Muddying the Health Care Message

From Marc Ambinder at the Altantic:

As usual, in a pattern that the left patented during the Bush administration, the organized right lost control of its message. Lawmakers, Republicans and Democrats, were being asked to respond to non-sequiturs (would you support a health care reform plan that grows the deficit?  Health care grows the deficit right now, so it’s a nonsense question, one that is easy for politicians to answer); they found their meetings full of engorged spleens.  Unrestrained, these town hall meetings are going to turn off the type of voters Republicans most need to pressure Blue Dog Democrats — independents who don’t have red genes or blue genes.  Both Fox and MSNBC televised Sen. Arlen Specter’s raucous town hall meeting live. It was full of confrontation and protest. There were boos when Specter reaffirmed his president’s Americanness.

I have not made up my mind about whether Ambinder is truly onto something here. Sure, I agree that Republicans have lost control of their message given how few people are really discussing patient choice and controlling deficits anymore and are now on shouting about death panels and taxpayer funded abortion. Sure, I agree that the activist right has courted extremist who have turned this fight into a partisian drama with deafening decibel levels. But I am not so sure that even if the Republicans damage themselves and their brand in the process in these astroturfed inspired protests that they won’t be able to sucessfuly defeat health care reform.

These tea bagers turned birthers turned health care opponents turned Obama haters are shifting much of the skepticism of the president’s plan so far to the right, it will take probably until the end of September to get the country to focus on the problem in more sober terms. That’s assuming the White House and health care reform advocates can regain the bully pulpit within a week or so.

For months, the White House has been telling the public that “the key to our nation’s fiscal future – and there are substantial efficiency improvements that are possible to deliver better results at lower costs in the health system.” We are now in the middle of the August recess and four bills have survived committee votes with a critical bill yet to emerge from the Senate Finance Committee. Conservatives, however, have managed to distort Obama’s message on fiscal responsibility with great zeal. Its gotten to the point where we are far more likely to hear people ‘debate’ whether or not the president is a socialist than see people argue about the merits of the what he and the Congress are proposing.

While the Obama White House went wonky, conservatives went visceral and populist.  To their credit, the administration in recent days has tried to reframe this health care battle as you the patient and the American citizen, as opposed to a mere consumer, against the health care insurance industry. At Portsmouth, New Hampshire earlier this week, President Obama reminded his supporters about what’s really at stake:

Now, health insurance reform is one of those pillars that we need to build up that new foundation. I don’t have to explain to you that nearly 46 million Americans don’t have health insurance coverage today. In the wealthiest nation on Earth, 46 million of our fellow citizens have no coverage. They are just vulnerable. If something happens, they go bankrupt, or they don’t get the care they need.

But it’s just as important that we accomplish health insurance reform for the Americans who do have health insurance — (applause) — because right now we have a health care system that too often works better for the insurance industry than it does for the American people. And we’ve got to change that. (Applause.)

Oh yeah change. I have not hear that word in a while. We need to hear more of that. But more importantly we need to hear who the change is for and why. It does not matter that we heard it during the campaign. People need to hear it again.

On Excerpts of The Battle for America 2008

I have never been much of consumer of campaign books. I tend to think they more or less rehash everything that has already been dissected in contemporaneous reporting even if they do offer juicy tidbits about campaign infighting, portraits of a frustrated candidate, and a loads of humorous anecdotes. Couldn’t I get much of that on YouTube spoofs anytime I want? Aside from a peculiar variety of political junkies, I often wonder to myself who actually purchases such books.

But after reading the an excerpt of “The Battle for America 2008: The Story of an Extraordinary Election” by Dan Balz and Haynes Johnson in the Washington Post today, I think I’m beginning to understand the appeal of that genre of books. Of course, the 2008 presidential contest from primary to the end of the general election is an unusual serious of events featuring an unlikely stew of characters giving life to grand themes. Somehow the white guy from the South, former Senator John Edwards, became the underdog and a white woman from a northern blue state and black guy with a Muslim name became the main competitors on the Democratic side. And even in that struggle contained hues of David versus Goliath storyline that the media found easy to sell to a eager public.

Meanwhile, the Republican corp had a number of cartoon characters from the adamantly anti-immigrant then-Congressman Tom Tancredo to the jolly aw shucks evangelism of former Arkansas Mike Huckabee. A more disciplined Senator John McCain had to emerge from the ashes before taking the lead. And that only happened after his big win in New Hampshire.

The media’s appetite for sideshow personalities like Rev. Jeremiah Wright, Joe the Plumber, and Bill Ayers made the long campaign easy fodder for water cooler talk for those who wanted a little gossip go with wonky debates on the minutiae of preconditions, the importance of a employer mandates in a health care plan, and the intricacies of the delegate and Superdelegate count.

Historians will have fun with that moment in American politics for generations to decades to come – maybe even longer than that.

But everything revolved around the eventual victor Barack Obama. Compared to his competitors, his campaign was heralded a marvel of near pitch perfect management with few dips in morale matching the posture of its intrepid leader. And the public, particularly his supporters, were very impressed with his cool demeanor, keen intellect and soaring rhetoric.

Balz and Johnson, however, seized on the moments in which those notions did not hold up.

Aides worried that Obama’s low morale might infect others in the campaign and spoke to him about it. They tried to buck him up, but at points in the spring and early summer of 2007, he was deeply frustrated — with his own performance and with that of much of his campaign. On July 15, he met with his senior staff at the home of Valerie Jarrett, a close friend and confidante to both Obama and his wife, Michelle. One adviser recalled it as the moment Obama began to take a more direct role in the operations of his campaign. He was blunt in his critique, and the exchanges among some of his advisers became testy. Beyond fundraising and the operation overseeing the Internet and new media, the campaign was not performing well, Obama said. The message still wasn’t where it should be. The political operation wasn’t up to speed. The campaign lacked crispness and good execution. He believed it was becoming too insular and wanted new people added to the inner circle. He told his team members they were all doing B work. If they continued on that course, they would come in a respectable second.

“Second is not good enough,” he said.

Perhaps the most intriguing part of the excerpt so far, however, was then-chief campaign strategist and now White House senior adviser David Axelrod’s candid and prescient assessment of the big O’s potential weaknesses in a 2006 memo.

“It goes to your willingness and ability to put up with something you have never experienced on a sustained basis: criticism. At the risk of triggering the very reaction that concerns me, I don’t know if you are Muhammad Ali or Floyd Patterson when it comes to taking a punch. You care far too much what is written and said about you. You don’t relish combat when it becomes personal and nasty. When the largely irrelevant Alan Keyes attacked you, you flinched,” he said of Obama’s 2004 Senate opponent.

Many in the blogosphere and beyond often wondered if Obama was in fact the happy warrior beneath all that cool even if he could seduced legions of voters with great speechifying. The sheer force of the machinery of the campaign helped quell, thought not silence, many of those lingering doubts. And Obama knew it telling Balz and Haynes:

As he reviewed the campaign from his transition headquarters in mid-December, Obama offered a frank assessment of his two main competitors: Clinton and John McCain. “I was sure that my toughest race was Hillary,” he said. “Hillary was just a terrific candidate, and she really found her voice in the last part of the campaign. After Texas and Ohio she just became less cautious and was out there and was working hard and I think connecting with voters really well. She was just a terrific candidate. And [the Clinton campaign] operation was not as good as ours and not as tight as ours, but they were still plenty tough. Their rapid response, how they messaged in the media was really good. So we just always thought they were our most formidable challenge. That isn’t to say that we underestimated John McCain; it’s just that we didn’t think that their campaign operation was as good.

I cannot help but note the irony here that the campaign that was often dubbed as personality driven and almost free of doubt was in fact the very same tightly organized campaign that achieved success in no small part due to a healthy fear of losing. Its not news, but still a tidbit worth chewing. And maybe with enough of these kinds of insights it might even form a book worth reading.

The Teachable Moment that Wasn’t

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.

Instead, we were fascinated by the fact that these two strangers of different hues are in fact very distantly related, that St. Crowley tried to resuscitate to the late Boston Celtics star Reggie Lewis, that we should not call the get together a Beer Summit, that Vice President Joe Biden does not drink at all, and that the conservatives think that our part white and part black president somehow hates white people.

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.

Can’t Begrudge Him

Ta-Nehisi Coates on the President’s more tempered remarks on Friday afteroon:

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.

I agree.

Obama Tries to Quell Criticism of Gates Arrest

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.

Check out the president’s remarks on Friday here:

Obama on Skip Gates and Racial Profiling

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.”

Watch his response:

Henry “Skip” Gates and Dave Chappelle on Racial Profiling

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.

“Doing that Crack Cocaine Thing”

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.

Lindsey Graham’s Majoritarianism

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.

Watch the exchange here:

The Irony of Sen. Jeff Sessions

Supreme Court confirmation hearings have been advertised as a study in contrasts between what our nation’s two parties envision the role of the courts in our society and highlight competing ideas on grand Constitutional questions. Of course, in more recent decades they have fertile ground to perpetuate our ongoing culture wars in some form or another. Unlike years past, Judge Sonia Sotomayor nomination has not inspired fury of either side in the abortion debate, which I don’t lament at all, with greater questions of racial and gender gaining more attention.

But today’s hearing had its fair share of pettiness and narrow minded questioning.

Recognizing the dishonest acrimonious shout fest that has ensued in the last few weeks, Senate Judiciary Chairman Patrick Leahy cautioned his Republican collegues against yeilding to “outside pressure groups that sought to create a caricature of Judge Sotomayor while belittling her record and achievements, her intelligence.” In his opening statement yesterday, Sen. Leahy suggested that history will not look kindly upon Senators who will try to embarass Judge Sotomayor as that chamber once did during Justice Thurgood Marshall’s confirmation hearings, the first African American on the high court, by asking “questions designed to embarrass him, questions such as are you prejudice against the white people in the South.”

Sen. Leahy cited another low point of when Justice Louis Brandies had to beat back anti-Semitic charges of him being a radical jurist. “I hope that’s a time of our past” said the Senator from Vermont.

Apparently not. Republican Senator Jeff Sessions in particular led the charge in criticizing Judge Sonia Sotomayor by questioning her impartiality even in the face of all the statiscal evidence of her rulings underscoring that she is not some left wing judge that implusively sides with victims in discrimination cases or with plantiffs suing the employers or promoting some other lefty cause. Predictably, during is questioning period he spent an inordinate amount of time on the wise Latina remark as a reliable indication that she will somehow be biased against those who are not people of color or women, i.e., white men.

Sen. Sessions understood Judge Sotomayor’s admission that like any judge her life experiences shape her judicial thinking and that impariality is an aspirational goal rarely if ever achieved, as reason to suspect that she has a hidden agenda. “So how can you reconcile your speeches which repeatedly assert that impartiality is a near aspiration which may not be possible in all or even most cases with your oath that you’ve taken twice which requires impartiality?” asked Sen. Sessions. One has to wonder who are these genuinely imparitial people that Sessions seems to believe exist.

For her part Judge Sotomayor said, “That’s why we have appellate judges that are more than one judge because each of us, from our life experiences, will more easily see different perspectives argued by parties.” As a lay person, this strikes me as a fairly obvious observation.

At one point, the Senator from Alabama inexplicably thought it was necessary to state that a fellow Puerto Rican Judge Jose Cabranes disagreed with Judge Sotomayor’s finding in the Ricci decision. The Ricci case involved a group of white firefighters and one Hispanic who sued for racial discrimination when the city of New Haven, CT when it decided to throw out a promotional examine after not enough African Americans scored high enough to be considered for a promotion. Judge Sotomayor sided with New Haven in finding that the test had a disparate impact on African Americans under Title VII of the Civil Rights Act of 1964. Her decision was overturned by the U.S. Supreme Court a few weeks ago by a vote of 5-4.

“Had you voted with Judge Cabranes, himself of Puerto Rican ancestry, had you voted with him, you could’ve changed that case,” Sessions said. With that remark, Senator Sessions ironically he appeared to be promoting the same kind of group loyalty that he thought that Judge Sotomayor could not avoid.

Interestingly enough, Sen. Sessions used Judge Sotomayor’s association with the Puerto Rican Legal Defense Fund to try to portray her as an activist judge even though Judge Cabranes, a Republican appointee, is a founder of the famed civil rights group.

In sum, we learned more about the prejudices of a particular Republican Senator than we did of the nominee.

Sessions: “Empathy for one party is always prejudice against another”

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.

Limbaugh: “You See How this Race thing Works”

Right wing radio talk show host Rush Limbaugh instructs the public on how racial prejudice works in the United States. Somehow he stunningly concludes that Judge Sonia Sotomayor’s “wise Latina” statement is somehow worse that former Virginia George Allen using the term Macaca to refer to a South Asian volunteer for the now Senator Jim Webb Virgina.

(H/T:  Media Matters)

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.