Archive for June 8, 2009

Watch the Hands: “Don’t Ask, Don’t Tell,” the Supreme Court, and the President

Today, the Court declined to hear Pietrangelo v. Gates, in which an individual former servicemember asked the Supreme Court to strike down “Don’t Ask, Don’t Tell,” once and for all. Gay rights activists like myself may be surprised to learn that the Obama administration in fact asked the Supreme Court not to grant certiorari (review), but we needn’t be alarmed (hint, Salon).

For one, this action is congruent with, rather than at cross-purposes to, President Obama’s stated desire to roll back “don’t ask, don’t tell,” allowing gay men & women to serve openly and proudly, when America needs them most. While pending Supreme Court review of the issue would overshadow and frustrate Obama’s intention to change the policy democratically, the eventual resolution would be no better. If the Supreme Court were to strike down the appeal, gay rights groups would have to suffer with bad case law, and Obama’s own repeal of the policy would become politically problematic. And while the Court could always side with gay servicemembers – an unlikely result – a political resolution to the problem is undoubtedly preferable to judicial fiat.

Perhaps recognizing this, “most of the other plaintiffs asked the court to not to review the case, preferring to allow the administration to deal with the issue.” Thus, Obama is siding with the organized gay rights movement, even if it puts him at odds with one soldier. I have no problem with that: even if it makes his individual moves more difficult to decipher, Obama is right to navigate this issue delicately, the better to reach a favorable result. Never take political moves like this at face value: so often, the value is in the nuance.

Update: or, you can take the simplistic view, rejected by even most of the Pietrangelo plaintiffs. Your call.

Insights from Judge Sotomayor’s Questionnaire: She’s Pro Gay Rights, and Neither an “Activist” Nor a “Racist”

Due warning: this post is fairly long. Readers will be rewarded for their patience, however, with a more thorough examination of parts of Judge Sotomayor’s record than you’ll easily find elsewhere. In other words, “EXCLUSIVE!”

Republicans are done vetting Sonia Sotomayor. Having found two quotes amenable to distortion, and one whole controversial law-thing (what do those liberal elites call it — a “case”?), their collective attention span is gone, and they’re perfectly content to hammer home these three points, thank you very much.

Why else would the GOP be paying about as much attention to her Senate Judiciary Committee questionnaire as they ever did to, say, reliable foreign intelligence? Because her questionnaire is the most complete statement of her judicial history, it does deserve examination. Let’s dive right in.

It’s true that the questionnaire includes a few reiterations of her apparently “racist” explanation of the insights her own personal story gives her into the lives of others. From a speech on 3/17/97:

Whether born from experience or inherent psychological differences… our gender makes and will make a difference in our judging.

…I hope that a wise woman with the richness of her experience would, more often than not, reach a better conclusion.

Oh no! Cue the claims of “reverse-racism,” and Lindsey Graham’s bizarre fear that he, somehow, will personally suffer because of her bigotry (n.b. – what of real racism in the conservative media’s treatment of Sotomayor?). While this new speech will re-energize a dying talking point, anyone with a sound and fair mind will also note that it provides greater, curative context for her statement. She continues, directly following the previous quote:

What is “better”? I like Professor Resnik hope that “better” will mean a more compassionate, caring conclusion. Justice O’Connor… would likely say that in their definition of “wise,” these characteristics are present. Let us not forget, however, that wise men like Oliver Wendell Holmes and Cardozo voted on cases upholding both sex and race discrimination…

To understand takes time and effort, components not all people are willing to give. For others, their experiences limit their ability to identify. Yet others simply do not care.

Properly understood, Sotomayor’s speech suggests only that women will better understand the needs of women and, by extension, Latinas will better understand the needs of Latinas. Her experience and race confer upon her an understanding and a perspective that, yes, will be shared by other empathetic individuals, but only if they put in the requisite time. In short, “the diversity and point of view of a Latina women is significant.” Are we to assume that Arlen Specter – the speaker in that last quote – is a racist too? And, lest we forget, Sotomayor is clearly right. As recently as this term we saw a dramatic example of a case in which a woman’s understanding was needed, but sorely lacking, to Justice Ginsburg’s dismay.

Sotomayor’s recently released statements also give welcome insights into her thoughts on social issues and, indeed, the role of a judge in the federal system. There’s a lot to like.For one, from an editorial written to Princeton’s student newspaper, the Princetonian, she seems supportive of gay rights – or at least, the plight of gay men & women suffering from discrimination. Bear in mind that her commentary comes approximately thirty years before it was “cool” to like gay people. Referring to an attack on gay students:

The entire university community should be angry, and disgusted, that this kind of action has occurred at Princeton.

Indeed. While this tidbit says nothing about whether she’s willing to examine discriminatory laws affecting gays under “strict scrutiny” – indeed, no public information does – it indicates that, at least, she conceives of gay men & women as human beings, not an “agenda,” as Justice Scalia coldly regards them.

Speaking of Justice Scalia, Sotomayor’s released remarks include an interesting introduction to the Justice, who planned to speak on the subject of legal ethics:

In one sense, legal ethics is different from ethics.  Ethics is concerned with the norms of conduct that should govern people just insofar as they are people, whereas legal ethics—much like the ethics of many other professional fields—is concerned with the norms that should govern people insofar as they inhabit certain particularized roles, such as those of the lawyer or the judge.  An understanding of these rules, and of the ways in which they might be improved, will thus require developing a secondary understanding of how these roles differ, and how they fit together into a larger social practice.

This paragraph clearly rebuts the argument that Judge Sotomayor conceives of the law as some vehicle towards implementing her own personal morality. When she speaks of “empathy,” it’s clear to me from this that she doesn’t speak of altering legal results for sympathetic clients. “Of course,” you may be saying, “nothing could be plainer, so why are we surprised?” I agree: no judge could ever think otherwise. But this is precisely the straw (wo)man that the far-right has built out of Sotomayor’s stray comments. Let’s bury it now.

Finally, her speech to Princeton, on June 21, 2003, is worth noting for its discussion on the Court’s previous involvement in voting writes cases. A handwritten note on page 8 gives a clue to her judicial methodology…

I part from George Will’s discussion only in that I am inviting you to understand that what the Court does is in part based on the fluidity and vibrancy of the Constitution, and in the ongoing nature of our country’s experiment with a constitution, that both creates checks & balances and enumerates rights for the participants of the electoral process that conflict with one another.

…That a later section, starting at page 27, develops even further:

My argument is that the outcome of these cases is, instead, the result of thoughtful judicial analysis based on the Constitution and informed by competing notions of how an independent judiciary can best advance the democratic nature of the American polity; and by what participation in the political process is necessary for there to be meaningful involvement.  These are questions the Constitution does not address directly but whose answers, like in Marlbury v. Madison [sic], necessarily influence the ustice’s work in reviewing constitutional claims.

(As a digression, I note that Chief Justice Marshall in Marlbury [sic] assumed the right of the judiciary to review the constitutionality of the acts of Congress was inherent in a democratic system structured under a Constitution…)

Judge Sotomayor is right to note the “fluidity and vibrancy” of the Constitution, and acknowledge that the document “does not address [some important questions] directly.” Indeed, this proposition is structurally plain, and of quite ancient provenance, tracing its origin at least to Chief Justice Marshall’s explication of why Congress’ enumerated powers include the unenumerated, but “necessary and proper” power to organize a bank:

A Constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature, therefore, requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves. That this idea was entertained by the framers of the American Constitution is not only to be inferred from the nature of the instrument, but from the language. Why else were some of the limitations found in the 9th section of the 1st article introduced? It is also in some degree warranted by their having omitted to use any restrictive term which might prevent its receiving a fair and just interpretation. In considering this question, then, we must never forget that it is a Constitution we are expounding. McCullough v. Maryland, 17 U.S. 316, 407 (1819).

In other words, the Constitution’s failure to use the word “bank” doesn’t bar Congress from organizing one: constitutions necessarily set out only the skeleton of government, which later generations expand upon. Similarly, constitutions say “due process” and “equal protection,” deliberately leaving the terms undefined. It is a sad marker of the times, though, that Sotomayor’s statement of this basic principle of constitutionalism will be regarded as “activism” by the right.