With so much that has been shouted and so little that’s been said during this “teachable moment,” I am glad that the photo-op and the platitudes that accompanied the Gates-Crowley affair has been now put to rest over a few brewskis. We have not learned anything new about racial profiling, or had an honest conversation about racial prejudice, or matured as a nation in any way since the story broke.
But most of all we learned that the best way to not talk about race is to trivialize the issue by reducing it to the isolated prejudices of others not as a living and mutating phenomenon that may influence our split second impressions of one another.
We did not learn, however, that even if we are racist ourselves its still possible that racial prejudice may still be a factor in how we treat one another. We also did not learn about what leads to racial profiling. We did not learn why many people of color and whites sees these kind of controversies so differently.
To be sure, this incident could not have come at a worse time for the president and I certainly recognize that. He really does not have time or the interest in playing racial healer, especially when he is trying to convince the American public and even members of his own party, even with commanding majorities in both chambers, of the merits of his health care plan.
By the same token, I cannot help but lament the fact that this was the “teachable moment” that wasn’t.
I really can’t begrudge him–his priority is health-care. Me, on the other hand, I’m pretty exhausted. What follows is the raw. Not much logic. Just some thoughts on how it feels.
I feel pretty stupid for going hard on this, and stupider for defending what Obama won’t really defend himself. I should have left it at one post. Evidently Obama, Crowley and Gates are talking about getting a beer together. I hope they have a grand old time.
The rest of us are left with a country where, by all appearances, officers are well within their rights to arrest you for sassing them. Which is where we started. I can’t explain why, but this is the sort of thing that makes you reflect on your own precarious citizenship. I mean, the end of all of this scares the hell out of me.
President Barack Obama attempted to quell criticism of his remarks concerning the arrest of Harvard law professor Henry “Skip” Louis Gates by Sgt. James Crowley of the Cambridge, Massachusetts police force during a cameo appearance at a White House press briefing on Friday. The president expressed regret that “my choice of words didn’t illuminate, but rather contributed to more media frenzy.” He also said he phoned Sgt. Crowley to apologize for conveying the false impression that he intended to malign him and his department.
At his press conference on Wednesday he said “that the Cambridge police acted stupidly in arresting somebody when there was already proof that they [sic] were in their own home.”
Seeing how his words of condemnation inadvertently led to much of the inane fodder in the blogosphere, talk radio, and cable television chatter and consequently distracting the public from his broader legislative agenda, he urged us to step “back for a moment,” recognize that “these are two decent people, not extrapolate too much from the facts,” but “be mindful of the fact that because of our history, because of the difficulties of the past, you know, African-Americans are sensitive to these issues.”
He also said he invited Professor Gates and Sgt. Crowley to the White House for a beer as a gesture of good will and hopes of reconciling differences and putting this controversy to rest.
His comments were meant to be conciliatory and to prevent the controversy over his initial set of remarks from competing with his message of the urgency of passing a health care reform bill through a slow moving Congress. On August 7th, the Congress breaks for a month long recess, and the White House is determined to keep the pressure on lawmakers to continue to work on the bill even during the break if need be. I could see how some of his advisers may think wading into racial politics at this juncture would not be helpful.
By the same token, the president attempt to rein back his statements were not helpful in enriching our already impoverished discussion of racial justice. Whether he knew it or not, the president’s remarks on Friday gave us the impression that the gray haired professor who walks with a cane is just a fault for his own arrest in his own home even if he produced an ID showing as the imposing and armed police officer is for cuffing him, since its all one big misunderstanding.
To imply there is some kind of moral equivalency here given the power relationship is wrong. Even if Professor Gates was belligerent is not clear that he was wanted to fight, threaten, initiate violent behavior, or was a danger to public safety or became annoyance, any one of which would have justified the arrest for disorderly conduct under Massachusetts law. In this instance, a mere heated exchange eventuated in a mug shot.
The president could have at least reaffirmed his statement on Wednesday that racial profiling remains a national problem and that something should be done about it. For starters, we could pass the End Racial Profiling Act, which would ban the practice of racial profiling by federal law enforcement agencies and provide federal funding to state and local police departments if they adopt policies to prohibit the practice. ERPA has yet to be introduced this Congress, but criminal justice reform advocates have been clamoring for its passage for years.
Instead, we are told that tempers flared unnecessarily on both sides and that we should all calm down and have a brewski. I doubt that the next person of color who gets pulled over in the Boston area will derive much solace from that recommendation.
President Obama called this a “teachable moment” for all us but that presumes that someone has to do the teaching or at least lead the discussion. Many people, perhaps unjustifiably, expected our first black president to do just that, but it seems he really does not appetite for it and quite frankly is rather busy with salvaging two failed wars he inherited from his predecessor in addition to trying to capture terrorists, reforming our financial regulatory system, stimulate job creation, overhauling our education system and, of course, passing a health care reform bill.
Political observers have wondered whether or not President Obama’s ascendancy not only means that we live in a post-racist America, but also if we need an activist class of black leaders anymore. Some have provocatively asked if Obama signifies the “End of Black Politics?” But the President Obama needs a counterweight on these issues, someone to contrast his own views with on racial justice issues and who can forcefully communicate the concerns of black America to everyone else. The president still has to worry about managing the perception that he’s inclined to favor some groups over others.
Of course, scores of black intellectuals and civic leaders have commented on the Gates affair, but no one with the kind of stature necessary to become President Obama’s gadfly on racial issues writ large in the same way President Lydon B. Johnson had to contend with Dr. Martin Luther King and the civil rights movement in the 60’s.
Even the most gifted and talented among us need to be pushed in the right direction to realize their potential.
At an otherwise snooze fest of a presser devoid of….well news, President Barack Obama offered a few candid remarks about racial profiling that may wind up overshadowing anything having to do with the debate over a public option or how to contain the rising cost of health care premiums. In responding to a question from Lyn Sweet of the Chicago Tribune about what the arrest of Harvard University scholar Henry Louis “Skip” Gates says about race relations in American society, the president was surprisingly pointed in his criticism of the Cambridge police.
The former civil rights lawyer said he thought “the Cambridge police acted stupidly in arresting somebody when there was already proof that they were in their own home” and that “we know separate and apart from this incident is that there’s a long history in this country of African-Americans and Latinos being stopped by law enforcement disproportionately. That’s just a fact.”
President Obama also sought to disabuse people of the notion that his win in November 2008 or even that of Governor Deval Patrick in Massachuettes in 2006 means we now live in a so-called “post-racial” society where racism is dead when he asserted that there is “indisputable evidence that blacks and Hispanics were being stopped disproportionately. And that is a sign, an example of how, you know, race remains a factor in the society.”
He also said, “I am standing here as testimony to the progress that’s been made. And yet the fact of the matter is, is that, you know, this still haunts us.”
For those of you not following the whole Professor Henry “Skip” Gates being racially profiled and then arrested at his own home for “disorderly conduct” here is a summary from today’s WaPo:
After returning from a week in China researching the genealogy of cellist Yo-Yo Ma, Gates found himself locked out of his house, and he and his driver began pushing against the front door. The sight of two black men forcing open a door prompted an emergency call to police.
The white officer who arrived found Gates in the house (the driver was gone) and asked him to step outside. Gates refused, and the officer followed him in. Gates showed him his ID, which included his address, then demanded that the officer identify himself. The officer did not comply, Gates said. He then followed the officer outside, saying repeatedly, “Is this how you treat a black man in America?”
The police report said that Gates was “exhibiting loud and tumultuous behavior” and that the officer, Sgt. James Crowley, identified himself. “We stand by whatever the officer said in his report,” said Sgt. James DeFrancesco, a spokesman for the Cambridge Police Department. He would not comment on Gates’s version of his arrest.
The department said that Crowley tried to calm Gates, but that the professor would not cooperate and said, “You don’t know who you’re messing with.”
“These actions on behalf of Gates served no legitimate purpose and caused citizens passing by this location to stop and take notice while appearing surprised and alarmed,” the report said.
Gates said he does not think that anything he did justified the officer’s actions. He walks with a cane and said he did not pose a threat.
“I weigh 150 pounds and I’m 5-7. I’m going to give flak to a big white guy with a gun. I might wolf later, but I won’t wolf then.”
Barack Obama’s election as the nation’s first black president was “huge and important,” Gates said, but “did not translate to structural change. Given the demographics of Cambridge, [the officer] probably voted for Barack. That wasn’t much help to me.”
He added: “I want to be a figure for prison reform. I think that the criminal justice system is rotten.”
Interestingly enough, the governor of Massachusetts Patrick Deval is also black. Neither of which seemed important enough to counter the kind of preconceived notions that often lead to racial profiling even in the liberal Bay State.
Years ago, comedian Dave Chappelle explained why he fears the police in a hypothetical (or maybe real?) account of finding an intruder in his house. Today more than ever it seems especially apropos.
In a moment of unexpected yet welcome levity during the Judge Sonia Sotomayor’s confirmation hearings for to replace retiring Supreme Court Justice David Souter, Senator Jeff Sessions made an unprompted comment about correcting one of Congress biggest blunders: enacting a law creating a 100 to 1 disparity in cocaine and crack sentencing.
In an exchange with a noted civil rights advocate he said, ” Senator Leahy and I are talking during these hearings. We’re going to do that crack cocaine thing that you and I have talked about before.” The comment immediately drew laughs and prompted Sessions to explain, “We’re going to reduce the burden of penalties in some of the crack cocaine cases and make them fair.”
All jokes aside this is undoubtedly a good sign. Sen. Sessions was addressing Wade Henderson a noted civil rights advocate, who has been urging Congress to reform the crack cocaine sentencing including mandatory minimums for years. Under federal law, a dealer with 5 grams of crack cocaine on him, which is the size of two sugar packets can get a five year mandatory minimum sentence. By contrast, a cocaine dealer would have to have 500 grams of cocaine, which is more a little more than a pound, to trigger a five year mandatory minimum. That creates a 100 to 1 disparity in the sentencing for crack and cocaine.
“Equalization of the sentencing ratio for crack and powder cocaine offenses from 100 to 1 to a ratio of 1 to 1 at the current powder cocaine level is the only fair solution,” Henderson told the Senate subcommittee on Crime and Drugs in April of this year. “The time has come to rationalize drug sentencing laws and practices. The civil rights impact of these criminal justice reforms can no longer be ignored.”
Those sentiments were later echoed by U.S. Attorney General Eric Holder last month. “This Administration firmly believes that the disparity in crack and powder cocaine sentences is unwarranted, creates a perception of unfairness, and must be eliminated. This change should be addressed in Congress,” Holder said.
According to the Sentencing Project, a criminal justice reform group, the median drug quantity for a crack cocaine street level seller charged in federal court (comprising two-thirds of federal crack defendants) in 2000 was 52 grams, enough to trigger a 10-year mandatory sentence. For powder cocaine, the median quantity for a street level dealer was 340 grams, not enough even to trigger the 5-year sentence, and often a mere slap on the wrist for first time offenders.
But crack and powder cocaine are pharmacological identical substances. In fact, crack is just a hardened form of powder cocaine often mixed with baking power. But with cocaine users being disproportionately white compared to crack users who are disproportionately black the law with its penalty structures has a huge unfair impact on who goes to prison and who doesn’t and for how long.
Why did Congress do this? And continue to tolerate it? Interestingly enough, it was the reaction to the story of Len Bias‘ death that led to the passage of the Anti-Drug Abuse Act of 1986, which is the law that contains all the stiff penalties. Bias’ death from a cocaine overdose after experimenting it for the first time the night he was drafted by the Boston Celtics shocked Congress into action and really prompted the war on drugs as we know it.
In fact, the law’s mandatory penalties for crack cocaine offenses were the harshest ever adopted for low level drug offenses and established the drastically different penalty structures for crack and powder cocaine. Lawmakers, however, had a poor understanding of the differences between the drug substances and figured that the disparity would lead to jailing actual drug king pins.
Of course, thanks to the Wire and countless other studies, we now know that it the law affects more low level drug dealers, who are easily replaceable as they come in and out of jail, than it does so called king pins, who often rarely see extensive jail time. This has led to an explosion of incarceration rates with notable racial disparities. Between 1994 and 2003, the average time served by African Americans for drug offenses increased by 62 percent, compared to an increase of 17 percent for white drug offenders, says the Sentencing Project.
An independent federal body called the Sentencing Commission, has called for reforming the sentencing structure for more than a decade now, and the Obama administration supports doing so, but its hard to underestimate the fear of being branded as soft on crime for Republican and Democratic elected officials alike, especially for redstate Dems.
That said, the tide does seem to be turning because with increasing support for a 1 to 1 bill in both the House and Senate. And even Sen. Jeff Sessions, a former federal prosecutor in Alabama with less than enlightened views on racial equality, supported a 20 to 1 bill back in 2007.
To be sure, that’s not exactly where the ratio should be, but its certainly an improvement. This is significant because whatever reform bill comes out the Senate will have to go through the Senate committee where Sessions is currently the top Republican. So, when the Alabama Senator said he wants to work with Senate Judiciary Chairman Sen Patrick Leahy about a “doing that crack cocaine thing” its definitely a good sign.
On day 2 of the Judge Sonia Sotomayor’s nomination, Senator Lindsey Graham asked a fairly peculiar question. “What’s the best way for society to change, generally speaking? What’s the most legitimate way for a society to change?” At first, Judge Sotomayor was stumped by that question because it seemed academic at best.
He then asks “Do you think judges — do you think judges have changed society by some of the landmark decisions in the last 40 years?” Now it is plainly true that the high court’s decisions on everything from campaign finance reform to the death penalty to gay rights to bilingual education to voting rights to employment discrimination and much more has undoubtedly changed society. But Judge Sotomayor wisely demured from responding until he revealed his real reason for engaging in that line of questioning.
And in a very patronizing Senator Graham noted “… a lot of us feel that the best way to change society is to go to the ballot box, elect someone, and if they are not doing it right, get rid of them through the electoral process. And a lot of us are concerned from the left and the right that unelected judges are very quick to change society in a way that’s disturbing. Can you understand how people may feel that way?”
Of course, this seems sensible on its face, but it Sen. Graham is ignoring how the courts as an institution differ from legislative bodies. Part of the reason judges to federal courts are unelected and have lifetime tenure is to make sure that political pressures do not override larger concerns about constitutional rights, including making unpopular rulings if necessary, to protect the rights of women and people of color.
Of course, the ballot box is important and is obviously a tranformative vehicle for change in its own right, but the courts can provide a check against the other two branches of government when both are two preocuppied with the popular will. Democracy is more than simple majority rule. It also has to consider the rights of minorities and the individual.
But Sen. Graham also noted:
I think, for a long time, a lot of talented women were asked, can you type? And were trying to get beyond that and improve as a nation. So when it comes to the idea that we should consciously try to include more people in the legal process and the judicial process, from different backgrounds, count me in.
But your speeches don’t really say that to me.
They — along the lines of what Senator Kyl was saying — they kind of represent the idea, there’s a day coming when there’ll be more of us — women and minorities — and we’re going to change the law.
And what I hope we’ll take away from this hearing is there need to be more women and minorities in the law to make a better America. And the law needs to be there for all of us, if and when we need it.
And the one thing that I’ve tried to impress upon you through jokes and being serious, is the consequences of these words in the world in which we live in. You know, we’re talking about putting you on the Supreme Court and judging your fellow citizens.
And one of the things that I need to be assured of is that you understand the world as it pretty much really is. And we’ve got a long way to go in this country…
This statement is the clearest expression of the anxiety white males feel about living in a society with more Judge Sonia Sotomayors and fewer Joe the Plumbers.
Senator Jeff Sessions’ statement at today’s hearings for Judge Sonia Sotomayor’s nomination to the U.S. Supreme Court:
Justice Sotomayor has said she accepts that her opinions, sympathies and prejudices will affect her rulings. Could it be that her time as a leader in the Puerto Rican Legal Defense and Education Fund, a fine organization, provides a clue to her decision against the firefighters?
While the nominee was chair of that fund’s litigation committee, the organization aggressively pursued racial quotas in city hiring and in numerous cases fought to overturn the results of promotion exams. It seems to me that in Ricci, Judge Sotomayor’s empathy for one group of firefighters turned out to be prejudice against another.
That is, of course, the logical flaw in the empathy standard. Empathy for one party is always prejudice against another.
This is an odd argument to make considering how SCOTUSblog found that in race discrimination cases Judge Sotomayor’s record is strikingly similar to those of her other colleagues on the Second Circuit, which include members of both parties and is overwhelmingly white.
Other than Ricci, Judge Sotomayor has decided 96 race-related cases while on the court of appeals.
Of the 96 cases, Judge Sotomayor and the panel rejected the claim of discrimination roughly 78 times and agreed with the claim of discrimination 10 times; the remaining 8 involved other kinds of claims or dispositions. Of the 10 cases favoring claims of discrimination, 9 were unanimous. (Many, by the way, were procedural victories rather than judgments that discrimination had occurred.) Of those 9, in 7, the unanimous panel included at least one Republican-appointed judge. In the one divided panel opinion, the dissent’s point dealt only with the technical question of whether the criminal defendant in that case had forfeited his challenge to the jury selection in his case. So Judge Sotomayor rejected discrimination-related claims by a margin of roughly 8 to 1.
Secondly, it seems rather awkward for Senator Jeff Sessions to accuse a person of color of racism considering his own checkered past.
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.”
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.”
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.
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.
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.
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.
Yesterday, a skeptical U.S. Supreme Court heard oral arguments on the constitutionality of a key provision of the Voting Rights Act that requires certain states and localities with a history of voting discrimination submit changes in voting procedures, or gain “pre-clearance,” by the federal government for approval.
The case involves a municipal utility district in Texas that wants to sidestep needing to comply with the provision because it claims the kind of discrimination that it once deterred no longer exists. Board member elections in the utility district require pre-clearance since the entire state of Texas falls under the jurisdiction of Section 5.
Adam Liptak’ssummary in the NYT of yesterday’s oral argument was spot on, especially his description of Justice Kennedy’s hostile line of questioning. And if his questioning is any indication, which in this case I think it is, Kennedy will likely write the majority or controlling opinion as he did in the Section 2 case earlier this year and erode much of Section 5, while of course noting that racial discrimination “is not ancient history.”
Perhaps, the real question here is how badly the Court will gut Section 5 and if it will introduce or demand that Congress create a more precise and less far reaching standard in determining which states and jurisdictions should be covered and why, even if in 2006 it reauthorized the Voting Rights Act only after it held 19 hearings and reviewed thousands of pages of testimony and documents.
Plus, a very curious exchange between Justice Scalia and Debo Aegbile from LDF during yesterday’s oral arguments.
Scalia actually suggested that simply because the VRA was cleared both chambers of Congress by wide margins, even if both houses and the Oval Office were controlled by Republicans at the time, we should be skeptical of its validity. In other words, we should be skeptical of the law, which has been reauthorized repeatedly by Congress, because it got too much support. Huh?
If we applied that same line of thinking to other laws enacted by Congress such as the American Disabilities Amendments Act that passed this fall and signed by a Republican president, then I suppose we should consider them invalid too. Or maybe we should consider the unanimous opinions like in Brown v. Board of Ed invalid because they also had too much support.
What happened to judicial modesty and due deference to legislative bodies that conservatives love to spout?
JUSTICE SCALIA: Mr. Adegbile, what was — I read it in the briefs, and I forget what it was. What was the vote on this 2006 extension — 98 to nothing in the Senate, and what was it in the House? Was -
MR. ADEGBILE: It was — it was 33 to 390, I believe.
JUSTICE SCALIA: 33 to 390. You know, the — the Israeli Supreme Court, the Sanhedrin, used to have a rule that if the death penalty was pronounced unanimously, it was invalid, because there must be something wrong there. Do you ever expect — do you ever seriously expect Congress to vote against a reextension of the Voting Rights Act? Do you really think that any incumbent would — would vote to do that?
MR. ADEGBILE: Well -
JUSTICE SCALIA: Twenty-five years from now? Fifty years from now? When?
MR. ADEGBILE: Justice Scalia, I think some members of Congress did of course vote against the Act.
JUSTICE SCALIA: Thirty-three members of the House and nobody in the Senate.
MR. ADEGBILE: Thirty-three members of the House, indeed. But I think the — the reason that they voted for it is what’s more important. Congress did not assume that section 5 was necessary. It took a very careful examination to see how it was operating, and the determination was that in the absence of section 5, because of the repetitive violations, because of 620 objections — there was evidence that approximately 60 percent of those show some evidence of intentional discrimination.
If you take away the prophylaxis, the discrimination will return in a way that we don’t need to revisit. The history has been that voting discrimination manifests itself through repetitive efforts and…..
Besides Texas, eight other states are covered by the provision, including Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, and South Carolina. Most of Virginia and parts of California, Florida, Michigan, New Hampshire, New York, North Carolina and South Dakota are also covered.
Congress passed the Voting Rights Act of 1965 to eliminate discriminatory voting practices by state and local governments. The law has been renewed and amended several times since it was passed, most recently with a 25-year renewal in 2006 where it cleared the Senate by a 98-0 and the House 390-33.
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