Does a Judge's Gender Matter? Ask "Proud" Laura Bush

Perhaps she's showing the grace of a former White House resident, but Laura Bush's comments regarding Sonia Sotomayor's nomination to the Supreme Court directly contradict the rhetoric conservatives have used to portray her as a biased and unqualified jurist. Appearing on Good Morning America, Bush said that: "As a woman, I'm proud that there might be another woman on the court. I wish her well." She also described Sotomayor as "a very interesting and good nominee."

Plagues and Famine Next? Gingrich and Huckabee Warn of Paganism, Abortion, and Same-Sex Marriage

Newt Gingrich and Mike Huckabee have been busy lately. Both men recently made the headlines after Gingrich called Sonia Sotomayor a "racist" and Huckabee said "Maria" Sotomayor would make the Supreme Court "extreme." Now, the two have turned to other evils (literally). At a 3-hour event held yesterday, Gingrich, Huckabee and other speakers condemned paganism, abortion, same-sex marriage, and (of course) President Obama.

Highlights and Commentary

* Paganism??? Yes! Gingrich: "I think this is one of the most critical moments in American history. . .We are living in a period where we are surrounded by paganism."

* Miracle from God's Hand = American Revolution = Proposition 8? Yes!

Huckabee told the audience he was disturbed to hear President Barack Obama say during his speech in Cairo, Egypt, on Thursday that one nation shouldn't be exalted over another.

"The notion that we are just one of many among equals is nonsense," Huckabe said. The United States is a "blessed" nation, he said, calling American revolutionaries' defeat of the British empire "a miracle from God's hand."

The same kind of miracle, he said, led California voters to approve Proposition 8, which overturned a state law legalizing same-sex marriages.

* Thomas Jefferson wanted "God" in government? Yes!

Gingrich . . . said the ties to religion in American government date to the Declaration of Independence, when Thomas Jefferson wrote
that men are endowed by God with certain inalienable rights.

Jefferson's reference to "inalienable rights" does not describe a government that enforces religious doctrine, which Jefferson did not endorse. Instead, Jefferson used that language to invoke the concept of "natural rights," which posits that certain rights exist outside of any constitutional or legislative instrument.

Conservatives, however, say they abhor the recognition of rights that do not arise from a "strict" interpretation of the Constitution or narrow understanding of "the" intent of the Framers (as if they left a paper trail of complete agreement). Using Jefferson's broad language and his embrace of natural rights, one could reasonably argue that "life, liberty and the pursuit of happiness" encompasses things like same-sex marriage, abortion, and paganism, regardless of the text of the Constitution or the framers' intent. In addition, the Constitution itself contains several important provisions that protect the generalized concept of "liberty" from infringement. This constitutional text supports recognition of a broader set of rights and liberties than conservatives usually acknowledge.

* God "Hearts" the USA more than any other place on the Earth? Yes! Huckabee: "I am not a citizen of the world . . . I am a citizen of the United States because only in the United States does citizenship start with our creator."

That's pretty powerful stuff, especially considering that "God is not a respector of persons." For purposes of law, the Constitution extends citizenship to "all persons born or naturalized in the United States and subject to the jurisdiction thereof." Neither the citizenship clause nor the Constitution mentions God or the "Creator."

By the way, the citizenship clause reverses the Supreme Court's decision in Dred Scott v. Sanford, which held that whether "slave" or "free" blacks were not "citizens" of the United States. Was this ruling divinely inspired?

Isn't It Ironic: E.J. Dionne's Column on Politics, the Media and Obama

E.J. Dionne's latest column makes the interesting claim that conservatives Rush Limbaugh and Newt Gingrich are "winning" national political debates because the right-leaning media regularly reports conservative criticism of Obama, while failing to give equal airtime to left critiques of the president. Dionne argues that this unbalanced news coverage legitimizes rightwing portrayals of Obama as a leftist, socialist, Maoist, Lenninist, Marxist, terrorist, . . . .[Dionne did not really say all of this, but it sounds familiar for some reason].

I describe Dionne's column as ironic because until recently, Dionne himself was an unwavering fan of President Obama. For over a year, Dionne, along with liberal columnists such as Maureen Dowd, Frank Rich, and Eugene Robinson could not find any fault in Obama from a liberal perspective. Meanwhile they heaved loads of critical commentary towards Hillary Clinton and, naturally, John McCain. Now, Dionne criticizes the media for making the same mistake that he and other columnists made in their past coverage of Obama.

I have always doubted and challenged the notion that the news media is liberal. Instead, I believe it is centrist and opportunistic. When Bush was popular, the media bashed Gore and, later, Kerry. When Clinton was popular, the media raked Bush, Sr., Gingrich, Dole, Limbaugh, and the "vast rightwing conspiracy" over the coals. When Reagan was popular, it knocked Carter and Dukakis. While Obama rode (and continues to ride) a wave of popularity, it trashed Hillary Clinton, John McCain, and Sarah Palin.

The media follows Nielsen ratings and money -- not ideology. Because unquestioned adoration of Obama has fallen in popularity, the media wants to stir up attention by citing to and covering conservative critiques of the president. It's all about the dollar, Dionne.

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.

Hypocrisy Alert: Conservatives Angry That Sotomayor Is Not a Judicial Activist (Part II)

I have previously argued that "judicial activism" is a bankrupt phrase. Rather than referring to any particular theory of judging, the judicial activism label is simply politically charged rhetoric that groups or individuals invoke to condemn court rulings with which they disagree. Conservative opposition to elements of Sotomayor's rulings proves this point.

Voting Rights for Felons
Recently, the Washington Times published an editorial that attempts to portray Sotomayor as an extremist who wants to give felons the right to vote. The editorial discusses her dissenting opinion in Hayden v. Pataki. In Hayden, the plaintiffs asserted that New York State systematically deprived blacks and Latinos of the right to vote by denying the franchise to incarcerated felons. The plaintiffs argued that New York's election law violates Section Two of the Voting Rights Act, which prohibits "any" policy that dilutes a racial group's votes. The plain meaning of the statute made it applicable in Hayden, but the majority explicitly looked beyond the statutory language to deny the statute's relevance and to dismiss the case.

Arch-conservative Justice Scalia is probably best known for his statutory interpretation jurisprudence which strongly condemns judges who look beyond the "plain meaning" of statutes and consult legislative history and other external sources. Sotomayor, echoing Scalia, grounded her dissent in the language of judicial restraint:

The duty of a judge is to follow the law, not to question its plain terms. I do not believe that Congress wishes us to disregard the plain language of any statute or to invent exceptions to the statutes it has created. . . . [I]f Congress had doubts about the wisdom of subjecting felony disenfranchisement laws to [the Voting Rights Act], I trust that Congress would prefer to make any needed changes itself, rather than have courts do so for it. I respectfully dissent.

It is unclear whether New York's election laws actually dilute the votes of blacks and Latinos, but the court had to consider this as a "fact" at the particular stage of the litigation in which it issued a ruling. The only question the court considered was the applicability of the Voting Rights Act, and it actively explored external sources to reach its conclusion that the law was not applicable (See here for a discussion of Hayden and conservative flip-flopping).

Sotomayor Wants Your Guns
The latest story to spread fear and loathing through conservative America depicts Sotomayor as an anti-gun radical judge. Last year the Supreme Court held for the first time that the Second Amendment right to bear arms extends to individuals. The closely divided (5-4) ruling in District of Columbia v. Heller resolved (at least judicially) a highly contentious debate among legal historians and lawyers concerning the scope of the Second Amendment. Many scholars argued that the amendment only created a right for states to arm their militias, not a right for individuals to arm themselves. The Court rejected this view.

The Heller decision, however, does not instantly apply to states and municipalities. Longstanding Supreme Court precedent finds that the Bill of Rights only limits the federal government, not the states. This view is consistent with the history surrounding the Bill of Rights. The first ten amendments to the Constitution represent a compromise designed to secure ratification of the document. Political opposition to the Constitution centered upon the significant expansion of federal power that it created, relative to the Articles of Confederation. The Bill of Rights, which places limits on federal power, secured ratification. The explicit text of some of the amendments reveal this historical context. The First Amendment, for example, states that: "Congress shall make no law respecting an establishment of religion. . . ."

In a line of precedent decided primarily during the liberal Warren Era, the Supreme Court held that the "Due Process Clause" of the Fourteenth Amendment "incorporates" certain portions of the Bill of Rights and makes those freedoms enforceable against state governments (because the Due Process Clause explicitly constrains states). Nothing in the Fourteenth Amendment or in the history surrounding the amendment, however, explicitly states that it incorporates the Bill of Rights. Instead, incorporation resulted from liberal judicial interpretation.

As a result of a case-by-case process, the Supreme Court has deemed most of the Bill of Rights enforceable against state governments. Among the exceptions is the Second Amendment. In 1886, the Supreme Court ruled in Presser v. Illinois that the Second Amendment only limits the federal government and not the states. In 2005, the Second Circuit followed Presser and held in Bach v. Pataki that the Second Amendment does not limit state legislatures. In 2008, Sotomayor sat on a Second Circuit panel that issued a per curiam opinion in Maloney v. Cuomo that follows Presser and Bach and finds that the Second Amendment does not apply to states.

Although incorporation is a liberal doctrine and Supreme Court and Second Circuit precedent finds the Second Amendment unincorporated, conservatives have blasted the Maloney decision. But their criticism is blatantly hypocritical: They are condemning Sotomayor for following precedent. That Sotomayor's rulings adhere closely to precedent and statutory language undermines one of the popular (yet deceitful) tropes her conservative opponents have advanced against her -- that she lacks impartiality and is an ideologue. By condemning Sotomayor for adhering to precedent and strictly following the language in a statute, conservatives are behaving like inconsistent ideologues who only value judicial restraint and fidelity to precedent if doing so leads to conservative outcomes.

Final Thought
Yesterday, a very conservative panel of esteemed judges in the Seventh Circuit, including Judges Richard Posner and Frank Easterbrook, issued an opinion declining to find that the Second Amendment is incorporated. The court stated that the Supreme Court must make this decision, especially because its own precedent holds that the amendment does not apply to states. The panel also explicitly cites to Maloney as influencing its ruling. Perhaps other conservatives will embrace consistency on this issue as well. Actual caselaw refutes the conservative portrayal of Sotomayor as an outcome driven ideologue. If her opponents care about facts, rather than rhetoric, they will soon shift their views.

Note: For links to all of the essays I have written regarding Sotomayor, see: Sonia Sotomayor on Dissenting Justice.

Cheney Shows Empathy for Daughter Mary, Supports Same-Sex Marriage

Former Vice President Dick Cheney embraced the idea of same-sex marriage, so long as the change occurred within states, rather than from a federal statute. During his discussion of same-sex marriage, Cheney mentioned his daughter Mary Cheney, who is an out lesbian:

As many of you know, one of my daughters is gay and it is something we have lived with for a long time in our family. I think people ought to be free to enter into any kind of union they wish.

Waterboarding and same-sex marriage. Almost dizzying, right?

Sotomayor's Diverse Former Law Clerks Give Her Strong Endorsement

Sotomayor's former law clerks have written a letter to Senators Harry Reid, Mitch McConnell, Patrick Leahy, and Jeff Sessions. The diverse group of former law clerks strongly strongly endorses the Supreme Court nominee. Here's my favorite passage:

As former law clerks to Judge Sotomayor, each of us can attest to her intellectual prowess, extraordinary work ethic, and commitment to the rule of law. Working for Judge Sotomayor is an awe-inspiring experience. . . .Judge Sotomayor approaches each case with an open mind and arrives at her decision only after carefully considering all of the pertinent facts and applicable rules of law. She brings to each case not only her formidable intellect, but also her practical judgment, honed from years of real-world law practice and experience solving difficult problems as a federal district court and appellate judge. Numerous commentators have remarked upon Judge Sotomayor’s wealth of judicial experience. This experience is clear whenever she takes the bench. Judge Sotomayor is thoughtful, engaged, and well-prepared during oral argument, showing an extraordinary grasp of the factual details and legal nuances of her cases. She is a judge who is tough and fair, yet highly respectful of her colleagues in the judiciary (including those with whom she sometimes disagrees) and the litigants appearing before her. . . .Our view of Judge Sotomayor mirrors her reputation among her colleagues on the bench and among members of the bar who have practiced before her, who widely respect her intellectual dynamism, collegiality, and balanced, fair jurisprudence.

Great stuff!

For links to all of my essays on Sonia Sotomayor see: Sonia Sotomayor on Dissenting Justice