Supreme Court

by

Sonia Sotomayor and Senator Graham

Let’s look at this exchange as published in the Washington Post

GRAHAM: Now, during your time as an advocate, do you understand identity politics? What is identity politics?

SOTOMAYOR: Politics based simply on a person’s characteristics, generally referred to either race or ethnicity or gender, religion. It is politics based on . . .

GRAHAM: Do you embrace identity politics personally?

SOTOMAYOR: Personally, I don’t as a judge in any way embrace it with respect to judging. As a person, I do believe that certain groups have and should express their views on whatever social issues may be out there. But as I understand the word “identity politics,” it’s usually denigrated because it suggests that individuals are not considering what’s best for America.

. . .

GRAHAM: Do you believe that your speeches properly read embrace identity politics?

SOTOMAYOR: I think my speeches embrace the concept that I just described, which is, groups, you have interests that you should seek to promote, what you’re doing is important in helping the community develop, participate, participate in the process of your community, participate in the process of helping to change the conditions you live in.

I don’t describe it as identity policies, because — politics — because it’s not that I’m advocating the groups do something illegal.

GRAHAM: Well, Judge, to be honest with you, your record as a judge has not been radical by any means. It’s, to me, left of center. But your speeches are disturbing, particularly to — to conservatives. . . . Those speeches to me suggested gender and racial affiliations in a way that a lot of us wonder: Will you take that line of thinking to the Supreme Court in these cases of first precedent?

Sen. Lindsey O. Graham is viewed as a bellwether for how large a majority of the Senate will vote for Supreme Court nominee Sonia Sotomayor.

The Republicans have spent most of their time over the last four days trying to figure out what makes Judge Sotomayor tick.  I think the answer is pretty simple:  Yes, she is a woman and yes, she is Latina and in her private time, she may volunteer for groups that advocate those causes.  But when she is a judge, she is not an advocate.   And that’s why none of you could find anything objectionable in any of her many decisions.  Isn’t that what you said you want from a judge?  Isn’t that why you were all upset about empathy?  Sonia Sotomayor has shown that she has empathy and that she rules according to the facts and the law.  I think that is what you said you wanted.

by

Sonia Sotomayor – Day 3

Except for Senator Coburn’s lame attempt at doing a racist Ricky Ricardo imitation and the discussion with Al Franken about Perry Mason, nothing much happened yesterday.

The best summary I’ve seen of the hearing so far is by Liz Halloran of NPR.

Grain commodity trading contracts. Orange peels for animal feed. Goose bumps. Fendi. Securities law. The baseball All-Star game. And Perry Mason.All were on the table Wednesday as her advocates worked to run out the clock on Supreme Court nominee Judge Sonia Sotomayor’s confirmation hearing.

…

Republicans On Sotomayor:

Sotomayor disses heroic firefighters.

She thinks people have different physiologies.

She gives shocking speeches about ethnicity and judgment that undermine her 17 years on the bench.

She might support a woman’s right to abortion.

The National Rifle Association has reservations about her.

And some lawyers who have appeared before her think she’s a pushy broad.

Democrats On Sotomayor:

Her mind is always open.

Jurors are heroes.

She was once a prosecutor.

Did they mention she was a prosecutor?

She is dispassionate when it comes to the law.

She loves facts, not hypotheticals.

She’s tough on white-collar criminals and sends them to prison.

She believes in deference to each branch of government.

Hispanic chambers of commerce support her.

She supports voting rights.

Her life story gives Democratic Sen. Sheldon Whitehouse of Rhode Island “goose bumps.”

And she really, really wishes she was better at rhetorical flourishes.

And there you have it. 

Day 4 coming up.

by

Sonia Sotomayor – Day 2

Does Senator Jeff Sessions understand the roles of the various courts?  Does he understand the use of precedent?  Is he really a lawyer?  Kate Phillips blogging the hearing in the New York Times

Judge Sotomayor, confronted by Senator Sessions about how her take on a wise Latina’s decisions differed from that of Judge Miriam Cedarbaum, pointed out that Ms. Cedarbaum was her friend and was sitting in the audience. (In one of her speeches, Ms. Sotomayor had referred to Ms. Cedarbaum’s discussions about the number of women joining the bench and whether those numbers were having any impact.)Mr. Sessions repeatedly said he was “troubled” and very concerned as to whether she could be impartial if she couldn’t put her experiences aside. Ms. Sotomayor replied that she believed she did apply the facts to each case, and applied the law.

We all see the world through our own lens.  Sessions, whether he wants to admit it or not, see the world through his white, Southern, racist one.  To expect any judge to lay aside his or her experience when looking at a case is to want robots or cyborgs to become judges.  However, we do not want them to judge cases on emotion or experience alone, they must also apply the law.

Howard Fineman blogging this afternoon for Newsweek wrote

Sotomayor was saying that it was better to admit the existence of personal biases, and then control them with that knowledge. Sessions was forced to argue that a judge must come to the bench with no biases whatsoever─an ironic position indeed for a son of the segregated Deep South.

Senator Schumer tried to tackle this issue.  Phillips writes

He began by knocking down concerns over empathy that Republicans have cited: “Now I believe that empathy is the opposite of indifference,” he said, adding “the opposite of having ice water in your veins.”

He then went through a number of cases, including the litigation around the plane crash into Long Island Sound brought by the surving families.  Even though she, along with everyone in the country, felt for the plaintiffs, she applied the relevant law and ruled against them.

And then there was her Republican “supporter”, Lindsey Graham, who turned condesending and lecturing

Mr. Graham has been one of the more outspoken critics in the Senate about the judge’s wise Latina remarks. As we mentioned Monday, he complained, around the time of his meeting with her, that as an “everyday white guy,” he wouldn’t have been able to get away with such comments.During his session today, Senator Graham pounded home that point. Perhaps this was his Southern upbringing coming out, but at one point as he wove his way through his objections to her statements, he said, “Do you understand, ma’am?”

If he had uttered those words — that as a white man he would make a better decision, for example, against a minority opponent in a political race, “they would have my head,” Mr. Graham declared.

In a chastising voice, Mr. Graham added: “It would make national news and it should. Having said that I am not going to judge you by that one statement. I just hope you’ll appreciate the world we live in, meaning you can say those things and still inspire somebody and still get a chance to get on the Supreme Court.” If others used those words, they “wouldn’t survive.”

Does that make sense? he asked.

Yes, she answered.

And then she went to to hope that we will move past this type of thinking and had Graham agreeing that if the hearing moved the discussion closer to this goal, it would have been worth while.

Back to Fineman

So it goes: pretty easily for the judge. The feeling in the Hart Building hearing room today is almost sleep-inducing, for the following reasons

  • The discipline, preparation, canniness, record, and intellect of the nominee.
  • The ambivalence, even confusion, of her GOP interlocutors (with the exception of the canny Lindsey Graham).
  • The nature of confirmation hearings, which have become a form of predictable puppet theater, especially since everyone knows in advance that Sotomayor has the votes.

Aside from her personal demeanor─calm, almost painfully explanatory─Sotomayor’s best weapon in the hearings has been her record as a judge. There just aren’t many cases that the GOP has been able to cite to make her sound like a wild-eyed “activist,” liberal or otherwise. So far, they have mentioned about 10 of her cases, out of hundreds.

This Wasserman cartoon from the Boston Globe sums it up well.

07.14%20WISE%20LATINA%20copy

by

Sotomayor: Day One

It was the first day of confirmation hearings for Sonia Sotomayor.  She didn’t get to say much and it is a good thing she has all that experience on the bench where she learned to listen because the Senators all got to make opening statements.  And when she did speak, she was short and to the point as she talked about her background and her judicial philosophy “assuring senators that she believes a judge’s job “is not to make law” but “to apply the law,” as the two parties used her nomination to debate the role of the judiciary.”

Al Franken made his debut as a Senator,

“As most of you know, this is my fifth day in office,” he said, as a few people laughed. He then turned somber, saying that he took his oath of office very seriously.

I thought he was clearly a little nervous as he said he represented the common person, the one who is not a lawyer.

But the real kicker was Senator Jeff Sessions.  I think he resented the fact that he never made it though his district court nonination hearings and now had to be the ranking Republican on a Judiciary Committee about to confirm an Hispanic woman to the Supreme Court.  He came off as a bitter, sour old white guy.

Eugene Robinson writes in this morning’s Washington Post

The only real suspense in the confirmation hearings for Supreme Court nominee Sonia Sotomayor is whether the Republican Party will persist in tying its fortunes to an anachronistic claim of white male exceptionalism and privilege.

Republicans’ outrage, both real and feigned, at Sotomayor’s musings about how her identity as a “wise Latina” might affect her judicial decisions is based on a flawed assumption: that whiteness and maleness are not themselves facets of a distinct identity. Being white and male is seen instead as a neutral condition, the natural order of things. Any “identity” — black, brown, female, gay, whatever — has to be judged against this supposedly “objective” standard.

Thus it is irrelevant if Justice Samuel A. Alito Jr. talks about the impact of his background as the son of Italian immigrants on his rulings — as he did at his confirmation hearings — but unforgivable for Sotomayor to mention that her Puerto Rican family history might be relevant to her work. Thus it is possible for Sen. Jeff Sessions (R-Ala.) to say with a straight face that heritage and experience can have no bearing on a judge’s work, as he posited in his opening remarks yesterday, apparently believing that the white male justices he has voted to confirm were somehow devoid of heritage and bereft of experience

Amy Klobuchar captured the diversity issue in a different way in her statement as quote in the New York Times live blog on the hearings

In describing their varied experiences, Ms. Klobuchar notes that sitting near her is Senator Whitehouse, who grew up in Laos and Cambodia as the son of a diplomat while she worked as a carhop at the A&W Root Beer stand. In addition, she pointed out, while Senator Hatch is a gospel music songwriter, Mr. Leahy is quite the Dead-head and once had difficulty taking a call from the president because he was onstage at a Grateful Dead concert.

Eugene Robinson again

The whole point of Sotomayor’s much-maligned “wise Latina” speech was that everyone has a unique personal history — and that this history has to be acknowledged before it can be overcome. Denying the fact of identity makes us vulnerable to its most pernicious effects. This seems self-evident. I don’t see how a political party that refuses to accept this basic principle of diversity can hope to prosper, given that soon there will be no racial or ethnic majority in this country.

…

There is, after all, a context in which these confirmation hearings take place: The nation continues to take major steps toward fulfilling the promise of its noblest ideals. Barack Obama is our first African American president. Sonia Sotomayor would be only the third woman, and the third member of a minority group, to serve on the nation’s highest court. Aside from these exceptions, the White House and the Supreme Court have been exclusively occupied by white men — who, come to think of it, are also members of a minority group, though they certainly haven’t seen themselves that way.

Judging from Monday’s hearing, some Republican senators are beginning to notice this minority status — and seem a bit touchy about it.

Sotomayor confirmation hearing

Day Two, coming up.

by

The Strange Story of Lloyd Gaines

Never heard of Lloyd Gaines?  I hadn’t either until about 2 hours ago when I read the story in today’s New York Times.  Buried on page 19, is the story of a Supreme Court decision I had never heard of and the mystery surrounding the plaintiff, Lloyd Gaines.

Mr. Gaines left his apartment in Chicago on the night of March 19, 1939, three months after the Supreme Court ruled that the state of Missouri had to admit him to law school.

On Dec. 12, 1938, the Supreme Court ruled that the segregated University of Missouri Law School had to admit Lloyd Lionel Gaines, who was qualified except for the color of his skin, if there was no comparable legal education available to him within Missouri — and there was not.

Despite his victory, Mr. Gaines was troubled. He had told relatives and friends he was having trouble finding steady work to earn money for school (apparently one reason he went to Chicago), and he was ambivalent about being in the spotlight.

“As for my publicity relative to the university case, I have found that my race still likes to applaud, shake hands, pat me on the back and say how great and noble is the idea,” he wrote his mother in St. Louis days before disappearing. “How historical and socially important the case but — and there it ends.” He added, “Sometimes I wish I were just a plain, ordinary man whose name no one recognized.”

For the 1930s, Missouri’s policy was enlightened: since there was no law school at Lincoln, the state paid the tuitions of blacks from Missouri who went to nearby states to study law. And the Missouri legislature had committed itself to establishing a law school at Lincoln someday, should there ever be enough demand.

But Mr. Gaines said he wanted to go to the University of Missouri’s law school, so in 1936 he sued in state court to gain admission. He lost, but lawyers for the N.A.A.C.P. saw his case as a way to attack the “separate but equal” doctrine laid down by the Supreme Court in 1896 in Plessy v. Ferguson, which was used to justify public school segregation.

Mr. Gaines’s team was headed by Charles Hamilton Houston, chief litigator for the N.A.A.C.P., mentor to Thurgood Marshall and later dean of the Howard University Law School. The case reached the Supreme Court on Nov. 9, 1938. Houston argued that the state had blatantly failed to meet the “separate but equal” standard and that paying out-of-state tuition for black students from Missouri was not good enough. The court ruled 6 to 2 for Mr. Gaines. “The basic consideration here is not as to what sort of opportunities other states provide, or whether they are as good as those in Missouri, but as to what opportunities Missouri itself furnishes to white students and denies to Negroes solely upon the ground of color,” Chief Justice Charles Evans Hughes wrote.

Justices James C. McReynolds and Pierce Butler dissented, saying the State of Missouri ought to be able to set its own education policies. (There was one vacancy on the court.)

The ruling in Gaines v. Canada (S. W. Canada was the university registrar) would eventually open the doors of law schools for blacks in a dozen Southern and border states. And it was a steppingstone toward Brown v. Board of Education, the landmark 1954 decision that repudiated the “separate but equal” notion in outlawing school segregation.

So what happened to Mr. Gaines?  Was he murdered?  If so, by a mugger out to rob him or by segregrationists who had stalked him?  Or did he simply decided he did not want to attend the University of Missouri law school, didn’t want to deal with the pressure and just disappear?

Lloyd Gaines’s nephew George Gaines, a retired Navy captain who lives in San Diego, said recently, “We have never had him declared dead.” But Captain Gaines said he doubted that his uncle would have chosen to drop out of life, or end his life, given the perseverance he displayed.

In the early 1950s, the University of Missouri began admitting black students. Lloyd Gaines is now revered at the university, which awarded him an honorary law degree in 2006. That year, the state bar awarded him a law license, posthumously.

If he had lived, would we be celebrating Gaines v. Canada as we do Brown v. Board of Education?    Would Brown have come sooner?  Would Gaines have been the James Meredith of University of Missouri?  On the eve of the start of Senate hearings on the nomination of the first Latino Justice, it is interesting to think about.

by

Some thoughts about Sonia Sotomayor and Race

Charles Blow has an interesting column in the New York Times about the Republican claims that Supreme Court nominee , Sonia Sotomayor would be a racist and rule consistently against anyone who isn’t a “minority”.   Those who call her racist generally only cite the New Haven firefighters case in which she joined the opinion of two other justices.  (No one ever talks about them, but given the composition of the judiciary, I presume both are probably white and at least one is male.)

Furthermore, the picture that those Republicans painted of Sotomayor doesn’t seem to be supported by her actions. The Scotusblog examined her court of appeals decisions in race-related cases and found that she rejected claims of discrimination 80 percent of the time.

Blow attached a nifty chart.  The chart shows that of the 96 cases involving discrimination she has heard on the Court of Appeals, in 78 she found no discrimination.  But, as Blow points out, the Republicans don’t want to apologize for calling her biased and racist.

Is such a stubborn stance good for the Republican Party?

No. Racial wounds are deeply felt and slowly healed. Having Hispanics feel racially slighted by the Republicans is suicidal. Hispanics are 15 percent of the nation’s population, and, unlike blacks, they’re not so monolithically democratic, at least not yet.

And here’s another take on the nonimation from Calvin Trillin.

The nominee’s Sotomayor,
Whom all good Latinos adore
But right-wingers tend to deplore.
They’d like to show Sonia the door.
Her record, they say, heretofore
Reveals that beliefs at her core
Would favor minorities more:
She’d hand them decisions galore,
Because of the racial rapport.

Whereas white male judges are, as everyone knows, totally neutral.

While I’m thrilled that President Obama has nominated a woman and a Latina, I worry that she is going to turn out to be more moderate than I would like.