Tag Archives: Sotomayor

What We Wont Learn from the Sotomayor Confirmation Hearings

By Marc Seltzer; originally published on July 9, 2009, at politicsunlocked.com.

(Linda Greenhouse’s New York Times piece about the confirmation hearings for Elena Kagan raised the issue of whether a justice can be forthcoming in their testimony to congress.  Interestingly, Kagan has articulated her belief that the executive brach has largely unfettered authority in the areas of national security, the point that I wrote about in reference to the Sotomayor hearings.  Still, I do not see any reason for Kagan to speak openly in the upcoming confirmation hearings in light of the intense politicization of the process.  My early post is reposted below.)

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If there is one legal question that is profound and topical, the discussion of which would be deeply thought provoking and educational in the Supreme Court nomination hearings of Judge Sonia Sotomayor, it is the constitutional division of power between the different branches of government.

The power struggle between the branches is most notably implicated in the national debate over the Bush administration’s conduct of foreign policy and war.  President Bush and Vice-President Cheney asserted generally exclusive executive branch authority in the conduct of intelligence, detention of prisoners and avoidance of oversight in national security operations after 9/11.

Now that Bush and Cheney are out of power and more information is coming out about their conduct, opponents of such policies are on the attack, calling for investigation.  Only the most recent issue is whether Vice-President Cheney directed that the CIA withhold information from Congress that Congress has by law, demanded that the executive branch provide.  Other red-hot manifestations are whether the use of torture by the administration can be subject to explicit laws banning such activity, and whether the President was in fact required to brief congress regularly on its conduct of foreign policy and military action, as Congress has demanded.

Underlying this and other such conflicts is the question of constitutional authority in the different branches of government.  The President is the Commander-in-Chief.  Does this grant the President sole authority for decisions relating to national security, or is it an authority shared by the peoples’ representatives in Congress?

In the same vein, what are the limits of such Presidential authority?  Can the President authorize torture if he believes it is necessary for national defense?  If Congress requests that the President provide information on on-going military operations, can the President ignore the request if he believes that to follow it will harm the operations?

The ultimate answers to these questions cannot be known until the U.S. Supreme Court decides each issue in the context of specific facts presented in a lawsuit.  But a Supreme Court nominee could give us her reflections and a certain education.  This would be far more meaningful then the competing assertions of power by the administration and congress.  Of no more use are the pundits and professors who weigh in.  Almost universally, commentators take political positions based on desired outcomes, but give no real insight into what the Supreme Court would be likely to do.  The Supreme Court is deeply aware of its profound power and cautious about its legitimacy in asserting its authority over other branches of government – being the unelected branch.   Pundits have none of this real world caution.

Consequently, the Supreme Court tends to go to great lengths to avoid constitutional questions, instead deciding cases on smaller technical matters whenever possible.   There is nothing wrong with this judicial approach, except that it leaves many of us wondering where the bounds of legislative or executive power really are.

I, for one, have no doubt that they are not where the President and Congress say they are.

Judge Sotomayor — Target of Newfound McCarthyism?

By Marc Seltzer; originally published on June 9, 2009, at care2.com

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Is it all right that Newt Gingrich called a sitting federal judge with a stellar record a “racist”?

How about Rush Limbaugh rallying the conservative base by demonizing Judge Sonia Sotomayor’s opinions as racially biased?

Isn’t this more like 50s’ McCarthyism, bullying your political enemies with politically loaded names — even when they don’t fit?

There should be no concern about Judge Sotomayor’s prospects for confirmation by the Senate. Senate Republican Jeff Sessions, top republican on the Judiciary Committee, which will conduct hearings, is a former federal prosecutor and can tell the difference between political mudslinging and a real issue about a biased judge.  Her opinions, which I will go into in my next post, are highly regarded by lawyers and judges.  Conservatives should be applauding Judge Sotomayor because she is tough, judicially restrained, and respectful of legal authority.  You will see many Republican Senators honor her extensive resume of public service, her judicial philosophy and her meticulous opinions during the hearings and confirmation process to come.

But in the lead up, before she has the opportunity to testify before the Senate, is it fair game to call her names, whether justified or not?  “Racist” is one of the ugliest terms to label an American citizen.  The spirit of the country is that “all men are created equal,” and while it is obviously an evolving picture, the ideas of equality are core beliefs in what it means to be American.

McCarthy called people “un-American.”  And some of his targets indeed held loyalties to our enemy’s political beliefs or systems.  Others did not, but were tarred just the same until, in the most famous of McCarthy’s eventual dressing downs, counselor Welch for the U.S. Army interrupted McCarthy during televised hearings: “I think I never gauged your cruelty or recklessness….Have you no sense of decency, sir, at long last? Have you left no sense of decency?.”

Gingrich’s and Limbaugh’s conservative political philosophy includes fundamental truths as did McCarthy’s, buy they suffer from the same problem as McCarthy as well:  Power corrupts.  They have such power over their followers that they can at times cross the line into injustice, indignity, and mistruth without paying for it.  This is no slight against Libertarian or Conservative political beliefs.  There are many nuggets of truth in a philosophy seeking control over government, strict constitutional interpretation, and fiscal responsibility.

But Limbaugh and Gingrich are attacking now while there is no accounting.  When the hearings come and real analysis is laid on the table, their early words will look foolish, although they will have been disavowed or revised by then.  They would not want to risk a real head to head match up of ideas on this one.

At the end of six weeks of hearings in June of 1954, Senator Stuart Symington said to McCarthy, “The American people have had a look at you for six weeks. You are not fooling anyone.”  America won the Cold War against Communism, but we didn’t do it by attacking each other for political advantage.  It was won by better ideas facilitated by honest government and real democracy.

Taking this lesson forward:  America would benefit from an education about judicial philosophy, but personal attacks, on esteemed public servants without credible justification and outside of a hearing process, lower both the level of public discourse and respect for our democratic institutions.

Firefighters in the U.S. Supreme Court

Originally published at care2.com on July 1, 2009

The U.S. Supreme Court decision regarding Connecticut firefighters is interesting for two principle reasons: it overturns a decision in which current Supreme Court Nominee Judge Sonia Sotomayor participated, and it provides Supreme Court authority in the sensitive and controversial legal area of race-conscious decision-making by government authorities.  The heart of the issue is whether there was sufficient justification for the city of New Haven, in charge of promoting officers in its fire department, to reject results of a test that saw no black candidates reach promotion, despite many applicants.

The High Court was called upon to make a difficult decision, and the 5-4 breakdown of the court shows it was a close call.  The majority opinion and dissent, penned by Justices Anthony Kennedy and Ruth Bader Ginsberg, respectively, provide details of the city government’s and the high court’s analysis of the fairness of treatment of minority firefighters and the legal standards that govern one aspect of how race should be dealt with in the workplace.

Falling into the trap of football politics and simplistic analysis, early reports call the decision “a blow to diversity in the American workplace” and a win for the conservative approach to discrimination law (more responses). However, this case is not Plessy v. Ferguson (perpetuated race-based discriminiation) or Brown v. Board of Education, (rejected “separate but equal” treatment of minorities).  The distinctions in this case, if given honest, unbiased consideration, are so subtle and intertwined with legal policies that they require in-dept analysis and some speculation to figure out what they could mean and achieve in the workplace.

Justice Anthony Kennedy’s opinion rejected arguments that past discrimination at the fire department (where there has been only one African American of 21 fire captains), perceived unfairness in the exam (some concerns were voiced at a public forum when the results were announced while experts interviewed had mixed responses), and state agency concern over being sued for discrimination would justify the city’s throwing out the results — which promoted only white and Hispanic firefighters.

The facts before the Court showed that the city authorities made significant and costly efforts to create a fair, consciously race-neutral test.  Evidence from scholars and testing experts showed that the tests and results were in line with those for good tests given elsewhere and did not make a clear case of evidence of a bad test.

The city rejected the test results out of concern that they turned out to discriminate against African Americans and that they would result in lawsuits from African American firefighters.  It is possible, but not certain, that other tests would achieve more race-neutral results.

Crucially, the majority decision found that there was not enough evidence under the legal standard, which the city was expected to use, to throw out the test results and deny promotion to white and Hispanic firefighters with higher scores.

Local government officials in Connecticut worked hard to try not to descriminate unfairly.  This is commendable.  The Court said that they erred when they took the further step in throwing out the results of a test designed carefully to be fair, without more evidence that it was, in fact, unfair.

The dissent disagreed.  Four members of the Court felt that past discrimination, test results (black candates passed, but didn’t score high enough for promotion), and local government concern over being sued by black candidates was enough to throw out the test and start again with a new process in hopes of better eliminating unfair descrimination.

This situation may still indicate that unfair racial descrimination exists in testing procedures used by government agencies.  However, it also shows that significant efforts were made by officials acting in good faith to avoid prejudice and unfair assessment.  The majority’s decision says that under these circumstances, it is not fair to winning candidates to throw out the results of their exams.

The city government and both sides in this Supreme Court decision tried to remove unfairness from the process of promotion of fire officials.  That is what we pay them for.  If respect were accorded to effort and not results, we would recognize in the workings of our government and the behavior of its leadership nobility of purpose and integrity of character.  Next time, the results may be different, but let us hope that the effort by public authorities can rise to the level of that evidenced here.

Governmental authorities may also consider the New Haven testing program a failure and may go on to make even greater efforts to root out testing problems if and where they exist.  The Court makes no determination of what other efforts governmental agencies should make in order to achieve fairness for its citizens.

Nor does it stop African-Americans from filing suit where they believe that they were discriminated against by tests and processes.  They may have a case where outcomes differ by racial groupings.  The issue would be different than in the current case (Constitutional or Civil Rights Act claims of unfair or unequal treatment) and the outcome could be different.

I think I can say all this and still have deep compassion and concern for African-Americans that have not yet found a level playing field for competition in the American workplace.  The discussion and investigation of problems must continue aggressively.

We need to do the best we can because our nation has embraced merit and rejected prejudice as a defining principle.  Let’s continue on that path.  But anyone that labels the various decision-makers he

Judicial Nominee Sparks Debate on Racism, Discrimination

By Marc Seltzer; originally published on July 13, 2009 at politicsunlocked.com

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As the hearing on Judge Sonia Sotomayor’s nomination to the Supreme Court commences, there is a great focus on whether Judge Sotomayor is biased. This reflects more the nations’ prejudices than it does any real question about the judge. She has been on the bench for sixteen years, and there is little informed concern about the impartiality of her decisions.

The Ricci decision, in which she rejected claims by Hispanic and white firefighters in favor of the city of New Haven’s effort to aid African American firefighters, clearly does not show a bias towards her Hispanic cultural identity. Her decision followed federal law, which allowed cities such as New Haven to take remedial efforts where discrimination was argued or perceived. In concert with other federal judges, she deferred to Congress in its lawmaking and the city in its application of the law. While a five-member majority of the U.S. Supreme Court reversed her decision last week and provided a new authority for lower courts, this hardly paints her as either biased or activist.

Her comment, “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,” has also inspired a strong reaction and many questions regarding her perspectives on race and gender.

News reports about her judicial temperament showed her to be no-nonsense, tough, smart, detail-oriented, and fair. Even those on the losing side held her in high regard. Some critics have harped on her toughness on lawyers appearing before her as a negative aspect, which reminds me of a very tough senior federal judge I have often appeared before. He sometimes berated lawyers and their arguments and had no tolerance for the unprepared. In my experience, I went out of my way to make sure I was ready for every hearing, and I was nervous in my uncertainty about how each hearing would go. But I did not question his capacity for the job because he was particularly demanding.

Judge Sotomayor’s comments off the bench do raise questions about the role of personal characteristics such as gender, race, religion and culture in judging, but do not create real issues about her capability or about the nature of her judicial philosophy. Justice Sanual Alito said essentially the same things that Judge Sotomayor has said – noting the impact of his Italian heritage and experience as an Italian American on his judicial outlook – without raising an eyebrow. When this kind of sentiment is expressed by a white male, it sounds “cultural,” like a tribute to our shared melting-pot cultural identity. But when the same ideas are expressed by a minority voice, it raises the concern in some of reverse discrimination as if minorities given a voice must necessarily use it in a power grab.

After a period of being attacked, without the opportunity to respond, the hearings will be Judge Sotomayor’s forum to speak. Republicans have noted that while they cannot seriously expect to thwart Sotomayor’s confirmation, they can use the hearings as a platform to argue judicial philosophy. As their criticism so far has been off the mark, it is likely that it is they who will receive a schooling in the Senate.

What We Wont Learn from the Sotomayor Confirmation Hearings

By Marc Seltzer; originally published on July 11, 2009, at politicsunlocked.com

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If there is one legal question that is profound and topical, the discussion of which would be deeply thought provoking and educational in the Supreme Court nomination hearings of Judge Sonia Sotomayor, it is the constitutional division of power between the different branches of government.

The power struggle between the branches is most notably implicated in the national debate over the Bush administration’s conduct of foreign policy and war.  President Bush and Vice-President Cheney asserted generally exclusive executive branch authority in the conduct of intelligence, detention of prisoners and avoidance of oversight in national security operations after 9/11.

Now that Bush and Cheney are out of power and more information is coming out about their conduct, opponents of such policies are on the attack, calling for investigation.  Only the most recent issue is whether Vice-President Cheney directed that the CIA withhold information from Congress that Congress has by law, demanded that the executive branch provide.  Other red-hot manifestations are whether the use of torture by the administration can be subject to explicit laws banning such activity, and whether the President was in fact required to brief congress regularly on its conduct of foreign policy and military action, as Congress has demanded.

Underlying this and other such conflicts is the question of constitutional authority in the different branches of government.  The President is the Commander-in-Chief.  Does this grant the President sole authority for decisions relating to national security, or is it an authority shared by the peoples’ representatives in Congress?

In the same vein, what are the limits of such Presidential authority?  Can the President authorize torture if he believes it is necessary for national defense?  If Congress requests that the President provide information on on-going military operations, can the President ignore the request if he believes that to follow it will harm the operations?

The ultimate answers to these questions cannot be known until the U.S. Supreme Court decides each issue in the context of specific facts presented in a lawsuit.  But a Supreme Court nominee could give us her reflections and a certain education.  This would be far more meaningful then the competing assertions of power by the administration and congress.  Of no more use are the pundits and professors who weigh in.  Almost universally, commentators take political positions based on desired outcomes, but give no real insight into what the Supreme Court would be likely to do.  The Supreme Court is deeply aware of its profound power and cautious about its legitimacy in asserting its authority over other branches of government – being the unelected branch.   Pundits have none of this real world caution.

Consequently, the Supreme Court tends to go to great lengths to avoid constitutional questions, instead deciding cases on smaller technical matters whenever possible.   There is nothing wrong with this judicial approach, except that it leaves many of us wondering where the bounds of legislative or executive power really are.

I, for one, have no doubt that they are not where the President and Congress say they are.

Supreme Court Reverses Sotomayor Panel in Ricci Case

By Marc Seltzer; originally published on July 8, 2009 at politicsunlocked.com

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The Supreme Court recently overturned an opinion issued from a three-judge appellate panel including Supreme Court nominee Judge Sonia Sotomayor. The core of the case turned on how a government agency, in this case the city of New Haven, Connecticut, should deal with potential discrimination against minority employees.

The city took a number of steps to address concerns about discrimination in promotions for fire department officer positions, such as making great efforts to create a race-neutral test and ensuring that minority officers from other departments participated in the candidate evaluation process. The lawsuit arose when the city decided to throw out the results of the firefighter promotion exams because no African-American applicants achieved top scores, meriting promotion.

The Supreme Court decision sheds some light on how government entities are expected to handle discrimination concerns. However, it does not fit as nicely into the affirmative action debate as commentators claim. It also fails to provide any significant evidence against Judge Sotomayor’s promotion to the U.S. Supreme Court.

It was white and Hispanic firefighters who sued the government in Ricci v. DeStefano when their success on the exams was disregarded. They lost their case in the lower courts and petitioned the Supreme Court for a final review. The Supreme Court found that once the promotion exams were completed, the city needed evidence that the exam was discriminatory, beyond just the results themselves, to justify disregarding those results. This, the city did not have. It had a history of discrimination, where only one of 21 fire captains was African-American, and it had a fear of lawsuits from unsuccessful black candidates, a legitimate concern recognized in the law guiding cities’ decision making on employment matters, but it did not have evidence that this test was unfairly discriminatory.

The Supreme Court decision was 5-4, with Justice Anthony Kennedy writing an opinion joined by Justices Scalia, Thomas, Alito and Chief Justice Roberts. The decision does not seem to overturn much law on affirmative action or to allow discrimination against minorities to go unchecked. It does say that once a hiring process is completed and candidates are ranked for promotion, it should not be upended without evidence that it was faulty.

The dissent would have allowed the city to disregard the test results in light of past discrimination and suspicion and potential legal challenges over the results themselves. There was evidence that another type of exam process might have yielded different results and the dissenting opinion considered that sufficient to put the test results into question and justify the city’s action.

Judge Sotomayor, along with two other appellate judges, had agreed with the trial judge that the city was within its rights to redress what it perceived was a problem in the test results. Justice Sotomayor will be asked about the decision in the nomination hearings next week. However, her position was hardly the type that should concern the judiciary committee reviewing her nomination. Sotomayor followed existing law on an issue where there is obviously substantial disagreement.

Justice Sonia Sotomayor Fits the Obama Mold

By Marc Seltzer; originally published on May 29, 2009 at politicsunlocked.com

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The nomination of Justice Sonia Sotomayor to the U.S. Supreme Court fits perfectly with President Obama’s vision for good government: independent intellect, moderate politics, and pragmatism.

Sotomayor is a first generation Puerto-Rican American of humble upbringing. She distinguished herself academically, graduating summa cum laude from Princeton and editing the Yale Law Journal. Like Mr. Obama she proved herself and opportunity followed academic excellence.

Sotomayor has acknowledged that being Hispanic and a woman may be qualifications, or at least qualities, important to her professional career. “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,” she said in a speech. This differs from President Obama who hesitated to make distinctions part of his political language and for whom “we” most often meant middle-class Americans.

Republicans have attacked Sotomayor’s remarks as identity politics and raised fears of a judicial philosophy of preferences. But is this just grasping for straws?

First, simply, is the question of what she meant. Did she mean that it was about time for women and Hispanics to be better represented in government service? After all, there have been 110 Supreme Court Justices since the nation’s founding, and only two have been women. None have been Hispanic except Justice Benjamin Cordozo, of European Jewish ancestry, who may have had Portuguese bloodlines a few centuries back. Arguing that Cordozo keeps Sotomayor from being recognized as potentially the first Hispanic on the Court is nonsense.

Or did Justice Sotomayor mean that experience in life – adversity, discrimination, and disadvantage – helped her to build character and taught her about life in a way that wealth and social status might not have?

Conservatives may worry that she would be an advocate for women and for minorities on the court, emphasizing sympathy over the legal rules. This treads into especially difficult waters. Politically, liberals have often taken up the causes of women’s and minority rights. In the legal context, at least, conservatives have opposed affirmative action, or race-conscious government actions as reverse discrimination.

Commentators refer to decisions rendered by Ms. Sotomayor as technical and narrow rather than ideological and sweeping. In one case she emphasized how “embarrassing and humiliating” the school strip searches can be to teenage girls. Is this comment a sign of prejudice and activism? Because Sotomayor’s decisions are mainstream and are specific responses to facts rather than sweeping pronouncements of political theory, it is a stretch to find in them judicial activism or bias.

What is easier to find is pragmatism. Justice Sotomayor is known for concentrating on the facts of each case and for diligence and care in crafting her decisions.