History was made today as with U.S. Senate confirming Sonia Sotomayor to replace retiring Justice David Souter as the next Associate Justice of the United States. In addition to Justices Antonin Scalia and Ruth Bader Gingsburg she will be the third New Yorker serve on the Court. She will also be the first Latino/a and third woman to ever confirmed to the Supreme Court bench.
The final vote tally can be found here.
From Bronxdale projects to the highest court in the land. Only in America.
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.
Watch the exchange here:
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.
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.
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)
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.”
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.
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.
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.
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.
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