Sonia Sotomayor

Is “Eagerness to Obstruct” a Requirement for New GOP Senators?

Yesterday, former New Hampshire Attorney General Kelly Ayotte narrowly defeated Tea Party insurgent Ovide Lamontagne in the state’s Republican senate primary.

Ayotte is hardly a political moderate—Sarah Palin has anointed her a “Mama Grizzly”—but that didn’t keep her from being attacked from the right. One of Lamontagne’s charges against her? Ayotte said that if she were in the Senate she would have voted to confirm Supreme Court Justice Sonia Sotomayor.

Lamontagne’s full-on attack on Ayotte for conceding that Sotomayor was qualified to sit on the Supreme Court helped to propel him to within 2,000 votes of the much better-known, better-funded Ayotte. In addition to a lengthy screed on “Obama Judges” on his website, Lamontagne got a leg up from the conservative Judicial Crisis Network, which spent $50,000 on an ad campaign attacking Ayotte for her Sotomayor support.

Never mind that in 2009, a full nine Republican senators voted to confirm Sotomayor—including New Hampshire Senator Judd Gregg, who said of the nominee, “Her views and decisions, although strongly stated, are certainly not out of the mainstream of American jurisprudence or political thought."

Cooperating with the president to put moderate judicial nominees on the bench is apparently no longer a legitimate GOP position. Gregg (who is vacating the seat Ayotte is seeking) was one of only five Republicans to vote to confirm Supreme Court Justice Elena Kagan this spring. But the Kagan vote was an example of outright bipartisan bonhomie compared with the GOP’s stand on lower court nominees. Fewer Obama nominees have made their way through the Senate than under any president since Nixon—in a large part the result of the GOP’s unified refusal to vote on even those nominees with no Republican opposition.

By the time the Kagan nomination came around, Ayotte had learned her lesson on moderate judicial nominees, and issued a statement panning the Solicitor General. Ayotte’s struggle shows the enormous amount of energy the Right is spending on obstruction as a strategy in itself—and the danger for those who occasionally try saying something other than “No.”

 

 

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Empathy vs. Sympathy

As the Senate debate continues on Elena Kagan’s confirmation, Republicans have used this opportunity to blast Obama for previously stating that judges should have the empathy to understand the lives of ordinary Americans. Republicans argue that possessing “empathy” is synonymous with “liberal judicial activism,” and have attempted to use this standard to oppose Kagan’s nomination.

Yesterday, Sen. Kaufman of Delaware reminded his colleagues of the actual meaning of “empathy”: 

Likewise, President Obama’s promotion of empathy is not, as his critics suggest, the advocacy of bias. “Empathy,” as a quick look at the dictionary will confirm, is not the same as “sympathy.” “Empathy” means understanding the experiences of another, not identification with or bias toward another. Let me repeat that. “Empathy” means understanding the experiences of another, not identification with or bias toward another. Words have meanings, and we should not make arguments that depend on misconstruing those meanings.

Republicans launched their assault on empathy last year during Sonia Sotomayor’s confirmation hearings. What was lost in the hubbub is what the word actually means. Sympathy leads to the kind of bleeding-heart reactionary reasoning that Republicans claim to be afraid of in nominees like Sotomayor and Kagan. Empathy is the quality that enables judges to understand the reasons laws are made, and the real-life implications they have on the lives of Americans. Republicans have access to the same dictionaries as the rest of us—but if they stopped twisting Obama’s words, they would lose one of their favorite empty arguments.

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A New Ally For Kagan Opponents

As Republican leadership refuses to rule out filibustering Elena Kagan’s Supreme Court nomination, it’s important to keep in mind the ideological company her opponents keep. One new critic is none other than failed Supreme Court nominee Robert Bork, who plans to elaborate on his complaints against Kagan at a Wednesday news conference hosted by the anti-choice group Americans United for Life.

As we pointed out recently, Bork agrees with Republican Senate nominee and Tea Party darling Rand Paul that certain key parts of the Civil Rights Act should never have been passed. And lest his opposition to Kagan surprise anyone, he also opposed President Obama’s last nominee, Sonia Sotomayor. For more on Bork’s judicial philosophy, see the ad we made in 1987 to oppose Bork’s nomination:


 


It’s good to know that today Robert Bork is just another ultra-conservative lawyer and not a US Supreme Court Justice.

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Supreme Court: Suspects Must Speak in Order to Remain Silent

The Supreme Court’s conservative majority ruled today that suspects being interrogated can only invoke their right to be silent if they say so explicitly—they can’t just remain silent. Justice Sonia Sotomayor, in a dissenting opinion, called the ruling a "substantial retreat from the protection against compelled self-incrimination that Miranda v. Arizona has long provided.” The Los Angeles Times explains:

In the past, the court has said the "burden rests on the government" to show that a crime suspect has "knowingly and intelligently waived" his rights.

But in a 5-4 decision Tuesday, the court said the suspect had the duty to invoke his rights. If he failed to do so, his later words can be used to convict him, the justices said.

The ruling comes in a case involving a murder suspect who, though read his Miranda rights, never said he would waive them. After three hours of interrogation, he offered a few monosyllabic responses that implicated him in the crime. The Supreme Court’s majority, in an opinion by Justice Anthony Kennedy, went beyond the case in question to hold that suspects, rather than having to explicitly agree to be interrogated, have to explicitly invoke their Miranda rights in order to halt questioning.

Sotomayor pointed out that requiring a suspect to speak in order to remain silent doesn’t really make sense:

Justice Sonia Sotomayor, the court's newest member, wrote a strongly worded dissent for the court's liberals, saying the majority's decision "turns Miranda upside down."

"Criminal suspects must now unambiguously invoke their right to remain silent — which counterintuitively, requires them to speak," she said. "At the same time, suspects will be legally presumed to have waived their rights even if they have given no clear expression of their intent to do so. Those results, in my view, find no basis in Miranda or our subsequent cases and are inconsistent with the fair-trial principles on which those precedents are grounded."

She also criticized the majority for going beyond the decision necessary for the specific case in order to make new and broader rules:

If, in the Court’s view, the Michigan court did not unreasonably apply our Miranda precedents in denying Thompkins relief, it should simply say so and reverse the Sixth Circuit’s judgment on that ground. “It is a fundamental rule of judicial restraint . . . that this Court will not reach constitutional questions in advance of the necessity of deciding them.” Three Affiliated Tribes of Fort Berthold Reservation v. Wold Engineering, P. C., 467 U. S. 138, 157 (1984).

Two disturbing habits of the Roberts Court are on display here: the tendency to ignore the common-sense practicalities faced by the person with the least power in a given situation; and the zeal for going beyond the narrow bounds of a given case and carving out a whole new set of rules not necessary to the resolution of the case before them.

It’s a perfect example of how the Roberts majority, while displaying remarkable ambivalence to the practical implications of its rulings, isn’t just calling “balls and strikes”—it’s going to bat for its own unprecedented agenda.
 

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Majority of Americans Comfortable with Obama Picking Supreme Court Justice

Jeff Sessions take note: a new Washington Post-ABC News poll has found that a large majority of Americans are just fine with President Obama picking the next Supreme Court Justice.

Overall, two-thirds of Americans say they are comfortable with Obama selecting the nation's next justice, including nearly a third of Republicans. That is comparable with a Fox News poll conducted last May before the president chose Sonia Sotomayor to be his first nominee to the court.

The poll finds 65 percent of Americans -- 63 percent of registered voters -- comfortable with Obama making the choice. In June 2005, a Fox poll found 54 percent of registered voters comfortable with President George W. Bush choosing a replacement for the retiring Justice Sandra Day O'Connor.
 

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Judging, Judges and Prop 8

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.

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Sotomayor takes progressive step forward, refers to “undocumented immigrant”

Senator Durbin once referred to America’s immigration crisis as a “crisis of humanity.” Yesterday, Supreme Court Justice Sonia Sotomayor agreed when she referred to immigrants not as “illegal” or “alien” but as “undocumented.” Use of this humanizing term marks both the first ruling of Justice Sotomayor’s high court career, and also the first time such a term has been used by the Court as a whole – ever.

As reported by the New York Times:

"In an otherwise dry opinion, Justice Sotomayor did introduce one new and politically charged term into the Supreme Court lexicon.

Justice Sotomayor’s opinion in the case, Mohawk Industries v. Carpenter, No. 08-678, marked the first use of the term “undocumented immigrant,” according to a legal database. The term “illegal immigrant” has appeared in a dozen decisions."

Undocumented immigrants don’t sacrifice their humanity when they decide to cross the border. Many who come to the United States, including the undocumented, decide to come here in hopes of creating a better life for themselves and their families. What value could be more human that that?

No person is “illegal.” And as far as I know, none of us is “alien.” That Justice Sotomayor recognizes this is a hopeful signal for the future of immigration in the Court’s jurisprudence.

Click here for more information from America’s Voice.

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Have they no decency?

McCarthyism is back. Let's call it what it is.
 
We are seeing one witch hunt after another led by right-wing opinion leaders, media outlets, organizations and even members of Congress. They pursue personal smear campaigns, grasping at straws to create "guilt by association" and challenge the legitimacy, allegiances and patriotism of their opponents.
 
Remember the Bush-era attacks on the patriotism of anyone who questioned the administration's policies? Those look tame in comparison. Now, with Democrats in power, the insinuation is that the president, his advisers and his political allies are actively trying to destroy America from within and, despite being elected by the people, are inherently unfit to lead.
 
We stand up to right-wing bullies every day, and we want to help all courageous Americans do the same. People For the American Way is ready to confront this new McCarthyism head-on. In the coming days and weeks we will be exposing the Right's tactics and rhetoric and creating tools to help activists combat them. We will educate Americans about the insidious nature of what we see happening in this country and impress upon Americans the urgency of stopping it.
 
In a 1954 Senate hearing, Army head counsel Joseph Welch famously put Senator Joseph McCarthy in his place, saying, "Have you no sense of decency, sir, at long last? Have you left no sense of decency?"
 
In that great moment in American history, Welch called McCarthy out for his "cruelty" and "recklessness." The crowd at the hearing erupted in applause and, in that instant, McCarthy's power started its decline.
 
It's time for all of us to ask that same question -- Have you no sense of decency? -- of those on the Right who have resurrected McCarthy's tactics.
 
Radical Right activists ("Birthers," "Tea Baggers"), paranoid anti-government extremists and irresponsible media personalities like Glenn Beck and Rush Limbaugh (and media outlets like FOX News) -- in many cases with the backing of entrenched right-wing and corporate interest groups -- have simultaneously raised the ominous, not to mention incompatible, specters of socialism, communism, fascism, Nazism and infiltration by foreign elements. This has created a backdrop of suspicion in which McCarthy-like intimidation, guilt by association and character assassination thrive.
 
In the last two weeks alone, we've seen:

  • 53 right-wing members of Congress sign a letter to the President requesting that he fire Kevin Jennings who heads the office at the Department of Education tasked with keeping schools safe, for "promoting homosexuality and pushing a pro-homosexual agenda in America's schools." Jennings, a gay man and founder of the Gay, Lesbian and Straight Education Network (GLSEN), has been the target of right-wing groups like Family Research Council for months. He was also the victim of false accusations that he broke the law in counseling an underage student when he was a teacher - and the congressional letter included that allegation even though the office of the letter's primary signer, Rep. Steve King, had been made aware that the story was wrong.
  • Glenn Beck, whose "6 degrees of Obama" guilt-by-association attacks have generally lacked any shred of coherence, has been going after White House Communications Director Anita Dunn for once offhandedly referring to Mao Tse-tung (along with Mother Teresa) as one of her favorite political philosophers. He has repeatedly implied that this means she must endorse his heinous deeds and personal ideology while remaining conspicuously silent about the fact that many icons of the conservative movement have approvingly cited the political writings and tactics of communists like Mao, Lenin and the Viet Cong.
  • Just this past Sunday, the notoriously right-wing editorial page of the Washington Times savaged Judge Edward Chen, who is nominated to the Northern District Court of California, opening the piece with the sentence, "Another day, another Obama nominee who doesn't appear to love America." For its 'evidence,' the editorial cites: Chen's acknowledgement of what we all know -- that a judge's life experiences affect how he or she views a case (shades of the attacks against Sonia Sotomayor); the fact that he expressed concern -- as many thinking Americans did -- about potential recriminations for Muslim Americans following the tragedy of September 11; and his former work with the ACLU.

Of course, the use of race-baiting, red-baiting, gay-baiting and lies to characterize people as enemies of America doesn't stop with attacks on administration officials and nominees. There have been many more examples, and sadly, there will undoubtedly be many more to come.
 
That's why we must all be vigilant. We must call out fear-mongering and intimidation in government, in the media and in our own communities. And when we confront it, we must ask the vital question, "Have you no sense of decency?"
 
People For the American Way is getting out in front of this troubling and pervasive new trend. Through research, educational materials and activism tools, we'll give you what you need to stand up to the Right and McCarthyism.

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The "Balls and Strikes" Fraud Continues to Wither Under Scrutiny

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.

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President Obama Hosts Justice Sotomayor at the White House

Justice Sonia Sotomayor was sworn in on this Saturday, and today President Obama hosted a reception to celebrate her confirmation and her new role.  His remarks are right on the money.

Justice Sotomayor's rise from humble beginnings to the height of achievement is yet another symbol of that faith -- faith that the American Dream still endures; faith that "equal justice under the law" is not just an inscription in marble, but an animating ideal of our democracy; faith that in this great nation, all things are still possible for all people.

This is a great day for America, and I know that all of us here are proud and honored to have been a part of it.

People For put out a statement last week when the Senate confirmed her nomination, but it doesn't hurt to say it again: congratulations, Justice Sotomayor.

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Witness List for Sotomayor Hearing Announced

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 .
 

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Sotomayor Hearings to Begin July 13th

Senator Patrick Leahy (D-VT) announced today that Supreme Court nominee Sonia Sotomayor will begin her confirmation hearings on July 13th. People for the American Way President Michael B. Keegan released the following statement on the announcement:

"Today's announcement is a clear sign that Judge Sonia Sotomayor is on track to be confirmed to the Supreme Court.

Judge Sotomayor is an eminently qualified nominee, and the misguided efforts by some prominent Republicans and their right-wing allies to smear her have failed.

In recent years Supreme Court nominees have traditionally had hearings within two months of being nominated. Today's announcement is consistent with the timeline for nominees of both parties." 

Make sure to sign our petition today, calling on the Senate to confirm Judge Sotomayor to the court.

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Wendy Long May Have More in Common with Sotomayor Than She Thought

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.

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Confirm Sonia Sotomayor

You may have heard that President Obama nominated Judge Sonia Sotomayor to fill the Supreme Court vacancy left by the retirement of David Souter.

Sotomayor is a superb choice, and we're working with our allies to help introduce her to the country. 

And don't forget to sign our petition calling on the Senate to confirm Judge Sotomayor to the Court!

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