Sonia Sotomayor

In Changing Social Norms, Narrative (and the Court’s Fragile Sensibilities) Matter

Consider this a follow-up to yesterday’s post on the culture of the legal academy.

Last week’s New Yorker offers the true tale behind Lawrence v. Texas, the watershed Supreme Court case that made unconstitutional any state law targeting morality in the bedroom, and therefore inaugurated the modern gay rights movement. Per Dahlia Lithwick, and her reviewed author Dale Carpenter, the real John Geddes Lawrence was anything but the poster child for romantic gay love, but — given the healthy distance appellate lawyers prefer to place between themselves and “jury facts,” irrelevant on appeal — that didn’t matter so much.

In order to appeal to the conservative Justices on the high court, the story of a booze-soaked quarrel was repackaged as a love story. Nobody had to know that the gay-rights case of the century was actually about three or four men getting drunk in front of a television in a Harris County apartment decorated with bad James Dean erotica.

Interestingly, the sordid nature of Lawrence’s backstory was essentially compelled by the jurisdictional requirements of the case. Basically, to present the best argument for ultimate Supreme Court review, the plaintiff has to plead no contest to the state’s case, and challenge only the constitutionality of the statute. So, activist lawyers needed a plaintiff who wouldn’t mind a criminal conviction on their record, which is to say, one without a family and a reputation. Advocates weren’t stuck with a less-than-ideal plaintiff; they were going to have to take a less-than-ideal plaintiff and dress them up. Lawrence just happened to fit the bill.

More to the point, both authors frame the argument in Lawrence v. Texas less as one about the law — truly, the law was already quite settled by that point, which contributed to making the case a blowout 6-3 decision — than about the Justice’s sensibilities, and their perception of prevailing social attitudes on sex. Among the factors that changed between Bowers v. Hardwick (the ’90s case that permitted states to criminalize gay sex) and Lawrence was, the Justices now had gay friends, gay clerks, and lived in a legal world where elite players are, regularly and openly, gay.

This invites a broader question: the extent to which social change depends on the Justices’ collective sensitivity to Das Leben der Anderen – the lives, and problems, of others. If that’s the deciding factor in a close case, or if legal conclusions ever follow moral ones at the high court, the social culture of legal elites and the academy isn’t what matters: it’s how that culture is transmitted to the Court, mediated by the barely permeable membrane with which the Justices surround themselves.

By this theory, persuadable judges can be persuaded by contact with life experiences suggesting that legal problems are social problems that actually matter to the outside world. The advocate should do everything possible to ground his case in a believable life story, relatable and meaningful outside of some niche culture. The Justices could safely ignore gay rights so long as they believed (however erroneously) that they’d never met a gay person, or had a gay clerk; but by 2006 they no longer could, given the size of the proudly gay bar. All together, this suggests an advocacy style that emphasizes the client’s story, or at least those parts that resonate with the legal problem (dissonant chords may be safely ignored). Call it a variant of one of the central theses of Critical Race Theory (yes, we’re back there) — narrative matters, but manipulated narrative matters most.

Of course, not every judge will be persuadable. One of Justice Thomas’ favorite clerks, as reported by Jeff Toobin, is herself lesbian. The Justice regularly sent her holiday cards, and even a wedding gift. But despite his affection for gay men and women, and presumably their problems, Justice Thomas is not a gettable vote on gay marriage. But when it comes time to replace Thomas, progressives should first look for a Justice whose life experience will help to ground the Court’s decisions in reality. Using this rubric, Bartlet’s decision to nominate Justice Mendoza looks especially brilliant, not because of Mendoza’s legal philosophy, but because as a former line cop, he could understand stories about the real world, and relate them to his colleagues to persuade them to vote accordingly. Obama’s pick of Sonia Sotomayor looks equally brilliant, precisely for her power to empathize, as does his decision to follow her and guarantee a second female seat on the bench to balance out the seven men.

This approach also has the virtue of acknowledging the Court’s greatest strength, and its greatest weakness — its humanity.

Oh, and, I’ve decided to use this platform partially to promote new, good music! So today’s song is “Avenue of Criminals,” by local band The Canon Logic.

A Proxy War for Gay Rights?

Justice Stevens reminds us why we’ll miss him:

While JUSTICE THOMAS would apparently not rule out a death sentence for a $50 theft by a 7-year-old, see post, at 4, 10, n. 3, the Court wisely rejects his static approach to the law. Standards of decency have evolved since 1980. They will never stop doing so.

Graham v. Florida, 5__ U.S. ___, ____ (May 17, 2010) (Stevens, J., concurring). The case concerns a simple question — whether a juvenile can, subject to the Eighth Amendment, be imprisoned for life without possibility of parole for a non-homicide crime — which the Court answered in the negative. Court-watchers should note that the Eighth Amendment is one of the rare creatures that all parties concede evolves with society, so the Court’s 6-3 endorsement of evolving norms needn’t be read as the larger, ringing endorsement of a “living Constitution” that we deserve. But Stevens’ concurrence, joined by Ginsburg & Sotomayor, can. These proxy wars are fairly regular in Court history and may, at least, allow us to put to bed the notion that Sotomayor was insufficiently liberal. If she’ll join Ginsburg and Stevens on these opinions, I’m happy. But what about Kagan?

President Obama’s Justice Mendoza Moment

Given that Justice John Paul Stevens will retire soon — and he’ll be missed — Salon is right to note that Obama has no shortage of “safe” choices. And that the smart money’s on him picking one of them. But he probably shouldn’t. The decision to nominate now-Justice Sotomayor proved one thing: the conservative wing has no intention of giving President Obama anything short of an all-out war for each and every Supreme Court nominee. The Sotomayor pick redefined “safety” — she had published no controversial opinions, literally, and made nothing more than oblique (but easily distorted) speeches about the nature of the judiciary. By all accounts, her conduct thus far has affirmed her moderate record. The only splash she’s made is by recusing herself, so far, from every major case that came before her Circuit. And yet her nomination was a fight, every step of the way.

Against that backdrop, nominating a superior-but-controversial Justice approaches Pareto efficiency. So here’s the plan. Nominate Pam Karlan. If the right chooses to make the battle about her sexuality, let them, and fight it to win it. Hers is an important voice, and one that belongs on the Court.

Sotomayor, J., Delivered the Opinion of the Court

Get used to seeing that. Was there ever a doubt? Good for Senators Alexander, Bond, Collins, Graham, Gregg, Lugar, Martinez, Snowe, and Voinovich for breaking ranks with their Republican comrades to vote for this historic confirmation. Note that half of the Republicans’ female senators — Collins and Snowe, but not Hutchinson and Murkowski — voted for Sotomayor, perhaps sensing, accurately, that the Supreme Court has suffered long enough without a second female voice on the Court. As this past term proved, like it or not, women on the Court add something to the deliberations, and the law is better off with their contributions.

Also, I hasted to add, President Obama’s first year in office is looking a lot like the first year of another historic, popular, albeit fictional Democratic President, Jed Bartlet. In his first year “in office,” Bartlet successfully managed a minor international crisis, and appointed the first (fictional) Hispanic Supreme Court justice. Pirates : Syrian plane incident :: Sotomayor : Mendoza, no?

In any event, congratulations, Justice Sotomayor. Are you hiring law clerks, yet?

Guest Post: For a Brief, Shining Moment, Pat Buchanan Looked Reasonable

Thanks to John Casker for providing this guest post!

It’s amazing serendipity that ACG is looking for guest writers. I’ve spent the last four days fuming about two things: a Rachel Maddow clip that’s making the rounds, and the fact that for once I wish I had a soapbox to fume upon but don’t. Well lah-dee-dah, here’s a shiny, clean soapbox with nobody perched upon it. Thanks, A, for the opportunity.

First, the video in question:

If you don’t want to watch the whole thing, scroll to the last couple minutes, but it’s all relevant in my opinion. Coming to the defense of Pat Buchanan has never been high on my Bucket List, and generally speaking I’ve found Ms. Maddow to be a fun watch. Pat’s a gasbag who espouses some really vile things, and even when he’s staking out a moderate position he does it in cringe-worthy fashion. Maddow is articulate, relatively even-keeled, and not so hard left that I would feel embarrassed to introduce her to my parents.

However.

In the exchange above, Maddow deliberately ignores Buchanan’s point in order to get his goat; she’s not nearly stupid enough not to understand what he’s saying. The glee she has in asking him again and again “Pat, are you happy that we have a Latina on the Supreme Court?” is embarrassing; the question is no better than the classic “Senator, when did you stop beating your wife?” What Buchanan is clearly arguing is that this Latina isn’t qualified to be on the Supreme Court, so no, he isn’t happy that Sonia Sotamoyor is likely to be confirmed. NOT being willing to walk into her clumsy trap just so she’ll have tape of him saying he’s happy about it is, frankly, the principled way to go.

I’ll leave the legal analysis to ACG; for all I know she is qualified, and I’ve certainly not heard a cacophonous roar that she isn’t qualified à la Harriet Miers. The trouble is that Maddow barely touches qualifications other than Sotamoyor’s time served; aren’t appointed judges famous for keeping their jobs essentially regardless of job performance? Maddow keeps banging on this “108 of 110 justices have been white men” number, but that number is useless. For more than a century women and, especially, minorities were so thoroughly denied educational opportunities that of course there were no, say, black Supreme Court justices. That was a result of racist behaviors and policies, but it doesn’t change the fact that nominating a qualified black man or woman for the Supreme Court in 1830 would’ve likely been impossible. If we’re going to measure missed opportunities to nominate minorities, there’s no point in starting from any date before the civil rights era of the 1960s.  (Yes, because of racism, but racism from farther upstream.)

Meanwhile, if you ignore Buchanan’s inanity about the country being founded on the backs of white men (Caucasian exceptionalism? Can I trademark that?) he’s actually making a fairly straight-forward argument that he doesn’t have a problem with a Latino/a on the Supreme Court but that Sonia Sotamoyor should be refused strictly on her merits.

Excuse me while I choke back the bile at writing this: Buchanan is being the reasonable person here. Personally I’m in favor of affirmative action in some circumstances, particularly with respect to educational opportunities. Previously-repressed populations will remain subjugated by circumstance even if the institutional oppression is removed; whites have a centuries-old head start in a lot of ways, and it’s just to think about offering assistance to even things up. On the other hand, a seat on the Supreme Court bench has a high “minimum competency” requirement that has to be met for the good of the country, and Buchanan claims that Sotamoyor doesn’t meet it (again, the truth of that is another conversation).

Compounding Maddow’s logical problems are her incredible arrogance and condescension. She says Buchanan is “dating” himself with his unwillingness to express glee at a Latina’ confirmation. Awesome, old people are racists. Her headshakes alone are cringe-worthy. Liberals — don’t go for the cheap point when the clear facts of the matter are enough.

To be fair, though, if I’m going to rail about Maddow at her worst, she deserves to be seen at her best.

John Casker writes regularly for GeekUniversalis.com & Ashland Link. Want to guest write sometime in the next week? Send your name & idea to submissionstoacandidworld@gmail.com.

Alternate Reality: What a Fully Candid Senate Confirmation Would Look Like

Judge Sotomayor concluded her testimony before the Senate Judiciary Committee this week, with every sign that she’ll be confirmed handily, with Republican support, even. But for those of us with knowledge of the legal system, or even a decent respect for the process of judging, the hearings were a painfully dull exercise, full of all the dull evasion that’s come to typify every confirmation since Justice Thomas’. Indeed, the enduring result of those hearings, famous for their vitriol and tabloid value, may be the utter intellectual poverty of the modern Supreme Court confirmation hearing, where judicial nominees can do no more than affirm their commitment to impartiality, while avoiding any attempt to explain what that means, for fear of setting off the private little war that so tarnished Justice Thomas.

It’s too bad. The confirmation of a Supreme Court justice could be a valuable chance to explain to the public what the Constitution means in the modern world, and a chance to expose the right’s shallow talking points for what they really are. Instead, we’re forced to endure what Professor Tribe calls the equivalent of kabuki theater — all spectacle, no substance.

But, what would an honest, fully candid Supreme Court confirmation hearing look like? To quote another professor (Farnsworth, on the “fing-longer”), man can only dream. This, then, is one man’s dream:

J. SOTOMAYOR:

OPENING STATEMENT: Senators, it is a rare honor and a privilege to have the chance to speak with you today. In the ancient world, men and women the world over looked to the Roman Senate for aid and enlightenment on the issues of the day. As the United States has exceeded Rome in the freedom it affords its citizens and even its foes, so this chamber exceeds the republican Senate in openness and accessibility.

Accordingly, mindful of the greatness of the assembled individuals and indeed the nation that I address, it is not my intention to obfuscate or conceal, for my benefit or yours. Far too often we speak delicately, with candor decreasing as the weight of the issues in play increases. Let me say plainly, this trend cheapens all of us. If you are to live to your reputation, you should question me fully; if I am to live up to mine, I should answer honestly. I intend no less.

From the tenor of debate, I expect you to question me about my “impartiality.” Americans expect their judges to apply the law neutrally, and in my years on the bench, I have done no less. But let us dispense now with the pretense that the law is apolitical. Truly, neither “liberals” nor “conservatives” believe it to be. Indeed, although the Constitution seeks to minimize the politicization of the bench (hence lifetime appointments), politics is unavoidable. On the great questions of our day, the Constitution is silent. What Founding Father could have conceived of the dangers and benefits of warrantless wiretapping, or cloning? When adjudicating novel questions of constitutional rights, Supreme Court justices can never find a complete answer in the document itself. Thankfully, though, the Constitution’s greatness, and its drafters’ ingenuity, lies not in the document’s substantive completeness, but in its basic framework. The Constitution declares abstract values, and sets out a structure through which they are to be realized. From this framework, judges balance, imply, infer, reason, and apply, always striving for an answer that resonates with the document’s basic premises.

Often, constitutional values point in different directions. The Constitution gives the President broad authority to respond to imminent dangers to the state. However, the President cannot declare war. How are we to reconcile these seemingly irreconcilable ideas?

There is no mechanistic way to answer this question. In selecting the theory of decisionmaking to employ (Originalism? Textualism? Intentionalism? The list goes on), and the factors that inform the theory, there is necessarily an act of judgment, in which one’s opinion of the relative weight of relevant constitutional values in play ought not be, indeed cannot be, irrelevant. Judges will weigh factors differently, and there’s no use in denying that fact. Justice Scalia, for example, values the historical pedigree of legal norms; the late Justice Brennan, on the other hand, looked to the degree to which the same theories comported with modern notions of justice and “fair play.”

Some will call this acknowledgement of the subjectivity inherent in the judicial process an embrace of “activism.” It is not. Rather, it is an attempt to honestly acknowledge that judging has a human element. We all strive for neutrality and constitutional fidelity; if we fall short, this can be evaluated or criticized on a case-by-case basis, but few mainstream judicial ideologies — none of which I espouse! — are inherently and deliberately unfaithful to the document.

Because judging is a human act, it is important that you understand the balance I accord to different constitutional values. It would be improper for me to comment on particular cases, but I will happily answer questions in the abstract. For example, I firmly believe that the Constitution does protect a zone of individual privacy. It’s hard to read the Bill of Rights and not see the word in the structure and effect of the individual amendments, just as it’s hard to read the Constitution and not see the phrase, “states’ rights.” Similarly, while I don’t believe that sympathy for an individual litigant is ever relevant to the process of judging, a judge ignores at her peril the Framers’ conscious decision to protect minorities from the caprice of majorities. The “tyranny of the majority” was a problem in democratic theory of which constitutional drafters from Jefferson to Bingham were well aware.

I thank you for your patience, and your indulgence in this admittedly atypical opening. The world is watching, and I urge you all to take this chance to speak not to your individual party bases, but to the American people in general, and the world at large. I will endeavour to do the same.

Note to New Readers

Hello new visitors — thanks for reading a few suddenly very popular articles! I hope all of you stick around.

However, I’d like to record one short note. This blog is not a “birther” blog. It’s 50% politics, 20% law, 20% science, and 10% miscellaneous. Categories #1 and #2 overlap with some frequency, and sweep in goings-on in the birthersphere as a consequence, but this is by no means a predominant topic (besides, my friends at Yes to Democracy do that better than I could). In fact, while I am proud of our “birther” coverage, I don’t think it’s the site’s best. Can I recommend some additional, more representative reading for you?

1. The GOP’s health care talking points suggest that they’re the real “elitists.”
2. In building his presidential image, Obama could learn from history. Really, really ancient history.
3. NYU Law, despite being one of the most proudly liberal & compassionate institutions on the planet, hired a homophobe to teach human rights law. And she’s not really that bright, either.
4. We’re not “post-racial” yet.
5. The Constitution doesn’t enshrine laissez-faire, as Ron Paul & Glenn Beck imagine it to, but it does protect capitalism, generally.

If you enjoy what you see, please add us to your Google Reader (feed URL), and consider subscribing to comments, too. Thanks!

Justice Sotomayor (Day 4): Lindsey Graham Misses the Point of Brown v. Board

Lindsey Graham, explaining the importance of knowing a Justice’s philosophy prior to confirming her (from CNN):

[Brown v. Board was] instructive in the sense that the court pushed the country to do something politicians were not brave enough to do. [. . .]

“If I had been elected as a senator from South Carolina [in 1955], I would be amazed if I would have had the courage” to support that ruling, he admitted.

It’s a strange thing, indeed, for this Republican Senator to broach the issue of Brown. Not two days earlier he was trying to goad Judge Sotomayor into admitting that judges had, in fact, led the charge on social change; now, he himself is conceding that they have, but for the better.

The importance and singularly positive nature of Brown v. Board flatly rebuts the proposition that the Supreme Court should never lead on social issues. It also tends to prove that conservative concerns about “judicial activism” aren’t objective fears for the integrity of the Constitution, but rather subjective critiques of individual “culture war” issues. How strange that Graham would make this point for us, but stranger still that he doesn’t seem to be aware of it.

Justice Sotomayor (Day 2): What Does Jim Sessions Want?

From the liveblog & CNN stream of the Sotomayor confirmation hearings, it’s becoming increasingly clear that Jeff Sessions’ greatest talent is yelling and interrupting — not making sense. What’s he even want from her? One clue:

I will not vote for – no senator should vote for – an individual nominated by any President who believes it is acceptable for a judge to allow their own personal backgroud, gender, prejudices, or sympathies to sway their decision in favor of, or against, parties before the court.  In my view, such a philosophy is disqualifying.

Apparently, he wants a clear commitment to fairness and impartiality. If that’s so, it’s hard to see how he hasn’t gotten it.

In the past month, many senators have asked me about my judicial philosophy. It is simple: fidelity to the law. The task of a judge is not to make law, it is to apply the law. And it is clear, I believe, that my record … reflects my rigorous commitment to interpreting the Constitution according to its terms, interpreting statutes according to their terms and Congress’s intent and hewing faithfully to precedents established by the Supreme Court and by my Circuit Court. In each case I have heard, I have applied the law to the facts at hand.

And no, Ricci is not contrary to that promise. Recall, the “activist” path would’ve been to depart from settled law to rule for Mr. Ricci and his coplaintiffs.

Might it be time to accept that, when Sessions says he wants “impartiality,” what he really wants is his kind of partiality, the kind that Chief Justice Roberts & Justice Alito have faithfully given for their past few years on the Court? With Sessions’ inability to move into substantive issues, we have still further proof of the intellectual shallowness of the right’s understanding of “judicial activism.” For God’s sake, Jeff, sit down!

Also – because he seems to love dropping the “racist” bomb every other word – remember that Sessions is a real, bona fide racist.

Justice Sotomayor (Day 1): Activism Cuts Both Ways

Congratulations to the Democrats for making this important point:

Sen. Sheldon Whitehouse, D-Rhode Island, quoted CNN legal analyst Jeffrey Toobin’s statement that “in every major case since he became the nation’s seventeenth chief justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff.”

“And is it a coincidence that this pattern, to continue Toobin’s quote, has served the interests and reflected the values of the contemporary Republican Party?” Whitehouse said. “Some coincidence.”

It’s about damn time. For context on this point, turn to our series on the real meaning of judicial activism and Judge Sotomayor.