Posts Tagged ‘Roberts’

We’ve Lost the War

Wednesday, July 15th, 2009

By all accounts, Judge Sonia Sotomayor will eventually be confirmed by the Senate as the first Latina on the U.S. Supreme Court.

Yet, I can’t shake this nagging feeling that while we will win this battle, we’re losing the war.

Issue No. 1 in her Senate confirmation hearings, which are ongoing as I write this, is whether Sotomayor would let her Hispanic ethnicity or gender shape her rulings. She has spent the better part of two days trying to assure ranting Republican senators that it would not.

Which is not only patently false, it confirms for me that Republicans have won the broader debate in this country: Progressive jurists quake in their boots at the mere thought of being labelled “activists” who “legislate from the bench” by letting who they are and how they feel about it impact their decisions.

(As if conservative jurists don’t do this all the time.)

The front page of the Akron Beacon Journal this morning includes an AP article headlined: ‘Sotomayor denies racial bias’:

An attempted play on words ”fell flat” in a speech in 2001, Sotomayor told Sen. Jeff Sessions, R-Ala., referring to remarks in which she suggested that a ”wise Latina woman” would usually reach a better conclusion than a white male.

”It was bad because it left an impression that I believed that life experiences commanded a result in a case, but that’s clearly not what I do as a judge,” Sotomayor said.

The New York Times plays it the same way:

”My words failed, they didn’t work,” she told Senator Cornyn, who zeroed in what he said were several instances in which she asserted that “a wise Latina woman” might reach a different, even a better, decision than a white male.

All this fuss is about a 2001 Berkeley lecture on law and cultural diversity, in which Sotomayor said:

“Justice O’Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. … I am also not so sure that I agree with the statement. First … there can never be a universal definition of ‘wise.’ Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”

With a richness of her experiences. That’s the part media accounts leave out. And yet, that was Sotomayor’s point. Are Republicans suggesting that a white male who has lived on a remote mountaintop studying U.S. law all his life — never once venturing down into the messy and confounding and beautiful streets of America, but with a “perfect” understanding of the law — would somehow be their ideal candidate?

Sotomayor’s comment is not only utterly refreshing, it highlights an unassailable truth. If our society was perfect, we might not need judges with varied backgrounds and experiences. If we had not had slavery and Jim Crow, maybe there would have been no need for Thurgood Marshall. If women had always had the right to vote, and earned equal pay for equal work, perhaps we could have lived without O’Connor and Ruth Bader Ginsberg.  If gay Americans had the right to get married and serve openly as U.S. soldiers, the Court might not need a gay judge.

But they don’t, and we do, and hopefully one day we’ll have one.

By forcing Sotomayer to contort her legal self into a barely recognizable shadow of her ethnic self, minority Republicans remain on offense, in control the broader message, which will continue to have ramifications for a long time to come.

In my ideal America, Judge Sotomayor would look those Republican senators in the eye and say: Absolutely, my experiences as a Latina woman, to say nothing of my experiences growing up in a South Bronx housing project, will affect how I rule on the nation’s top court, just as Chief Justice John Roberts’ experience at Roman Catholic grade school and boarding school, and Justice Clarence Thomas’ experience as a beneficiary of affirmative action, surely affect their decisions.

That’s how it should be. It’s a big part of the reason why, over time, our vast, relatively young system of law bends slowly, achingly toward justice.

Thank you, and God bless America.

Sessions on Sotomayer

Wednesday, May 27th, 2009

It’s amazing to me, the things Republicans say about Supreme Court nominees, with a straight face.

Here’s Jeff Sessions of Alabama, the top Republican on the Judiciary Committee, in the latest AP article (“No filibuster, but Sotomayer battle still looms“):

We have an absolute constitutional duty to make sure that any nominee, no matter what their background and what kind of life story they have, that we examine that so the American people can know that the person we give a lifetime appointment to … will be faithful to the law and not allow their personal views to influence decision-making.

The Republicans want automatons, who read the law and spew out the answers, without regard to their own “personal views” and life experience. As if there were some pure rendering of the Constitution that could be gleaned, over and over, without regard to who we are, what we’ve read, where we went to school, who our parents are, who we married, whether we have children, whether or not we’ve been discriminated against, or victimized, or grown up in a Housing project.

Why do we need people to do this? Wouldn’t it just be better to have some kind of sophisticated computer system — like the BCS, used by college football to pick the two best teams each year for the national championship game — that could take in all the data and spit out the answer Rhenquist would have loved, over and over and over again?

I’m sure Iphone could make an app for that.

I have a friend here in Ohio, a Jewish Republican, running for statewide office. He is a marine, fought in Iraq. In high school, he was the quarterback of his football team, a public high school. His team was a melting pot for blacks and Jews, he told me. But as they travelled around Ohio, they often encountered anti-Semitism and racism. Once, they travelled to Cleveland for a game, walked into the visitor’s lockerroom, and, there on the chalkboard was a Swastika, with the message: “Go Home Blacks and Jews.”

(I’m happy to report, the road team won the game.)

That’s the kind of life experience that I’d want my Supreme Court Justice to have, and — yes — to draw upon, when making decisions about, say, hate crime law. Or anything else.

There’s a killer New Yorker article this week, about Chief Justice John Roberts. It quotes Roberts, from his confirmation hearings — an illuminating take on exactly what Republicans mean when they talk about being “faithful to the law”:

Judges are like umpires. Umpires don’t make the rules. They apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ballgame to see the umpire.

Yet the New Yorker goes on to report:

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. Even more than Scalia, who has embodied judicial conservatism during a generation of service on the Supreme Court, Roberts has served the interests, and reflected the values, of the contemporary Republican party.

We are supposed to believe that in each and every case, he has been faithful to some objective constitutional law, as laid down by the Framers, and not, as Sessions put it, allowed his personal views to impact his decision making?

It’s incredible to me, too, that the media generally accepts this line of argument without challenge. (Wait for it — we’ll hear it over and over during the Sotomayer confirmation trials from the GOP side.)

You don’t have to look very far to see just how Roberts’ personal views impact his decisions. He has a filter, and he uses it, just like the rest of us.

The New Yorker mentions a case in Connecticut, brought by white firefighters “denied promotions even though they scored better than black applicants on a test.” Roberts, siding with the firefighters, grilled the lawyer defending the city:

Now why is this not intentional discrimination? You are going to have to explain that to me again, because there are particular individuals here. And they say they didn’t get their jobs because of intentional racial action by the city. … All you care about is who is getting the promotion. All you care about is his race.

Sounds to me like his personal views are influencing his decision making.

Roberts was the captain of his football team in high school. Here’s a guess: he never walked into a lockerroom, saw a slur on a chalkboard, and felt — they’re talking to me. It’s me they hate.

It might not change his decision. But I bet it would influence him. As it should.