Sonia Sotomayor

Washington Post columnist Ruth Marcus, in a piece titled, “Don’t ask, don’t judge?” gave a rhetorical green light to Religious Right activists who have responded to news that federal judge Vaughn Walker is gay by attacking his ability to rule fairly on the constitutional challenge to Prop. 8, the California ballot initiative that stripped same-sex couples of the right to get married.

Although Marcus concludes in the end that Walker, who was randomly assigned to hear the case, was right not to recuse himself simply because he is gay, she does so after a lot of “squirming” like this:

So when Walker considers claims that the ban on same-sex marriage violates the constitutional guarantees of equal protection and due process of law, it's hard to imagine that his sexuality, if he is gay, does not influence his decision-making -- just as the experience of having gay friends or relatives would affect a straight judge.

In the end, Marcus writes,

In this case, I hope the plaintiffs win and that Walker rules that the same-sex marriage ban violates their constitutional rights. At the same time, I've got to acknowledge: If I were on the side supporting the ban and found it struck down by a supposedly gay judge, I'd have some questions about whether the judicial deck had been stacked from the start.

But why wouldn’t the deck be considered “stacked” against gay people if a straight judge were deciding the case? By concluding her column that way, Marcus gives credence to the offensive notion that is already being promoted by right-wing leaders that a gay judge cannot be expected to rule fairly in a case involving the legal rights of gay Americans.

Here’s Matt Barber, director of cultural affairs with Liberty Counsel, responding to news that Judge Walker is, in Barber’s words, “an active practitioner of the homosexual lifestyle.”

“At worst, Judge Walker’s continued involvement with this case presents a textbook conflict of interest. At best, it objectively illustrates the unseemly appearance of a conflict.

"If Judge Walker somehow divines from thin air that the framers of the U.S. Constitution actually intended that Patrick Henry had a ‘constitutional right’ to marry Henry Patrick, then who among us will be surprised?

“Any decision favoring plaintiffs in this case will be permanently marred and universally viewed as stemming from Judge Walker’s personal biases and alleged lifestyle choices.

"For these reasons, and in the interest of justice, Judge Walker should do the honorable thing and immediately recuse himself.”

Barber tries to make a case that he is taking a principled stand by saying, “This is no different than having an avid gun collector preside over a Second Amendment case,” continued Barber, “or a frequent user of medical marijuana deciding the legality of medical marijuana.”

Really, Matt? You expect us to believe that you would advocate that judges who collect guns should recuse themselves from cases involving the Second Amendment? What about avid hunters, like Justice Antonin Scalia? Should anyone who owns a gun be assumed not to be able to rule fairly on legal issues involving guns?

The Post’s Marcus concluded that asking Judge Walker to recuse himself would “invite too many challenges to judicial fairness -- Jewish judges hearing cases about Christmas displays, or judges who once represented unions or management presiding over labor disputes.”

What about Christian judges presiding over Christmas displays? Can you imagine the outrage from Matt Barber and his Religious Right colleagues if someone were to suggest that Christian judges should be barred from hearing cases involving legal and constitutional questions about separation of church and state?

In a diverse and pluralistic nation, it’s important that the federal bench reflect that diversity. But what’s far more important than an individual judge’s race, religion, ethnicity, or sexual orientation is his or her judicial philosophy and understanding of the Constitution’s text, history, and role in protecting the rights and opportunities of all Americans.

The unspoken offensive presumption at work here is that people who come to the law with a life experience that is considered “normal” – say, straight white male Christian – are inherently unbiased, or that their life experience somehow gives them a singularly correct way of viewing the law. Others are suspect.

This notion was on ugly display during the Sonia Sotomayor hearings, when her recognition that she would bring her life experience as a Latina to the bench was used to pillory her as a white-male-hating racist. What about all those white male senators, and the white male Supreme Court Justices they had voted to confirm? Samuel Alito’s ethnic pride and empathy were considered valid, while Sotomayor’s was radical and threatening.

Ruth Marcus is no Matt Barber. She is in some ways simply acknowledging the reality that there is still a level of emotional prejudice against gay people that will keep some Americans from believing that a gay judge can be fair. But she is far too sympathetic to the purveyors of that prejudice. Her column validates their bigotry and will encourage more of the kind of divisive rhetoric we see from the likes of Barber.

The Right regularly attacks progressive judges for "making policy" and "legislating from the bench." But in oral arguments yesterday, the Supreme Court Justices demonstrated yet again that one of their most important roles is to make policy in difficult circumstances where the law is unclear.

The case involves a man named José Padilla who was born in Honduras and has lived in America for 40 years. (He is no relation to the former "enemy combatant" of the same name). Considering whether to plead guilty to trafficking in marijuana, he turned to his lawyer for advice. Relying on the lawyer's incorrect assertion that a guilty plea would not affect his immigration status, he pled guilty and now finds himself subject to deportation.

The Court must decide if Padilla was unconstitutionally deprived of effective assistance of counsel and should therefore be allowed to withdraw his guilty plea. During oral argument, Justices across the ideological spectrum appropriately asked probing questions as they wrestled with difficult policy options. The Washington Post reports:

Justice Sonia Sotomayor ... said the threat of deportation was an important component of a defendant's decision on whether to go to trial and risk a longer sentence, or plead guilty to a charge that would automatically send him back to a place where he "might starve to death."

But other justices worried that it would be impossible to limit the issue to deportation -- a tack that Padilla's attorney Stephen B. Kinnaird suggested was one way to narrowly decide the case.

"We have to decide whether we are opening a Pandora's box here, whether there is any sensible way to restrict it to deportation," said Justice Antonin Scalia. "What about advice on whether pleading guilty would -- would cause him to lose custody of his children? That's pretty serious. What if pleading guilty will -- will affect whether he can keep his truck, which is his main means of livelihood, or whether -- whether it would be seized by the government as the instrument of his crime?"

Justice Samuel A. Alito Jr. said he was sympathetic to Padilla's predicament. "Your argument has an appeal because removal is such a harsh consequence, particularly for someone like your client, who had been in the United States for a long time," he said. But he wondered how to ever know whether such a conversation had occurred between client and attorney.

Clearly, deciding difficult cases like this is not as easy as simply calling balls and strikes.

I look forward to hearing those who vigorously complain about "legislating from the bench" condemn Justices Scalia and Alito for yesterday's questions.

I also look forward to seeing exactly what process they propose the Justices use to call this a ball or a strike.

Today, Senators Leahy and Sessions released the list of witnesses who will testify at the Senate Judiciary Committee’s hearings on Supreme Court nominee Sonia Sotomayor.

We’re happy to see that Arkansas Attorney General Dustin McDaniel will be among those testifying. He was a big hit at our “Four Years of Forty” panel on the Supreme Court that People For hosted at the DNC in Denver last year.

But the list has some disappointments as well, like Peter Kirsanow, who after 9/11 raised the possibility of internment camps for Arab Americans.

If there's a future terrorist attack in America "and they come from the same ethnic group that attacked the World Trade Center, you can forget about civil rights," commission member Peter Kirsanow said.

The reason, he said, is that "the public would be less concerned about any perceived erosion of civil liberties than they are about protecting their own lives."

Not exactly the kind of person who should be front and center discussing an institution that should be devoted to protecting the rights and liberties of ordinary Americans .
 

If you’ve been following the nomination of Sonia Sotomayor to the Supreme Court, the term “reverse-racist” has undoubtedly appeared in a story you’ve read. Rush Limbaugh branded Sotomayor a ‘reverse-racist’ on his radio show, while Newt Gingrich labeled her a racist when he posted a statement on his Twitter account.

Some right wing groups claim that Sotomayor is a judicial activist who will bend the law based on her own personal views.

Wendy Long of The Judicial Confirmation Network, a conservative-leaning organization involved with judicial nominations, sent a letter to Senators yesterday outlining these concerns:

“Judge Sotomayor challenges the belief that the law needs to be knowable and predictable . . .” 

Long accused Sotomayor of embracing judicial activism, and claims that “when judges drive such change, based not on the written Constitution and laws enacted by the people, judges use their own sense of personal "justice," based on their own experiences, personal views, feelings, and backgrounds.”

Sadly, the facts get in the way of Long’s argument. Take, for instance, Sotomayor’s ruling in the case of Pappas v. Giuliani. In short, the case involved Thomas Pappas, an employee of the New York City Police Department, who was fired for mailing racially offensive, anonymous letters to organizations that had solicited him for donations.

A reverse-racist, judicial activist, such as Sotomayor, must have ruled in favor of the city, claiming that Thomas violated the rights of others through his offensive remarks, right?

Wrong. It turns out that Judge Sotomayor did exactly what Wendy Long would have wanted―she made her ruling based “on the written Constitution and laws enacted by the people.” Citing the NYCLU’s briefing on the case, Sotomayor and her Second Circuit panel concluded that: 

“The reduced free-speech protections accorded to public-employee speech related to the workplace also extended to private and anonymous speech by employees that took place away from the workplace and that was unrelated to the workplace” 

 Rather than let her personal beliefs get in the way of her ruling, Sotomayor upheld one of America's oldest laws by defending a bigot’s right to be a bigot.