The first day of Judge Sotomayor’s confirmation hearings was replete with opening statements from Republican Senators expressing their concerns about her 2001 “wise Latina” remark: “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.”

Conservative commentators have latched onto the statement, but Eugene Robinson’s op-ed in the Washington Post today unpacks what their objections imply.

Republicans' outrage, both real and feigned, at Sotomayor's musings about how her identity as a "wise Latina" might affect her judicial decisions is based on a flawed assumption: that whiteness and maleness are not themselves facets of a distinct identity. Being white and male is seen instead as a neutral condition, the natural order of things. Any "identity" -- black, brown, female, gay, whatever -- has to be judged against this supposedly "objective" standard.

Thus it is irrelevant if Justice Samuel A. Alito Jr. talks about the impact of his background as the son of Italian immigrants on his rulings -- as he did at his confirmation hearings -- but unforgivable for Sotomayor to mention that her Puerto Rican family history might be relevant to her work.

It is highly likely that this “wise Latina” remark will be the focal point of questions Judge Sotomayor will face from some members of the Senate Judiciary Committee this week.

Judge Sotomayor’s confirmation hearings began this morning before the Senate Judiciary Committee with the opening statements of Chairperson Leahy and Ranking Member Sessions, followed by each of the remaining members in order of seniority.

Most Senators lauded Judge Sotomayor’s experience on the bench and academic credentials, but Republicans took the opportunity to accuse Sotomayor of being unable to rule impartially.

But Sotomayor's opening statement refuted that, underscoring her “rigorous commitment to interpreting the Constitution according to its terms…and hewing faithfully to precedents established by the Supreme Court and by [her] Circuit Court.

Senator Hatch noted that while he will question Judge Sotomayor vigorously, “[T]he Senate owes some deference to the [P]resident's qualified nominees.” Senator Graham followed suit, stating that “President Obama won. And that ought to matter. It does to me.” He went so far as to add that “unless [Judge Sotomayor had] a complete meltdown,” she would be confirmed.

Tomorrow brings one-on-one questioning by Judiciary Committee members broadcast live, beginning at 10 a.m. Stay tuned for updates as the hearings progress.

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 .
 

Given all the recent talk from the Right about judicial activism, it was pretty amazing to see Justice Alito's contortions in Thursday's decision in Horne v. Flores that gave the Arizona School Superintendent one more shot at justifying what seems to be a flawed approach to helping its English language learners overcome language obstacles.  The crux of the case, as Justice Breyer noted in his dissent, was that the graduation rate and test scores of English language learners in the Nogales Unified School District were significantly below that of the rest of the student body and the record demonstrated that this was because adequate resources were not being made available to address these students' needs.

Justice Alito thought the lower court was being too protective of the students and that the case should be sent back for a re-do. He was not able to reach this result by concluding that compliance with the more lenient No Child Left Behind Act satisfied the higher standards of the Equal Educational Opportunities Act of 1974 – because a fair reading of the statutes would not permit such a conclusion. He resorted, therefore, to an in-depth, soup to nuts, re-examination of the detailed lower court findings, substituting his judgment for that of the courts below, without the deference traditionally accorded lower courts in this situation.  He also, as the dissent pointed out, reached out to consider claims not even raised or considered below.  Indeed, one of those claims Justice Breyer characterizes as "[springing] full-grown from the Court's own brow, like Athena from the brow of Zeus."  The result of all this, in Justice Breyer's view:  it will now be far more difficult for federal courts to enforce standards designed to support non-English speaking school children.

This result is troubling. And how the Court got there is equally troubling. Indeed, it’s the same kind of "unabashed display of judicial lawmaking" we saw in last week's decision in Gross v. FBL Financial Services.

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.

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.

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!

Taking a cue from Karl Rove’s playbook, the Right is trying to transform one of the key strengths of a top-quality jurist – empathy – into a serious flaw. For example, earlier today, Michael Steele told an audience that "the President is looking to put Doctor Phil on the Court."

Last Friday’s Washington Post reported on the Right’s strategy:

An early line of attack emerged last week when Obama told reporters that his eventual nominee would have, among other characteristics, a "quality of empathy, of understanding and identifying with people's hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes."

Wendy Long, chief counsel of the Judicial Confirmation Network, a small Manassas-based group that has been active in conservative judicial battles, immediately pounced on the remark. "What he means is he wants empathy for one side, and what's wrong with that is it is being partial instead of being impartial," said Long, a former clerk to Justice Clarence Thomas. "A judge is supposed to have empathy for no one but simply to follow the law."

A judge who is willfully blind to impact of the law on real people would be a throwback to the type of jurisprudence that once kept women from becoming lawyers, that kept blacks and whites in separate schools, that kept Japanese Americans in detention camps, and that kept gay men in constant fear of arrest and imprisonment.

Just take a look at Plessey v. Ferguson, the 1896 case that upheld racial segregation. The Court deliberately ignored the real-world effect of segregation:

We consider the underlying fallacy of the plaintiff's argument [that state-mandated segregation violates the Constitution] to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.

African Americans living under Jim Crow would have to wait more than a half century before Justices with empathy would reconsider the issue.

Empathy is not a strike against a judge: No jurist committed to our core constitutional values can be without it. And that’s the type of jurist we need on the Court.

With everyone talking about the retirement of Justice David Souter, the Radical Right’s propaganda machine is set to max.

Right Wing Watch is reporting on the Right’s reaction.  One of the more laughable claims comes from Wendy Long of the Judicial Confirmation Network:

The current Supreme Court is a liberal, judicial activist court.  Obama could make it even more of a far-left judicial activist court, for a long time to come …

Calling the current Court liberal is like calling Mitt Romney consistent – you can’t say it with a straight face.  In fact, no less an authority than Justice John Paul Stevens has pointed out that “every judge who’s been appointed to the court since Lewis Powell has been more conservative than his or her predecessor,” with the possible exception of Justice Ginsburg.

But, for the sake of argument, let’s review some of the highlights of the current “liberal” Supreme Court.

In order to achieve their desired ideological results, the Far Right justices have recklessly toppled precedents, or even ignored them while pretending not to, with alarming frequency.  For example, the restrictive federal abortion ban upheld by the Roberts Court was essentially identical to one the Court had struck down before Roberts and Alito joined the bench.  Unfortunately, extreme Right Wing ideology trumped the rule of law.

Voting rights have also come under attack.  The Roberts Court upheld the constitutionality of the most restrictive voter ID law in the country, an Indiana law requiring people to present a currently valid, government-issued photo ID in order to vote.  This imposes a substantial burden on the elderly who don’t drive, college students, and the poor who don’t own cars.  Indiana was unable to identify a single case of in-person voter fraud occurring in its history.  That didn’t stop the Roberts Court from upholding a restriction that kept many Americans from being able to go to the polls on Election Day and cast a vote.

Even our very access to the courts has come under attack from the “liberal” Supreme Court.

Lilly Ledbetter was a victim of sex discrimination effectively barred from the courthouse.  Late in her career, she learned that she had, over the years, been subjected to salary discrimination on the basis of her sex, and she sued.  A jury found that she had been illegally discriminated against.  Yet a 5-4 Right Wing majority held that she should have sued within 180 days of the initial discriminatory conduct—even though she didn’t learn that she was being discriminated against for more than a decade.

The Court also closed the courthouse door in Riegel v. Medtronic, holding that patients injured by a defective medical device cannot sue for damages for violations of state common law if it was approved for marketing by the Food and Drug Administration and made to the agency’s specifications.  To reach this result, the Court had to interpret a federal law in a manner directly contrary to how its Senate sponsor said it was intended.

Keith Bowles was yet another victim denied his day in court.  After Bowles was denied relief in federal district court, the judge informed him that he had 17 days to file an appeal.  Unbeknownst to him, the rules really gave him only 14 days.  So when Bowles, relying on the federal judge, filed on day 16, a narrow 5-4 Supreme Court majority said that he had filed too late.  In so doing, the Court majority overruled clear and principled precedent that protected people in his situation.  In dissent, Justice Souter correctly wrote that “it is intolerable for the judicial system to treat people this way, and there is not even a technical justification for this bait and switch.”

The danger from right-wing justices was clear in Boumediene v. Bush, a case related to the then-President’s claim of virtually unlimited executive powers to conduct the war on terror.  The case involved the constitutionality of the Military Commissions Act of 2006, which eliminated federal court jurisdiction over habeas corpus claims by certain foreign detainees.  The Court rebuked President Bush’s vision of the presidency as an office of limitless power and declared that the president of a free nation cannot simply lock people up and throw away the key like some third-world dictator.  Chillingly, with Chief Justice Roberts and Justices Alito, Scalia, and Thomas dissenting, the case was decided by a single vote, 5-4.  One more hard-right justice on the Court, and the decision would likely have gone the other way.

That’s why it’s crucial to have justices who are committed to our core constitutional values of justice and equality under the law.

It is of the utmost importance that Justice Souter be replaced by a powerful advocate for our Constitution—a justice in the mold of great jurists like Thurgood Marshall and William Brennan.  Our nation cannot afford anything less.

Ending months of speculation, several news outlets reported last night Supreme Court Justice David Souter is planning to retire at the end of the term, after 19 years on the bench. People For the American Way released a statement expressing gratitude Justice Souter’s years of service to the Court, and called on President Obama to nominate “someone who can continue his work to defend our personal freedoms and ensure that every person has equal access to justice.”

On the campaign trail, then-Sen. Obama, a former constitutional law professor, told Wolf Blitzer of CNN “I I think that my first criteria is to make sure that these are people who are capable and competent, and that they are interpreting the law. And, 95 percent of the time, the law is so clear, that it's just a matter of applying the law. I'm not somebody who believes in a bunch of judicial lawmaking.” An excerpt from the transcript:

What you're looking for is somebody who is going to apply the law where it's clear. Now, there's going to be those 5 percent of cases or 1 percent of cases where the law isn't clear. And the judge then has to bring in his or her own perspectives, his ethics, his or her moral bearings. …

That's been its historic role. That was its role in Brown vs. Board of Education. I think a judge who is unsympathetic to the fact that, in some cases, we have got to make sure that civil rights are protected, that we have got to make sure that civil liberties are protected, because, oftentimes, there's pressures that are placed on politicians to want to set civil liberties aside, especially at a time when we have had terrorist attacks, making sure that we maintain our separation of powers, so that we don't have a president who is taking over more and more power.

I think those are all criteria by which I would judge whether or not this is a good appointee.

Well put, Mr. President. November’s election results were a mandate to President Obama to appoint judges committed to justice, equality, and opportunity for all Americans.

Soon after the election, People For the American Way Foundation hosted a panel called “Beyond the Sigh of Relief: Justices in the Mold of Marshall and Brennan.” It’s newly relevant, so take a look.