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Posts Tagged ‘Sotomayor’

The NRA, Again

July 29th, 2009 No comments

Wondering why Republicans have increasingly come out against Sotomayor during the past few days, despite the possible effect their opposition could have on Latino voters’ impressions of them? Wonder no more:

The decision on how to vote on her confirmation was made more difficult in recent days for some Republicans and Democrats from conservative-leaning battleground states after the National Rifle Association, which has a loyal and politically active base of members, announced that a vote to confirm Sotomayor would count against senators in the group’s annual candidate ratings. The NRA calls Sotomayor “hostile” to the Second Amendment right to keep and bear arms.

Since the NRA’s threat, no Republican or conservative Democrat has come out publicly to support Sotomayor.

Concerns about race and perception, however powerful and exploited by both sides, all the time, are no match for the NRA.

Affirmative Action in the Year 3000?

July 20th, 2009 No comments

Well, I hope not. In today’s New York Times, Ross Douhat compares Justice O’Connor’s “expectation” that the need for affirmative action will fade within the next generation with soon-to-be Justice Sotomayor’s “hope” that the end is near for such preferences:

“O’Connor didn’t hope; she expected. And Sotomayor’s record suggests that there’s a considerable difference between these postures — that for the nominee, as for most liberal jurists, as long as racial disparities persist, so too must racial preferences.

“This is the big question underlying both the ‘wise Latina’ contretemps and the controversy surrounding Sotomayor’s role in Ricci v. DeStefano. Whither affirmative action in an age of America’s first black president? Will it be gradually phased out, as the Supreme Court’s conservatives seem to prefer? Or will it endure well into this century and beyond?”

Douhat is firm that, as America moves into an age where whites are no longer the majority, affirmative action must end:

“As this generation rises, race-based discrimination needs to go. The explicit scale-tipping in college admissions should give way to class-based affirmative action; the de facto racial preferences required of employers by anti-discrimination law should disappear.

“A system designed to ensure the advancement of minorities will tend toward corruption if it persists for generations, even after the minorities have become a majority. If affirmative action exists in the America of 2028, it will be as a spoils system for the already-successful, a patronage machine for politicians — and a source of permanent grievance among America’s shrinking white population.”

Douhat’s error is in placing all minorities into a blender, and then hitting “puree.” It’s not that simple. African-Americans  are differently situated than other minorities. While the percentage of all minorities increases, the African-American population, while to a small extent enriched by African immigrants, remains fairly stable and still tied to a slave ancestry that bears no resemblance to voluntary immigrants and their descendants. It is the increase in these latter groups that mostly explains the “post-white” majority to come.

There are all kinds of arguments and data that one might muster in support of this position. But here’s something much simpler, a snapshot of statistics from just one Philadelphia High School:

SCHOOL PROFILE
SAYRE HIGH SCHOOL
Location #110

HIGH SCHOOL REGION

Demographics

School Year: 2008-2009
Grade Organization: 9-12
Enrollment: 640

Race/Ethnic Composition

YEAR African
American
White Asian Latino Other

So this is a school that’s almost entirely African-American. Now here are some scores on the standardized Pennsylvania System of School Assessment (“PSSA”) tests for that same school:

Percentage of 11th Graders Scoring Advanced in Math

 

2004

2005

2006

2007

2008

School    

0.0%

0.0%

.7%

Philadelphia

9.7%

9.8%

12.4%

11.6%

12.7%

Pennsylvania

24.8%

26.3%

28.1%

24.2%

25.9%

Percentage of 11th Graders Scoring Proficient in Math

 

2004

2005

2006

2007

2008

School    

1.1%

7.6%

11.2%

Philadelphia

13.2%

13.3%

14.5%

19.4%

19.9%

Pennsylvania

24.3%

24.6%

23.9%

29.5%

30.0%

Percentage of 11th Graders Scoring Basic in Math

 

2004

2005

2006

2007

2008

School    

12.4%

18.5%

16.4%

Philadelphia

16.8%

16.8%

13.9%

18.3%

15.7%

Pennsylvania

19.8%

18.7%

17.7%

19.8%

17.6%

Percentage of 11th Graders Scoring Below Basic in Math

 

2004

2005

2006

2007

2008

School    

86.5%

73.9%

71.7%

Philadelphia

60.4%

60.1%

59.2%

50.7%

51.8%

Pennsylvania

31.0%

30.5%

30.4%

26.6%

26.6%

Percentage of 11th Graders Scoring Advanced in Reading

 

2004

2005

2006

2007

2008

School    

0.0%

1.1%

3.3%

Philadelphia

8.2%

10.4%

10.8%

9.6%

13.3%

Pennsylvania

26.8%

33.6%

31.2%

28.9%

31.8%

Percentage of 11th Graders Scoring Proficient in Reading

 

2004

2005

2006

2007

2008

School    

10.1%

20.9%

17.9%

Philadelphia

18.8%

20.2%

22.3%

25.5%

24.0%

Pennsylvania

34.0%

31.4%

33.9%

36.5%

32.9%

Percentage of 11th Graders Scoring Basic in Reading

 

2004

2005

2006

2007

2008

School    

20.2%

28.6%

29.1%

Philadelphia

19.6%

14.4%

19.7%

19.4%

20.9%

Pennsylvania

17.4%

12.9%

16.3%

15.3%

16.2%

Percentage of 11th Graders Scoring Below Basic in Reading

 

2004

2005

2006

2007

2008

School    

69.7%

49.5%

49.7%

Philadelphia

53.4%

55.0%

47.2%

45.5%

41.8%

Pennsylvania

21.8%

22.0%

18.5%

19.3%

19.0%

71.7% in 2008 are below basic in math; about half are below basic in reading. Since 2006, the numbers have begun to improve, but that’s cold comfort. For 11-grade math, the state defines “basic” as the ability to do simple algebra and geometry, to read and interpret graphs, and to perform operations with square roots and exponents. For reading, it’s quite simple: The student is competent with “below grade -level text only” and “requires extensive support to comprehend and interpret fiction and non-fiction.”

Those are facts. It’s Douhat who’s trading on “hope.” He’s right about the importance of class, but the idea that class and race (especially “black”) can be separated so as to yield a more representative society (or college entering class, anyway) seems fanciful in light of these data. The two are often inseparable.

Here’s more of Douhat’s piece:

“Affirmative action has always been understandable, but never ideal. It congratulates its practitioners on their virtue, condescends to its beneficiaries, and corrodes the racial attitudes of its victims.”

The last sentence has a nice cadence, but doesn’t hold up well to scrutiny. The first piece seems defensive (maybe it is virtuous, and perhaps even morally required; if so, there’s nothing to congratulate oneself for any more than one should praise oneself for not robbing a bank). The second is in the eye of the beholder: Justice Thomas hates affirmative action; Justice Ginsburg, who identified herself as a beneficiary, defends it. The third is ambiguous: What does Douhat mean by “corrodes the racial attitudes”?(Does he mean something different from “condescends to its beneficiaries”? I can’t tell.)

President Obama’s story is remarkable. But it’s an immigrant, polyglot story; not a tale of someone from the ‘hood rising to prominence. Spend a week in a Philadelphia High School and tell me whether you think the end of affirmative action is near.

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.