Sonia Sotomayor

How Post-Racial Are We?

To a large extent, the momentous decisions that came out of the Supreme Court’s most recent term raised the question of when, if ever, we as a society should let go of the “strong medicine” we adopted in the ’60s and ’70s to combat the twin evils of overt racism and violent bigotry. Many of these provisions – like the Voting Rights Act, challenged in Holder, and Title VII, challenged in Ricci – pushed the limits of Congress’ power to enforce the Reconstruction Amendments to remedy past discrimination. That was the right decision, then, but maybe it won’t always be. Justice Thomas’ dissent in Holder, in fact, pointedly asked the question many have been thinking: haven’t we fixed racism yet?

But now—more than 40 years later––the violence, intimida­tion, and subterfuge that led Congress to pass §5 and this Court to uphold it no longer remains.  An acknowledgment of §5’s unconstitutionality represents a fulfillment of the Fifteenth Amendment’s promise of full enfranchisement and honors the success achieved by the VRA. Id.

Surely he’s right, that the Voting Rights Act’s greatest triumph would be its factual obsolescence. But are we there yet?

NO. Not when we still hear stories like this:

More than 60 campers from Northeast Philadelphia were turned away from a private swim club and left to wonder if their race was the reason. [. . .] “There was concern that a lot of kids would change the complexion … and the atmosphere of the club,” John Duesler, President of The Valley Swim Club said in a statement.

We as a nation have made significant strides since the civil rights movement. But apparently, for some portions of America, it’s still okay to lock kids out of pools on account of their race (name that Supreme Court case!), or even beat them. Racism has always been an evil that thrives at the fringes of society. That we’ve expunged it nearly completely from the center is something to celebrate, but not cause to let down our guard.

Let us turn our thoughts today to Martin Luther King.

Political Theater: Republicans to Highlight “Empathy” in Sotomayor Hearings

Should we be surprised? Despite the GOP’s angry rants against “empathy” in judicial decisionmaking, the minority witness list reveals one star — Frank Ricci, the plaintiff/petitioner in Ricci v. DeStefano, the reversal of which GOP opinionmakers have desperately (and wrongly) spun as a stunning blow to Judge Sotomayor.

I have the utmost respect for Frank Ricci: he was the victim of a sort of ripsaw latent in Title VII, which the Supreme Court eventually resolved, rather poorly, but nonetheless in his favor. But because this was a very hard case, it’s wrong to spin him as a victim of judicial malice, and even more wrong to use him as a political prop in the GOP’s inconsistent & ill-conceived quest against Judge Sotomayor. Perhaps what Jeff Sessions, etc., meant to say is not that empathy is irrelevant to the process of judging, but that it’s only relevant when they can properly exploit it for political gain.

Sexist Stereotypes of Judge Sotomayor: Money

Over the last week, we’ve written more than a few things about soon-to-be-ex-governor Sarah Palin. Previously, these criticisms by myself or others have triggered in conservatives something we didn’t know they had in them: righteous feminist outrage. Good for them! Even if I disagree with the application to governor Palin – criticizing a woman is not sexist, unless it’s premised on her gender, obviously – it’s nice to see the GOP discover feminism. Too often conservative pundits pigeonhole feminism as a militant philosophy, which is rather like defining Christianity by Fred Phelps. It’s never too late to discover feminism for the big-tent, inoffensive, simple philosophy that it is to so many Americans. We hope they keep it up.

Sadly, by the current evidence, that doesn’t look like it’s going to happen. Ever. Check out the Wall Street Journal’s latest super-substantive criticism of the Judge:

Her net worth of $740,000 is a third of what the last new Supreme Court justice, Samuel Alito, brought to the bench, and he had only worked previously in government or as a judge. That’s not much of a nest egg, given her salary and opportunities. [. . .]

And the way she spends her money does tell us something about a woman who will rule on the most cases involving business, labor and capital. Simply put, Ms. Sotomayor’s behavior would make a financial planner cringe. [. . .] She has been the model of financial disinterest. [. . .]

She owns no stocks or bonds. [. . .]

As she goes through confirmation hearings beginning next Monday, lawmakers are unlikely to ask why she has not accumulated more financial assets. It’s an interesting question to ponder, but the senators likely will turn to sexier topics. That’s too bad, because how one handles money is something to which everyone can relate.

On the surface, this “critique” is obnoxious only for its apparent snobbery, containing within it the presumption that someone who has practiced and adjudicated complex securities disputes somehow doesn’t understand the capital markets, because she’s never been personally involved in them. But I think something far more nefarious is at work here — an attempt to play off the old sexist stereotype of the spendthrift woman (see above, right). Take your cues from the conspicuous use of gender terms (“…a woman who will rule on…”), as much as the simple fact that, without more, Judge Sotomayor’s finances couldn’t be less relevant to her competence as a federal judge.

One has to imagine that, if Peter Brown actually cared about Judge Sotomayor’s record on cases implicating the capital markets, he could have turned to her case law. As a judge sitting in first the SDNY and then the Second Circuit, she’s ruled on, and written opinions on, no small number of important “money” cases, and reviewed all with a competency that her opponents would find thoroughly uninteresting. See, e.g., Press v. Quick & Reilly, Inc., 218 F.3d 121 (2000) (applying antifraud liability to a case of first impression, concerning broker/dealer disclosures) and U.S. v. Falcone, 257 F.3d 226 (2001) (canvassing insider trading rules). Securities is not an easy field of law, especially these days, when lawyers and judges must be as much investment bankers as jurists. In fact, I submit that a federal judge sitting in New York, and hearing these cases daily for twenty years, probably has a better grasp on it than a mere columnist.

Presumably, if Brown cared enough to look beyond his brandy snifter and actually confront Judge Sotomayor on her record, he’d have something novel to say about the intersection of her jurisprudence with the capital markets. But since he can’t be bothered to do so, we’re left with this useless & vaguely insulting article. Is this the best the Journal can do?

National Review, Desperate to Spin Ricci, Gets It All Wrong

In the wake of the Supreme Court’s resolution of Ricci v. DeStefano – the Court’s highly anticipated, highly controversial, and highly complex “season finale” – the most conservative elements of the GOP seem desperate to spin the case as a stunning rebuke of Judge Sotomayor, which it plainly is not (thanks, Rebecca). But even in a crowded field, the National Review’s “Reckoning with Ricci” stands out for its disingenuous oversimplification of both the facts and the law.

First, one has to question whether Ricci is, in fact, a “model of judicial restraint.” Although the case did “le[ave] for another day the core constitutional question of whether the Civil Rights Act’s ‘disparate impact’ provisions [. . .] are valid under the Fourteenth Amendment’s equal-protection clause,” Justice Scalia, the conservative poster boy against “judicial activism,” would have reached and struck down those core provisions.

Further, though the Court did not reach the constitutional question, it did essentially gut the disparate impact provisions of the Civil Rights Act, a frustrating mockery of “restraint” that’s become a hallmark of the Roberts Court. Notwithstanding NRO’s attempts to rhetorically frame disparate impact as a judicial invention, Congress and a Republican president wrote the disparate impact theory of discrimination into the U.S. Code. I admit that the statute does “put employers in a pincer,” but it’s hardly for the Supreme Court, especially under conservative theories of jurisprudence, to solve the conundrum by writing affirmative defenses into the statute. Nevertheless, that’s exactly what Kennedy does on page 38.

It is this novelty – for better or worse – that makes the fact of Judge Sotomayor’s reversal not just understandable, but meaningless as far as the larger debate of her own “restraint.” When the Supreme Court so thoroughly rewrites the scope of existing law, a reversal of the lower court literally provides no new information. The Justices understood this fact: one searches the majority and dissenting opinions in vain for what NRO describes, without citation, as a stern rebuke of the Second Circuit. To the contrary, Justice Kennedy “almost seemingly goes out of his way not to criticize the decision below.” Just so: if hard facts make bad law, hard facts and new law make for even worse grandstanding.

Right Already Wrongly Condemning Sotomayor Over Ricci

Nor is the media helping: CNN’s cover image for the case, depicted to the right, sets up the right’s narrative: if Sotomayor couldn’t get Ricci right, how can we confirm her? Just ask Newt Gingrich:

The senate will have to review supreme court rejection of judge sotomayor’s reasoning in ricci case of discrimination against fire fighters

Thanks, Newt. Of course, this line of attack is hopelessly flawed. Kennedy’s opinion for the majority in Ricci essentially rewrites Title VII, turning it from an expressly remedial statute into one that prefers existing discrimination over good-faith attempts to build a more just society. The devil you know, I guess, but Sotomayor could hardly be expected to diverge from existing law in an attempt to predict whatever novel theory Kennedy will fabricate on certiorari.

Further, if the “gold standard” for Supreme Court justices is agreeing with settled law, then, by that logic, Roberts and Alito should never have been confirmed, given their known hostility to Roe. And, lest we forget, Sotomayor is a replacement for Souter, who voted, with 3 other justices, to affirm her opinion. No, Sotomayor isn’t a conservative, but was she supposed to be? McCain lost: deal.

In any event, here’s what I’ll be singing for the rest of the day:

Well they passed a law in ’64, to give those who ain’t got a little more. But it only goes so far…

Supreme Court Rules in Ricci, Limiting Title VII’s Antidiscrimination Provisions

Breaking: by a vote of 5 to 4, split on political lines, with Justice Kennedy writing the majority opinion, the Supreme Court ruled in Ricci v. DeStefano that New Haven’s attempts to comply with Title VII themselves violated Title VII. Read the opinion here.

Fallout

Political reaction is likely to focus on (1) the sympathetic nature of the plaintiffs, or (2) the fact that the case reversed an opinion in which Judge Sotomayor participated. But if we’re to listen to Rush Limbaugh, the first point shouldn’t matter (whither “empathy”?), and the second will be given more attention than it deserves.

If the Supreme Court had penned a decision that sternly rebuked the lower courts for being flat-out wrong, Judge Sotomayor would deserve some of the criticism she’ll inevitably receive, from pundits or conservative senators, over this case. But Ricci was a notoriously hard case and, in approving the district court’s decision, Sotomayor was doing nothing more than following established law. The Supreme Court resolved this case, eseentially, by relying on off-topic authority to read out of Title VII the congressional ban on disparate impact discrimination (@ 75-77). Judge Sotomayor can hardly be blamed for failing to read Justice Kennedy’s mind.

Analysis of the case follows below the line.

Continue reading »

Sotomayor, the Second Amendment, and the GOP’s Fickle Relationship with “Judicial Activism”… Again

To listen to conservatives, “judicial activism” – or, the idea that the federal courts can generate new ideas – is the Prime Evil of progressive politics. Upon closer inspection though, we realize that conservatives really only view it as a problem in two cases: abortion, and gay rights. We need look no farther than another hot-button issue: gun rights.

Despite D.C. v. Heller, the recent Supreme Court case framing the right to bear arms as a personal and vital freedom, no controlling national case to date has ever applied (“incorporated”) the Second Amendment against the states. This conclusion is quite ancient, dating back to 1886, see Presser v. Illinois, 116 U.S. 252, 265 (1886), but apparently, as far as the right goes, when Judge Sotomayor isn’t changing the law too much, she’s changing it too little. I’ll explain.

Under the original Constitution, none of the Bill of Rights applied to state governments. If citizens enjoyed enforceable due process rights against their state government, for example, these rights derived from the state constitution, not the federal Bill of Rights. Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833).

The Fourteenth Amendment changed all that. The events leading up the Civil War compelled the conclusion that strong state governments were, in fact, just as dangerous as a strong federal government – hence the Fourteenth Amendment’s Due Process Clause, and the (now vestigial) Privileges & Immunities Clause. This change was revolutionary indeed: it’s not for nothing that the Civil War is termed “the last battle of the American Revolution.”

In spite of this sea change, courts have never read the Fourteenth Amendment’s Due Process Clause to similarly “incorporate” the Second Amendment against the states, a conclusion that Heller did not disturb. Except for those of you living in the District of Columbia, your right to bear arms has only ever derived from state law.

One can question the wisdom of this conclusion. Many do. But it’s quite curious indeed, and beyond hypocritical, for conservatives to attack Judge Sotomayor for, in Maloney v. Cuomo, declining to take upon herself the task of incorporating the Second Amendment against the state of New York. She was only complying with settled law.

So, here’s the question for the American right: should federal appellate judges expand upon constitutional freedoms (1) not at all, (2) sometimes, or (3) in every reasonable instance when justice so requires? And if the answer is #3, maybe we can talk about gay rights first.

Looking Ahead to Obama’s Second Pick: Pamela Karlan for the Supreme Court!

We here are big fans of Judge Sotomayor – even if she is a serial violator of Rove’s Law (“Never attempt to say anything insightful, comical, or otherwise geared to provoke independent thought, if it can be quoted out of context in a manner likely to ‘offend’ right-wing sensibilities”). As near as we can tell, she’s likely to defend the right to choose, and potentially even advance the strong incorporation of gay rights into the Equal Protection Clause.

Mr. Chief Justice?

However, I admit of this nagging doubt: she is not the daring, or even provocative pick that we on the left would hope for, and deserve, from the Obama administration. Let’s face it – the current Senate would probably confirm Morbo the Annihilator, if Obama asked them to. We should be using this opportunity to put a true liberal lion(ess) on the bench, someone with the rhetorical talent of Antonin Scalia, the progressive sensibilities of William Brennan, and the insight of Sandra Day O’Connor. Admittedly, Judge Sotomayor may be just that, but we’ll have to wait until July 13th to find out. That means we have to endure another month of Republicans oversimplifying the role federal judiciary and coasting on sham charges of “racism,” destroying any possibility of substantive dialogue. Too bad: although it’s easy to see why he wouldn’t want to (think “How to Lose Your Political Capital in 200 days”), nominating a forceful academic, with a record of advancing controversial but unassailable progressive positions, could force a discussion of the nature of constitutional democracy from which (*gasp!*) the public might actually learn.

Depending on the substance of her confirmation hearings, we might not get this type of productive discourse at all this time around. But because Obama will likely have to fill two more Supreme Court vacancies to fill in his first term (Stevens is 89, and Ginsburg, sadly, in poor health), we’ll probably get another chance. Here’s how to take it:

Professor Pamela Karlan for the Supreme Court.

Professor Karlan is roundly regarded as a “liberal Scalia,” the kind of jurist who not only “pushes the envelope” on social issues, but does so brilliantly, and from a firm intellectual foundation. By way of example, the arguments for gay marriage found in her writings are sensible, accessible, and syllogism-like in their simplicity and completeness, making her a daring but defensible nominee: while her writings would immediately come into issue, any debate would be on the President’s terms. This type of nominee is generally less trouble than you’d expect. Justice Scalia, for example, came to the Senate with an ample paper trail, but won confirmation in a stunning 98-0 vote. Admittedly, that was a different time, but the Roberts confirmation hearing should be ample proof that Senators have a hard time opposing competent nominees, regardless of their politics.

A constitutional leader, if we can only get her on the Court.

Her intellect alone more than qualifies her to sit on the nation’s highest court. But demographically, too, Karlan would be an expert pick: she’s a woman, and openly gay. Both are assets. The Court needs more women.  And cases like Lawrence v. Texas – which emphatically refused to treat homosexuality as a serious personality trait – prove that, even when they get the law right, the current Supreme Court doesn’t understand the importance of gay rights. From her writings and her personal stake in the matter, I’d venture to guess that Professor Karlan could provide this absent perspective.

Make no mistake, Karlan would be a risky pick, no matter what Sen. Jeff Sessions (R-AL) promises today. But her intellectual stature, and the productive discussion that her nomination would generate, make it a risk worth taking. I understand why Obama needs an easy confirmation now. It is, after all, still his first 200 days, and his White House certainly has enough on its plate at the moment. But given the uniqueness of this moment in history, and President Obama’s apparent political genius, it would be a shame to not see this White House use a difficult Supreme Court confirmation battle to restore the tattered image of the progressive Court. Expanding constitutional freedoms to worthy groups is a virtue, not a vice, and it’s high time we remind the American people of this simple, vital truth.

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.

The Centrality of Judicial Review: Pierce the Spin on Sotomayor’s Confirmation

Judicial activism isn't all bad. Just ask any minority public school student.

On Wednesday, Newt Gingrich published in “Human Events” what for all the world looks like a talking points memo on everything presumptively wrong with Supreme Court nominee Sonia Sotomayor. Amidst spouting the usual outrage about the evils of “empathy” and “diversity” – qualities the right actually values in other judges – Newt asks the following question:

How does Judge Sotomayor come down on the issue of a judge’s fidelity to the law?

Gee, Newt, I dunno: how does ex-Congressman Gingrich come down on the issue of push polling? The American people deserve to know.

In any event, in previous articles, we’ve explained the centrality of judicial review to the American system of government, analyzed the historical value of “judicial activism,” and explained how conservatives and liberals alike can responsibly make their cases about the meaning judicial review.

However, we’re not so naive as to believe that responsible debate has any place in most battles of the culture war. Go over 140 characters, and you’ve probably lost the attention of most of the media. Here, then, is our attempt to break down the debate on “judicial activism,” talking point by talking point. Continue reading »