Archive

Posts Tagged ‘Lindsey Graham’

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.