As the United States government prepares for further personnel shifts in the administration, Americans are anxious to know the nominees' priorities. How refreshing, then, to see health and justice for the American people trump politics. As Judge Sotomayor faces the scrutiny of the Senate Judiciary Committee, Obama has nominated Regina Benjamin to be the next Surgeon General-- America's "top doctor." Part of what will make, and has made, these women such phenomenal public servants is their refusal to be snagged by the issue of abortion. Instead, they recognize it as just one element of their respective jobs: a doctor working for health and a judge working for justice.
The President's new nominee for Surgeon General, Regina Benjamin, is a Catholic, a recipient of the MacArthur Genius Grant, and has been described as "an angel in a white coat." However, to her patients, she is a doctor first and foremost. A recent article in the Miami Herald addresses the fact that the Catholic nominee's clinic for low income communities offers referrals to abortion providers: "As a physician, she is deeply committed to the philosophy of putting her patients' needs first when it comes to providing care." Why does this sound so novel? A doctor's commitment to her patients' best interests should not be subject to ideology.
Similarly, as the Senate Judiciary Committee questions Judge Sotomayor, she unfailingly shows her commitment to justice above politics. The Los Angeles Times reports on a July 15th exchange between Senator John Cornyn (R- TX) and the nominee. He pressed her on a May Washington Post article purporting that she will undoubtedly support abortion rights and has "generally liberal instincts." Yet, she refuses to fall victim to politics; her response shows clarity: "I promote equal opportunity in America." The judge's words remind us that government, especially the judicial branch, should not play political games at the expense of serving the people and the laws of the United States.
We cannot know how Sotomayor's tenure on the Supreme Court might influence social justice in America, nor should we forget that, as NPR points out, "the surgeon general's entire operations budget, by comparison, is less than one-thousandth of the annual sales budget of Pfizer." However, both of these women's careers constitute an important reframing of the old abortion debate. They force us to address the bigger picture by refusing to allow politics and ideology to fence abortion out of its broader implications. Kudos to these women for talking about abortion in terms of the pursuit of health and justice, in which it can play an integral role.
Recently, Senator Jeff Sessions (R-AL), ranking Republican on the Senate Judiciary Committee, launched into one of his favorite talking points: He complained once again about federal judges who have the audacity to realize that wisdom does not reside solely within the borders of the United States, and who therefore consider it acceptable to look for wisdom in the rulings by judges of courts of other countries.
As we explained last month following a previous routine by Sen. Sessions on this subject, his assertion that the "idea that foreign law has a place in the interpretation of American law creates numerous dangers" is wildly off-the-mark.
Let's set aside for a moment the fact that no judge we've heard of has ever asserted that the rulings of foreign courts should dictate how American judges interpret the U.S. Constitution, or be considered precedent that must be followed. Let's also set aside the fact that a number of the Supreme Court's current Justices, most notably Reagan-appointee Anthony Kennedy, and also, at times, Justice Antonin Scalia, have cited foreign courts and international treaties in their opinions and dissents, or in the course of oral arguments.
Even if this were not the case, there is nothing wrong, or even particularly controversial, with a judge referring to foreign law or foreign judges for guidance on how to decide a particular legal controversy. (After all, plenty of legal concepts have originated or been nurtured outside our borders; everything from women's suffrage and the anti-slavery movement, to....well, the English common law system upon which our legal system is based.) As Justice Ruth Bader Ginsburg has said, "Why shouldn't we look to the wisdom of the judge from abroad with at least as much ease as we would review a law review article written by a professor?"
Justice Ginsburg was merely echoing James Madison, who wrote about the importance of "attention to the judgment of other nations," in Federalist 63 in 1788, explaining that "in doubtful cases, particularly where the national councils may be warped by strong passion or momentary interest, the presumed or known opinion of the impartial world may be the best guide that can be followed."
Yet yesterday, Sen. Sessions specifically targeted Supreme Court nominee Sonia Sotomayor for her past statements regarding foreign law that are hard to distinguish from either Ginsburg's or Madison's. According to the New York Times, Sen. Sessions had a particular concern about a recent speech by Judge Sotomayor in which she stated:
To suggest to anyone that you can outlaw the use of foreign or international law is a sentiment that is based on a fundamental misunderstanding. What you would be asking American judges to do is close their minds to good ideas.
Perhaps judges with closed minds are what Sen. Sessions is really after. (Just as he is apparently after judges who don't follow the law.) But, happily, that is not a criterion for Justices on the Supreme Court.
Originally posted at Text & History. Judith E. Schaeffer is Vice President of the Constitutional Accountability Center (CAC), a law firm and think tank dedicated to demonstrating how the text and history of the Constitution uphold progressive outcomes.
Yesterday morning, several Republican Senators took to the Senate floor to make speeches outlining their "concerns" about Supreme Court nominee Sonia Sotomayor. By and large, the speeches were entirely predictable, and if I'd been playing a drinking game keyed to mention of Judge Sotomayor's "wise Latina woman" remark, I'd have been three sheets to the wind by lunchtime.
But who could have predicted that Senator Jeff Sessions, Ranking Member of the Judiciary Committee, would be critical of Judge Sotomayor for following the words of a statute? That's right. Sen. Sessions spent much of his time criticizing a dissent by Judge Sotomayor in the case of Hayden v. Pataki, written about here, in which Judge Sotomayor followed the plain words of the federal statute in question, apparently to Sen. Sessions' dismay. Who knew?
The plaintiffs in the case had challenged New York's felon disenfranchisement law as a violation of the Voting Rights Act of 1965 (VRA), which prohibits voting laws and practices that result in racial discrimination in voting. The plaintiffs claimed that the state law, which prohibits convicted felons from voting until pardoned or cleared from parole, violated Section 2 of the VRA, which provides that:
[n]o voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied in any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the of the United States to vote on account of race and color.
The district court dismissed the complaint at the pleading stage, before the plaintiffs had an opportunity to prove their case. The question on appeal was whether the VRA applied at all. When the full Second Circuit heard the case it ruled, 8-5, that it did not. Judge Sotomayor was among the dissenters. In addition to joining a dissent by Judge Parker, Judge Sotomayor also wrote one of her own, a brief and simple opinion to make the point that the many pages of the majority and concurring opinions had given the impression that the case was complex, when it was not. According to Judge Sotomayor:
It is plain to anyone reading the Voting Rights Act that it applies to all "voting qualification[s]." And it is equally plain that [the New York statute] disqualifies a group of people from voting. These two propositions should constitute the entirety of our analysis. Section 2 of the Act by its unambiguous terms subjects felony disenfranchisement and all other voting qualifications to its coverage.
When Sen. Sessions criticized Judge Sotomayor today over her dissent in this case, he began with a mischaracterization of her dissent, claiming that Judge Sotomayor had held that felon disenfranchisement laws violated the Voting Rights Act. She had held no such thing. All her dissent would have done is allowed the plaintiffs to have their day in court in an effort to prove that the New York statute discriminatorily denied African-American and Latinos their right to vote. The merits of the case were not at issue on appeal at all, only whether the VRA was even applicable to felon disenfranchisement laws.
Perhaps more astonishing, however, was that Sen. Sessions claimed that Judge Sotomayor would no doubt defend her dissent by saying that she'd been a "strict constructionist" by literally applying the Voting Rights Act to the case. The Senator said that he preferred the term "fair constructionist," and that he did not think it a "fair construction" of the Voting Rights Act to use it to overturn felon disenfranchisement laws.
So let's get this straight. Sen. Sessions is objecting because Judge Sotomayor followed the plain language of a statute? Apparently he would have preferred the majority opinion, which used arguments rooted in legislative history to undercut the result compelled by the clear statutory text in order to get a preferable result - an approach that Justice Antonin Scalia, for one, has criticized.
In her dissent in Hayden v. Pataki, Judge Sotomayor stated that "[t]he duty of a judge is to follow the law, not to question its plain terms." Does Sen. Sessions really want judges who don't feel compelled to follow the law?
Originally posted at Text & History. Judith E. Schaeffer is Vice President of the Constitutional Accountability Center (CAC), a law firm and think tank dedicated to demonstrating how the text and history of the Constitution uphold progressive outcomes.
(Combating the conservative hegemony in the legal field should be a top priority, because conservatives have been fighting with limited opposition for far too long. Above all, we need to raise awareness of conservative's OWN judicial activism, hidden behind a wall of generally meaningless rhetoric attacking liberals. This diary does an excellent job of focusing on an eggregious threat posed by such activism. - promoted by Paul Rosenberg)
On Tuesday, Senate Judiciary Committee Chair Sen. Patrick Leahy (D-VT) delivered a speech at the University of the District of Columbia's David A. Clarke School of Law, during which he discussed the Supreme Court and the nomination of Judge Sonia Sotomayor to replace retiring Justice David Souter.
During his speech, Sen. Leahy highlighted the Court's imminent decision in Northwest Austin Municipal Utility District No. One v. Holder (NAMUDNO), expected to be the Court's most significant ruling of the Term and, as Senator Leahy called it, "one of its most important decisions in years." The plaintiff is this case, a utility district in Texas, has challenged the constitutionality of the reauthorization by Congress of a key provision of the Voting Rights Act of 1965 -- the "preclearance" provision. Given questions posed by a number of the conservative Justices during April's oral argument, it is widely expected that the Court will rule that Congress exceeded its constitutional authority in 2006 when it voted overwhelmingly (98-0 in the Senate) to reauthorize the preclearance provision. That action was taken by Congress, as Sen. Leahy stated yesterday, based on extensive hearings and written testimony indicating the provision still played an important role in preventing racial discrimination in voting.
Below is the speech that Sotomayor gave in 2001 at Berkeley, California. The "controversial" part is near the end. The below are the key paragraphs which provide the key context which is being left out by the media. Clearly Judge Sotomayor is referring to Discrimination Cases. The italicized sentence is the supposedly "controversial" one.
"Similarly, Justice Ginsburg, with other women attorneys, was instrumental in advocating and convincing the Court THAT EQUALITY OF WORK REQUIRED EQUALITY IN TERMS AND CONDITIONS OF EMPLOYMENT.
Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O'Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise.
Second, 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.
Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on CASES WHICH UPHELD BOTH SEX AND RACE DISCRIMINATION in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a GENDER DISCRIMINATION CASE. I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown."
SO IF SOMEONE JUST DOESN'T GET IT, and still buys this right-wing talking point, here is my strategy:
Ask your (presumably) devout Christian friend what it would be like having 9 athiests on the Supreme Court and how that would affect the Court's rulings on religious expression; or, if rather, having a few religious persons on the Court might lead to better decisions? Or ask a NRA member whether having a gun owner on the Court would benefit its 2nd Amendment jurisprudence (assuming there is going to continue to be one). If they have any ounce of honesty, they will tell you it would make a positive difference. Ask a libertarian or republican whether a Supreme Court of Justices who rent would make equally good decisions in Takings Clause cases? You get the picture.
This week's blog rounds up a few immigration-related issues, such as military service, public health and, of course, the Sotomayor nomination.
Standing FIRM answered the question "What does Obama's SCOTUS nomination have to do with immigration reform?" While commentators are suggesting that the nomination is an indication of Obama trying to delay immigration reform, FIRM reminded us that the President is already scheduled to meet with Congressional leaders on immigration reform on June 8th.
Professor Michael A. Olivas of the University of Houston wrote of the nominee:
Judge Sotomayor's life and legal career are arcs possible only in this country: a hardscrabble life in a South Bronx housing project, educational opportunities made possible by her own intelligence and hard work, and a legal career devoted to public service.
A new poll by America's Voice also reminded us that immigration reform is a crucial issue for Latino voters, who voted overwhelmingly for Obama and largely expect him to "do the right thing" on immigration.
In nominating Judge Sonia Sotomayor to the Supreme Court, the President has made good on his promise to appoint someone with stellar qualifications and intellect who understands the experiences of everyday Americans. Raised in a Bronx housing project by her widowed single mother, Sotomayor graduated summa cum laude from Princeton and has had a remarkable legal career as a prosecutor, a private attorney, a trial court judge, and an appellate judge.
As a young lawyer, I had the privilege of serving as a clerk to Supreme Court Justice Harry Blackmun. Justice Blackmun was a wonderful man and a brilliant, dedicated jurist, but someone whose life had been rather insular before joining the Court. I remember him saying on many occasions how much he had learned from his colleagues on the bench and, particularly, from Justices Sandra Day O’Connor—a former state legislator and pioneering female jurist—and Thurgood Marshall—a civil rights hero who both experienced and helped defeat legal segregation. Justice Blackmun learned so much from these colleagues because they shared his intellect and commitment to fairness while bringing to the task a starkly different set of life experiences.
With few exceptions, the current Court is similarly insular and in need of new perspectives. With her remarkable credentials and inspiring life story, Judge Sotomayor promises to enrich the Court’s decision making for decades to come.
This post first appeared on The Stimulist. Read more at The Opportunity Agenda's website.
