Facing Down Condescension and Lectures, Sotomayor Teaches Senators About Civics and More

Jill Filipovic

Surrounded by senators dripping with condescension, Judge Sotomayor responded with respect, nuance and a solid grounding in the law - to the point where the hearings sometimes felt like a high school civics class.

Editor’s Note: A correction was made in this article at 9:38 pm on Thursday, July 16th, changing a reference to Dredd v. Scott to Dredd Scott v. Sandford, the case to which Jill meant to refer.

If
there’s one thing that this week’s Senate confirmation hearings
made clear, it’s that Judge Sotomayor is not just a great mind, but
a patient and generous teacher.  Surrounded by senators who seemed
primarily concerned with topping each other in condescension, Sotomayor
responded with respect, nuance and a solid grounding in the law –
to the point where the hearings sometimes felt like a high school civics
class, with Sotomayor explaining the fundamentals of our legal system. 
The biggest surprises of the hearings so far haven’t come from Sotomayor
herself, but from the ignorance and arrogance shown by some members
of the GOP.  And the biggest pay-off won’t just be from Sotomayor’s
confirmation – although that will certainly happen – but from the
GOP’s torching of any goodwill it hasn’t already set aflame with
women and racial minorities. 

In
the hearings, Sotomayor faced down Sen. Jeff Sessions, an Alabama senator
with a notoriously racially troubled past.  Sessions sat in Sotomayor’s
seat when Ronald Regan nominated him for a federal judgeship. 
The Senate Judiciary Committee killed his nomination after it came to
light that he joked that he used to think the Ku Klux Klan wasn’t
so bad until he found out some of them smoked marijuana, and he believed
the NAACP and the ACLU to be "un-American and "Communist-inspired"
– his biggest grievance with the groups being that they "forced"
civil rights down our collective throats.  Watching Sotomayor respond
to Sessions’ sneering questions with insightful and polite answers
was simultaneously infuriating and inspiring – I’m not sure I could
have been nearly as composed, but she certainly put to rest any concerns
about her "temperament."   

Or
at least, she put those concerns to rest in the minds of reasonable
people.  Sen. Lindsey Graham wasn’t satisfied, and had the nerve to
read off several anonymous and unattributed statements about Sotomayor’s
"temperament problem." His point was that Sotomayor is
too mean and too harsh in her questioning to be a good judge – a concern
rarely raised with aggressive male judges like Antonin Scalia. 
But instead of making her look unreasonable or "temperamental" (what
is she, a racehorse?), he succeeded only in making himself look like
a bully and a fool, targeting her personality instead of her record.
Like many others in the GOP, he threw in some references to her "Wise
Latina" comment for good measure – after all, someone in the studio
audience may not be aware that she’s not white.   

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And
it only went downhill on Wednesday.  Abortion-related queries predictably
came up on both days, but were driven home with staunch anti-choice Sen. Tom Coburn’s line of questioning.  After asking her about
the current state of abortion laws in the United States as if he didn’t
know – there’s that condescension again – Coburn took the hearings
as an opportunity to lecture her, saying, "I don’t expect you to
answer this, but I do expect you to pay attention to it as you contemplate
these big issues," before fixating on viability and fetal heartbeats.   

Can
you picture Sen. Coburn rhetorically shaking his finger like that at
Scalia or Chief Justice Roberts? 

If
that wasn’t enough, Coburn then told Sotomayor, "You’ll have lots
of ‘splainin’ to do" in a back-and-forth about the Second Amendment
and self-defense.  Only in our "post-racial" era can old white
men criticize a highly-educated, accomplished Latina jurist for being
"racist" and not adequately colorblind, accuse her of being an affirmative
action pick
, and then throw
a Ricky Ricardo quote at her.  

But
perhaps the most offensive aspect of the hearings was some of the senators’
blatant misrepresentations and feigned ignorance of the law.  Senator
Coburn’s request that Sotomayor explain the status of abortion rights
was just the tip of the iceberg.  In his line of questioning on
Wednesday, Sen. Orrin Hatch asked Sotomayor her opinion on judges "reading
rights into the Constitution."  Certainly Sen. Hatch is familiar
with the Ninth Amendment, which states simply that "The
enumeration in the Constitution, of certain rights, shall not be construed
to deny or disparage others retained by the people" – in other words,
just because a right isn’t explicitly delineated in the Constitution
doesn’t mean that the government is free to violate it.  Even
more egregious was Sen. Graham’s contention that the Puerto Rican
Legal Defense Fund, on whose board Sotomayor sat, argued in a brief
that refusing to use taxpayer funds for abortion is akin to slavery. 
In fact, PRLDEF used the infamous Dredd Scott v. Sanford case to make
the point that the anti-abortion law in question treated poor women
as less than citizens under the law – the same mistake notoriously
made in Dredd

Throughout
it all, though, Sotomayor remained poised and calm, answering the questions
thoughtfully and thoroughly – much the same way she writes her opinions. 
Her knowledge of the law, her preparation and her presentation were
absolute perfection – and serve as another example of a woman of color
having to do things twice as well as everyone else in order to succeed
(and she still has her intelligence, temperament and aptitude questioned).   

There
is almost no doubt that she will be confirmed.  What remains to
be seen is just how much damage these hearings will do to an already
battered Republican Party.  If Democrats are smart, they will replay
these clips ad nauseum, and let all of America – and not just the
nerds who streamed CSPAN at work – see just how Republicans act when
they sit face-to-face with a woman of color (especially one whose accomplishments
trump their own and may in their eyes be a little too big for her britches). 
I wonder what the female, non-white or even rudimentarily racially aware
GOP constituents will think when they see the condescension and disdain
heaped upon a woman who graciously responds with nothing but patience
and tolerance.   

I
suspect the senators will have some "splainin" to do. 

Analysis Politics

Advocates: Bill to Address Gaps in Mental Health Care Would Do More Harm Than Good

Katie Klabusich

Advocates say that U.S. Rep. Tim Murphy's "Helping Families in Mental Health Crisis Act," purported to help address gaps in care, is regressive and strips rights away from those diagnosed with mental illness. This leaves those in the LGBTQ community—who already often have an adversarial relationship with the mental health sector—at particular risk.

The need for reform of the mental health-care system is well documented; those of us who have spent time trying to access often costly, out-of-reach treatment will attest to how time-consuming and expensive care can be—if you can get the necessary time off work to pursue that care. Advocates say, however, that U.S. Rep. Tim Murphy’s (R-PA) “Helping Families in Mental Health Crisis Act” (HR 2646), purported to help address gaps in care, is not the answer. Instead, they say, it is regressive and strips rights away from those diagnosed with mental illness. This leaves those in the LGBTQ community—who already often have an adversarial relationship with the mental health sector—at particular risk.

“We believe that this legislation will result in outdated, biased, and inappropriate treatment of people with a mental health diagnosis,” wrote the political action committee Leadership Conference on Civil and Human Rights in a March letter to House Committee on Energy and Commerce Chairman Rep. Fred Upton (R-MI) and ranking member Rep. Frank Pallone (D-NJ) on behalf of more than 100 social justice organizations. “The current formulation of H.R. 2646 will function to eliminate basic civil and human rights protections for those with mental illness.”

Despite the pushback, Murphy continues to draw on the bill’s mental health industry support; groups like the American Psychiatric Association (APA) and the National Alliance on Mental Illness (NAMI) back the bill.

Murphy and Rep. Eddie Bernice Johnson (D-TX) reintroduced HR 2646 earlier this month, continuing to call it “groundbreaking” legislation that “breaks down federal barriers to care, clarifies privacy standards for families and caregivers; reforms outdated programs; expands parity accountability; and invests in services for the most difficult to treat cases while driving evidence-based care.”

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Some of the stated goals of HR 2646 are important: Yes, more inpatient care beds are needed; yes, smoother transitions from inpatient to outpatient care would help many; yes, prisons house too many people with mental illness. However, many of its objectives, such as “alternatives to institutionalization” potentially allow outpatient care to be mandated by judges with no medical training and pushed for by “concerned” family members. Even the “focus on suicide prevention” can lead to forced hospitalization and disempowerment of the person the system or family member is supposedly trying to help.

All in all, advocates say, HR 2646—which passed out of committee earlier this month—marks a danger to the autonomy of those with mental illness.

Victoria M. Rodríguez-Roldán, JD, director of the Trans/GNC Justice Project at the National LGBTQ Task Force, explained that the bill would usurp the Health Insurance Portability and Accountability Act (HIPAA), “making it easier for a mental health provider to give information about diagnosis and treatment … to any ‘caregiver’-family members, partners or spouses, children that may be caring for the person, and so forth.”

For the communities she serves, this is more than just a privacy violation: It could put clients at risk if family members use their diagnosis or treatment against them.

“When we consider the stigma around mental illness from an LGBT perspective, an intersectional perspective, 57 percent of trans people have experienced significant family rejection [and] 19 percent have experienced domestic violence as a result of their being trans,” said Rodríguez-Roldán, citing the National Transgender Discrimination Survey. “We can see here how the idea of ‘Let’s give access to the poor loved ones who want to help!’ is not that great an idea.”

“It’s really about taking away voice and choice and agency from people, which is a trend that’s very disturbing to me,” said Leah Harris, an organizer with the Campaign For Real Change in Mental Health Policy, also known as Real MH Change. “Mostly [H.R. 2646] is driven by families of these people, not the people themselves. It’s pitting families against people who are living this. There are a fair number of these family members that are well-meaning, but they’re pushing this very authoritarian [policy].”

Rodríguez-Roldán also pointed out that if a patient’s gender identity or sexual orientation is a contributing factor to their depression or suicide risk—because of discrimination, direct targeting, or fear of bigoted family, friends, or coworkers—then that identity or orientation would be pertinent to their diagnosis and possible need for treatment. Though Murphy’s office claims that psychotherapy notes are excluded from the increased access caregivers would be given under HR 2646, Rodríguez-Roldán isn’t buying it; she fears individuals could be inadvertently outed to their caregivers.

Rodríguez-Roldán echoed concern that while disability advocacy organizations largely oppose the bill, groups that represent either medical institutions or families of those with mental illnesses, or medical institutions—such as NAMI, Mental Health America, and the APA—seem to be driving this legislation.

“In disability rights, if the doc starts about talking about the plight and families of the people of the disabilities, it’s not going to go over well,” she said. “That’s basically what [HR 2646] does.”

Rodríguez-Roldán’s concerns extend beyond the potential harm of allowing families and caregivers easier access to individuals’ sensitive medical information; she also points out that the act itself is rooted in stigma. Rep. Murphy created the Helping Families in Mental Health Crisis Act in response to the Sandy Hook school shooting in 2012. Despite being a clinical psychologist for 30 years before joining Congress and being co-chair of the Mental Health Caucus, he continues to perpetuate the well-debunked myth that people with mental illness are violent. In fact, according to the Department of Health and Human Services, “only 3%-5% of violent acts can be attributed to individuals living with a serious mental illness” and “people with severe mental illnesses are over 10 times more likely to be victims of violent crime than the general population.”

The act “is trying to prevent gun violence by ignoring gun control and going after the the rights of mentally ill people,” Rodríguez-Roldán noted.

In addition, advocates note, HR 2646 would make it easier to access assisted outpatient treatment, but would also give courts around the country the authority to mandate specific medications and treatments. In states where the courts already have that authority, Rodríguez-Roldán says, people of color are disproportionately mandated into treatment. When she has tried to point out these statistics to Murphy and his staff, she says, she has been shut down, being told that the disparity is due to a disproportionate number of people of color living in poverty.

Harris also expressed frustration at the hostility she and others have received attempting to take the lived experiences of those who would be affected by the bill to Murphy and his staff.

“I’ve talked to thousands of families … he’s actively opposed to talking to us,” she said. “Everyone has tried to engage with [Murphy and his staff]. I had one of the staffers in the room say, ‘You must have been misdiagnosed.’ I couldn’t have been that way,” meaning mentally ill. “It’s an ongoing struggle to maintain our mental and physical health, but they think we can’t get well.”

Multiple attempts to reach Murphy’s office by Rewire were unsuccessful.

LGBTQ people—transgender, nonbinary, and genderqueer people especially—are particularly susceptible to mistreatment in an institutional setting, where even the thoughts and experiences of patients with significant privilege are typically viewed with skepticism and disbelief. They’re also more likely to experience circumstances that already come with required hospitalization. This, as Rodríguez-Roldán explained, makes it even more vital that individuals not be made more susceptible to unnecessary treatment programs at the hands of judges or relatives with limited or no medical backgrounds.
Forty-one percent of all trans people have attempted suicide at some point in their lives,” said Rodríguez-Roldán. “Once you have attempted suicide—assuming you’re caught—standard procedure is you’ll end up in the hospital for five days [or] a week [on] average.”

In turn, that leaves people open to potential abuse. Rodríguez-Roldán said there isn’t much data yet on exactly how mistreated transgender people are specific to psychiatry, but considering the discrimination and mistreatment in health care in general, it’s safe to assume mental health care would be additionally hostile. A full 50 percent of transgender people report having to teach their physicians about transgender care and 19 percent were refused care—a statistic that spikes even higher for transgender people of color.

“What happens to the people who are already being mistreated, who are already being misgendered, harassed, retraumatized? After you’ve had a suicide attempt, let’s treat you like garbage even more than we treat most people,” said Rodríguez-Roldán, pointing out that with HR 2646, “there would be even less legal recourse” for those who wanted to shape their own treatment. “Those who face abusive families, who don’t have support and so on—more likely when you’re queer—are going to face a heightened risk of losing their privacy.”

Or, for example, individuals may face the conflation of transgender or gender-nonconforming status with mental illness. Rodríguez-Roldán has experienced the conflation herself.

“I had one psychiatrist in Arlington insist, ‘You’re not bipolar; it’s just that you have unresolved issues from your transition,'” she said.

While her abusive household and other life factors certainly added to her depression—the first symptom people with Bipolar II typically suffer from—Rodríguez-Roldán knew she was transgender at age 15 and began the process of transitioning at age 17. Bipolar disorder, meanwhile, is most often diagnosed in a person’s early 20s, making the conflation rather obvious. She acknowledges the privilege of having good insurance and not being low-income, which meant she could choose a different doctor.

“It was also in an outpatient setting, so I was able to nod along, pay the copay, get out of there and never come back,” she said. “It was not inside a hospital where they can use that as an excuse to keep me.”

The fear of having freedom and other rights stripped away came up repeatedly in a Twitter chat last month led by the Task Force to spread the word about HR 2646. More than 350 people participated, sharing their experiences and asking people to oppose Murphy’s bill.

In the meantime, Sen. Lamar Alexander (R-TN) has introduced the “Mental Health Reform Act of 2016” (SB 2680) which some supporters of HR 2646 are calling a companion bill. It has yet to be voted on.

Alexander’s bill has more real reform embedded in its language, shifting the focus from empowering families and medical personnel to funding prevention and community-based support services and programs. The U.S. Secretary of Health and Human Services would be tasked with evaluating existing programs for their effectiveness in handling co-current disorders (e.g., substance abuse and mental illness); reducing homelessness and incarceration of people with substance abuse and/or mental disorders; and providing recommendations on improving current community-based care.

Harris, with Real MH Change, considers Alexander’s bill an imperfect improvement over the Murphy legislation.

“Both of [the bills] have far too much emphasis on rolling back the clock, promoting institutionalization, and not enough of a preventive approach or a trauma-informed approach,” Harris said. “What they share in common is this trope of ‘comprehensive mental health reform.’ Of course the system is completely messed up. Comprehensive reform is needed, but for those of us who have lived through it, it’s not just ‘any change is good.'”

Harris and Rodríguez-Roldán both acknowledged that many of the HR 2646 co-sponsors and supporters in Congress have good intentions; those legislators are trusting Murphy’s professional background and are eager to make some kind of change. In doing so, the voices of those who are affected by the laws—those asking for more funding toward community-based and patient-centric care—are being sidelined.

“What is driving the change is going to influence what the change looks like. Right now, change is driven by fear and paternalism,” said Harris. “It’s not change at any cost.”

Commentary Politics

Four Facts Nancy Pelosi—and All ‘Pro-Choice’ Democrats—Should Know About Abortion

Jodi Jacobson

House Minority Leader Nancy Pelosi could not articulate a vigorous, unapologetic, and evidence-based response on abortion to questions posed in an interview this week by Roll Call's Melinda Henneberger.

Just a week or so after Democratic National Committee Chairwoman Rep. Debbie Wasserman Schultz (D-FL) blamed voters for being “complacent” about abortion, House Minority Leader Nancy Pelosi illustrated why, despite being the nominally pro-choice party, Democrats continuously fail to lead on the issue of reproductive health care.

Pelosi could not articulate a vigorous, unapologetic, and evidence-based response on abortion to questions posed in an interview this week by Roll Call‘s Melinda Henneberger. In fact, Pelosi expressed discomfort with using the word “abortion,” underscoring how deeply abortion stigma has permeated the discourse of even the female leader of the Democratic Party, one of the most powerful women in the United States.

It is more than clear that abortion will continue to be politicized through the 2016 election and beyond. But Democrats persist in stumbling when asked about it. So here are some facts that any politician claiming to be pro-choice—and otherwise charged with protecting the interests, rights, and health of the voters who put them in office—must master and assert without apology.

Access to safe abortion care is fundamentally a matter of public health. In countries where access to abortion is limited either by law or in practice, women face high rates of maternal mortality and morbidity. In other words, they die and are injured, sometimes permanently, at far higher rates than in countries or regions where access to safe abortion care is guaranteed. This was indeed the case in the United States before Roe v. Wade.

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Today, according to conservative estimates, more than 300,000 women worldwide die each year from complications from pregnancy, childbirth, and unsafe abortion. That’s 830 women each and every day. These are women in their teens to their late 40s, who are most likely to be raising children and earning critical income for their families. Many times the number who die from unsafe abortion suffer long-term illness and disability instead.

In Uganda, for example, due to lack of access to contraception among other factors, more than four in ten births are unplanned, and women say they have far larger families than they want. In their struggle to have fewer children, they often resort to abortion. Abortion is, however, illegal in Uganda, and access to safe abortion is only available to the wealthy. Not surprisingly, Uganda has one of the world’s highest rates of maternal death, and estimates indicate that if rates of clandestine abortion continue, half of all women in Uganda will need treatment for complications of unsafe abortion at some point in their lives.

By contrast, as was the case for the United States, rates of maternal deaths and illnesses from unsafe abortion declined dramatically in both Nepal and in South Africa after those two countries legalized and increased access to abortion care.

The deaths of women should be reason enough to address the need for safe abortion, but families also suffer. When a mother dies, her children, especially those under 5, are more likely to suffer malnutrition, neglect, and death. As I first wrote more than 25 years ago, history has long shown that politically or religiously motivated laws will never eliminate abortion; they only make it more costly in terms of women’s health, and the health and well-being of their families. The fact of abortion as a public health issue should be the first talking point in any informed conversation led by pro-choice politicians.

Abortion is a matter of fundamental human rights. Every person on earth has the right to determine whether or not to become a parent, and when and with whom to have a child, although clearly too many people are as yet unable to exercise these rights.

Furthermore, the international community has long recognized the broader fundamental human rights of women. According to the 1993 Vienna Declaration on Human Rights:

The human rights of women and of the girl-child are an inalienable, integral and indivisible part of universal human rights. The full and equal participation of women in political, civil, economic, social and cultural life, at the national, regional and international levels, and the eradication of all forms of discrimination on grounds of sex are priority objectives of the international community.

Choice in childbearing, childbirth, and parenting are fundamental to women’s ability to make decisions about their participation in society, on their own terms. Women, however, cannot exercise these fundamental human rights without unfettered access to contraception and abortion. Yet too many governments, politicians, and religious leaders appear willing to abrogate access to these basic health interventions, ironically on the basis of a “pro-life” agenda—albeit one that ignores the value of women’s lives. Any politician who calls themselves pro-choice should understand the need to protect and promote the human rights of living, breathing women, and be able to articulate them.

Abortion is a fundamental economic issue. Access to both contraception and abortion play a major role in women’s economic lives. There have been innumerable academic studies carried out and policy papers written over the past several decades about the connections between access to abortion and women’s economic status throughout the world, and all of them come to the same conclusions: The ability to control reproduction is essential to women’s abilities to support themselves and their families, and is essential to long-term economic growth.

Having a child or children is a major lifetime economic investment for anyone; the U.S. Department of Agriculture has estimated that it now costs more than $245,000 to raise a child in this country, not including the costs of college tuition. A study by the Economic Policy Institute shows that child care alone outpaces the cost of rent in 500 of 618 municipalities examined. Given these and other considerations, such as low wages and the cost of health insurance, transportation, food, clothing, and other necessities, unintended pregnancy can throw a family into economic crisis. Studies show that most women seeking abortion are already struggling financially, cannot afford an additional child, or want to continue their education to create a better future for themselves and their families.

The Turnaway Study, a multi-faceted research project on abortion conducted by researchers at the University of California, San Francisco’s Advancing New Standards in Reproductive Health program, examined the relationship between abortion, reproductive control, and poverty, among other things. As noted in a policy brief by the Reproductive Health Technologies Project about the economics of abortion and women’s lives, the Turnaway Study found that women denied an abortion in the United States had three times greater odds of ending up below the federal poverty line two years later than did women in similar economic circumstances who were able to obtain an abortion, adjusting for any previous differences between the two groups.

Smaller family size and educational attainment are among two of the most critical factors in the economic success of families and communities. Women and their partners know what it means to bring a child into the world and what it takes to raise children, and only they are equipped to make decisions about whether they have the financial and emotional means to make that commitment. Access to abortion is therefore fundamentally about personal and family economics. Abortion is about what women want for their future, and the future of any children now and later.

Access to abortion also has wider social and economic implications. According to the World Health Organization’sSafe abortion care: the public health and human rights rationale:”

Safe abortion is cost saving. The cost to health systems of treating the complications of unsafe abortion is overwhelming, especially in poor countries. The overall average cost per case that governments incur is estimated (in 2006 US dollars) at US$ 114 for Africa and US$ 130 for Latin America. The economic costs of unsafe abortion to a country’s health system, however, go beyond the direct costs of providing post-abortion services. A recent study estimated an annual cost of US$ 23 million for treating minor complications from unsafe abortion at the primary health-care level; US$ 6 billion for treating post-abortion infertility; and US$ 200 million each year for the out-of-pocket expenses of individuals and households in sub-Saharan Africa for the treatment of post-abortion complications. In addition, US$ 930 million is the estimated annual expenditure by individuals and their societies for lost income from death or long-term disability due to chronic health consequences of unsafe abortion.

Unintended pregnancies also have other cost implications. Researchers at the Brookings Institute found that the United States spends $12 billion each year to cover medical care for women who experience unintended pregnancies and on infants who were conceived unintentionally.

In short, it is a fact that providing people with the means needed to make choices in childbearing is economically beneficial at all levels of society. In a country otherwise obsessed with individual economic choices, this should be a clear argument.

Abortion is an individual health issue. Yes, abortion is an individual health issue, related to but separate from its broader role in public health. Anyone who has had—or knows someone who has had—a difficult pregnancy, a miscarriage, an emergency c-section, a stillbirth, or any number of other complications is aware, pregnancy and childbirth can be wonderful and can be life-threatening, and the reality of either is a roll of the dice.

There are any number of contraindications for pregnancy that would result in the need for an abortion and any number of complications that can arise during a pregnancy, threatening the life or health of the pregnant person, the fetus, or both. The potential for very serious complications rises later in pregnancy, or after 20 weeks, the magic number alighted on by anti-choice zealots as somehow being a rational point after which abortion should be banned.

Any number of complications compromising the health of a pregnant person can occur, or fetal anomalies can be found, at or after 20 weeks of pregnancy, potentially causing even the most wanted pregnancy to go awry. Henneberger, now editor in chief at Roll Call, has frequently advocated for 20-week abortion bans, either not understanding or not caring that such a ban would dramatically limit access to medical care for untold numbers of women who face complications. Pelosi should have been able to more forcefully tell her why this is dangerous.

The United States is sliding backward on many fronts, including on access to contraception and abortion, two public health interventions for which the cost-benefit analyses are clear.

Politicians who claim to be pro-choice and raise money from citizens who support public health, human rights, and choice in childbearing must be able to articulate, embrace, and defend their positions. For too long, Democrats have come across as inept and apologetic when talking about abortion, even though the facts are clear and indisputable.

It’s time for this to stop.