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Tag: SCOTUS

Sotomayor, identity and experience

I have a piece up in the Guardian about how identity and experience shape the courts, and how Sotomayor’s professional and personal experiences add a necessary diversity to the Supreme Court bench. A taste:

Republicans and conservatives will argue that [Sotomayor’s] nomination is an exercise in affirmative action, and that Barack Obama has effectively posted a “White males need not apply” sign on the doors of the supreme court – a funny complaint about an institution that is almost entirely white and male. Democrats and liberals will predictably trip over themselves arguing that Sotomayor’s race and gender don’t matter, even while race and gender matter.

The reality, of course, is that every supreme court justice comes in with a set of life experiences that are shaped not only by race and gender, but by experiences both professional and personal – it’s just that few people consider that whiteness and maleness are not neutral identities and may shape one’s perspectives and legal opinions just as much as femaleness or non-whiteness. Sotomayor herself has 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.” And she’s right.

While that quote is sure to be brought up as evidence that she’s a “liberal activist”, it’s more indicative of the kind of self-awareness and reflection we want in a supreme court justice.

Judges have a marked historical tendency to move left over their supreme court tenures. There remains quite a bit of debate over why there’s such a pronounced liberal shift, and it is no doubt a complex phenomenon. But I suspect it has to do in part with a slow realisation that the law has a real impact on peoples’ lives, and that the law school classroom model of the law as a near-science and justice as consistency is fundamentally flawed and entirely unrealistic. “The law” as an academic exercise is certainly interesting, but one’s view is bound to shift when, as supreme court justice Anthony Kennedy put it, “suddenly, there’s a real person there.”

I think Holly and I were on the same wavelength (I was writing this article while she was writing her post) when it comes to “identity politics” and Sotomayor, so if for some strange reason you haven’t read her post below, you should do it. She fleshes out the idea more thoroughly than I did in my article (oh, to have a brain like Holly…). Enjoy.

Posted in Law

Sonia Sotomayor nominated for the Supreme Court

Sonia Sotomayor

This morning, Obama announced his nomination of Sonia Sotomayor to the Supreme Court. The nomination’s notable for many reasons, not least of which is the fact that Sotomayor would be the first Latin@ to sit on the high bench, the first woman of color — and only the third woman, after O’Connor and Ginsburg. Sotomayor grew up in the housing projects of the South Bronx, was raised by a single mother after the death of her father, is a diabetic, a Catholic, and is divorced with no children. Obama described her life as an “extraordinary journey,” talking about how she graduated at the top of her class from Princeton and then Yale Law School.

You might be wondering why I rattled off a laundry list of her life experiences, or what you might call identity categories. Two reasons: first, her career has been batted around for years by feuding Democrats and Republicans because she’s a woman of color. Once she made the short list for an Obama nomination, the rumors and sniping started up again. What she doesn’t have any kids? Not only that, but some people think she’s fat. Or are even spuriously linking her weight to her diabetes.

Get ready for a whole season of this kind of thing as her nomination is challenged. And it surely will be, in part because Sotomayor herself finds that (shockingly!) her own life experiences may lend her particular kinds of wisdom and insight. I rather agree with this quote of hers, and it’s already become a lightning-rod for conservative criticism:

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.

Read More…Read More…

Apparently I spoke too soon.

In my RH Reality Check article today, I speculated that Obama’s SCOTUS shortlist included Sonia Sotomayor, Diane Wood, Elena Kagan, Jennifer Granholm, Deval Patrick, Kathleen Sullivan, Cass Sunstein and Janet Napolitano. Turns out the actual list has been leaked, and I was only partially right. Obama is considering Solicitor General Elena Kagan, Michigan Gov. Jennifer Granholm, Homeland Security Secretary Janet Napolitano, U.S. Appeals Court judges Sonia Sotomayor and Diane Pamela Wood, and California Supreme Court Justice Carlos Moreno. I’m disappointed that my two favorites, Kathleen Sullivan and Pamela Karlan (apparently I should have gone to Stanford for law school…), aren’t listed, but overall the choices look pretty solid. Thoughts?

Posted in Law

As Supreme Court Nomination Speculation Heats Up, Keeping Our Eyes on the Bigger Prize

I have an article up on RH Reality Check today about the SCOTUS nominations. Check it out. A taste:

Few things excite politics junkies quite as much as an impending Supreme Court nomination – it’s the Kentucky derby for law nerds, with media-makers and talking heads evaluating the experience, legal pedigrees, and even health of the country’s most prominent judges, academics and lawyers. But this nomination process is looking very different from those of the past, in no small part because most of the favorites are female.

Most commentators are placing their bets on Sonia Sotomayor, Diane Wood and Elena Kagan, with Jennifer Granholm, Deval Patrick, Kathleen Sullivan, Cass Sunstein and Janet Napolitano also thrown out as possibilities. The general consensus that Obama’s choice is going to be a woman is not a bad gamble, since women make up more than half of the American public, one-third of all lawyers and thirty percent of lower federal court judges, but occupy only one seat on the current Supreme Court. Troublingly, though, there have been murmurings that this will be Obama’s “woman nomination,” and the “racial nomination” will be next – as if women can’t be both women and of color, and as if the nominees will be little more than tokens.

Posted in Law

Supreme Court and the Single Girl

Dahlia Lithwick and Hanna Rosin have a great article up about the Supreme Court short-list — and notably the fact that it’s populated by “single” women. (Note: Kathleen Sullivan and Pamela Karlan are both in long-term relationships with same-sex partners). Sonia Sotomayor, Kathleen Sullivan, Pamela Karlan and Elena Kagan are all unmarried and child-free; Sullivan and Karlan are out lesbians, and Sotomayor and Kagan, like many other powerful unmarried women, are rumored to be (because why else would a woman be middle-aged and single?).

Lithwick and Rosin dive into the ridiculousness of the lesbian rumors and the focus on the nominees’ single status, as if not having children makes them pathetic. But the most interesting part of the article comes in the final paragraphs:

Another question raised by the predominance of unmarried women on the short list: What kind of woman does it take to get there? Several years ago, some conservative women economists set out to prove that the wage gap between men and women was a myth. Anita Hattiangadi, then of the Employment Policy Foundation, concluded that if you compare men and women of “comparable worth,” the wage gap virtually disappears. So what does “comparable worth” mean? It means the same education, experience, and life circumstances. Thus, Hattiangadi found that among full-time workers age 21 to 35 who live alone, the pay gap between men and women disappears. The only significant pay gap, she found, was between married men and married women.

Hattiangadi intended these findings to finally bust the “myth” of the pay gap, but, of course, they just clarified the real problem: Men and women are not very often in comparable circumstances. When they get married and have children, women’s pay shrinks. That means the only women who can keep up with men are the ones who work very hard, and they are often divorced or unmarried and childless. Thus, as we ponder a list of potential Supreme Court nominees, it’s hardly a surprise that the current short list is dominated by such women. And so the list is a Catch-22: The choices a woman may make to achieve stunning legal success are the same ones that may also someday preclude her from a Supreme Court confirmation.

Men actually see their income and job stability increase as they marry and have children; for women, it’s the opposite. The wage gap certainly exists, but it’s more of a “mommy gap” than anything else. In the United States, motherhood is culturally glorified, until it’s time to deal with actual mothers — and then they receive almost no state support, they’re underpaid, and they’re viewed as soft and less intelligent. And yet if a woman shirks her cultural responsibility to have babies by a certain age, she’s a spinster or a radical or a lesbian. And if she’s those things, well, she’s probably not fit for the Supreme Court.

Fat is a Feminist Issue

This is one reason why.

Consider the two women widely considered the frontrunners for the nomination: former Harvard Law School dean and current Solicitor General Elena Kagan, and federal appellate judge Sonia Sotomayor.

Within hours after the news broke that Souter was resigning, concerns arose that Kagan and Sotomayor might be too fat to replace him. A commentator on the site DemConWatch.com noted that of the three most-mentioned candidates “the oldest (federal judge Diane Wood) is the only one who looks healthy,” while Kagan and Sotomayor “are quite overweight. That’s a risk factor that they may not last too long on the court because of their health.”

At The Washington Monthly, a commentator claimed to have employed a more scientifically rigorous method: “To all the short-sighted libs who are clamoring for the youngest-possible nominee… Right idea, wrong methodology. You want someone who will serve the longest, i.e. with the greatest remaining life expectancy—and that involves more than simple age. I tried assessing their respective health prospects, and ruled out all who even border on overweight. Best choice: Kim McLane Wardlaw, whose ectomorphitude reflects her publicly known aerobic-exercise habits.”

(Wardlaw’s “ectomorphitude” also gets rave reviews at legal gossip site Underneath Their Robes, which describes her as “Heather Locklear in a black robe. This blond Hispanic hottie boasts a fantastic smile and an incredible body, showcased quite nicely by her elegant ensembles.”)

Meanwhile, a letter writer at Salon comments on Sotomayor’s candidacy, “How do you say 55, overweight, and diabetic in Spanish?” (Sotomayor was diagnosed with Type I diabetes—which doesn’t correlate with higher weight—when she was a child).

I don’t think it’s a terrible idea to take health into account when picking a Supreme Court justice — after all, you want someone who will be able to remain on the bench for a long time. But “overweight” does not equal “unhealthy.” And funny how I haven’t heard anyone remark that Scalia is unfit for his job, even though he’s not exactly a slender man. Or that the least healthy of the current Supreme Court justices is probably (sadly) Ginsberg, who is a tiny little woman. Or that a whole slew of justices spent their final years asleep on the bench or totally mentally gone — surely a more problematic situation than just falling over dead one day.

I don’t remember any discussion about Roberts’ or Alito’s health when they were tapped for the bench. And I can’t help but suspect that if the leading candidates were men, we wouldn’t be having this conversation.

Thanks to Zuzu for the link.

The Bush Legal Legacy: More Whites, Men, and Conservatives

When we talk about judicial appointments, we usually focus on the Supreme Court — and George W. Bush certainly left his mark there with the appointment of two young, very conservative justices who will shape the decisions of the court for the next few decades. But considering that getting a case up to the Supreme Court is about 10 times harder than getting into Harvard, it’s worth pointing out that other judicial appointments — especially to appeals courts — end up mattering as much or more than who is appointed to the highest bench. And George W’s have not been good.

As a result of Bush’s 311 appointments to federal district courts and the appellate bench, judges across the country are more male, more white and slightly more Hispanic than those in place at the end of Bill Clinton’s presidency. A third of the nominees during Bush’s first term had “a history of working as lawyers and lobbyists on behalf of the oil, gas and energy industries,” according to a study by the Center for Investigative Reporting.

A University of Houston study of rulings by Bush’s district court appointees through 2004 found that 27 percent of the judges supported what might be considered “liberal” outcomes in litigation related to the Bill of Rights or civil rights — “giving the President the lowest score of any modern chief executive,” according to the author, Robert A. Carp. Bush’s judges also were much less likely to express support for privacy rights.

District and appellate appointments usually fly below the radar, and so presidents with an agenda can easily stack those benches with ideologues who will make law for decades to come. Here’s some of what we can expect from these appointees in the future:

Bush’s appointees nationwide have generally been “less hospitable” to allowing groups without direct financial interests to intervene in court, said University of Pittsburgh law professor Arthur D. Hellman, an expert on federal appellate courts. That viewpoint skews litigation by giving “less attention to values that are not measured in dollars,” he said.

In June, a Republican-appointee majority of the 8th Circuit — with jurisdiction over seven Midwestern and Plains states — lifted an injunction against what is perhaps the most radical anti-abortion law in the country: a South Dakota law requiring that doctors read a five-point tract meant to discourage women from proceeding.

The tract states a view that no court had previously sanctioned, namely that “abortion will terminate the life of a whole, separate, unique, living human being” and that by having an abortion, a woman will sever her “existing relationship with that unborn human being.”

The court’s majority said the will of the state legislature should be respected. But in dissent, Judge Diana E. Murphy, a Clinton appointee, accused the majority of bypassing “important principles of constitutional law.”

Obama can certainly appoint more progressive judges, but he can’t undo this kind of damage.