that she did. Sotomayor was born into a
working-class family but even before being becoming a United States Supreme
Court Justice in 2009, was a huge professional success and had left those
working-class roots behind. After
graduating from Yale Law School and passing the bar examination, Sotomayor
worked in the NYC, NY district attorney's office and in 1984
entered private practice, making partner at the commercial
litigation firm Pavia & Harcourt, where she specialized in intellectual
property litigation. She moved from associate to partner at the firm in 1988.
While she climbed the ladder there, Sotomayor also served on the board of the
Puerto Rican Legal Defense and Education Fund, the New York City Campaign
Finance Board and the State of New York Mortgage Agency.
Sotomayor's pro bono work at these agencies caught the
attention of Senators Ted Kennedy and Daniel Patrick Moynihan, who were
partially responsible for her appointment as U.S. District Court judge for the
Southern District of New York City. President George H.W. Bush nominated her
for the position in 1992, which was confirmed unanimously by the Senate on
August 11, 1992. When she joined the court, she was its youngest judge. On her
43rd birthday, June 25, 1997, she was nominated for the U.S. Second Circuit
Court of Appeals by President Bill Clinton. She was confirmed by the Senate
that October.
Sotomayor's current socio-economic status- and her
professional status prior to being elevated to the Court- are typical of her
colleagues. It is typical, also, of officials throughout the upper echelons of
government, the point Hostins made amidst Goldberg's denial. The Washington Post noted in July
If the Senate approves Trump’s nominee, Brett Kavanaugh,
every justice sitting on the Supreme Court will have attended either Yale's or
Harvard’s law school. (Ruth Bader Ginsburg started at Harvard and transferred
to another Ivy, Columbia.)
“The elitism on the Supreme Court is worrying,” said
Benjamin Barton, a law professor at University of Tennessee at Knoxville. “From
the age of 18, these people have all essentially done the same thing, followed
the same path, run in the same cloistered circles. That’s not healthy.”
In 2012, Barton published a comprehensive study on the
personal backgrounds of Supreme Court justices. He found that the modern-era
court presided over by Chief Justice John G. Roberts Jr. was in many ways the
most elitist, homogenous group assembled since the court's inception.
While the current justices are far more diverse in gender
and race than past decades, their educational and work backgrounds are almost
uniform
Latina Sonia Sotomayor has a reasonably modest (though not
poverty-stricken) background, her mother having been a nurse and her father a
tool-and-die maker. Whatever her
background, she no longer is working-class. Most members of the House of
Representatives, the Senate, and the House of Representatives, moreover, come
from relatively privileged backgrounds. And now every member of the US Supreme
Court sports a law degree from Harvard and Yale.
So Hostin's remarks did not originate from a mere
"stat," notwithstanding Goldberg's misdirection. The federal government
is filled with individuals from an elite background, and saturated with people
who are wealthy or at least of a socio-economic class most Americans will never
attain.
The implication of Goldberg's remark, whether born of
ignorance or deception, reflects what many on the left- and especially
Democratic politicians- fail to understand or willfully ignore.
Class counts, and too much. Against the odds, Sotomayor overcame
the twin professional handicaps of ethnicity and gender. However, focusing
exclusively on the advancement of women and ethnic minorities, and celebrating
them, will blind us to the factor of class and reinforce the myth of unlimited
mobility in American society- at least for white males.
Moreover, the American people will not be fooled. We know
that the system, if not rigged, is skewed obscenely toward the
privileged, and that males and whites are not immune from this distortion. And when loads of privileged elites- Whoopi
Goldberg among them- imply that the path is clear for anyone to ascend to the
highest ranks of government, a resentment builds that has unintended, dangerous
consequences.
It would be more sophisticated, or at least enlightening, to submit a post about Supreme Court nominee Sonia Sotomayor's views on guns, abortion, business, or any one of another subjects. But, alas, after a week of hearings, we don't know what she believes, which suggests that she performed as needed, avoiding direct responses.
So, inspired by the tone and direction of Saturday's post on dailyhowler.com, I can't help but remark on yet another commentary lamenting what is pictured as racism, or at least narrow-mindedness, of the conservative Senators on the Judiciary Committee. This one is by Al Hunt of bloomberg.com, who, true to form, avoids the "r" word, but is clear nonetheless that he is offended by
the spectacle of middle-aged, white Republicans instructing the first Latin female nominee about the irrelevance of race, gender and life experiences for a judge. Even Graham, one of the more enlightened lawmakers, a strong immigration advocate and a thoroughly modern Republican, didn’t get it.
Leave aside, for a moment, the spectacle (and irony) of someone becrying bigotry by what he terms "middle-aged, white Republicans." Hunt deserves credit for noting that such conservative Republican jurists as Samuel Alito and Clarence Thomas have cited their cultural background as influencing their approach to jurisprudence. Clarence Thomas cited as among those judges "influenced by how they were raised." And that is what- good?
But while Hunt contends that judges do well by incorporating their personal experiences into their decisions on the bench, he is more interesting when he undermines his own argument. He notes that Justice John Paul Stevens, declining to block a sexual misconduct civil suit againt then-President Clinton, unwisely rejected "the president's argument that such actions should be delayed until the term of office was over." While Stevens believed that the suit would not "occupy any substantial amount of petitioner's time," Daniel Patrick Moynihan, a historian and United States Senator, knew otherwise through experience.
This demonstrates the benefit of selecting a judicial candidate on the basis of something other than immutable characteristics such as gender, race, or the national origin of the candidate. Moynihan knew better than Justice Stevens not because the late Senator, unlike Stevens, was Irish-American and Roman Catholic, or because he had (if that were the case) more numerous sexual liaisons. Moynihan knew through experience applicable to that matter that the civil suit would occupy "a substantial amount" of the time of the Chief Executive and Commander-in-Chief of the Armed Forces when called into service. That is chiefly why Sotomayor should be confirmed- she's a well-qualified, experienced individual with an impressive knowledge of the law.
Oh, and this: Hunt seems surprised that Senator Lindsay Graham (R.-S.C.) would, as "a strong immigrant advocate" have been so condescending (Young Turks video below) toward what the columnist calls "the first Latin female nominee." The surprise is unwarranted. Whether Graham is an advocate of "immigration" isn't well known; we know only that he is a strong advocate of illegal immigration. And if Al Hunt ever thought that was because of a deep appreciation of pluralism or of the American cultural mosaic, well, you know that one about beachfront property in Arizona.
Friday, July 17, 2009
Empathy, Sometimes Dreaded
The hearings of the Senate Judiciary Committee over the nomination of Judge Sonia Sotomayor to the United States Supreme Court are over. Network executives are breathing a sigh of relief, able now to return to coverage of Michael Jackson or whichever celebrity they're obsessing over now.
And it was, as expected, a kind of dance with everyone playing his/her roles: the impressive nominee avoiding answering questions while member of the opposition party play to their base and, well, members of her own party playing to their ethnic base.
Senator Tom Coburn (R.- OK) was particularly entertaining as he acted out his part, wringing his hands over the despised "empathy." In his opening statement, on July 13, Coburn described his concern that judges strictly adhere to the law, eschewing personal instincts:
We expect a judge to merely call balls and strikes? Maybe so, maybe not. But we certainly don't expect them to sympathize with one party over the other, and that's where empathy comes from.
Judge Sotomayor, you must prove to the Senate that you will adhere to the proper role of a judge and only base your opinions on the Constitution's statutes and, when appropriate, treaties. That's your oath. That's what the Constitution demands of you.
You must demonstrate that you will strictly interpret the Constitution and our laws and will not be swayed by your personal biases or your political preferences, which you're entitled to.
As Alexander Hamilton stated in Federalist Paper Number 78, the interpretation of the law is a proper and peculiar province of the courts. The Constitution, however, must be regarded by the judges as fundamental law. He further stated it was indispensable in the courts of justices that judges have an inflexible and uniform adherence to the rights of the Constitution.
A nominee who does not adhere to these standards necessarily rejects the role of a judge as dictated by the Constitution and should not be confirmed.
Reasonable men and women can disagree about this philosophy, though ironically Judge Sotomayor strained endlessly during the hearings to convince the GOP Senators that she agrees, while the very conservative and Republican Justice Alito disagrees. Two days, later, however, Senator Coburn questioned the nominee about the right to arm bears bear arms:
Thank you. Let me follow up with one other question. As a citizen of this country, do you believe innately in my ability to have self-defense of myself -- personal self-defense? Do I have a right to personal self- defense?
SOTOMAYOR: I'm trying to think if I remember a case where the Supreme Court has addressed that particular question. Is there a constitutional right to self-defense? And I can't think of one. I could be wrong, but I can't think of one.
SOTOMAYOR: Generally, as I understand, most criminal law statutes are passed by states. And I'm also trying to think if there's any federal law that includes a self-defense provision or not. I just can't. What I was attempting to explain is that the issue of self- defense is usually defined in criminal statutes by the state's laws. And I would think, although I haven't studied the -- all of the state's laws, I'm intimately familiar with New York.
COBURN: But do you have an opinion, or can you give me your opinion, of whether or not in this country I personally, as an individual citizen, have a right to self-defense?
SOTOMAYOR: I -- as I said, I don't know.
COBURN: I'm talking about your...
SOTOMAYOR: I don't know if that legal question has been ever presented.
COBURN: I wasn't asking about the legal question. I'm asking about your personal opinion.
SOTOMAYOR: But that is sort of an abstract question with no particular meaning to me outside of...
COBURN: Well, I think that's what American people want to hear, Your Honor, is they want to know. Do they have a right to personal self-defense?
Do -- does the Second Amendment mean something under the 14th Amendment? Does what the Constitution -- how they take the Constitution, not how our bright legal minds but what they think is important, is it OK to defend yourself in your home if you're under attack?
In other words, the general theory is do I have that right? And I understand if you don't want to answer that because it might influence your position that you might have in a case, and that's a fine answer with me. But I -- those are the kind of things people would like for us to answer and would like to know, not how you would rule or what you're going to rule, but -- and specifically what you think about, but just yes or no. Do we have that right?
SOTOMAYOR: I know it's difficult to deal with someone as a -- like a judge who's so sort of -- whose thinking is so cornered by law.
This line of questioning amusingly went on slightly longer (continuing to the "splaining to do" remark), but Sotomayor wasn't lured into the Senator's trap. Sure, she could have said that she agreed with (presumably Coburn's position) a constitutional right to self-defense or she could have demurred, allowing the denizens of the right to brand her as an activist leftist judge. (Just for the fun of it, check the consitution. Right- nothing in it about "self-defense.")
But that is apart from the sheer inconsistency of the Oklahoman's remarks. On Day One he praises Alexander Hamilton for his advocacy of "an inflexible and uniform and adherence" approach to the Constitution and warns the nominee that she "must demonstrate that you will strictly interpret the Constitution and our laws and will not be swayed by your personal biases or your political preferences." Then on Day 3 he pirouettes and probes whether she believes "personally, as an individual citizen, (citizens) have a right to self-defense."
And what to make of Senator Coburn's curiosity about whether S.S. believes "innately in my ability to have self-defense of myself." Innately- does Coburn really believe Sotomayor's ideas are in her genes? That she comes to her views by heredity? (And "self-defense of myself"- is there some other kind of self-defense we're not aware of?) Clearly, Coburn was not encouraging discussion about the finer points of the law or the Constitution- rather, about whatever instinct, feeling, or, yes, sense of empathy Sotomayor might have for an individual needing to defend himself/herself.
Unsurprisingly, these hearings provided nary a glimpse into the nominee's opinions about major issues- not gun rights, abortion, national security, the economy, or anything else. Not very enlightening, but as spectacle, a reasonably pleasant diversion.
Monday, July 13, 2009
Cornyn, The Constitution, Guns
Guess which members of the Senate Judiciary Committee, in the opening day of hearings on the nomination of Sonia Sotomayor to the United States Supreme Court, said:
(of two among the Bill of Rights) Judges just haven't enforced them like the people expected them to.
(to the nominee) Would you vote to return to the written Constitution and the laws written by the elected representatives of the people?
If you think logically, you're wrong. Oddly, they were uttered by the same man, Republican Senator John Cornyn of Texas.
Cornyn apparently was confused. First, he implied that judges should take a poll or maybe hold a focus group to determine how to vote- enforcing Constitutional amendments "like the people expected them to." Then, deftly switching gears, the Senator proposes the Justice "vote to return to the written Constition."
On a less contradictory note, Senator Cornyn claimed "the Takings Clause of the Fifth Amendment, the Commerce Clause limitations in Article I, and the Second Amendment's right to keep and bear arms have been artificially limited...."
Senator Cornyn has apparently read the Second Amendment as "the right of the people to keep and bear Arms, shall not be infringed," conveniently skipping over the inconvenient "A well regulated Militia, being necessary to the security of a free State."
(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard. (b) The classes of the militia are— (1) the organized militia, which consists of the National Guard and the Naval Militia; and (2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.
Section 332 is entitled "Use of militia and armed forces to enforce Federal authority," thereby reiterating a distinction between "militia" and "armed forces."
There was, of course, a time when a militia was needed to protect the citizens of a state. As this 2006 editorial in the Minneapolis Star-Tribune put it, "Having opted against a standing army, the Constitution's cobblers determined that every able-bodied man would serve as a member of a local militia — prepared to respond in unison against invasion."
Now, however, we have an army (and navy and air force and marine corps), with professional soldiers protecting the nation. The armed forces have replaced "a well-regulated militia," rendering the Second Amendment, well, moot. That is, if one reads the Constitution and interprets it as it is written rather than "invent rights that do not exist in our written Constitution" as, ironically, John Cornyn put it.
Banning the private possession of firearms would be unwise- but not precluded by a strict reading of the Constitution. Suggesting that, of course, would be politically masochistic. Until conservatives on the U.S. Supreme Court, however, put aside rigid ideology and instead interpret the supreme law of the land as written, perhaps a Democrat might want to put the Second Amendment in a different context. These hearings provide an opportunity to remind colleagues and the American people that states have a right, legally and morally, to do within reason what is necessary to protect their citizens. In some cases, that means enacting reasonable regulations to address the rampant violence in many areas, violence that imperils even law enforcement officers. Some members of Congress may not understand the United States Constitution, but they ought to understand that.
That would be Texas Senator John Cornyn and other GOP critics of Sonia Sotomayor, whose nomination to replace David Souter as an Associate Justice on the United States Supreme court hit the Senate Judiciary Committee today.
On yesterday's Fox News Sunday, host Chris Wallace, noting Sotomayor's remark "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life," asked Cornyn and Senator Dianne Feinstein (D.-Ca.)
But is it the right thing... for a judge to say that I think a Latina judge will — I believe would come to a better conclusion than a white man?
Feinstein first responded "Well, she said a wise Latina. I mean, as I told John earlier, I could say, "Can't you believe that a silver-haired Texan who served on the supreme court of his state might know more than whoever it is?" Sure you could. And it would..."
Senator Cornyn then said of Sotomayor
this is not an isolated comment. This was an argued point that she repeated again and again and again. The president said she misspoke. His press secretary said, "Well, maybe she should have used different words."
But this is a point that she was trying to make and has consistently made, that in some ways the quality of justice depends on who the judge is. And that just can't be — can't be true.
After which, Feinstein continued
Judges are not automatons. They are human beings. And they bring to whatever court they serve their experiences, and a variety of experiences, and a knowledge of the law and your — the human experiences that you have as an individual, I think, play a role.
You know, I've listened to the balls and strikes and, "Well, we're just umpires," and then the individual goes to the Supreme Court and does exactly the opposite. So one's experience, one's venue, one's way of looking at an issue does come into it somewhere along the line. And I think most of us have seen this over and over again.
Not bad, but a little defensive. How about suggesting that Sotomayor's take on empathy is within the mainstream of American thought- or at least the philosophy of the Supreme Court? Or maybe quote Judge Samuel Alito at his confirmation hearing, responding to a question of Senator Tom Coburn (R.- OK) by saying:
....And that's why I went into that in my opening statement. Because when a case comes before me involving, let's say, someone who is an immigrant -- and we get an awful lot of immigration cases and naturalization cases -- I can't help but think of my own ancestors, because it wasn't that long ago when they were in that position.
And so it's my job to apply the law. It's not my job to change the law or to bend the law to achieve any result.
But when I look at those cases, I have to say to myself, and I do say to myself, "You know, this could be your grandfather, this could be your grandmother. They were not citizens at one time, and they were people who came to this country."
When I have cases involving children, I can't help but think of my own children and think about my children being treated in the way that children may be treated in the case that's before me.
And that goes down the line. When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account. When I have a case involving someone who's been subjected to discrimination because of disability, I have to think of people who I've known and admire very greatly who've had disabilities, and I've watched them struggle to overcome the barriers that society puts up often just because it doesn't think of what it's doing -- the barriers that it puts up to them.
So those are some of the experiences that have shaped me as a person.
Alito was wrong. Sotomayor was wrong. But that is a mere opinion. If Repubs choose to grandstand on the issue, Democrats should strike back, perhaps asking why being descended from Italian immigrants grants someone special insight and wisdom, while being descended from Puerto Rican migrants is less ennobling. Or perhaps, more directly and less diplomatically, they might open with: are Italian-Americans superior to other Americans?
Saturday, May 30, 2009
Considering Sotomayor
It really is a good article Joe Conason wrote, posted in salon.com on May 29, 2009. He notes that Republicans are some now attacking President Obama's nominee for the Supreme Court, Sonia Sotomayor, for allegedly being the beneficiary of affirmative action. It's odd, or hypocritical, that they are doing so in light of the avid support Repubs gave the nomination to the Supreme Court of Clarence Thomas. Thomas was an undistinguished judge on the U.S. District Court of Appeals, whose selection had little to do with merit:
Every account of those deliberations indicates that Bush and his aides went through a list of potential African-American nominees to the high court -- and rejected politically moderate judges with better qualifications than Thomas, such as Amalya Kearse. They picked him because they had to fill a "black seat" on the court, and because he was prepared to enforce their ideology on the court.
Conason notes that contrary to its righteous indignation over the selection of someone who has acknowledged the role that her background, cultural and otherwise, has played in shaping her as an individual
the right can never bring its corrosive racial skepticism to bear on Thomas, a man who had proven his willingness to parrot reactionary bromides. He is the single most prominent beneficiary of the quest for diversity in American history, but he is their diversity candidate -- and thus deserved elevation, if not as a distinguished jurist, then because he had suffered discrimination as a conservative.
But here it gets sticky. Like most of us on the left, Conason is unable, unwilling, or ideologically undisposed to follow his argument to its logical conclusion, instead arguing
In his memoir, Thomas recalls the innocent delight of old friends and family, who "saw my nomination as an affirmation of the American dream: a poor black child from the segregated South had grown up to become a Supreme Court justice. Who could be against that?" The same question can be turned around now -- with considerably greater justification.
If Thomas is indeed as mediocre- to be gentle, diplomatic, and probably generous- a justice as Conason and most liberals/progressives believe, certainly one should question the wisdom of obsessing over issue(s) of empathy, life experiences, culture, or whatever those on the left or the right are calling it. Thomas was indeed "a poor black child from the segregated South" who had much to overcome- and was elevated to the highest court in the land because of a perceived "black seat" on the Court and, well, the need of the GOP to prove to Americans of good will that it was not the "racist" party.
Sonia Sotomayor probably will be confirmed as a Supreme Court Justice- heck, even Rush Limbaugh believes she will- and may become a great judge. Just not for the reasons that the right seems to believe she is a danger to the Republic, roughly the same reasons that the left is generally pleased with her selection. It would not be because Sonia Sotomayor is Puerto Rican (or "Newyorkrican," as she proudly puts it), or female, or grew up, without a father, in a housing project in the Bronx, or so 'down to earth' that she plays cards, and eats lunch, with her lowly staff. It would be because of extraordinary understanding of the law, impressive scholarship, a sharp legal mind, strong powers of persuasion, a solid judicial temperament, and other traditional factors characteristic of a good judge, if not a blockbuster movie-of-the-week.
Friday, May 29, 2009
Empathy And Activism
It all started when President Obama, commenting on his quest for a replacement for retiring Supreme Court Associate Justice David Souter, explained
I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a casebook; it is also about how our laws affect the daily realities of people's lives, whether they can make a living and care for their families, whether they feel safe in their homes and welcome in their own nation. I view that quality of empathy, of understanding and identifying with people's hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes.
Utah Senator Orrin Hatch summed up the reaction of conservative Republicans when he charged "Those are all code words for an activist judge who is going to . . . be partisan on the bench."
Once Judge Sonia Sotomayor was nominated by President Obama, a line from a speech she gave at the law school of the Univeristy of California-Berkeley in 2001 caused an uproar. With a little context added, Judge Sotomayor stated
Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O'Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.
And a remark Judge Sotomayor made at a panel discussion at Duke University in February of 2005, this about the role of circuit court judges, also elicited controversy. She noted (video below):
The Court of Appeals is where policy is made. And I know this is on tape and I should never say that because we don't make law. I know…I know. (some laughs) I'm not promoting it. I'm not advocating it. I'm…you know. OK. (more laughs)
Having said that, the Court of Appeals is where, before the Supreme Court makes the final decision, the law is percolating. It's interpretation. It's application.
The Repub long knives came out. Wendy Long (once a clerk for Clarence Thomas), counsel for the Judicial Confirmation Network, contended the Judge's "body of work.... appears to be a view of the courts as engines of soical and political change- in short, wrought out of a devotion to judicial activism." Mitt Romney decried her alleged "expansive view of the role of the judiciary." And Republican Party chief Rush Limbaugh, who accused the nominee of being a "reverse racist," claimed "We have Sonia Sotomayor who thinks that the court is where policy is made." Syndicated columnist Charles Krauthammer argues "if nothing else, it (i.e., conservatism) stands unequivocally against justice as empathy." And so on.
Now it appears that empathy is a pretty widespread emotion among judges. When promoting Clarence Thomas as his Supreme Court nominee, President George H.W. Bush referred to the judge as "a delightful and warm, intelligent person who has great empathy and a wonderful sense of humor." When he appeared in January, 2005 before the Senate Judiciary Committee after his nomination to the Supreme Court, Judge Samuel Alito responded (slightly more than halfway through the transcript) to a question from Sen. Tom Coburn (R.-Ok.) by maintaining (video way below):
Because when a case comes before me involving, let's say, someone who is an immigrant -- and we get an awful lot of immigration cases and naturalization cases -- I can't help but think of my own ancestors, because it wasn't that long ago when they were in that position.
And so it's my job to apply the law. It's not my job to change the law or to bend the law to achieve any result.
But when I look at those cases, I have to say to myself, and I do say to myself, "You know, this could be your grandfather, this could be your grandmother. They were not citizens at one time, and they were people who came to this country."
When I have cases involving children, I can't help but think of my own children and think about my children being treated in the way that children may be treated in the case that's before me.
And that goes down the line. When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account. When I have a case involving someone who's been subjected to discrimination because of disability, I have to think of people who I've known and admire very greatly who've had disabilities, and I've watched them struggle to overcome the barriers that society puts up often just because it doesn't think of what it's doing -- the barriers that it puts up to them.
Greg Sargent has learned that soon after she was appointed to the Supreme Court, in March 1982 Sandra Day O'Connor opined
I think that I bring to the court differences in background that are more germane than my gender.
My experience as a legislator gives me a different perspective. Also, I bring to the court the perspective of a woman primarily in a sense that I am female, just as I am white, a college graduate, etc.
Yes, I will bring the understanding of a woman to the court, but I doubt that that alone will affect my decisions,” she said. “I think the important fact about my appointment is not that I will decide cases as a woman, but that I am a woman who will get to decide cases.
And if the Repub right is only a recent convert to the battle against empathy, it appears to be downright wrong about the role of judges. Mediamatters.org quotes a conservative law professor as commenting that Sotomayor's remark "seems to be nothing more than an observation that, as a practical matter, many policy disputes are resolved in the federal courts of appeals. This is an indisputably true observation." And another law professor maintains "the circuit courts play by far the greatest legal policymaking role in the United States judicial system," greater, apparently, than state courts which, Justice Scalia has written, "possess the power to “make” common law, but they have the immense power to shape the States’ constitutions as well. See, e.g., Baker v. State, 170 Vt. 194, 744 A. 2d 864 (1999)." Further, as Paul Gewirtz and Chad Golder have argued, striking down a law enacted by Congress is arguably the best criterion for determining how "activist" a judge is- and typically, the more conservative, Republican Supreme Court justices have done so more than the liberal, Democratic justices.
Obviously, the GOP is in a bind trying to determine its response to this nomination. Continuing to attack Sotomayor as a "racist" a la Limbaugh and Gingrich risks alienating the Hispanic community and its voters, not only in the short term but for a longer period. But criticizing the nominee as an "activist" judge (an illegitimate argument at that) without bringing into play the issue of "empathy" and, inevitably, ethnicity, may be walking a tightrope too precarious for even the Flying Wallendas.
Wednesday, May 27, 2009
Making Law, Interpreting Law
While in President Bush's Office of Legal Counsel, John Yoo wrote the (in)famous memorandum (part one, in pdf, here; part two, in pdf, here) outlining the legal justification for the use of torture. In his blog at the American Enterprise Institute, the attorney yesterday criticized Judge- and Obama Supreme Court nominee- Sonia Sotomayor in part because:
Conservatives should defend the Supreme Court as a place where cases are decided by a faithful application of the Constitution, not personal politics, backgrounds, and feelings. Republican senators will have to conduct thorough questioning in the confirmation hearings to make sure that she will not be a results-oriented voter, voting her emotions and politics rather than the law.
This is the same John Yoo who stated at a debate in April at Chapman University in Orange County, Florida
Was it worth it? We haven't had an attack in more than seven years. Fifty percent of the information that we have on al-Qaida and its workings came from interrogation.
Although Yoo ignores the false leads (leading to diversion of scarce resources) torture brings, as well as the considerable information gleaned from detainees before coercive methods were applied, obviously the ultimate justification for "enhanced interrogation techniques" can only be that it is "results-oriented." Which makes it difficult to believe that the same Republican appointee made the comments about both torture and the selection of a judicial nominee by a Democratic president. No, it's really not surprising.
From Your Humble Blogger
As recounted in this adoring Associated Press article, Appellate Court Judge Sotomayor, in her comments upon being nominated for the Supreme Court by President Obama, remarked
That emotion will never leave me- humility. A deep, deep sense of humility...
Compare this to the comic strip from "The Born Loser" of May 15:
This, of course, says nothing of the fitness of Appellate Court Judge Sonia Sotomayor to be elevated to the United States Supreme Court. It is of a sort with statements made by many politicians (Democratic, Republican, or otherwise) and even more, commonly, by professional athletes and other celebrities. But it should remind us that to declare ourselves "humble" or "humbled" is a little like declaring ourselves "modest." Can't be true.
