Obama on Affirmative Action

In a recent Associated Press interview, President Obama gave a disappointingly weak answer to a question on affirmative action that I fear the opposition will have no problem exploiting in the future.

Instead of seeing Affirmative Action as part of the solution in expanding equal opportunity he went out of his way to deemphasize its importance by suggesting it should be treated as a mere footnote in the larger debate about how to combat discrimination. I am not surprise at his response, just a little disappointed.

Money quote:

I’ll be honest with you, though, I’ve always believed that affirmative action was less of an issue, or should be less than an issue, than it’s been made out to be in news reports. It’s not it hasn’t been as potent a force for racial progress as advocates would claim, and it hasn’t been as bad on white students seeking admissions or seeking a job as its critics has been.

I think the way to move forward on race is to make sure that every kid from the time they’re born is getting good nutrition and good education, is succeeding in K through 12, and we’re opening opportunities for all young people. Because when everybody’s got a level playing field, everybody’s competing, and we’ve dealt with some of the legacies of discrimination that have resulted in substandard schools or extreme poverty in some communities, then affirmative action ends up being an afterthought and we can really just make sure that everybody’s treated fairly in an environment that, in which race is rarely taken into account.

I can see opponents of affirmative action citing this response to argue “fighting discrimination (regardless of the victim’s color) is fine, social programs that help the disadvantaged (again, regardless of color) are fine, but you don’t need racial preferences to do any of this.”

“She didn’t go all ACLU on the guy”

It’s fascinating how the letters ‘ACLU’ can be used as a pejorative term whenever referring to the rights of the accused.

From a WaPo profile of Judge Sonia Sotomayor:

Drew Ryce, a friend of Sotomayor’s since law school, remembers visiting her when she was doing “intake” at the office, meeting with police officers to decide what charges should be filed. “It was very easy for a kid [prosecutor] to get pushed around by an old cop,” Ryce said. That day, an officer was urging her to not only file drug charges against a man who had been smoking marijuana in a doorway, but to add assault charges, saying the man had attacked him when he and his partner walked up.

“Did you sustain any injuries?” Sotomayor asked the officer, who replied that he had been cut on his knuckles. “We’ll just go with the drug charges,” the young prosecutor said, Ryce recalled. “She didn’t go all ACLU on the guy,” agreeing to file drug charges, but she also didn’t defer to “the system” and make a case out of scraped knuckles.

By 1984, when Sotomayor left the prosecutor’s office for private practice, “she was a far better litigator . . . she could take over a courtroom,” Cardi said. “She saw the impact that crime had on our society . . . she thought a lot about how we address it. . . . As you get older and more experienced, it gets more complicated. You see shades of gray. I think she began to see these were complicated cases, they are not as simple as crime and punishment.”

Not Quite Post-Racial

From the New York Times:

Few groups conducted public polls on the issue as it faded in recent years, and the results from those that did reveal a consistent ambivalence, said Michael Dimock, a pollster with the nonpartisan Pew Research Center.

When asked a question about “affirmative action or preferential treatment for minorities,” the public has consistently opposed the idea by a margin of two to one. But when asked about “affirmative action programs designed to help women and minorities,” an even bigger majority has supported them.

….. the election of Mr. Obama does not appear to have changed either result.

So I guess we are not quite the post racial society that so many people thought we were after the November election.

I bet once conservatives find their voice in opposing Judge Sonia Sotomayor’s nomination to the Supreme Court its likely that they will attempt to portray her as a quotas obsessed affirmative action baby not worthy of seat on the high court even as they admit that “at least on paper, she has professional qualifications” to serve.

Judging Words and Personal Experience

Yesterday White House Press Secretary Robert Gibbs called Judge Sonia Sotomayor’s remarks in a 2001 speech – that the right has dishonestly pounced on – a “poor choice words. ” Of course, its a predictable turn of events considering how much of the media does not do well with context and nuance. Plus, the White House probably wants her speech to be less of and less of an issue heading into the confirmation hearings. At any event, CNN.com has a great piece by Sherrilyn A. Ifill, a civil rights lawyer and law professor, explaining how the experiences of judges affect their approach to judicial decision-making.

Money quote:

Justice Thomas is the perfect example of how hard it can be for a judge to lay aside the personal experiences that shape his worldview. His views about the affirmative action cases that come before him are shaped quite clearly by what he regards as the self-sufficient dignity of his hard-working grandfather and the humiliation he says he felt when others believed his scholarly accomplishments were the result of affirmative action.

White judges are also shaped by their background and experiences. They needn’t ever speak of it, simply because their whiteness and gender insulates them from the presumption of partiality and bias that is regularly attached to women judges and judges of color when it comes to matters of race and gender.

Only a judge who is conscious and fully engaged with the reality of how her experiences may bear on her approach to the facts of a case, or sense of social justice, or vision of constitutional interpretation, should be entrusted to sit on the most influential and powerful court in our nation.

Too often we have allowed ourselves to be placated and charmed by fantasies about umpire judges calling “balls and strikes,” without ever asking which league the game is being played in or whether the umpire was standing in the best position to see the play. We forget that when deciding whether a batter checked his swing, the homeplate umpire will routinely ask for the alternative perspective from the first or third base umpire before calling a “swing and a miss” a strike.

Debunking Bogus Claims Made By Critics of Sotomayor

Karl Frisch of Media Matters takes on two of the bogus claims made by the right against nominating Judge Sonia Sotomayor to the Supreme Court:

By now you’ve no doubt heard Exhibit A — Sotomayor’s February 2005 comment at a Duke University School of Law forum that the “court of appeals is where policy is made.” This, they claim, proves that Sotomayor would be little more than an evil activist jurist on the bench. Her words — taken out of context time and again by conservative and mainstream media outlets — make clear that Sotomayor was simply explaining the difference between district courts and appeals courts. Her comments were in sync with the Oxford Companion to the Supreme Court of the United States‘ explanation of the federal appellate court’s “policy making” role. That’s a view even conservative legal god Antonin Scalia seems to share and even go beyond, having articulated the “policy making” role of the courts himself and noting that “the judges of inferior courts often ‘make law.’ “

For Exhibit B, we find media conservatives in a huff over not only Obama’s stated intention to nominate someone possessing “empathy” among other qualifications but also Sotomayor’s 2001 comment that a “wise Latina woman” might bring a little something extra to the bench in adjudicating race and sex discrimination cases. Conservatives in the media leapt at the president’s “empathy” comment, typically portraying it as proof of Obama’s intention to nominate a liberal activist to the Supreme Court rather than a jurist committed to the Constitution, even though the president said that his nominee would demonstrate both.

From the Suites to the Streets

President and CEO of the Hip Hop Caucus Rev. Lennox Yearwood Jr. was quoted in a recent puff piece in the Politico saying, “We have to be able to move politics from the hood to the Hill and from the suites to the streets.”

Damn, why didn’t I think of that?

According to Politico, Rev. Yearwood has also been pounding the DC pavement in lobbying Congress on a variety of pieces of legislation including prisoner reentry programs, tackling climate change, and funding for a one-day voter registration drive.

Now dats what I’m talking about.

Conservatives on the Brown Decision

This is just ridiculous. In an ongoing series decrying U.S. Supreme Court decisions they do not like, Bench Memos, a conservative law blog run by the National Review, cited the Brown v. Board of Ed decision, which found that racial segreation violated “equal protection of the laws guaranteed by the Fourteenth Amendment,” as an instance of liberal judical activism.

And they did so on the 55th Anniversary of the court’s decision. 

1954—In Brown v. Board of Education, a unanimous Supreme Court abandons available originalist justifications for its ruling that state-segregated schools violate the Equal Protection Clause—justifications that would have been far weightier, and commanded far more public respect, than its own makeshift reliance on contemporaneous psychological research of dubious relevance. Contrary to conventional understanding, the Court declines to revisit its notorious 1896 ruling in Plessy v. Ferguson and instead limits itself to the question whether the separate-but-equal rule of Plessy “should be held inapplicable to public education.”

For some reason I don’t people were scrambling to use “originalist justifications” to end segregation in the 50s. 

Interestingly enough, while Brown is rightly credited with dealing a huge blow to Jim Crow segregation few appreciate how it change the Senate’s posture toward the judiciary and Supreme Court nominees in particular. In a recent op-ed in the New York Times, Yale law professor Stephen Carter sums up the after effects this way: 

Before that 1954 case, it was virtually unheard of for a nominee to appear in person before the Senate. Only two had been called, each because of special circumstances surrounding the nomination. But there was always a sense that demanding testimony was somehow unseemly. The bar frowned on the practice, and the senators avoided it. Abraham Lincoln, questioned about his nomination of Salmon P. Chase as chief justice, responded, “We cannot ask a man what he will do, and if we should, and he should answer us, we should despise him for it.”

Brown changed everything. Infuriated by the Supreme Court’s temerity in striking down public school segregation, the Southern Democrats who in those days still largely ran the Senate began to require that all potential justices give testimony before the Judiciary Committee. When the nominees appeared, the Dixiecrat Senators grilled them on Brown. The first was John Marshall Harlan in 1955, who declined invitations to discuss either specific cases or judicial philosophy as “a matter of propriety.” One by one, later nominees followed his example.

Some of them suffered for it. Justice William Brennan was roughed up at his hearing by Senator Joseph McCarthy, not even a member of the committee, who was permitted to make a special appearance to torment Brennan about his views on Communism. In the 1960s, Thurgood Marshall was grilled on minutiae about the history of the Constitution, part of an effort by opponents to demonstrate that the man who had by that time won 29 out of 32 cases before the Supreme Court was intellectually not up to the job.

 

The Strident Opposition

Just as liberal activist groups tried to exert pressure on Democratic Senators in 2005 and 2006 to aggressively block President Bush’s Supreme Court nominees, conservative groups this time around are applying the same kind of pressure on Republican Senators to touch up President Obama’s nominee to replace Justice David Souter. Charlie Savage reported the NYT this weekend that the paper has obtained ten memorandums revealing how conservatives are eager to exploit typical culture war issues “abortion, same-sex marriage, the separation of church” in addition to the propriety of citing foreign law in interpreting the Constitution.

Right wing activists are well aware that the deck is stacked against them, but that has not prevented them from attracting donors to support a media campaign for television, radio, and internet ad buys.  Senate Republicans, on the other hand, are trying to manage expectations for mounting stiff opposition to the nominee while still refusing to give up the filibuster option. According to the NYT, one conservative opposition memo on 9th Circuit Judge Kim Wardlaw also noted her rulings on the death penalty, and separation between church and state and free speech issues.

The Judicial Confirmation Network is leading the effort to try to define  such contenders as  newly confirmed U.S. Solicitor General Elena Kagan, Second Circuit Court of Appeals Judge Sonia Sotomayor, and Seventh Circuit Court Judge Diane Wood, as “way left and outside the American mainstream.” For Sonia Sotomayor, the Judicial Confirmation Network asserts falsely that she has been reversed 100 percent of the time and refers to her ruling in the New Haven firefighter affirmative action case as evidence that she’s for racial quotas. Bloggers at the National Review picked up on a set of controversial remarks by Sotomayor where in a 2002 speech she said, “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.”

JCN is currently running web ads against Kagan by attacking her for “attempting to keep the military off campus” as Dean of Harvard Law School to support a ban against military recruiters on the because of its enforcement of the “Don’t Ask Don’t Tell Policy.”  Other JCN web ads portray Diane Wood as a foe of religious freedom and a looney prochoice advocate with federal judgeship.

“You Know Where I Live”

From President Obama’s Notre Dame Commencement speech this weekend:

Now, since this is Notre Dame I think we should talk not only about your accomplishments in the classroom, but also in the competitive arena. No, dont worry, I’m not going to talk about that. We all know about this university’s proud and storied football team, but I also hear that Notre Dame holds the largest outdoor 5-on-5 basketball tournament in the world  Bookstore Basketball.

Now this excites me. I want to congratulate the winners of this year’s tournament, a team by the name of “Hallelujah Holla Back.” Congratulations. Well done. Though I have to say, I am personally disappointed that the “Barack OBallers” did not pull it out this year. So next year, if you need a 6-2 forward with a decent jumper, you know where I live.

Damn, this dude has got to be the coolest POTUS ever.

No Indictment of Her Intelligence

One of Judge Sonia Sotomayor’s former clerks, Robin Kar, who is now a Professor of Law and Philosophy, penned a vigorous and eloquent defense of his mentor’s record, work ethic and intelligence at PrawfsBlawg. Sotomayor has come under harsh or better yet hatch job like criticism since media reports began suggesting she is on President Obama’s short list to replace Justice David H. Souter on the Supreme Court.

Money quote:

I suspect that some people on the left may be concerned about Judge Sotomayor because she may not be the “liberal antidote to Justice Scalia” that some have desired. But this is no indictment of her intelligence, but rather of their imagination.

Read the post in its entirety here.

In Search of an Empathetic Nominee

So it seems as if President Obama will not name a replacement for Justice David Souter this week says the WaPo. But the announcement of a nominee with “real world experience ” does seem to be eminent.  In addition to Second Circuit Appeals Court Judge Sonia Sotomayor, the other front-runners named in this morning’s Washington Post article include:

Judge Diane P. Wood of the U.S. Court of Appeals for the 7th Circuit; Elena Kagan, Obama’s solicitor general and the former dean of Harvard Law School; and Michigan Gov. Jennifer M. Granholm (D), a Harvard Law graduate whose background running a large state dealing with severe hardship may qualify as the experience Obama is seeking.

None of these names are new. But most of the reports I have seen usually included the Canadian born Granholm in the extended list of potential nominees, not on the short list.

It also seems as if the attacks on Sotomayor are starting to worry some in the White House.  According to the WaPo, one official involved in the White House  seems to be concerned that the native Bronxite is being portrayed as someone who “doesn’t play well with others.”

Sigh.

There needs to be an organized effort to aggressively push back against the noise machine, though some of that has already begun.

Meanwhile, in her piece today Ruth Marcus of the WaPo attempts to put some meant on the bones regarding Obama’s seemingly vague empathy standard. To Marcus, Obama invoked the empathy standard not to be  the new age sensitive guy, but to broaden the discussion on the role of judges beyond the trite umpire analogy that Chief Justice Roberts easily popularized during his confirmation process in 2005.

If that were all judges did Marcus contends, then “we could program powerful computers to fulfill the judicial function.” Marcus also noted that empathy and the lackthereof has already revealed itself in some of the courts more recent rulings.

When Bowers was overruled in 2003, the majority opinion by Justice Anthony Kennedy was infused with a greater understanding that anti-sodomy laws “seek to control a personal relationship.” You got the sense that Kennedy actually knew people in such relationships.

And empathy runs both ways. In 2007, when the court rejected Lilly Ledbetter’s pay discrimination lawsuit because she had waited too long to complain about her lower salary, the five-justice majority seemed moved by concern for employers unable to defend themselves against allegations of discrimination that allegedly occurred years earlier.

That’s real talk.

Some time ago, Jefferey Toobin of the New Yorker recalled his favorite Souter opinion where he dissented in a case that involved a man named Kieth Bowles, who was sentenced to 15 years to life for murder in Ohio. Bowles wanted to file an appeal in federal court, but the judge mistakenly provided the wrong date for the filing deadline.

In a callous  5 to 4 ruling with Justice Clarence Thomas writing for the majority, the court said,  “Tough luck, pal. The law’s the law. Bowles missed the deadline, which he might consider as he potentially spends the rest of his life in prison.”

For his part, Justice Souter called attention to the lack of compassion shown by his fellow justices in his dissent. “It is intolerable for the judicial system to treat people this way, and there is not even a technical justification for condoning this bait and switch.”

I wonder if that is empathy or just plain common sense at work.

Update: Media Matters has put together a solid document countering conservative talking points on all things judicial nominations, including Sotomayor.

False Choices in Picking a New Court Nominee

Each time a key administrative appointment is in the news suddenly the conversation operates on two polarities – diversity and qualifications, as if someone could not be eminently qualified for a job if he or she were not a white male. People need to be constantly reminded that there are talented people of color and women out there for many of the country’s top jobs, just look at the president’s cabinent or even the man who occupies the Oval Office himself.

Thats why its frustrating to read opinion pieces in the Washington Post like Benjamin Wittes entitled, “On the Supreme Court, What Price Diversity?” particularly when he says that a diverse court automatically comes at the price of nominating a quality Justice. That’s just a false dichtomy.

Syndicated columnist Ruben Navarette breaks down why on the Chris Matthews show.

Souter Round Up

I thought this was a good round up.

Rumor and speculation are the life blood of covering nominations and appointments particularly during the early days of any presidential administration. That said, here are some helpful links and other info on who is on the short and expanded list of replacements.

The WSJ wants President Obama to appoint, “Jose Cabranes, a Puerto Rican immigrant named to the Second Circuit Court of Appeals by President Clinton in 1994.”

Keith Perine at CQ’s Legal Beat asks when is a filibuster not a filibuster. Seth Stern also says that we should expect a vote to confirm Obama’s nominee whoever she is some time before the August recess.

Micheal Fletcher and Paul Kane at the WaPo report that administration officials expect the next nominee to be confirmed by October. Dan Balz also at the WaPo informs us that even if the nomination battle become a hyper partisan navigating the politics of it all may still be tough.

I got an oldie but goodie here. In July of 2007, Tom Goldstein wrote a really good post for SCOTUS blog on who Democratic Supreme Court nominees might be.

Stuart Taylor at the National Journal shares some “random thoughts” on what to expect when you are expecting a nominee.

Georgetown Law Professor Jefferey Rosen in the NYT urged the president not to follow the Souter model in picking a nominee, since he had “a hermetically sealed approach to the job” and “had had trouble communicating his ideas” to other Justices.

Mary L. Dudziak at Balkination says Obama should appoint someone like Justice Thurgood Marshall to the court.

Meteor Blades at DailyKos has a post featuring pics to go with the names of potential nominees being floated in the media.

Otis is Hungry at Daily Kos also has bios and commentary to go with the names.

Michele Malkin implores her fellow conservatives to gird their lions.

SCOTUS blog collected the statements from sitting Justices on Souter’s retirement.

(H/T: Justice Chatter)

Obama Holds Impromptu Press Conference on Souter

Clearly, Obama really enjoys being president.

As you can see he did not stray far from the empathy standard that he articulated as a presidential candidate.

The White House posted his remarks:

THE PRESIDENT: I just got off the telephone with Justice Souter. And so I would like to say a few words about his decision to retire from the Supreme Court.

Throughout his two decades on the Supreme Court, Justice Souter has shown what it means to be a fair-minded and independent judge. He came to the bench with no particular ideology. He never sought to promote a political agenda. And he consistently defied labels and rejected absolutes, focusing instead on just one task — reaching a just result in the case that was before him.

He approached judging as he approaches life, with a feverish work ethic and a good sense of humor, with integrity, equanimity and compassion — the hallmark of not just being a good judge, but of being a good person.

I am incredibly grateful for his dedicated service. I told him as much when we spoke. I spoke on behalf of the American people thanking him for his service. And I wish him safe travels on his journey home to his beloved New Hampshire and on the road ahead.

Now, the process of selecting someone to replace Justice Souter is among my most serious responsibilities as President. So I will seek somebody with a sharp and independent mind and a record of excellence and integrity. I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a case book. It is also about how our laws affect the daily realities of people’s lives — whether they can make a living and care for their families; whether they feel safe in their homes and welcome in their own nation.

I view that quality of empathy, of understanding and identifying with people’s hopes and struggles as an essential ingredient for arriving as just decisions and outcomes. I will seek somebody who is dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role. I will seek somebody who shares my respect for constitutional values on which this nation was founded, and who brings a thoughtful understanding of how to apply them in our time.

As I make this decision, I intend to consult with members of both parties across the political spectrum. And it is my hope that we can swear in our new Supreme Court Justice in time for him or her to be seated by the first Monday in October when the Court’s new term begins.

(H/T: TPMDC)

Justice Souter Poised to Retire

From the NYT:

The departure will open the first seat for a Democratic president to fill in 15 years and could prove a test of Mr. Obama’s plans for reshaping the nation’s judiciary. Confirmation battles for the Supreme Court in recent years have proved to be intensely partisan and divisive moments in Washington, but Mr. Obama has more leeway than his predecessors because his party holds such a strong majority in the Senate.

This battle is going to be intense. President Obama is having difficulty just trying to get cabinet level and mid level nominees to the Justice Department confirmed. Trying to get a Supreme Court nominee confirmed by the U.S. Senate is usually a very tough endeavor, especially since Republicans seemed determined to stymie efforts to overhaul health care, climate change legislation, education and immigration reform, just to name a few.

That’s why Arlen Specter’s defection from the Republican party is so timely and so important. Thought nominees are confirmed by a simple majority in the final vote, to cut off debate in the Senate chamber on a bill or nominee you need 60 votes. That 60 vote threshold is called a cloture vote. If you cannot overcome cloture that nominee or bill has in effect been filibustered. Provided that Al Franken will be allowed to assume his Senate seat soon, and the Democratic caucus vote together, Specter gives the Dems a 60 vote filibuster proof majority.

In theory a party line vote should make Obama’s job easier, though who fills the vacancy on the court will almost take up so much of the media oxygen during the next few months that it will compete with the president’s efforts to promote other aspects of his agenda.

And with dwindling political power on Capitol Hill, conservatives, especially the ideologically pure, will make President Obama’s nominee a full throated primal cry to action.

Man, I hope we are ready.