My Supreme Court Fantasy

One of my friends asked if she would go to hell because she was glad that Antonin Scalia was dead.  I have mixed feelings.  First, I’m very sad for his family as sudden death is always difficult.  On the other hand, I am happy he is no longer a factor on the Supreme Court.  Justice Ruth Bader Ginsberg wrote on the the nicest tributes I’ve seen.  This is from Vox.

So it’s no surprise that of all the tributes to Justice Scalia, who died Saturday of an apparent heart attack at the age of 79, Justice Ginsburg’s is uniquely moving. It’s a tribute to Scalia as an interlocutor, a fellow opera lover — including a reference to the opera Scalia/Ginsburg: A (Gentle) Parody of Operatic Proportionswhich debuted in 2015 — and a “best buddy.”

Toward the end of the opera Scalia/Ginsburg, tenor Scalia and soprano Ginsburg sing a duet: ‘We are different, we are one,’ different in our interpretation of written texts, one in our reverence for the Constitution and the institution we serve. From our years together at the D.C. Circuit, we were best buddies. We disagreed now and then, but when I wrote for the Court and received a Scalia dissent, the opinion ultimately released was notably better than my initial circulation. Justice Scalia nailed all the weak spots—the ‘applesauce’ and ‘argle bargle’—and gave me just what I needed to strengthen the majority opinion. He was a jurist of captivating brilliance and wit, with a rare talent to make even the most sober judge laugh. The press referred to his ‘energetic fervor,’ ‘astringent intellect,’ ‘peppery prose,’ ‘acumen,’ and ‘affability,’ all apt descriptions. He was eminently quotable, his pungent opinions so clearly stated that his words never slipped from the reader’s grasp.

Justice Scalia once described as the peak of his days on the bench an evening at the Opera Ball when he joined two Washington National Opera tenors at the piano for a medley of songs. He called it the famous Three Tenors performance. He was, indeed, a magnificent performer. It was my great good fortune to have known him as working colleague and treasured friend.

So my fantasy is imagining Justices Ginsburg, Sotomayor, and Kagan joined by a Justice Amy Klobuchar.  What a quartet that would be!

Patrick Condon writes in the Minneapolis Star Tribune

U.S. Sen. Amy Klobuchar is likely to mix it up in the coming political brawl in Washington around replacing Supreme Court Justice Antonin Scalia, and not just because her own name has again surfaced as a potential high court nominee.

Klobuchar

Klobuchar sits on the Senate Judiciary Committee.  This can be a plus because she has worked with all the Republican members.

Obama said late Saturday that he intends to try to fill the vacancy “in due time.” It is already shaping up to be an epic battle as Obama has been handed the rare chance to swing the ideological balance of the court, where Scalia served as one of the most reliably conservative voices in the 5-4 majority.

As Republicans who control the U.S. Senate vow to block Obama, the president will look for judiciary committee allies like Klobuchar and Franken. But Klobuchar, an attorney and a former elected prosecutor, may first be considered as a prospect.

“I think there’s a bunch of reasons she makes sense,” said Norman Ornstein, an expert on Congress and U.S. politics at Washington’s American Enterprise Institute, who was touting Klobuchar’s case on Twitter over the weekend. “I think there’s a substantive argument for her, and a political argument for her.”

Ornstein said by choosing a U.S. senator, Obama could make it a harder for Senate Republicans to block a trusted colleague for the entirety of 2016. And he suggested it might be a good time to reverse the recent presidential trend of only picking judges.

“There was a long tradition of selecting people who had been in public life, gone through elections and served in legislatures or executive office,” Ornstein said.
 Chief Justice Earl Warren and retired Justice Sandra Day O’Conner are two examples cited.
President Obama may ultimately decide that Klobuchar is too political an appointment and we don’t know if she would even be interested, but I can dream of the Mighty Four on the Supreme Court.
Photograph:  Twitter.com

Baseball and Justice Sotomayor or Flood v. Kuhn revisited

Anyone who loves baseball and history will love this story.  I found it on NPR reported by Nina Totenberg who covers the Supreme Court.  It is about a combination moot court and historic re-enactment.  The case is Curt Flood v. Bowie Kuhn from 1972.  Law school often do this kind of re-enactment, but this one was sponsored by the Supreme Court Historical Society.  Justice Sotomayor presided from the seat of the Chief Justice.

For those who don’t remember, the case was brought by St. Louis Cardinals great Curt Flood, who challenged baseball’s reserve clause — the provision that allowed teams to virtually own players, set salaries and conduct trades, with the players for all practical purposes never able to negotiate freely with other teams. That meant that at the time Flood brought his challenge in 1970, he was earning what was then considered a top salary of $90,000. This, for a player who had signed with the Cards at age 18, with no agent or lawyer, and who in six of the next 12 seasons batted .300 and won seven Gold Glove awards. So, when he was traded to the Philadelphia Phillies, a definitely lesser team at the time, he refused to go, and could not play for any team.

He wrote to the then-baseball commissioner, Bowie Kuhn, protesting that he was “not a piece of property to be bought and sold.” Kuhn denied his request for free agency — a concept unrecognized by baseball back then — and Flood sued, seeking to block the perpetual use of the reserve clause.

Flood lost, but baseball changed forever as the free agency system was put into place anyway.

In 1994, however, nearly two decades after the Flood decision and the ensuing changes in baseball, the owners sought to effectively nullify the free agency system, and the baseball players struck, wiping out the playoffs and the World Series. The National Labor Relations Board went to court, contending that the owners were negotiating in bad faith, and the case came before a young federal district court judge named Sonia Sotomayor.

She agreed that the owners were colluding illegally to fix salaries and granted a temporary injunction barring them from doing that. Sotomayor, a wildly dedicated Yankees fan, issued her opinion in time to allow the new baseball season to begin as scheduled on opening day, with the old baseball contract in effect. She thus earned the title, “the judge who saved baseball.”

The arguments in the re-enactment veered between history and current day baseball.

Representing Flood at the re-enactment was Stanford Law professor Pamela Karlan, a frequent Supreme Court advocate, and ironically, a former Blackmun law clerk. And representing Major League Baseball was another frequent Supreme Court advocate, Roy Englert.

Karlan opened, noting that the Supreme Court’s 1922 and 1953 decisions upholding baseball’s antitrust exemption were outliers and that the court had not permitted such an exemption for any other professional sport.

Sotomayor asked why the court should “break with tradition,” thus depriving the owners of their “reliance” on previous decisions.

Karlan shot back that if the court were to side with the owners for a third time, it would amount to something done in baseball only once before — three errors on a single play.

Sotomayor, with a straight face, opined that the court could apply another baseball rule: three strikes and you’re out.

Karlan, undaunted, replied, “I’m swinging for the fences here, your honor.”

Sotomayor is escorted onto the field by New York Yankees catcher Jorge Posada to throw out the ceremonial first pitch before the New York Yankees game against the Boston Red Sox at Yankee Stadium on Sept. 26, 2009.

The next exchange con free agency and salaries management to get in a dig at Sotomayor’s favorite Yankees.

Sotomayor asked what would happen if the court were to take away the antitrust exemption. Wouldn’t the players move around so much that fans would have no team loyalty?

No, rejoined Karlan, the owners would just have to pay the players what they are worth in order to hold on to them, and instead of year-to-year contracts that leave players with no leverage, the owners would have to negotiate longer-term contracts.

Sotomayor, in mock horror, said that if the antitrust exemption were abolished and owners could no longer collude to set player salaries at will, the Yankees might have to pay Reggie Jackson $1 million a year!

Worse, replied Karlan, would be if the Yanks paid Alex Rodriguez a quarter of a billion dollars not to play.

“I can’t imagine such a thing!” answered a shocked Sotomayor.

Next at bat were the owners.

Next up to the lectern was Roy Englert, representing the baseball commissioner and owners. He noted that some 50 bills had been introduced in Congress over the years to eliminate the antitrust exemption, and none had passed. The court, he said, should leave the question to Congress.

But Sotomayor asked, “Where are the rights of the players?” Quoting Curt Flood, she said that the baseball system was a form of “involuntary servitude” that does not exist in any other industry.

Englert replied that “these young men are making on average $28,000 … as much as Supreme Court justices.” Moreover, unlike other sports, he observed, baseball puts enormous investment into training players in the minor leagues.

The case does involve some serious legal questions, some raised by the decision written by Justice Blackmun.  It appears that Blackmun was reluctant to overturn the prior decisions, but wrote his opinion in such a was that everyone understood that baseball did in fact fall under that anti-trust laws and does engage in interstate commerce.

Justice Sotomayor concluded

‘There are Supreme Court decisions that are wrong,” she said. The court’s 1896 decision upholding segregation was wrong, and the Supreme Court was right to reverse it in 1954. But sometimes, she said, the question is not whether the decision was wrong, but whether this is the right time to overrule it.

Today, she observed, we see as “horrible” the reserve clause that deprived players of any real negotiating power. But at the time, what both sides thought they were arguing about was “the very survival of baseball.”

Taking the oath

President Obama just became the 16th President to take the oath of office for the second time.  There have been 57 inaugurations.

President Barack Obama is officially sworn-in by Chief Justice John Roberts in the Blue Room of the White House. | AP Photo

Josh Gerstein commented on Politico

Barack Obama and John Roberts were all smiles when the chief justice swore in  the president on Sunday — and they’ll likely repeat the performance on  Monday.

But the serene tableau obscures the tumultuous relationship between the two  men since their first awkward public interaction during the botched oath of  office four years ago.

On Sunday, Roberts read the oath from a piece of paper — and both men seemed  relieved when it was over. They exchanged congratulations and thanks, and then  Obama turned to his daughter Sasha. “I did it,” he told her.

Vice President Joe Biden was sworn in earlier by Justice Sotomayor.

Vice-president Joe Biden takes the oath

Obama Photograph AP

Biden photograph Carolyn Kaster/AP

What Affirmative Action Means in Real Life

Sonia Sotomayor is now officially Justice Sotomayor.  She took the oath administered by Chief Justice John Robert a few minutes ago.

On Thursday afternoon when the Senate voted to confirm her, the newest Senator, Al Franken the former comedian from Minnesota, was presiding and announced the vote.  Is this a great country or what?

Anita Hill has a very interesting Op-Ed in today’s Boston Globe discussing the role of what she calls “educational democracy” played in Justice Sotomayor’s elevation to the Supreme Court.

A LATINA from a Bronx housing project is probably not what Woodrow Wilson envisioned when he called for “educational democracy’’ as president of Princeton University in 1910. Yet decades later, when Sonia Sotomayor ascended to the top of her class, his idea of an open and accessible university system was on its way to coming to fruition. In Wilson’s day, Princeton admitted no women and Wilson himself is said to have looked with disfavor on the admission of men of color. Nevertheless, educational reform was a springboard for his larger aims of social and political reform and his fight against “the rule of materialism in our national life.’’

Indeed, Wilson would have needed a high-definition crystal ball to foresee Sotomayor’s “incredible journey’’ to become an African-American president’s nominee to the Supreme Court. Yet, as a critical chapter in our country’s pursuit of educational equality, her story of hard work and high achievement is an extension of Wilson’s idea. She represents the positive change that can occur when social institutions – law and education in particular – shed their roles as tools for exclusion and open their doors to those previously barred. It took nearly 220 years for the first Latina justice to be appointed to the Supreme Court, but, in a country constitutionally committed to equal opportunity, it was inevitable.

It was under President Wilson that women gained the right to vote – a reward for suspending demonstrations for suffrage during World War I.  And I’ve always thought that Edith Wilson had influence here also even though I don’t believe that any historical facts have ever surfaced to proved this.

Hill goes on

Sotomayor is poised to prove that the social experiment of the 1970s built on the idea of educational democracy has, thus far, worked. For its full realization, President Obama must correct the documented shortcomings of public schools that weigh most heavily on poor and minority community schools. We can’t be satisfied with one Sonia Sotomayor when we have the potential for so many more. For now, with her confirmation as the first Latina and third woman on the Supreme Court, Obama has reminded us of what egalitarian ideals and the will to pursue them can accomplish.

I think Hill is right.  Educational democracy leads to a critical mass of women, African Americans, or other ethnic minorities ready to take on jobs and challenges that have not been open to them in the past.  This leads to a cascade of changes in our society such as the election of the first African American President. 

I think it is the loss of this exclusivity that has the white Republican men on the Senate Judiciary Committee so frightened.  Perhaps they have seen all along where affirmative action or educational democracy was going to lead and why they have been so opposed to change.  But that is probably giving them too much credit and they are just frightened of change that puts them in a position where they are no longer superior.  One where they have to share power and priviledge.

Congratuations, Justice Sotomayor!  And may the President’s next appointment be someone as wise as you.  Perhaps a wise Asian American man or woman or a wise African American woman.  Mary Frances Berry, anyone?

Lessons from the Sotomayor Hearings

Over the weekend two very interesting pieces appeared.  One was Frank Rich’s column  in the New York Times, the other Melissa Harris Lacewell in the Nation.  Both approach the subject of Senatorial attitude toward a Latina woman.  One writer is a middle aged white male and former New York Times theater critic, the other a young, African American professor at Princeton. 

Here is Rich

Yet the Sotomayor show was still rich in historical significance. Someday we may regard it as we do those final, frozen tableaus of Pompeii. It offered a vivid snapshot of what Washington looked like when clueless ancien-régime conservatives were feebly clinging to their last levers of power, blissfully oblivious to the new America that was crashing down on their heads and reducing their antics to a sideshow as ridiculous as it was obsolescent.

The hearings were pure “Alice in Wonderland.” Reality was turned upside down. Southern senators who relate every question to race, ethnicity and gender just assumed that their unreconstructed obsessions are America’s and that the country would find them riveting. Instead the country yawned. The Sotomayor questioners also assumed a Hispanic woman, simply for being a Hispanic woman, could be portrayed as The Other and patronized like a greenhorn unfamiliar with How We Do Things Around Here. The senators seemed to have no idea they were describing themselves when they tried to caricature Sotomayor as an overemotional, biased ideologue.

And here Harris-Lacewell

The hearing was a performance of a broader set of social rules that govern race and gender interactions in American politics. Women, and most especially black and brown women, have to prove their fitness for public life by demonstrating the ability to endure harsh brutality without openly fighting back. The ability to bear up under public degradation is a test of worth. America’s favorite black woman heroine is Rosa Parks, a woman who is remembered as silently enduring the humiliation of being ejected from a public bus for refusing to comply with segregated seating.

Sotomayor passed the test. She met the Senators’ questioning with thoughtful responses. Her voice did not quiver. Her face did not scowl. Many women of all races feel inspired by her. But I wonder about this lesson that continues to teach women that we can only have space in the public realm as long as we control all emotion.

They are both describing what Harris-Lacewell calls “the politics of public humiliation.”  The practice of this kind of politics in the year 2009 says more about the Republicans than about Sotomayor – or the current status of women of color.

Rich ties the Republicans to the Class of  1994, the Class of the Contract with America, the Newt Gingrich class.

That the class of ’94 failed on almost every count is a matter of history, no matter how hard it has retroactively tried to blame its disastrous record on George W. Bush. Its incompetence may even have been greater than its world-class hypocrisy. Its only memorable achievements were to shut down the government in a fit of pique and to impeach Bill Clinton in a tsunami of moral outrage.

…Today the G.O.P.’s token black is its party chairman, Michael Steele, who last week unveiled his latest strategy for recruiting minority voters. “My plan is to say, ‘Y’all come!’ ” he explained, adding “I got the fried chicken and potato salad!”Among Sotomayor’s questioners, both Coburn and Lindsey Graham are class of ’94. They — along with Jeff Sessions, a former Alabama attorney general best known for his unsuccessful prosecutions of civil rights activists — set the Republicans’ tone last week. In one of his many cringe-inducing moments, Graham suggested to Sotomayor that she had “a temperament problem” and advised that “maybe these hearings are a time for self-reflection.” That’s the crux of the ’94 spirit, even more than its constant, whiny refrain of white victimization: Hold others to a standard that you would not think of enforcing on yourself or your peers. Self-reflection may be mandatory for Sotomayor, but it certainly isn’t for Graham.

Harris-Lacewell puts it this way

All Supreme Court nominees endure tough, ideologically driven questioning. It’s as true for white male conservative justices as for Sotomayor. But this public display took on different meaning as white men repeatedly asserted that Sotomayor was capable of making legal judgments based only on her personal experience and ethnic identity.

I was proud of Sotomayor’s restraint, but I also wanted her to counter attack, to punch back, to show anger. She couldn’t do so in part because she is bound by the rules of judicial decorum. She also couldn’t do so because of the racialized, gender rules of political engagement that allow white men, from senators to firemen, to express outrage, indignation, and emotion, but disallow those same expressions from women of color.

So what have we learned?  We have learned that maybe Lacewell-Harris is right when she compares Sonia Sotomayor to Little Rock Nine student, Elizabeth Eckford.

One of the most enduring images of the Civil Rights Movement is of Elizabeth Eckford. She is being harassed and taunted by a group of white students, parents, and police on her way to desegregate Central High School in Little Rock, Arkansas. On that morning Eckford missed connecting with the eight other African American students of the Little Rock Nine and their NAACP leader, Daisy Bates. Eckford was alone when the angry crowd surrounded and confronted her

Only now the mob is the composed of white, mostly southern, Republican Senators.

We have learned that women, regardless of race, regardless of how successful they may be,  still have to behave differently than men, that there is still a double standard.

We have learned, again, that the Republican Party is mostly clueless when it comes to race.  And I believe that their fear and dislike of Barack Obama will drive most of their behavior over the next eight years.

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.

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