Sotomayor Heads to the Senate

Jill Filipovic

The justices who evaluated Ricci are not "raceless," yet no one suggests their whiteness influences their views on racial inequality. Sotomayor, though, is branded a "racist" because she voted to uphold a lower court decision based on well-established legal theory.

Sonia Sotomayor’s confirmation hearings begin today, and Republican senators reportedly "intend to focus on what they see as Judge Sotomayor’s
willingness to bring a personal agenda to the court, especially when it
comes to issues of race."  At issue is Sotomayor’s work
as a board member with the Puerto Rican Legal Defense Fund, and her
decision in Ricci v. DeStefano.  Sotomayor sat on
the board of PRLDEF, and was not a litigator for them; somehow, though,
she’s being held responsible for their litigation strategy — which
isn’t even that radical to begin with.  In Ricci,
Sotomayor’s Second Circuit Court of Appeals panel affirmed a District
Court’s ruling that a Connecticut fire department did not violate the
law when it decided to scrap exam results and promoted no one in an
effort to make promotions more racially balanced.

I don’t doubt that Republicans will harp on the race issue during
the confirmation hearings — as much as they love to accuse liberals of
"playing the race card," they are the true masters of assigning an
insidious agenda to anyone who isn’t white and dares discuss race (or,
heaven forbid, evaluates laws against discrimination).  Sotomayor’s
color apparently makes her "biased" towards parties who share similar,
less-than-privileged backgrounds, while the white skin worn by most of
the sitting Supreme Court justices is assumed to play no role, and
certainly not to bias them towards, say, white firefighters who feel
like they were victims of affirmative action. 

In a sane political system, Sotomayor’s opinion in Ricci and even the Supreme Court’s departure from
it would be a non-issue.  Affirming a lower court’s ruling is about the
most un-activist thing a judge can do, and the district court decision
in Ricci was affirmed unanimously by the Second
Circuit panel.  Sotomayor’s panel initially didn’t even issue an
opinion; when one finally was written on request of another judge, it
was eight sentences long.  Her role in Ricci was
hardly the Angry Latina Woman of Limbaugh lore.  The United States Supreme Court overturned the Second
Circuit’s decision, but by a narrow margin — and Justice Ruth Bader
Ginsberg felt so strongly about the Court’s decision that she read her
dissent from the bench. 

In other words, it was a tough call — one that divided the highest court in the country.

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There
is certainly good reason for the divisiveness. The Ricci decision struck a blow to disparate impact
theory, making it easier to maintain laws and employment practices that
are racially unbiased on their face but that in practice result in
discriminatory outcomes.  Sotomayor’s position — not that the fire
department had to scrap the test results, but that
they were legally permitted to — was hardly revolutionary or
far-left.  One more left-leaning moderate judge on the Supreme Court
and that position would have been affirmed.

The Supreme Court justices who evaluated Ricci
are not raceless; most of them are white.  And yet no one suggests that
perhaps their whiteness influences their views on racial inequality, or
that they aren’t unbiased simply by virtue of belonging to the American
cultural majority.  Sotomayor, though, is branded a "racist" because
she voted to uphold a lower court decision based on well-established
legal theory.

Luckily, it’s only a few conservative blowhards who are pulling the
racist card.  Republicans will undoubtedly bring up Sotomayor’s views
on affirmative action and race, but no one expects dramatics at the
confirmation hearings.   Despite right-wing whining about her
"temperament" and the predictable problems with her not being a white
male, it would be a surprise if the hearings did not go smoothly.  The
American Bar Association gave her their highest
rating
, and she is by all reputable accounts a
highly-qualified, intelligent and moderate jurist.  And with a ranking
Republican member of the Senate Judiciary Committee having his own
race issues, one would hope that the GOP would tread lightly with the racism accusations. 

Of course, a lot can happen in a few days, and with all the focus
on Ricci and race, there’s been surprisingly
little effort made to push Sotomayor to publicly state her position on Roe and reproductive rights. There has been even
less talk about Sotomayor’s views on gay rights, an underdeveloped
legal area that is almost certain to make its way up to the Court in
the next decade.  And from the left, scant attention has been paid to
Sotomayor’s extreme deference to law enforcement agents, even when they
encroach on citizens’ privacy rights.  So who knows — maybe if the GOP
lets go of its race fixation, a bomb will drop and we’ll all find out
that Sotomayor would vote to extend the rights guaranteed by Roe, or that she thinks there’s no legitimate
reason why a marriage between Adam and Eve is more valid than one
between Adam and Steve (hey, here’s hoping).

But with an experienced, pedigreed and thoroughly moderate judge
like Sotomayor, and with Democrats outnumbering Republicans on the
Judiciary Committee, I wouldn’t hold my breath. More likely than not,
these will be the most boring hearings yet.  And that is probably best
for all involved — especially since it will open the door for Obama to
nominate a more progressive legal theorist in the future.  Those will
be some fireworks worth watching.

Roundups Law and Policy

Gavel Drop: Republicans Can’t Help But Play Politics With the Judiciary

Jessica Mason Pieklo & Imani Gandy

Republicans have a good grip on the courts and are fighting hard to keep it that way.

Welcome to Gavel Drop, our roundup of legal news, headlines, and head-shaking moments in the courts.

Linda Greenhouse has another don’t-miss column in the New York Times on how the GOP outsourced the judicial nomination process to the National Rifle Association.

Meanwhile, Dahlia Lithwick has this smart piece on how we know the U.S. Supreme Court is the biggest election issue this year: The Republicans refuse to talk about it.

The American Academy of Pediatrics is urging doctors to fill in the blanks left by “abstinence-centric” sex education and talk to their young patients about issues including sexual consent and gender identity.

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Good news from Alaska, where the state’s supreme court struck down its parental notification law.

Bad news from Virginia, though, where the supreme court struck down Democratic Gov. Terry McAuliffe’s executive order restoring voting rights to more than 200,000 felons.

Wisconsin Gov. Scott Walker (R) will leave behind one of the most politicized state supreme courts in modern history.

Turns out all those health gadgets and apps leave their users vulnerable to inadvertently disclosing private health data.

Julie Rovner breaks down the strategies anti-choice advocates are considering after their Supreme Court loss in Whole Woman’s Health v. Hellerstedt.   

Finally, Becca Andrews at Mother Jones writes that Texas intends to keep passing abortion restrictions based on junk science, despite its loss in Whole Woman’s Health.

Culture & Conversation Human Rights

Let’s Stop Conflating Self-Care and Actual Care

Katie Klabusich

It's time for a shift in the use of “self-care” that creates space for actual care apart from the extra kindnesses and important, small indulgences that may be part of our self-care rituals, depending on our ability to access such activities.

As a chronically ill, chronically poor person, I have feelings about when, why, and how the phrase “self-care” is invoked. When International Self-Care Day came to my attention, I realized that while I laud the effort to prevent some of the 16 million people the World Health Organization reports die prematurely every year from noncommunicable diseases, the American notion of self-care—ironically—needs some work.

I propose a shift in the use of “self-care” that creates space for actual care apart from the extra kindnesses and important, small indulgences that may be part of our self-care rituals, depending on our ability to access such activities. How we think about what constitutes vital versus optional care affects whether/when we do those things we should for our health and well-being. Some of what we have come to designate as self-care—getting sufficient sleep, treating chronic illness, allowing ourselves needed sick days—shouldn’t be seen as optional; our culture should prioritize these things rather than praising us when we scrape by without them.

International Self-Care Day began in China, and it has spread over the past few years to include other countries and an effort seeking official recognition at the United Nations of July 24 (get it? 7/24: 24 hours a day, 7 days a week) as an important advocacy day. The online academic journal SelfCare calls its namesake “a very broad concept” that by definition varies from person to person.

“Self-care means different things to different people: to the person with a headache it might mean a buying a tablet, but to the person with a chronic illness it can mean every element of self-management that takes place outside the doctor’s office,” according to SelfCare. “[I]n the broadest sense of the term, self-care is a philosophy that transcends national boundaries and the healthcare systems which they contain.”

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In short, self-care was never intended to be the health version of duct tape—a way to patch ourselves up when we’re in pieces from the outrageous demands of our work-centric society. It’s supposed to be part of our preventive care plan alongside working out, eating right, getting enough sleep, and/or other activities that are important for our personalized needs.

The notion of self-care has gotten a recent visibility boost as those of us who work in human rights and/or are activists encourage each other publicly to recharge. Most of the people I know who remind themselves and those in our movements to take time off do so to combat the productivity anxiety embedded in our work. We’re underpaid and overworked, but still feel guilty taking a break or, worse, spending money on ourselves when it could go to something movement- or bill-related.

The guilt is intensified by our capitalist system having infected the self-care philosophy, much as it seems to have infected everything else. Our bootstrap, do-it-yourself culture demands we work to the point of exhaustion—some of us because it’s the only way to almost make ends meet and others because putting work/career first is expected and applauded. Our previous president called it “uniquely American” that someone at his Omaha, Nebraska, event promoting “reform” of (aka cuts to) Social Security worked three jobs.

“Uniquely American, isn’t it?” he said. “I mean, that is fantastic that you’re doing that. (Applause.) Get any sleep? (Laughter.)”

The audience was applauding working hours that are disastrous for health and well-being, laughing at sleep as though our bodies don’t require it to function properly. Bush actually nailed it: Throughout our country, we hold Who Worked the Most Hours This Week competitions and attempt to one-up the people at the coffee shop, bar, gym, or book club with what we accomplished. We have reached a point where we consider getting more than five or six hours of sleep a night to be “self-care” even though it should simply be part of regular care.

Most of us know intuitively that, in general, we don’t take good enough care of ourselves on a day-to-day basis. This isn’t something that just happened; it’s a function of our work culture. Don’t let the statistic that we work on average 34.4 hours per week fool you—that includes people working part time by choice or necessity, which distorts the reality for those of us who work full time. (Full time is defined by the Internal Revenue Service as 30 or more hours per week.) Gallup’s annual Work and Education Survey conducted in 2014 found that 39 percent of us work 50 or more hours per week. Only 8 percent of us on average work less than 40 hours per week. Millennials are projected to enjoy a lifetime of multiple jobs or a full-time job with one or more side hustles via the “gig economy.”

Despite worker productivity skyrocketing during the past 40 years, we don’t work fewer hours or make more money once cost of living is factored in. As Gillian White outlined at the Atlantic last year, despite politicians and “job creators” blaming financial crises for wage stagnation, it’s more about priorities:

Though productivity (defined as the output of goods and services per hours worked) grew by about 74 percent between 1973 and 2013, compensation for workers grew at a much slower rate of only 9 percent during the same time period, according to data from the Economic Policy Institute.

It’s no wonder we don’t sleep. The Centers for Disease Control and Prevention (CDC) has been sounding the alarm for some time. The American Academy of Sleep Medicine and the Sleep Research Society recommend people between 18 and 60 years old get seven or more hours sleep each night “to promote optimal health and well-being.” The CDC website has an entire section under the heading “Insufficient Sleep Is a Public Health Problem,” outlining statistics and negative outcomes from our inability to find time to tend to this most basic need.

We also don’t get to the doctor when we should for preventive care. Roughly half of us, according to the CDC, never visit a primary care or family physician for an annual check-up. We go in when we are sick, but not to have screenings and discuss a basic wellness plan. And rarely do those of us who do go tell our doctors about all of our symptoms.

I recently had my first really wonderful check-up with a new primary care physician who made a point of asking about all the “little things” leading her to encourage me to consider further diagnosis for fibromyalgia. I started crying in her office, relieved that someone had finally listened and at the idea that my headaches, difficulty sleeping, recovering from illness, exhaustion, and pain might have an actual source.

Considering our deeply-ingrained priority problems, it’s no wonder that when I post on social media that I’ve taken a sick day—a concept I’ve struggled with after 20 years of working multiple jobs, often more than 80 hours a week trying to make ends meet—people applaud me for “doing self-care.” Calling my sick day “self-care” tells me that the commenter sees my post-traumatic stress disorder or depression as something I could work through if I so chose, amplifying the stigma I’m pushing back on by owning that a mental illness is an appropriate reason to take off work. And it’s not the commenter’s fault; the notion that working constantly is a virtue is so pervasive, it affects all of us.

Things in addition to sick days and sleep that I’ve had to learn are not engaging in self-care: going to the doctor, eating, taking my meds, going to therapy, turning off my computer after a 12-hour day, drinking enough water, writing, and traveling for work. Because it’s so important, I’m going to say it separately: Preventive health care—Pap smears, check-ups, cancer screenings, follow-ups—is not self-care. We do extras and nice things for ourselves to prevent burnout, not as bandaids to put ourselves back together when we break down. You can’t bandaid over skipping doctors appointments, not sleeping, and working your body until it’s a breath away from collapsing. If you’re already at that point, you need straight-up care.

Plenty of activities are self-care! My absolutely not comprehensive personal list includes: brunch with friends, adult coloring (especially the swear word books and glitter pens), soy wax with essential oils, painting my toenails, reading a book that’s not for review, a glass of wine with dinner, ice cream, spending time outside, last-minute dinner with my boyfriend, the puzzle app on my iPad, Netflix, participating in Caturday, and alone time.

My someday self-care wish list includes things like vacation, concerts, the theater, regular massages, visiting my nieces, decent wine, the occasional dinner out, and so very, very many books. A lot of what constitutes self-care is rather expensive (think weekly pedicures, spa days, and hobbies with gear and/or outfit requirements)—which leads to the privilege of getting to call any part of one’s routine self-care in the first place.

It would serve us well to consciously add an intersectional view to our enthusiasm for self-care when encouraging others to engage in activities that may be out of reach financially, may disregard disability, or may not be right for them for a variety of other reasons, including compounded oppression and violence, which affects women of color differently.

Over the past year I’ve noticed a spike in articles on how much of the emotional labor burden women carry—at the Toast, the Atlantic, Slate, the Guardian, and the Huffington Post. This category of labor disproportionately affects women of color. As Minaa B described at the Huffington Post last month:

I hear the term self-care a lot and often it is defined as practicing yoga, journaling, speaking positive affirmations and meditation. I agree that those are successful and inspiring forms of self-care, but what we often don’t hear people talking about is self-care at the intersection of race and trauma, social justice and most importantly, the unawareness of repressed emotional issues that make us victims of our past.

The often-quoted Audre Lorde wrote in A Burst of Light: “Caring for myself is not self-indulgence, it is self-preservation, and that is an act of political warfare.”

While her words ring true for me, they are certainly more weighted and applicable for those who don’t share my white and cisgender privilege. As covered at Ravishly, the Feminist Wire, Blavity, the Root, and the Crunk Feminist Collective recently, self-care for Black women will always have different expressions and roots than for white women.

But as we continue to talk about self-care, we need to be clear about the difference between self-care and actual care and work to bring the necessities of life within reach for everyone. Actual care should not have to be optional. It should be a priority in our culture so that it can be a priority in all our lives.