Not Quite Post-Racial

30 05 2009

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

30 05 2009

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, 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

29 05 2009

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

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

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

From the Suites to the Streets

20 05 2009

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

Damn, why didn’t I think of that?

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

Now dats what I’m talking about.

Conservatives on the Brown Decision

19 05 2009

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

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

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

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

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

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

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

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


The Strident Opposition

19 05 2009

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.

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“You Know Where I Live”

18 05 2009
From President Obama’s Notre Dame Commencement speech this weekend:

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

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

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