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The Senator and the Justice — Cornyn’s Selective Outrage

July 16th, 2009 No comments

Senator Cornyn is being given a pass on his audacity. Today, he asked soon-to-be Supreme Court Justice Sonia Sotomayor about whether a decision in favor of marriage equality would be “interpreting” or “making” law. The implication, of course, is that such a holding would be “making law” and therefore illegitimate.

To her credit, Sonomayor was (barely) able to contain her exasperation. There isn’t a clear divide here, and the Court’s decision will be based on precedent, constitutional text and interpretation, and something called “evidence.”

But Cornyn should be the last person to complain about judges “making law,” because his own decisions on the Texas Supreme Court showed an astonishing lack of concern about existing law and precedent. There, he was willing — eager, really — overturn any precedent, however recent, that made life more difficult for insurance companies.

Most infamous in this regard is Boyles v. Kerr, 855 S.W.2d 593 (1993), in which Cornyn joined a majority in prohibiting a negligence lawsuit by a woman whose boyfriend had taped the two of them having sex and then showed it to his friends; according to the court, Dan Boyles owed no duty to Susan Kerr not to “negligently inflict” emotional distress on her. But this decision overruled a controlling case holding otherwise from only five years earlier.

Decisions are overruled all the time, but in this case the court didn’t bother justifying its turnabout with any substantial reasons, instead inveighing vaguely against “unlimited liability.” The real difference, of course, was that the court’s membership had shifted during the intervening five years; notably, Cornyn himself came to the bench in 1990 — between the two cases.

Cornyn was among the new, pro-insurance justices on a court that has been notoriously corruptible over the years. Time and again, the frustrated dissenters expressed a level of anger, and adopted an accusatory tone, that is startling. From Justice Doggett’s dissent in Boyles:

“[E]xcessive concern for the effect of every opinion on insurance companies seems to have become the predominant and overriding issue here, even to the exclusion of a woman’s most basic rights. Susan Kerr loses today because of the majority’s misdirected concern about the potential liability of insurers….”

Speaking of women’s concerns, I can’t let this post end without noting that Boyles sparked a conflagration of outrage, such that the court withdrew its original opinion and rewrote it to make it less offensive. In that earlier opinion, the court had displayed a shocking lack of sensitivity to the plaintiff’s injury, noting, among other minimizing facts, that she’d been able to have sexual relations after this humiliating incident. Here’s what the Women’s Advocacy Project (which provides social and legal services to victims of abuse) had to say about the court’s decision and language:

“The court has sent a message to all these Texans [who have suffered sexual and emotional abuse] that they are second class citizens. It defies logic to have a system of justice that will compensate the victim of a car wreck but that will refuse to compensate the recipients of the most devastating of emotional injuries. Perhaps more significantly, this Court has sent a message to these citizens that their injuries do not merit judicial redress, leaving them with no alternative but to take justice into their own hands.”

Well, that sounds ominous. But not a problem for now-Senator Cornyn, who continues to be more concerned about whether a “wise Latina” will make bad decisions because of her prejudices and radical world view.

Who’s the radical activist here?  Cornyn asked Sotomayor: “Judge, what should I say to my constituents?”

That’s a good question, but his constituents might want him to talk about something other than he thinks.

Sotomayor Hearings: Here Comes Gay Marriage!

July 16th, 2009 1 comment

Watch this. Then I’ll explain the case they’re talking about.

The case they’re discussing, Baker v. Nelson, is unusual (and disputed) as precedent, because the Supreme Court declined to take the case for want of a substantial federal question. New York Law School Professor Art Leonard says:

“Many lower federal courts have cited Baker v. Nelson as precluding any federal constitutional challenge to the exclusion of same-sex couples from marriage.  In that case, a gay male couple in the early 1970s who were denied a marriage license in Minnesota sued the state on a federal constitutional due process and equal protection theory.  They lost in the Minnesota Supreme Court and filed an appeal to the U.S. Supreme Court.  At that time, the Supreme Court was required to consider such cases on direct appeal, but it used the device of dismissing the appeal ‘for want of a substantial federal question’ when the Justices felt the case had no merit.  They dismissed the Baker appeal on this basis.  This was before the modern gay rights movement really got going in the courts, before we won Romer v. Evans and Lawrence v. Texas, before the establishment of a growing body of case law protecting gay rights.  Clearly, what was not a ‘substantial federal question’ in the 1970s is today a ‘substantial federal question.'”

In other words, whatever the Court would decide on the substance of the gay marriage issue today, it would likely start by dealing with, and disposing of Baker v. Nelson, because all would agree that the issue today does raise a substantial federal question. But will Sotomayor say that when she clarifies her remarks, as she’s promised to do? I doubt it.

Empathy and Activism: A Look at Senator Cornyn’s Own Judicial Record

July 16th, 2009 No comments

During the Sotomayor hearings, Sen. John Cornyn of Texas has been among the most aggressive questioners. He seems particularly overwrought about the nominee’s statements that her experience as a Latina would somehow affect, or even improve, her decision-making. (Of course, the would-be justice has run as far from those comments as possible.) He and other conservatives also worry about “activist judges” who “legislate from the bench.” It’s amazing he can express these concerns without blushing.

As I noted when this issue broke, there are several ways to interpret the “wise Latina” comment. The most benign is that all of us are a product of our environment and experience; our empathy should be for all litigants, but we’re not, and shouldn’t pretend to be, robots. (That said, Sotomayor’s performance so far has been that of Automaton Lawyer.)

Cornyn, though, is having none of this; empathy isn’t and shouldn’t be part of decision-making. NY Times columnist Maureen Dowd is at her skewering best in yesterday’s take on the Republican Legion of (White) Super-Attackers. Smashing the tennis ball with deadly accuracy, she nails every line and corner of the court:

“A wise Latina woman with the richness of her experiences would more often than not know that a gaggle of white Republican men afraid of extinction are out to trip her up.

“After all, these guys have never needed to speak inspirational words to others like them, as Sotomayor has done. They’ve had codes, handshakes and clubs to do that.

“[P]resident Obama wants Sotomayor, naturally, to bring a fresh perspective to the court. It was a disgrace that W. appointed two white men to a court stocked with white men. And Sotomayor made it clear that she provides some spicy seasoning to a bench when she said in a speech: ‘I simply do not know exactly what the difference will be in my judging, but I accept there will be some based on gender and my Latina heritage.’

“Republican Lindsey Graham read Sotomayor some anonymous comments made by lawyers about her, complaining that she was “temperamental,” “nasty,” “a bit of a bully.” Then he patronizingly lectured her about how this was the moment for “self-reflection.” Maybe Graham thinks Nino Scalia has those traits covered.

“But the barbed adjectives didn’t match the muted performance on display before the Judiciary Committee. Like the president who picked her, Sotomayor has been a model of professorial rationality. Besides, it’s delicious watching Republicans go after Democrats for being too emotional and irrational given the G.O.P. shame spiral.

“W. and Dick Cheney made all their bad decisions about Iraq, W.M.D.’s, domestic surveillance, torture, rendition and secret hit squads from the gut, based on false intuitions, fear, paranoia and revenge.

“Sarah Palin is the definition of irrational, a volatile and scattered country-music queen without the music. Her Republican fans defend her lack of application and intellect, happy to settle for her emotional electricity.

“Senator Graham said Sotomayor would be confirmed unless she had ‘a meltdown’ — a word applied mostly to women and toddlers until Mark Sanford proudly took ownership of it when he was judged about the wisdom of his Latina woman.

“And then there’s the Supreme Court, of course, which gave up its claim to rational neutrality when the justices appointed by Republican presidents — including Bush Sr. — ignored what was fair to make a sentimental choice and throw the 2000 election to W.

“Faced with that warped case of supreme empathy, no wonder Sotomayor is so eager to follow the law.”

*********

Cornyn’s own record as a Texas Supreme Court Justice reveals a similar “supreme empathy” — to insurance companies. In the area of tort law, he consistently sided with majorities that eviscerated long-standing rules and principles, consistently to the advantage of defendant businesses and the insurance companies that ultimately would have had to account for the losses.

These decisions, often by the barest of majorities, were not in cases that any other state supreme court would have agreed with. In the 1992 case of Keetch v. Kroger Co., 845 S.W.2d 262 (Tex. 1992), Cornyn and three other justices held that a supermarket wasn’t necessarily liable for a slippery condition that its own employee had created. Maybe the employee didn’t know the spray he’d used had landed on the floor. The flabbergasted dissenters pointed out that the majority’s decision, in addition to being at odds with settled and uncontroversial law in Texas as well as everywhere else, effectively told employees and store owners to “look the other way.”

The majority also tripped the plaintiff up on a procedural error, one that the dissent noted was now applied only to those bringing suit, not to those defending: “Today the court… extends a dual standard of justice–an easy requirement for defendants, an inexplicably strict one for plaintiffs.” (Mauzy, J., dissenting)

This willingness to use arcane procedural rules to defeat claims sometimes meant that valid cases never got a hearing. In the inexplicable H.E. Butt Grocery Co. v. Warner, 845 S.W.2d 258 (Tex. 1992), Cornyn wrote only for himself (but as the majority because of an oddity of Texas law) in tossing out a case involving a woman who’d slipped and been injured allegedly because of an ill-conceived “bag your own chicken”1 promotion. Despite the clear description of the dangerous condition set forth in the complaint, then Justice Cornyn found that it hadn’t provided legally sufficient notice of the problem. I leave to the law-curious among you the details, but this telling comment from the dissent bears quoting:

“”The majority opinion defies modern rules of pleading, which require only that a plaintiff put the defendant on notice of the claim. [This] retrograde analysis runs counter…to modern tenets of procedure….”

Empathy for insurance companies and judicial activism: Not just for leftists, apparently. Cornyn’s decisions spawned dissents that were downright angry and accusatory. Here’s a good place to finish, again stemming from a pro-insurance decision by a Cornyn-led majority:

“When an unequivocal constitutional command and  concern for the insurance industry collide in this Court, the outcome is no longer in doubt. [T]oday’s decision is but one example of the court’s recent indifference to precedent and its commitment to wholesale revision of Texas law.” (Doggett, J., dissenting)

  1. Ick.

Sotomayor: Abortion as a Public Health Issue

July 15th, 2009 1 comment

I no longer listen or watch raptly as Supreme Court nomination hearings proceed. They’re mostly for show, and a little goes a long way.

In Judge Sotomayor’s case, the little I’ve seen —  except for the moving sight of her mother in the audience, fighting back tears of joy and pride — has been as scripted as have been recent hearings. Republicans are cautiously on the attack, recycling the few pieces of ordnance they have (will anyone ever again refer to herself as “a wise Latina”?) and at times revealing their embarrassing ignorance of all things judicial. Democrats work on the hagiography while pre-emptively blocking any efforts to suggest that the nominee might actually have a heart. (Chuck Schumer’s references to cases where Sotomayor had ruled against sympathetic plaintiffs were noteworthy in this regard, if a little…odd.) And the nominee herself, determined to give them nothing (especially since she’s reputedly such a Latina hothead!), is plodding along in a performance that is measured — at times even boring — by design.

But I did stop what I was doing and listen attentively to a brief exchange between Judge Sotomayor and Sen. Lindsey Graham of South Carolina. The discussion concerned the nominee’s work as a Board member for the Puerto Rican Legal Defense and Education Fund (“PRLDF”). Having served on the board of a legal advocacy group my own self, I can tell you that even the lawyers among us had approximately zero input on the cases the organization chose to take, and even less on the legal arguments and strategy the organization pursued.

Nonetheless, there’s something to Sen. Graham’s line of questioning, because Board members are generally committed to the goals and philosophy of the organization, even if they might have quibbles about details. If Equality Advocates, on whose board I sat, had suddenly decided, for example, not to take cases involving transgender rights, I would have known about that decision, and protested it. Sotomayor said as much, noting that Board members did care about fidelity to the organization’s broad mission statement.

So Graham pressed Sotomayor on briefs that the PRLDF had filed arguing that denying poor women the right to a government-funded abortion was the moral equivalent of slavery. Sotomayor claimed, quite plausibly, to have known nothing of this, but then she did speak to the overall goals of the organization in the same way I would have felt comfortable describing the work of Equality Advocates. She said that the Fund (which contains the word “Education” in its title) was interested in issues of “public health,” as were other advocacy groups.

Aha! Graham had what he perceived as an opening. “So you think abortion is a public health issue?” he asked.

Somehow, she managed to avoid answering the question directly — but she shouldn’t have. Here’s the exchange (beginning shortly before 4:00):

Abortion is a public health issue, and this description of it shouldn’t be seen as controversial. Graham was doubtless proceeding from the presumption that those who see abortion as a matter of public health are on the extreme end of the pro-choice side.

It’s true that one argument in favor of abortion rights has been that, on a population-wide basis, safe and legal abortions lead to better health outcomes; illegality and the lack of regulation predictably compromise women’s health. But that doesn’t mean that the argument is decisive from a public health point of view, nor does it mean that the public health perspective is the only perspective from which to consider the issue.

Recently, those opposing abortion rights have argued that abortions have their own public health consequences, including increased incidence of breast cancer and adverse mental health outcomes for women who terminate their pregnancies. There’s not a lot of evidence in support of these theories, but that didn’t stop Justice Kennedy, in his 2007 Supreme Court decision in Gonzales v.  Carhart, from reciting supposed psychological consequences in support of his ruling that a law restricting late-term abortions was constitutional.

And public health, properly understood, isn’t a purely utilitarian calculus, anyway: Properly understood, it incorporates a respect for persons and autonomy that has both long- and short-term effects on health and well-being. In short, to recognize the issue as one with a public health dimension is to add a useful prism through which to view this complex and probably irresolvable issue.

But not the only prism. Saying that an issue has an important public health dimension isn’t ruling other perspectives out of order. Questions of rights and morality can’t and shouldn’t be read out of the issue. The challenge is to hold all of these perspectives before us as we strive for some kind of legal and social rules that we can live with, if not totally embrace. That goal sometimes  seems impossible to achieve, but I’m optimistic that public health talk can take some of the heat out of the discussion and enable sensible compromise.

Repeat: Abortion is a public health issue.

The Credibility Sports Confers

July 10th, 2009 No comments

This morning I found out that former major league pitcher David Cone is to testify as a character witness at the trial of Supreme Court nominee Sonia Sotomayor. I learned this during a panel discussion on MSNBC that included Stephen A. Smith, former Philadelphia Inquirer sportswriter and ESPN talking head. I’m sure former ESPN star Keith Olbermann will have something to say about the list of character witnesses, as well.

I’m somewhere between CNN’s Anderson Cooper and the majority of my fellow, sports-obsessed Americans. Cooper, if you didn’t know, dissected a Palin spokeswoman’s defense of the daft governor’s decision to step down, and refused to be drawn into some inane sports analogy comparing Palin to a point guard: “I don’t know anything about sports,” he said. Whether he does or not, this was exactly the right response. He might as well have said: “Stop blathering and answer the question.”

But even for those of us who know or care about sports (I like exactly three of them), there’s something off-putting about the instant cred that sports stardom — whether as player or as pundit — confers. It’s not that the sports world doesn’t cough up bright, even brilliant, people. Among those who still concentrate on sports, Frank DeFord, Jon Wertheim (read his “Strokes of Genius”), and Diana Nyad come to mind as great journalists, writers, and observers. And those who have made the transition to other areas of interest are often pretty good, too. I think Olbermann, while a fellow traveler politically, sometimes lets his bluster and sarcasm get in the way of his message; but he’s bright and can be very effective. Stephen A. Smith I’ve not heard enough of to reach an opinion, but his constant talking over the other panelists this morning was irritating. David Cone is one of the most intelligent and thoughtful professional athletes you’ll ever hear. Read Roger Angell’s excellent but overlooked book, A Pitcher’s Story: Innings with David Cone for evidence.

By why do these folks find their access to more mainstream topics so easy? Because sports is so central that they’re widely seen, and heard, and respected for their views on, say, basketball or baseball; and then it’s assumed that viewers will follow them, and continue to respect them, when they talk about Iran or the Supreme Court. Often, this works. But it reminds me that SportsCenter and its ilk could only have succeeded in a sports-mad culture, and that they, in turn, constantly increase their own market share by convincing the audience of their importance.

The Sotomayor Attack Squad

May 26th, 2009 No comments

While we’re waiting for the Prop 8 decision, a few quick words about Sonia Sotomayor, Obama’s pick to replace the retiring Justice Souter on the Supreme Court.

First, absent some kind of totally unexpected revelation on the order of Satan worship, expect her confirmation to happen. But that doesn’t mean that the red-meat Republicans won’t try to rally their base (I’d love to retire that phrase) by jumping all over her, especially on discrimination rulings she’s made. Others have thoroughly discussed this issue, so I’m going to talk abou the dreaded “e” word: empathy. Obama stated that he wanted a justice that understood the problems of real people and empathized with them, and Sotomayor apparently made things “worse” a few years ago by publicly stating that being a woman and a Latina informs and shapes her judicial outlook. (The statement is quoted in this attack piece.)

If this line of “attack” is used, I’d love to hear a response something like this:1

“Of course my background shapes who I am, which in turn affects how I see issues and rule on them. That’s true of everyone. Justice Scalia is a product of his conservative Catholic upbringing. Justice Kenney has been affected by spending time in Europe, which seem to have led him to question, on some level, American exceptionalism. Justice Ginsberg’s experiences in a male-dominated legal environment surely affected the way she sees and understands gender discrimination cases. This doesn’t mean that our rulings can be predicted by these things, and many other considerations– the language of the constitution or of statutes; the equities of the case; and policy implications beyond the case we’re deciding — can be decisive in particular cases. But we’re not robots any more than the people on this panel are.”

If this tactic is used, it will be a close cousin, I fear, to the sort of (borderline racist/sexist) smear campaign against Sotomayor now playing at a blog site near you. One of the central points that keeps being made about this summa cum laude Princeton grad with a J.D. from Yale (where she was an editor of the Yale Law Journal) is that, well, she’s not very smart. Given her staggering accomplishments, this can be read as code for: (1) “She’s an affirmative action baby.”; and (2) “We can’t say this directly, but we can imply it by reminding people that she’s unduly influenced by the characteristics that got her this far.”

Give me a break. Here’s a woman who grew up in housing projects in the Bronx, mostly with one parent (her father died when she was a child), and who — somehow — ended up at the top of the heap at Princeton and Yale. Everything else aside, affirmative action doesn’t get you grades. No matter whether you think that the rep of these schools is in the nature of an unjustified perpetual motion machine, doing as well as she’s done says something about both industry and pure smarts.

As PeeWee Herman used to say: “Let the cartoons begin!”

  1. It won’t happen.
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