Sotomayor, Race and Gender: An Abortion Debate by Proxy

Pamela Merritt

Charges that racism and sexism might influence Judge Sotomayor's decision-making are a proxy for the far right's concerns about her positions on choice, discrimination, and immigration rights.

When Supreme Court Justice David Souter announced that he intended
to step down from the bench at the end of this year’s Supreme Court term, there
was a brief pause, a collective gathering in of air, followed by a frenzy of
speculation that did not end until President Obama announced his selection of
Judge Sonia Sotomayor as nominee.  During
the days of guesswork and anticipation that preceded Obama’s nomination of
Sotomayor, political odds-makers seemed to favor the selection of a woman, with
most pundits leaning toward a woman of color, to replace Justice Souter.  Everyone was on pins and needles, and who
could blame us?  During the 2008
elections, the that the next President would most likely have the opportunity
to nominate more than one Supreme Court justice and shape the political climate
of the court for decades to come was one of the key areas of concern.

Pro-choice groups hoped for a nominee with a judicial record
supporting a woman’s right to choose. 
Anti-choice groups busily combed through the records of likely nominees
looking for ammunition to block a pro-choice nominee.  And everyone seemed to agree that the big
issue on the table during the nomination process was going to be abortion.

So, when President Obama nominated Judge Sotomayor many
people were surprised to see the nominee’s own race and gender, not her
position on abortion, emerge as the key battleground issues. 

I was not surprised, nor do I think the emergence of race
and gender as issues during this pre-confirmation period means that abortion is
off the table.  To the contrary, abortion
is one of the issues being debated by proxy. 
Charges that reverse racism and sexism might have an impact on Judge
Sotomayor’s decision making ability are really charges that she might decide
cases concerning abortion rights, discrimination, and immigration rights
differently than conservatives would like.

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America did not miraculously become a post-racial society
with the election of our first President of color and the storm over Judge
Sotomayor’s nomination is just one example of that.  The issue at hand is not whether Sotomayor’s claim 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" translates into her being
unable to rule without prejudice in favor of people of color.  A
review of Sotomayor’s judicial record
shows that she does not reflexively
favor any group.  In 96 race-related
cases, she rejected discrimination claims by an approximate margin of 8 to 1.

The issue is also not whether Sotomayor’s views on the role
of gender in judicial matters–interpreted for the most part through that claim
about what a "wise" Latina woman would do–will somehow translate into her
ruling in favor of women and reproductive choice regardless of the merits of
individual cases.  As Jill Filipovic
explores in her piece Fair
and Balanced: Weighing Sotomayor’s Opinions
, "Sotomayor’s only major
abortion-related case was Center
for Reproductive Law and Policy v. Bush
and her conclusion isn’t
going to warm the hearts of reproductive rights activists."  The Center for Reproductive Law and Policy
lost that case, which allowed the Global Gag Rule to remain in place until President
Obama took office.  Sotomayor has also
ruled in favor of anti-abortion protestors in not one but two civil rights

Jeremy Levitt, in a piece in the Orlando Sentinel (Sotomayor:
Race-baiting and the unpatriotic right
), asserts that Sotomayor has forwarded
the basic premise that the gender, national origin and personal experiences
impact a judge’s decisions.   Levitt, Associate
Dean for International Programs and a distinguished professor of international
law at Florida A&M University College of Law in Orlando, questions whether
that assertion is really a "novel revelation" and he flat out rejects the idea
that making that assertion is a public display of racism.

Despite Sotomayor’s judicial record on race-related
discrimination cases, she has been charged with the task of putting Republican
Senators at ease and calming their fears that a wise Latina woman would rule
with her heritage and gender in mind rather than the law.  So even with pro-choice organizations seeking clarification
and assurances from the White House
that Sotomayor will uphold Roe and
protect reproductive rights, Judge Sotomayor is being painted as a pro-choice
liberal activist judge by conservative groups and bloggers.

That’s because the overt questioning of Sotomayor’s ability
to judge fairly because she is a Latina has little to do with her judicial
record.  Conservative opponents of Judge
Sotomayor’s nomination fear that she will shift once appointed to the bench,
much like they believe Justice Souter did, and they have latched on to her
"wise Latina woman" statements as evidence that she is likely to shift toward
the left.  Another  liberal justice on the Supreme Court would do
more than maintain the status quo; it would make the next nomination a
potential game changer and we should have no doubt that the game being played
is over a woman’s right to choose.

Judge Sotomayor now faces opposition that appears to agree
with her premise that gender, national origin and personal experiences impact a
judge’s decisions.  Conservatives not
only validate the premise of her statement through their insistence that judges
be "strict constructionists" with clear ties to the Republican party, they also
validate it  through their over the top
condemnation of Sotomayor’s assertion that a wise Latina woman would make
different decisions that a white man. 
Beneath the surface is their acceptance that Judge Sotomayor is right;
that a woman of color, empowered through the richness of her heritage, would
reach a different decision than a white man. 
They ought to know, since they bet on that logic proving true with both
so-called "strict constructionist" conservative judges they welcomed onto the
Supreme Court during the Bush Administration. 
During the pre-confirmation period for Justice Roberts and Justice
Alito, pro-choice activists mounted opposition because we knew that one person’s
stare decisis is another person’s debatable precedent.  Now conservatives opposing Judge Sotomayor are
demonstrating that they know that one person’s "better conclusion" is another
person’s judicial nightmare.

Commentary Law and Policy

Republicans Make History in Obstructing Merrick Garland for Supreme Court

Jessica Mason Pieklo

Merrick Garland is now officially the longest Supreme Court nominee to go without confirmation hearings or a vote in U.S. history.

Merrick Garland, President Obama’s selection to replace Justice Antonin Scalia, now has the dubious distinction of being the longest U.S. Supreme Court nominee ever to go without a vote to confirm or reject his appointment, thanks to Senate Republicans’ refusal to do their jobs.

I can’t say it any differently. This has been an utter, total failure by grown men, and a few women, in the Senate to do the kind of thing they’re supposed to in exchange for getting paid by the rest of us. And after nearly a decade of unprecedented—and I mean unprecedentedobstruction of President Obama’s judicial nominees writ large, there’s no flowery language that can capture how our federal courts’ slow burn on the the Republicans’ watch has now caught full fire with the fight over Garland’s nomination.

Instead what we have are dry, hard facts. A century ago, Justice Louis Brandeis was forced to wait 125 days before his confirmation to become the first Jewish justice on the Court. Justice Scalia died on February 13 of this year. President Obama nominated Garland on March 16. Wednesday marked 126 days of zero Senate action on that nomination.

And since Congress is now on recess, that won’t be changing anytime soon.

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It’s not just that the Senate hasn’t held a vote. They have held no hearings. Several senators have refused to meet with Garland. They have taken. No. Action. Not a bit. And here’s the kicker: None of us should be surprised.

President Obama had no sooner walked off the Rose Garden lawn after announcing Garland’s nomination in March than Senate Republicans announced their plan to sit on it until after the presidential election. Eight months away. In November.

Senate Republicans’ objection isn’t to Garland himself. He’s a moderate who has generally received bipartisan praise and support throughout his career and should, on any other day, sail through the confirmation process. As compared with both of President Obama’s other appointments, Justices Sonia Sotomayor and Elena Kagan, Garland is practically a gift to Senate Republicans in all his moderate-aging-white-guy-ness. I mean, who would have thought that of all the nominees Republicans were going to double-down their obstruction efforts on, it would be Justice Dad?

Instead, their objection is to the fact that the democratic process should guarantee they lose control of the Supreme Court. Unless, of course, they can stop that process.

Conservatives have spent decades investing in the federal courts as a partisan tool. They did so by building an infrastructure of sympathetic conservative federal judges through appointments when in executive power, and by blocking liberal attempts to do the same when in the political minority. It’s an investment that has largely paid off. Federal circuit appeals courts like the Fifth, Sixth, Eighth, and Tenth issue reliably conservative opinions regularly, thanks to aggressive appointments by conservatives during the Reagan and Bush years.

Meanwhile, thanks to conservative obstruction under Democratic administrations—most egregiously under President Obama—71 district court seats currently sit vacant. Twenty-four of those seats are in jurisdictions considered by the courts themselves to be judicial emergencies: places where the caseload is so great or the seat has remained vacant for so long the court is at risk of no longer functioning.

It’s easy to see why conservatives would want to keep their grip on the federal judiciary given the kinds of issues before it: These are the courts that hear immigration and detention cases, challenges to abortion restrictions, employment discrimination cases, as well as challenges to voting rights restrictions. Just to name a few. But as long as there are no judges, the people being directly affected are left in limbo as their cases drag on and on and on.

Our federal courts of appeals are no better. Nine federal appellate seats sit vacant, five in jurisdictions deemed judicial emergencies.

These vacancies have nominees. Senate Republicans just refuse to confirm them.

And no, the other side doesn’t do this. Federal judgeships have always been political. But never have the Democrats used the judiciary as a blatantly partisan extension of their elected members.

The refusal to vote on Garland’s nomination is the most visible example of the conservatives’ drive to maintain control over the federal courts, but it’s hardly their most blatant display of sheer partisanship. I’m guessing that is yet to come when, should they lose the presidential election, Senate Republicans face the choice of quickly confirming Garland or continuing their stand-off indefinitely. And given what we’ve seen of the election cycle so far, do we really think Senate Republicans are going to suddenly grow up and do their jobs? I hate to say it, folks, but Merrick Garland isn’t getting confirmed anytime soon.

Commentary Violence

Inciting Hatred and Violence: Unfortunately, This Is Who We Are As a Nation

Jodi Jacobson

As a country, we are more like those we condemn for espousing hatred than most Americans would like to admit.

“This is not who we are.” “This is not America.” These sentiments have become a common refrain in recent years in the response to everything from mass shootings to police abuse of power and police brutality toward protesters, to blatantly racist acts by members of a fraternity. In response to a CIA report describing the extent of torture and brutality used on prisoners in the “war on terror,” President Barack Obama asserted “this is not who we are,” because torture is “contrary to our values.” And in the wake of the mass shootings last year in San Bernardino, California, U.S. Attorney General Loretta Lynch stated that: “Violence like this has no place in this country. This is not what we stand for, this is not what we do.”

But these statements are at best aspirational for a country in which the leaders of at least one major political party regularly exploit intolerance, fear, and “morality” to win campaigns, and in which the leaders of the other too often hide behind platitudes and half-measures intended to placate specific constituencies, but not fundamentally challenge those realities. They are at best aspirational for a country in which the beliefs of Islamic fundamentalists are condemned, but the same views when espoused by conservative Christian fundamentalists are given legal and social approval by both parties, because … religion. They are at best aspirational for a country in which women’s rights to their own bodies are a subject of ongoing debate, medical professionals are villainized and murdered, and rape and sexual assault are often blamed on the victim. These statements are also aspirational in a country in which we imprison people of color of every age, sex, and gender at rates far higher than whites; actively rip families apart by deporting millions of undocumented persons; and pass laws denying people access to basic human needs, like bathrooms, due to their gender identity.

We are not what we say. We are what we do.

Consider the events of the last 24 hours. A U.S.-born citizen (born in New York, living in Florida) opens fire in a large gay nightclub, killing at least 50 people and injuring at least 53 more. The shooter’s father suggested that the rampage was not due to religion but “may” have been incited by his son’s anger at seeing two men kissing. His former wife described him as being violent and unstable. He allegedly made a call to 9-1-1 to declare himself a supporter of ISIS. He used a military-grade assault rifle to carry out what is being called one of the deadliest mass shootings in U.S. history.

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In the immediate aftermath, even before details were known, the following happened: First, Texas Lt. Gov. Dan Patrick, who has most recently worked strenuously to oppose the rights of transgender students in his state’s schools, tweeted and shared on Facebook the biblical quote from Galatians, 6:7, stating that “a man reaps what he sows.” Translation: The people killed had it coming because they were gay. (His staff later said the tweet was prescheduled. It stayed up for four hours.)

Before any details were shared by the FBI or Florida law enforcement, Rep. Peter King (R-NY), known for scapegoating Muslim Americans and calling for racial and religious profiling, was on CNN claiming that the U.S.-born shooter was “from Afghanistan.”

In short order, Sen. Marco Rubio (R-FL) joined the fray by appearing on CNN. According to the transcript:

“If in fact this terrorist attack is one inspired by radical Islamic ideology, it is quite frankly not surprising that they would target this community in this horrifying way, and I think it’s something we’ll have to talk about some more here, across the country,” he said.

Rubio [also] said it’s not yet clear what the shooter’s motivations were, but that if radical Islamic beliefs were behind the shooting, “common sense tells you he specifically targeted the gay community because of the views that exist in the radical Islamic community with regard to the gay community.”

Rubio would appear to share those views “with regard to the gay community.” He is against same-sex marriage and made that opposition a key issue during his recent run for the GOP presidential nomination. He opposes legislation to make employment discrimination on the basis of gender or sexual orientation illegal, supports “conversion therapy,” and is against the rights of gay persons to adopt children.

What, exactly, is the difference between the hatred spewed by radical Islamists and that by conservative Christian fundamentalists in the United States? How can any less responsibility be laid at the feet of the U.S. politicians and their supporters for violence and terror when they espouse the same forms of hatred and marginalization as those they blame for that terror? Why are we so quick to connect the lone gunman in Orlando with Islam and so unwilling to connect the “lone wolves” like Robert Dear, Angel Dillard, and Scott Roeder with the Christian right, or to hold young white star athletes accountable for the violence they commit against women? Why are we so loath to talk about rational limits on an AK-47 assault rifle, a weapon of war, when mass murders have become routine?

It may not be pretty and it may be hard to acknowledge, but as a country we are more like those we rush to condemn than we are willing to admit. We are a country founded on and fed by a strong historical current of patriarchy, white supremacy, systemic racism, misogyny, discrimination, and scapegoating, all of which in turn feeds hatred, violence, and terror. That is part of who we are as a nation. Pretending that is not the case is like pretending that your severely dysfunctional family is just fine, and that the violence you experience daily within it is just an aberration and not a fact of life.

But it is not an aberration. Christian fundamentalist hatred is not “better” than Islamic fundamentalist hatred. White American misogyny is not “better” than Islamic fundamentalist misogyny. Discrimination and the abrogation of rights of undocumented persons, people of color, LGBTQ people, or any other group by U.S. politicians is not different morally or otherwise than that practiced by “other” fundamentalists against marginalized groups in their own country.

We are what we do.

We like to act the victim, but we are the perpetrators. Until we come to grips with our own realities as a country and take responsibility for the ways in which politicians, the media, and corporate backers of both help bring about, excuse, and otherwise foster discrimination and hatred, we can’t even begin to escape the violence, and we certainly can’t blame anyone else. We must aspire to do better, but that won’t happen unless we take responsibility for our own part in the hatred at the start.

Editor’s note: This piece has been updated to clarify the details around the Texas Lt. Gov. Dan Patrick tweet.