Sotomayor's Opponents Apply Racial and Gendered Double-Standard

The hundreds of cases Sonia Sotomayor has decided do not allow her opponents to build an honest case against her. Accordingly, they seek to portray her as unfit for the Supreme Court by extracting and distorting phrases from a few of her speeches and law review articles. Sotomayor's opponents have relied heavily on comments she made during a 2001 conference at the University of California at Berkeley in order to portray her as a racist and impartial jurist. Although Media Matters has handily refuted such arguments, I have not seen any media coverage that examines similar race and gender commentary by current and former Supreme Court justices. If Sotomayor's comments on race and gender make her unfit for the Supreme Court, then statements by Justice O'Connor, Justice Rehnquist (now deceased), Justice Scalia, Justice Kennedy, Justice Thomas, and Justice Ginsburg make them unfit for the Supreme Court as well.

Justice O'Connor
In JEB v. Alabama, O'Connor agreed with the majority of the Court which held that prosecutors could not exclude jurors based on sex. O'Connor, however, wrote a concurring opinion that criticizes the view that gender is irrelevant to the legal process:

We know that like race, gender matters. . . . [O]ne need not be a sexist to share the intuition that in certain cases a person's gender and resulting life experience will be relevant to his or her view of the case. . . .Individuals are not expected to ignore as jurors what they know as men--or women. . . .

[T]o say that gender makes no difference as a matter of law is not to say that gender makes no difference as a matter of fact. I previously have said [the same thing about race]. . . .Though we gain much from this [ruling], we cannot ignore what we lose. [W]e have added an additional burden to the state and federal trial process, taken a step closer to eliminating the peremptory challenge, and diminished the ability of litigants to act on sometimes accurate gender based assumptions about juror attitudes.

O'Connor also stated that she hoped the Court would not extend the ruling to prohibit private lawyers from considering gender when selecting jurors. O'Connor said that a reasonable attorney would want women on the jury in cases such as sexual harassment. Clearly, O'Connor believes that women offer a qualitatively different (perhaps even better) perspective than men in certain settings.

Justice Ginsburg
In United States v. Virginia, Justice Ginsburg wrote the majority opinion invalidating a Virginia Military Institute policy that excluded women. Ginsburg's opinion discusses the relevance of gender in society and law, citing a long line of Supreme Court precedent:

Physical differences between men and women. . . are enduring: "[T]he two sexes are not fungible; a community made up exclusively of one [sex] is different from a community composed of both". . . .

"Inherent differences" between men and women. . .remain cause for celebration. . . .Sex classifications may be used to compensate women "for particular economic disabilities [they have] suffered,". . . to "promot[e] equal employment opportunity," . . . [and] to advance full development of the talent and capacities of our Nation's people. . . .

Ginsburg believes that gender remains relevant for the advancement of the "talent" and "capacities" of the Nation, and the Supreme Court continues to validate laws and policies which it concludes rest on "real" or "inherent" differences between men and women. Supreme Court precedent credits the very claims about sex that Sotomayor has previously made.

Justice Scalia
In McCleskey v. Kemp, Scalia voted with the majority and rejected the petitioner's claim that Georgia applied the death penalty in a racially discriminatory fashion. The majority concluded that McCleskey did not prove the he suffered from discrimination in his individual case. Prior to the issuance of the McCleskey decision, however, Scalia wrote a memorandum to the other justices in which he stated that he actually did not need additional "proof" of racial discrimination because he believes race influences jurors and prosecutors but that the Supreme Court could not eradicate this behavior:

Since it is my view that the unconscious operation of irrational sympathies and antipathies, including racial, upon jury decisions and (hence) prosecutorial decisions is real, acknowledged in the decisions of this court, and ineradicable, I cannot say that all I need is more proof.

Furthermore, in Johnson v. Transportation Agency of Santa Clara County, Scalia argued that white men are "victims" in society but that women and people of color are powerful. He made this observation in a dissenting opinion, which disagreed with the majority's conclusion that an employer did not violate federal antidiscrimination law by taking gender into account when it decided to promote a woman over a male candidate: "[T]he only losers in the process are the Johnsons of the country . . . ."

Not only does Scalia "empathize" with white men, but he concludes that they are powerless relative to women and persons of color, and his believes the Court should have issued a ruling based on this observation. If Scalia's views on race and sex do not disqualify him from the bench, then neither should Sotomayor's prior statements.

Justice Rehnquist
Before Justice Rehnquist was confirmed to the Supreme Court he had a history of racial insensitivity. For example, as a law clerk, he advised Justice Jackson to uphold the "separate but equal" principle announced in Plessy v. Ferguson and to vote against the plaintiffs who challenged school segregation in Brown v. Board of Education.

Rehnquist also urged Justice Jackson to rule that the Democratic Party's use of "white primaries" in Texas (which excluded black and Latino voters) did not violate the Constitution. Rehnquist, seemingly exhausted by the racial progress that occurred during his clerkship, argued that: "It is about time the Court faced the fact that the white people of the south don’t like the colored people. . . ."

As the Attorney General in the Nixon administration, Rehnquist, echoing his opposition to Brown, drafted a constitutional amendment which would have banned busing in order to remedy school segregation. Also, as a resident of Phoenix, Arizona he opposed the enactment of a local ordinance that banned racial discrimination in places of public accommodation. Despite his racist views, Rehnquist was confirmed as an Associate Justice and later as Chief Justice over the objection of liberals who cited to his past racial positions.

Justice Kennedy
Justice Kennedy authored the majority ruling in Gonzalez v. Carhart, which upheld the federal prohibition of partial-birth abortion. In the ruling, Kennedy expresses empathy toward hypothetical women whom he says could regret their decision to undergo the procedure. Based on his romanticized and paternalistic notions about gender, Kennedy argues that Congress could ban the procedure altogether in order to protect women from their bad decisions:

Respect for human life finds an ultimate expression in the bond of love the mother has for her child. . . .Whether to have an abortion requires a difficult and painful moral decision. . . .While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. . . . Severe depression and loss of esteem can follow. . . .

As Ginsburg notes in her dissent, Kennedy's "way of thinking reflects ancient notions about women’s place in the family and under the Constitution — ideas that have long since been discredited. . . ." Kennedy's ruling implies that the 5-male majority in Carhart (and the hundreds of men in Congress who enacted the law) can make better decisions than women who want to undergo this procedure after consulting their medical providers. Kennedy's gender-based perspective, however, has not eroded his prestige among conservatives.

Justice Thomas
Finally, Justice Thomas has discussed race by drawing upon his experiences as a black person who grew up in Southern segregation (see this series of articles discussing his autobiography). For example, Thomas always agrees with conservatives in affirmative action cases, but he usually writes separately to discuss his views about the negative impact of affirmative on blacks -- a position that many blacks reject.

Thomas also wrote a passionate dissent in Virginia v. Blacks, a case in which the Supreme Court invalidated a Virginia law that made cross-burning a crime. A majority of the Court argued that the statute infringed the First Amendment. And while there were several dissenting opinions, Thomas, who admits growing up in fear of the Ku Klux Klan, wrote a dissent, in which no other justice joined. Thomas argued that cross-burning is never intended to do anything other than convey a threat or to intimidate individuals:

That cross burning subjects its targets, and, sometimes, an unintended audience. . .to extreme emotional distress, and is virtually never viewed merely as "unwanted communication," but rather, as a physical threat, is of no concern to the plurality.

Thomas's experience living in fear of the KKK undoubtedly shaped his opinion in this case. Nevertheless, Thomas remains a respected jurist among conservatives.

Final Thought
Despite the use of race- and gender-based decision making by many Supreme Court justices -- including beloved conservatives -- Sotomayor's opponents continue to argue that she is unfit for the bench. As conservatives question Sotomayor's impartiality, they should also question the blatant double-standard they are using to challenge her nomination.

For links to all of my articles on Sotomayor, CLICK HERE.

Andrew McCarthy's Argument Against Sotomayor Would Disqualify O'Connor and Scalia as Well!

Andrew McCarthy, writing for the National Review Online, has offered yet another failed rightwing effort to "get" Sonia Sotomayor. In his essay, McCarthy tries to demonstrate that Sonia Sotomayor could not qualify as a juror because, he claims, she lacks impartiality. McCarthy argues that:

Would Judge Sotomayor be qualified to serve as a juror? Let's say she forthrightly explained to the court during the voir dire (the jury-selection phase of a case) that she believed a wise Latina makes better judgments than a white male; that she doubts it is actually possible to "transcend [one's] personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law"; and that there are "basic differences" in the way people "of color" exercise "logic and reasoning." If, upon hearing that, would it not be reasonable for a lawyer for one (or both) of the parties to ask the court to excuse her for cause? Would it not be incumbent on the court to grant that request?

Should we have on the Supreme Court, where jury verdicts are reviewed, a justice who would have difficulty qualifying for jury service?

There are so many ways to criticize this argument. Here are a few.

First, lawyers and judges are often turned away from jury duty precisely because attorneys in the cases fear that if other lawyers serve as jurors, they will either have undue influence on the jury or will rely upon their prior knowledge when deciding how to vote. This certainly would nt make them unqualified to remain judges or lawyers.

Second, jurors are removed if there is a sufficient likelihood that they would exercise bias against a particular litigant, not simply because they are a product of their own experiences.

Third, McCarthy's argument would disqualify Justice O'Connor and Scalia from serving on the bench because these two justices unapologetically embrace the idea that identity shapes jurors. In an earlier blog post, I analyzed the "striking similarities" between Sotomayor's comments on race and sex and statements by other members of the bench. I will quote from my previous analysis of O'Connor and Scalia at length because they are relevant to this discussion.

(Quoted Material)
O'Connor and Gender Perspectives
In the case J.E.B. v. Alabama, for example, the Supreme Court held that prosecutors could not use their peremptory challenges to exclude prospective jurors based solely on gender. Justice O'Connor agreed with the decision, but she wrote separately to take issue with the notion that gender is socially irrelevant:

We know that like race, gender matters. A plethora of studies make clear that in rape cases, for example, female jurors are somewhat more likely to vote to convict than male jurors. . . .Moreover, though there have been no similarly definitive studies regarding, for example, sexual harassment, child custody, or spousal or child abuse, one need not be a sexist to share the intuition that in certain cases a person's gender and resulting life experience will be relevant to his or her view of the case.. . .Individuals are not expected to ignore as jurors what they know as men--or women. . . .

[T]o say that gender makes no difference as a matter of law is not to say that gender makes no difference as a matter of fact. I previously have said [the same thing about race]. . . .Though we gain much from this [ruling], we cannot ignore what we lose. [W]e have added an additional burden to the state and federal trial process, taken a step closer to eliminating the peremptory challenge, and diminished the ability of litigants to act on sometimes accurate gender based assumptions about juror attitudes.

Sotomayor's analysis mirrors the thoughtfulness that O'Connor brings to this issue. In particular, Sotomayor, like O'Connor, accepts the gender-neutrality mandate, but she believes that the law loses something in pursuit of this goal. Although O'Connor focuses on jurors instead of judges, given the importance of jurors to legal process -- especially in criminal law -- her analysis, if true, means that a good amount of legal decisions potentially rest on race and gender factors. Furthermore, if this analysis is true, then it suggests that judges could potentially operate on the same impulses. . . .

And while she voted with the majority in J.E.B, her concurrence asserts that the Court should not extend the case to cover the decisions of private lawyers. She is specifically concerned that lawyers representing women in sexual harassment and other cases related to gender would no longer have the opportunity to place a helpful amount of women on juries. O'Connor's reasoning would have carved out an explicit role for gender in legal decision making. The distinction between judge and juror in this context is meaningless.

Interestingly, beloved conservative Justice Scalia is more fatalistic than either O'Connor or Sotmayor. He says that judges cannot do anything about jurors' racial biases -- even if it is a life or death situation. Here's my previous analysis.

(Quoted Material)
Justice Scalia
Even a conservative like Justice Scalia has acknowledged race-based decision making among jurors. Shockingly, Scalia believes that the Court cannot remedy these decisions -- even when a litigant's life is at stake. In McCleskey v. Kemp, the Court rejected a constitutional challenge to the Georgia death penalty. A study showed that race strongly impacted prosecutors' decisions to seek the death penalty and jurors' decisions to impose it. Race operated most severely in cases involving black defendants accused of killing white victims, but the statistics showed that any person who killed a white individual had a greater likelihood of receiving the death penalty.

The majority found that, notwithstanding the study, McCleskey failed to prove discrimination in his particular case. Scalia voted with the majority, but he wrote a memorandum to the other justices in which he expresses a far more fatalistic view of race-based decision making than Sotomayor embraces in her speech:

Since it is my view that the unconscious operation of irrational sympathies and antipathies, including racial, upon jury decisions and (hence) prosecutorial decisions is real, acknowledged in the decisions of this court, and ineradicable, I cannot say that all I need is more proof.

Sotomayor, like Scalia, believes that race and sex impact legal decision making, but Sotomayor believes that judges have to struggle to overcome this limitation. Scalia, by contrast, acknowledges race-based decisions among jurors and prosecutors, but he would not exercise his authority as a judge to remedy the situation -- even in a life or death situation.

Conclusion
If Sotomayor is unfit for the bench because she concedes that she struggles to remove herself from her own experiences, then O'Connor and Scalia are unfit as well because they believe the Court should not stop jurors from making decisions based on the own backgrounds and previous experiences. To date, conservatives have made arguments against Sotomayor that would disqualify O'Connor (an advocate of gender and racial perspectives for jurors), Scalia (an emotional and empathetic justice who says that the Court can do nothing about jurors' racial biases), and Thomas (who often writes passionately against affirmative action from his own perspectives as a black conservative). What disarray!

Campaigning for Court

Despite concerns over impartiality and fairness, many states continue to elect judges to the bench, including to their highest courts. Although politics and public opinion influence judges who are appointed, rather than elected (a lot of empirical research supports this claim), selecting judges by elections probably does even more damage to judicial independence.

Campaigns for judgeships can become as vicious as those for political office. FactCheck.Org has released a summary of court races in several states this year that have involved some very "interesting" campaigns advertisements. These commercials highlight the ethical concerns related to judicial elections. Here are some highlights from the FactCheck memorandum.

* In Mississippi, an out-of-state group funded a commercial which claimed that Supreme Court Justice Oliver Diaz, Jr., who was up for re-election, "voted for" a child murderer and rapist. This advertisement is quite inflammatory. First it describes deciding a case against the state as "voting for" the defendant. Second, the commercial seeks to demonize the judge for vigorously supporting due process rights (whether or not he was "wrong" in his interpretation of precedent) by exploiting negative public opinion of sex offenders and murderers.

In the case at issue, Diaz dissented after a majority of the court refused to allow the defendant a hearing to present DNA evidence that could prove his innocence. The number of DNA acquittals for convicted individuals continues to rise. Nevertheless, the commercial disparages the judge for seeking to protect the due process rights of the defendant in this situation. The Bill of Rights, however, does not contain exceptions for the class of crimes commited.

The commercial also accuses Diaz of supporting a second child killer. Diaz dissented in a case in which the majority refused to issue a stay of execution for a man convicted of murdering a child. Diaz argued that Mississippi should delay execution until after the U.S. Supreme Court decided a then-pending case on the constitutionality of executions by lethal injunction (which Mississippi uses). Although lower courts frequently delay cases that implicate matters under review in appeals courts -- especially when, as here, a "wrong" decision would be fatal and irreversible, the commercial turned this standard process into something ominous.

A judicial ethics committee denounced the advertisement in pretty strong language. Here's an excerpt: "A judge is sworn to uphold the law and adjudicate cases in accordance with law, and not ignore the law based upon the popularity or infamy of those who appear before the court or the heinousness of the crime of which they are accused." These are forceful words, but the situation raises serious questions about the appropriateness of judicial elections.

* Moving north to the blue-state of Michigan, the Democratic Party ran a commercial accusing Chief Justice Cliff Taylor, a Republican judge and candidate for re-election, of sleeping during an oral argument. In the case at issue, the plaintiff sued the City of Detroit and public housing officials claiming that they were liable for a fire in her apartment that killed six children (sad that the commercials use kids as political footballs). In a 4-3 ruling the Michigan Supreme Court dismissed the lawsuit on the grounds that the defendants were immune from liability. Taylor sided with the majority.

An unnamed woman in the commercial says she witnessed Taylor sleeping during the proceeding. News accounts report that plaintiff is the speaker. Her accusation against the judge, however, never emerged until the eve of the election, even though the alleged "siesta" took place one year prior to the campaign advertisement. Also, other witnesses dispute her account. Taylor lost his re-election bid, and many observers believe the commercial probably played a decisive role.

Editors note on the sleeping-judge advertisement: I really hate saying this (because people could distort my words), but oral arguments on appeals of purely legal issues are not ordinarily helpful to judges. Once the issue gets to the appeals court, it has been subject to legal briefing (often more than once), and the lower court might have issued a written ruling on the issue which the appeals court could use as precedent. Consequently, many judges report that oral arguments rarely affect the way they decide legal issues. Some courts in fact only host oral arguments at their own convenience, not at the request of the parties.

I am not condoning sleeping judges, but if the proceeding does not require the court to take evidence or ascertain the credibility of testimony, then it is less critical to the outcome of the case. All of this is to say that not only was the factual assertion in the commercial questionable in terms of its credibility, but the issue of dozing off at an oral argument does not necessarily make the judge unfit. It is more embarrassing than anything else.

Overall comment: Clearly these disputes centered around ideology. Conservatives hated the "liberal" rulings of the Mississippi judge, while Liberals despised the jurisprudence of the Michigan Republican judge. And while politicians also debate ideology when considering whether to approve Judaical nominees, this type of discussion in the context of a state-wide election risks unfairly swaying public opinion. A specialized field of legal ethics examines and monitors judicial elections. The type of sleazy material in these settings make the 3am commercial look like a tap on the wrist.

Related Reading on Dissenting Justice: Buying "Justice": Campaign Finance and Judicial Elections.

Source: FactCheck.Org