John F. Kennedy promised during his 1960 presidential campaign to end racial discrimination in federally assisted housing “with the stroke of a pen,” but the author of Profiles in Courage waited almost two years to issue the promised executive order.
Bill Clinton promised during his 1992 campaign to end discrimination against gays in the military, but in office he backed away from an executive order and gave Congress running room to write discrimination into law with the “don’t ask, don’t tell” policy.
Fifteen years later, Barack Obama campaigned on a promise to repeal “don’t ask, don’t tell” if elected. But the White House and Congress have put gays in the military on a back burner along with other gay rights issues until the economy is revived, health care reformed and Afghanistan made safe for democracy.
As a result, some in the gay rights community are calling for Obama to end the discrimination against gay and lesbian service members with the stroke of his presidential pen. Specifically, they believe Obama can and should stop any enforcement of “don’t ask, don’t tell” under a statutory provision authorizing the commander in chief to issue a “stop loss” executive order during what is recognized as an official military emergency.
With two wars ongoing and manpower needs pressing, advocates for gay service members point out that the policy has cost the military more than 13,000 service members since its inception. Among those discharged are at least 59 Arabic linguists, trained by the military at considerable expense and vitally needed for intelligence-gathering and analysis in combating al Qaeda and other anti-American Islamist groups.
In the first place, Congress passed the law establishing the policy on the basis of anecdote and opinion instead of research and evidence. The Pentagon submitted a 15-page report by its Military Working Group that consisted mostly of compilations of anti-gay attitudes by senior military officers. The Pentagon succeeded in mostly burying a more scientific, 500-page study by the RAND Corporation that said sexual orientation was “not germane” to military service and predicted a non-discrimination policy could be implemented effectively with proper leadership.
Whatever plausibility the military’s concerns might have had in 1993, they are refuted by the evidence since then from the 24 countries that now allow military service by out gay men and lesbians, according to Nathaniel Frank, a senior researcher with the Palm Center at the University of California-Santa Barbara. As Frank writes in his argumentative but well documented book Unfriendly Fire, none of those countries — including such U.S. allies as Britain, Canada, and Israel — has seen any impairment to unit cohesion, recruitment, or fighting capability.
Within the U.S. military, “don’t ask, don’t tell” has hurt rather than helped unit cohesion. For gay service members, the policy fosters suspicions of their colleagues and diminishes military comradeship at a time when more and more straight service members have no problem interacting with gays. But for homophobic service members, the policy contributes to a climate that encourages anti-gay harassment and ignores it when it occurs.
One thing has changed since 1993: public opinion. Most Americans opposed the idea of gays in the military in 1993. Today, various polls show upwards of 75 percent of Americans favor allowing gays to serve openly in the military. The most recent Gallup poll found majority support even among self-identified conservatives, Republicans and churchgoers.
Despite the compelling evidence and the favorable shift in public attitudes, the White House says Obama cannot act on his own because “don’t ask, don’t tell” is statutory law, not an executive order. Frank and fellow researchers at the Palm Center disagree. They point to a provision in the law (10 U.S.C. § 12305) that allows the president to suspend separations from the military during any period of national emergency, such as now, in which members of a reserve component are serving involuntarily on active duty.
The White House is reportedly unconvinced of the legal argument and concerned about the political fallout. The risks are not slight. A preemptive presidential action could antagonize both Congress and the military leadership. “If you stick your finger in the eyes of [Defense Secretary Robert] Gates and [Joint Chiefs of Staff Chairman] Mike Mullen, I’m not sure how far that gets you,” says Aubrey Sarvis, executive director of Servicemembers Defense Legal Network.
Sarvis says he would favor the executive order approach only if Obama simultaneously pushes the issue on Capitol Hill. Frank and his colleagues say the executive order might cost Obama less political capital in the end. And they also expect that allowing gays to serve openly would prove to all but the unpersuadable that an enlightened policy enhances military readiness at no cost to unit cohesion or recruitment.
Sixty years ago, President Harry Truman ended racial segregation “with the stroke of a pen.” Military leaders were opposed — and later dragged their feet in implementing the new policy — but Truman reminded them that he was commander in chief. History vindicates his decision. Obama, facing a less treacherous political terrain, might consider whether history would similarly look with favor on a similar exercise of presidential courage today.
Thursday, October 8, 2009
Sunday, October 4, 2009
Justices' Choice: Protecting Animals or Free Speech?
Hard cases make bad law. Consider one at the start of the Supreme Court’s new term that asks the justices to choose between protecting the First Amendment and preventing cruelty to animals.
Ten years ago, Congress passed a law making the “depiction of animal cruelty” a federal crime. The act was aimed at outlawing so-called “crush videos,” horrific depictions of women, often in high heels, crushing puppies, kittens, or other small animals to death. The videos were said to have been readily available on the Internet to users who, perversely, found them sexually arousing.
The law was written broadly to get over significant obstacles in enforcement. Specifically, the law prohibits creating, selling, or possessing any photograph or video in which an animal is “intentionally maimed, mutilated, tortured, wounded, or killed” if the conduct is illegal under federal law or under the law of the jurisdiction where the depiction is created, sold, or possessed.
Despite its evidently salutary purpose, the act represented a significant incursion on the First Amendment. The justices are now being asked to rule a category of speech outside the First Amendment for the first time since the Court’s 1982 decision, New York v. Ferber, upholding a state ban on child pornography. As with the child porn law, the argument is that the only way to prevent harm — to children in one case, to animals in the other — is to dry up the market by allowing the government to prosecute not only the producers of the offending material, but also the buyers.
The new act tries to acknowledge free-speech concerns. It exempts any material that has “serious religious, political, scientific, educational, journalistic, historical, or artistic value.”
Ten years later, the government has prosecuted only one person under the law. Robert Stevens, a Virginia man, was indicted in 2004 for on charges of selling to undercover law enforcement agents in Pennsylvania two videos depicting dog fighting and a third showing pit bulls in a wild boar hunt. Dog fighting is illegal in all 50 states, but not in Japan, where one of the videos was made.
Stevens, who made and narrated the videos, was convicted in March 2005 by a federal jury in Pennsylvania that rejected his effort to portray the videos as a celebration of pit bulls’ nobility and character. On appeal, however, the Third U.S. Circuit Court of Appeals overturned the convictions in June 2008 and found the law unconstitutional on free-speech grounds.
The appeals court said the law failed to satisfy the demanding “strict scrutiny” test. The government’s interest in preventing cruelty to animals had not been shown to be compelling, the majority judges said. In addition, the statute was not narrowly tailored to further that interest; instead, the judges suggested, the government should strengthen enforcement of the underlying laws preventing cruelty to animals.
The Humane Society of the United States had cheered passage of the law and claimed success in drying up the market for crush videos — perhaps a reason for the lack of prosecutions. With the appeals court’s decision, however, the society said crush videos are again readily available on the Internet. It found one site that offered 118 videos for sale at prices ranging from $20 to $100.
Media groups rallied in support of the appeals court’s decision after the justices agreed to hear the government’s plea to revive the law. They say the law overreaches by encompassing everything from artistic renderings of bullfights to journalistic coverage of hunting and fishing. Attacking the law is not popular, the opponents say. But their number includes one strange but powerful bedfellow: the National Rifle Association.
Conservatives like to claim that on the current Supreme Court the conservative justices are the most consistent defenders of the First Amendment. The claim depends primarily on the conservatives’ recent invocation of political speech grounds to question the constitutionality of campaign finance regulations. But Justices Antonin Scalia and Anthony M. Kennedy also established their First Amendment bona fides two decades ago by joining in decisions that struck down federal and state laws banning desecration of the U.S. flag.
Handicapping the current case, United States v. Stevens, is difficult at best. In defending the law, the government is asking the justices to accept the broad proposition that speech can be categorically prohibited if the harm to society outweighs any benefits from the speech. That broad argument might appeal to Justice Stephen G. Breyer, who likes to take a pragmatic approach to First Amendment issues. But the Court need not go that far to uphold the law. It could simply follow the “dry up the market” rationale adopted in Ferber.
The media groups’ “slippery slope” argument may appeal to Kennedy, who has joined with liberal justices in some cases to strike down sex-related speech regulations. But Kennedy is also a moralist who, most recently, allowed his anti-drug views to overcome free-speech concerns in upholding the suspension of an Alaska student for displaying a patently harmless “Bong Hits for Jesus” banner in Morse v. Frederick (2006). He may find cruelty to animals at least as offensive.
The arguments are on Tuesday, Oct.5, the second day of the new term. It’s a hard case. With strong arguments on both sides, the justices will need to take care to avoid making bad law.
Ten years ago, Congress passed a law making the “depiction of animal cruelty” a federal crime. The act was aimed at outlawing so-called “crush videos,” horrific depictions of women, often in high heels, crushing puppies, kittens, or other small animals to death. The videos were said to have been readily available on the Internet to users who, perversely, found them sexually arousing.
The law was written broadly to get over significant obstacles in enforcement. Specifically, the law prohibits creating, selling, or possessing any photograph or video in which an animal is “intentionally maimed, mutilated, tortured, wounded, or killed” if the conduct is illegal under federal law or under the law of the jurisdiction where the depiction is created, sold, or possessed.
Despite its evidently salutary purpose, the act represented a significant incursion on the First Amendment. The justices are now being asked to rule a category of speech outside the First Amendment for the first time since the Court’s 1982 decision, New York v. Ferber, upholding a state ban on child pornography. As with the child porn law, the argument is that the only way to prevent harm — to children in one case, to animals in the other — is to dry up the market by allowing the government to prosecute not only the producers of the offending material, but also the buyers.
The new act tries to acknowledge free-speech concerns. It exempts any material that has “serious religious, political, scientific, educational, journalistic, historical, or artistic value.”
Ten years later, the government has prosecuted only one person under the law. Robert Stevens, a Virginia man, was indicted in 2004 for on charges of selling to undercover law enforcement agents in Pennsylvania two videos depicting dog fighting and a third showing pit bulls in a wild boar hunt. Dog fighting is illegal in all 50 states, but not in Japan, where one of the videos was made.
Stevens, who made and narrated the videos, was convicted in March 2005 by a federal jury in Pennsylvania that rejected his effort to portray the videos as a celebration of pit bulls’ nobility and character. On appeal, however, the Third U.S. Circuit Court of Appeals overturned the convictions in June 2008 and found the law unconstitutional on free-speech grounds.
The appeals court said the law failed to satisfy the demanding “strict scrutiny” test. The government’s interest in preventing cruelty to animals had not been shown to be compelling, the majority judges said. In addition, the statute was not narrowly tailored to further that interest; instead, the judges suggested, the government should strengthen enforcement of the underlying laws preventing cruelty to animals.
The Humane Society of the United States had cheered passage of the law and claimed success in drying up the market for crush videos — perhaps a reason for the lack of prosecutions. With the appeals court’s decision, however, the society said crush videos are again readily available on the Internet. It found one site that offered 118 videos for sale at prices ranging from $20 to $100.
Media groups rallied in support of the appeals court’s decision after the justices agreed to hear the government’s plea to revive the law. They say the law overreaches by encompassing everything from artistic renderings of bullfights to journalistic coverage of hunting and fishing. Attacking the law is not popular, the opponents say. But their number includes one strange but powerful bedfellow: the National Rifle Association.
Conservatives like to claim that on the current Supreme Court the conservative justices are the most consistent defenders of the First Amendment. The claim depends primarily on the conservatives’ recent invocation of political speech grounds to question the constitutionality of campaign finance regulations. But Justices Antonin Scalia and Anthony M. Kennedy also established their First Amendment bona fides two decades ago by joining in decisions that struck down federal and state laws banning desecration of the U.S. flag.
Handicapping the current case, United States v. Stevens, is difficult at best. In defending the law, the government is asking the justices to accept the broad proposition that speech can be categorically prohibited if the harm to society outweighs any benefits from the speech. That broad argument might appeal to Justice Stephen G. Breyer, who likes to take a pragmatic approach to First Amendment issues. But the Court need not go that far to uphold the law. It could simply follow the “dry up the market” rationale adopted in Ferber.
The media groups’ “slippery slope” argument may appeal to Kennedy, who has joined with liberal justices in some cases to strike down sex-related speech regulations. But Kennedy is also a moralist who, most recently, allowed his anti-drug views to overcome free-speech concerns in upholding the suspension of an Alaska student for displaying a patently harmless “Bong Hits for Jesus” banner in Morse v. Frederick (2006). He may find cruelty to animals at least as offensive.
The arguments are on Tuesday, Oct.5, the second day of the new term. It’s a hard case. With strong arguments on both sides, the justices will need to take care to avoid making bad law.
Friday, September 25, 2009
Sotomayor Shows Restraint; Roberts, Not So Much
Supreme Court Justice Sonia Sotomayor presented herself during her Senate confirmation hearing as a judge’s judge, committed to following precedent and deciding cases strictly on the facts and law with no ideological agenda. In her courtroom debut on Sept. 9, Sotomayor appeared true to her confirmation persona with questions indicating a cautious approach to a major campaign finance case before the Court.
The same cannot be said about Chief Justice John G. Roberts Jr. In his confirmation hearings four years ago, he sounded similar themes of non-ideological judicial restraint. But in Citizens United v. Federal Election Commission, Roberts appears ready to lead the Court into scrapping a 20-year-old precedent barring corporations from direct spending in electoral politics and undercutting a century-old law prohibiting corporations from contributing to congressional or presidential candidates.
Citizens United is one of several cases due for decision during the term that opens on Oct. 5 that will test the Roberts Court’s respect for precedent and judicial restraint. Thus far, the Court’s record is mixed. Roberts and President George W. Bush’s other appointee, Justice Samuel A. Alito Jr., have provided critical votes in a number of 5-4 decisions that have significantly undermined prior rulings but stopped short of overturning them.
In one criminal law case this year, however, the Court explicitly overturned a 1986 decision that had barred police from interrogating a suspect once a lawyer had been retained or appointed. The 5-4 decision in Montejo v. Louisiana came two months after the Court had issued a post-argument request to the lawyers in the case asking them to address the question whether to overturn the prior decision, Michigan v. Jackson.
The Court has followed a similar course in Citizens United by asking for a new round of briefs in the case after having heard arguments in March. The case stems from a Federal Election Commission enforcement action against a conservative group for using corporate funds to help finance a 90-minute documentary, Hillary: The Movie, sharply critical of then-Sen. Hillary Rodham Clinton during her 2008 presidential campaign.
Initially, the case seemed likely to be important but not earthshaking. Citizens United had a number of specific arguments why the documentary should not be subject to provisions of the McCain-Feingold Act that bar the use of corporate funds in election-season broadcast advertising in support of or opposition to a candidate for federal office.
Before argument, however, the group handed the case to a new lawyer: Theodore Olson, the high-profile conservative and former U.S. solicitor general. Olson asked the justices to reconsider the 2003 decision upholding McCain-Feingold and an earlier ruling, Austin v. Michigan Chamber of Commerce (1990). In Austin, the Court held, 6-3, that states (and, by implication, the federal government) can prohibit corporations from spending money from their treasuries on political campaigns even if the expenditures are independent of the candidate.
The order asking for new briefs made clear that at least some of the justices were drawn to Olson’s aggressive position in the case. When the case was reargued on Sept. 9, Sotomayor used two sets of question to signal her preference for a narrow decision. She asked Olson whether he was “giving up” on his earlier arguments, which she noted would allow the Court to “avoid the constitutional question.” As a follow-up, the former trial judge asked Olson why the Court should decide the broad constitutional question with no trial record on the many issues implicated.
Sotomayor again displayed her inclination to judicial restraint during arguments by attorney Floyd Abrams, a well known First Amendment expert representing Senate Republican Leader Mitch McConnell of Kentucky in opposing the law. Abrams suggested the ban on corporate spending in political races was unneeded because about half the states had no such laws on the books. Sotomayor turned the suggestion around: If half the states have such laws and half don’t, she reasoned, would the Court be “cutting off [the] democratic process” by declaring any such law unconstitutional?
By contrast, Roberts and other conservatives sounded like activist judges ready to upset established legal principles. When Solicitor General Elena Kagan — in her first Supreme Court appearance — referred to the 1909 law barring corporations from making contributions to federal candidates, Justice Antonin Scalia said the Court had never approved the law. Later, Roberts directly questioned the rationale of the Austin ruling. And in his sharpest comment, Roberts sneered at the FEC’s role in deciding how to enforce the law. “We don’t put the First Amendment in the hands of FEC bureaucrats,” he said.
By the end of the arguments, it seemed clear that the government was destined to lose the case, and the only question was how badly. As Stephen Shapiro, national legal director of the American Civil Liberties Union, pointed out in a Supreme Court preview session, the justices have several ways to decide the case without overturning past decisions. “But it could have done that this spring,” Shapiro continued. “Obviously, they had bigger things in mind.”
The bigger thing appears to be free rein for corporations to spend on federal or state campaigns without creating separate political action committees and soliciting voluntary contributions for the purpose. Shapiro notes that in the past Roberts has taken the Court “to the verge” of overruling precedent several times and then stopped just short. This time, an activist agenda may overcome that salutary impulse toward judicial restraint.
The same cannot be said about Chief Justice John G. Roberts Jr. In his confirmation hearings four years ago, he sounded similar themes of non-ideological judicial restraint. But in Citizens United v. Federal Election Commission, Roberts appears ready to lead the Court into scrapping a 20-year-old precedent barring corporations from direct spending in electoral politics and undercutting a century-old law prohibiting corporations from contributing to congressional or presidential candidates.
Citizens United is one of several cases due for decision during the term that opens on Oct. 5 that will test the Roberts Court’s respect for precedent and judicial restraint. Thus far, the Court’s record is mixed. Roberts and President George W. Bush’s other appointee, Justice Samuel A. Alito Jr., have provided critical votes in a number of 5-4 decisions that have significantly undermined prior rulings but stopped short of overturning them.
In one criminal law case this year, however, the Court explicitly overturned a 1986 decision that had barred police from interrogating a suspect once a lawyer had been retained or appointed. The 5-4 decision in Montejo v. Louisiana came two months after the Court had issued a post-argument request to the lawyers in the case asking them to address the question whether to overturn the prior decision, Michigan v. Jackson.
The Court has followed a similar course in Citizens United by asking for a new round of briefs in the case after having heard arguments in March. The case stems from a Federal Election Commission enforcement action against a conservative group for using corporate funds to help finance a 90-minute documentary, Hillary: The Movie, sharply critical of then-Sen. Hillary Rodham Clinton during her 2008 presidential campaign.
Initially, the case seemed likely to be important but not earthshaking. Citizens United had a number of specific arguments why the documentary should not be subject to provisions of the McCain-Feingold Act that bar the use of corporate funds in election-season broadcast advertising in support of or opposition to a candidate for federal office.
Before argument, however, the group handed the case to a new lawyer: Theodore Olson, the high-profile conservative and former U.S. solicitor general. Olson asked the justices to reconsider the 2003 decision upholding McCain-Feingold and an earlier ruling, Austin v. Michigan Chamber of Commerce (1990). In Austin, the Court held, 6-3, that states (and, by implication, the federal government) can prohibit corporations from spending money from their treasuries on political campaigns even if the expenditures are independent of the candidate.
The order asking for new briefs made clear that at least some of the justices were drawn to Olson’s aggressive position in the case. When the case was reargued on Sept. 9, Sotomayor used two sets of question to signal her preference for a narrow decision. She asked Olson whether he was “giving up” on his earlier arguments, which she noted would allow the Court to “avoid the constitutional question.” As a follow-up, the former trial judge asked Olson why the Court should decide the broad constitutional question with no trial record on the many issues implicated.
Sotomayor again displayed her inclination to judicial restraint during arguments by attorney Floyd Abrams, a well known First Amendment expert representing Senate Republican Leader Mitch McConnell of Kentucky in opposing the law. Abrams suggested the ban on corporate spending in political races was unneeded because about half the states had no such laws on the books. Sotomayor turned the suggestion around: If half the states have such laws and half don’t, she reasoned, would the Court be “cutting off [the] democratic process” by declaring any such law unconstitutional?
By contrast, Roberts and other conservatives sounded like activist judges ready to upset established legal principles. When Solicitor General Elena Kagan — in her first Supreme Court appearance — referred to the 1909 law barring corporations from making contributions to federal candidates, Justice Antonin Scalia said the Court had never approved the law. Later, Roberts directly questioned the rationale of the Austin ruling. And in his sharpest comment, Roberts sneered at the FEC’s role in deciding how to enforce the law. “We don’t put the First Amendment in the hands of FEC bureaucrats,” he said.
By the end of the arguments, it seemed clear that the government was destined to lose the case, and the only question was how badly. As Stephen Shapiro, national legal director of the American Civil Liberties Union, pointed out in a Supreme Court preview session, the justices have several ways to decide the case without overturning past decisions. “But it could have done that this spring,” Shapiro continued. “Obviously, they had bigger things in mind.”
The bigger thing appears to be free rein for corporations to spend on federal or state campaigns without creating separate political action committees and soliciting voluntary contributions for the purpose. Shapiro notes that in the past Roberts has taken the Court “to the verge” of overruling precedent several times and then stopped just short. This time, an activist agenda may overcome that salutary impulse toward judicial restraint.
Thursday, July 23, 2009
Race and Testing: Disparities Real, Solutions "Elusive"?
Midway through her opinion in the New Haven firefighters case, Judge Janet Bond Arterton wrote plaintively about the principal issue in the case: why white firefighters scored higher on the promotions exam in 2003 than their Hispanic or African-American colleagues. “The reasons for the testing disparities,” the federal judge wrote, “remain elusive.”
Thanks to the Supreme Court’s decision in the case, the reasons will remain elusive. Just as in Bush v. Gore nine years ago, the court’s conservative majority short-circuited normal appellate practice by deciding on its own how to apply a brand-new legal standard in a sharply disputed factual context.
Now, only three weeks after the Supreme Court decision in Ricci v. DeStefano, comes new evidence of the importance of the testing question not only for New Haven but for fire departments throughout the country, many of them still disproportionately white. Ruling in a suit brought by the Bush administration, a federal judge in New York City has found that the city’s fire department used racially discriminatory tests for entry-level hires from 1999 through 2007. Judge Nicholas Garaufis, appointed to the bench by President Bill Clinton in 2000, blamed the tests for the stark underrepresentation of Hispanics and African-Americans in the department.
As Garaufis set out in a 93-page opinion, available here, the city admitted entry-level candidates to the fire department academy for that period based solely on written tests. The exam had no elements that tested practical performance on the job, he found, even though the city’s expert acknowledged at trial the importance of “non-cognitive abilities” for entry-level firefighters.
The pass rate on the two exams used was substantially higher for white applicants than for African-Americans: 90 percent and 97 percent for whites compared to 60 percent and 85 percent for blacks. For both exams, Garaufis noted, the pass rate was based solely on the number of openings at the academy, not on some job-related measurement of the knowledge or abilities needed for new recruits. The upshot, the judge concluded, was that the city had no defense for the racially disparate impact on fire department hiring.
The city says it has changed its procedures and is hiring more black firefighters. The city’s law department told the New York Times that African-Americans comprised one-third of the most recent graduating class of probationary firefighters. Still, the law department said that as of May, blacks comprised about 3 percent and Hispanics about 6 percent of the total force of 11,529 firefighters in a city where Hispanics and blacks each comprise about 27 percent of the total population.
Garaufis notes that New York City is a repeat offender in its firefighter hiring practices. A federal judge found the department guilty of racial discrimination in hiring in 1973; the decision prompted the city to contract with a firm to develop new written and physical exams, but the initiative was scrapped for budgetary reasons. In developing the tests used until 2007, Garaufis says, the city took no special steps to validate the procedures as racially neutral.
Garaufis distinguishes the Supreme Court’s ruling in Ricci by contrasting New York’s disregard of the racial-neutrality issue with the conscious effort in that regard by the firm that New Haven hired to develop the exams used in late 2003 to select firefighters for possible promotion to lieutenant and captain. Writing for the majority in Ricci, Justice Anthony M. Kennedy cited the steps the firm took to include African-Americans in developing the New Haven tests as the main reason for concluding there was no “objective, strong basis in evidence” for the New Haven civil service board to refuse to certify the results of the exam despite the racial disparity between white and black firefighters.
As Justice Ruth Bader Ginsburg pointed out in dissent, however, the main reason to question the tests’ validity was the decision to give 60 percent weight to the written portion of the exam and 40 percent to the oral. That decision was not based on modern testing methodology but on a collective bargaining agreement between New Haven and the firefighters union negotiated in 1989, when the fire department was — even more than today — overwhelmingly white.
Admittedly, the New Haven test was better designed than those in New York City that consisted exclusively of written questions. In his opinion, Kennedy said New Haven failed to show why a 30/70 formula would have been valid. At the time, the city thought that the applicable precedent permitted — and perhaps required — it to change hiring or promotion procedures based on a prima facie showing of disparate racial impact. In any event, as Ginsburg said, there was “strong reason” to think that the 60/40 formula was not likely to identify the most officer-worthy candidates.
Ginsburg and the other dissenters wanted to send the case back for more evidence under the court’s new standard; the majority decided otherwise. Despite the disagreement, the law is clear that employers, both private and government, must have hiring and promotion policies that are racially neutral in form and in practice. Perhaps the ruling will help employers focus on that obligation, but civil rights groups reasonably fear that the ruling hinders rather than helps the goal of true equal opportunity in the country’s fire halls and elsewhere.
Thanks to the Supreme Court’s decision in the case, the reasons will remain elusive. Just as in Bush v. Gore nine years ago, the court’s conservative majority short-circuited normal appellate practice by deciding on its own how to apply a brand-new legal standard in a sharply disputed factual context.
Now, only three weeks after the Supreme Court decision in Ricci v. DeStefano, comes new evidence of the importance of the testing question not only for New Haven but for fire departments throughout the country, many of them still disproportionately white. Ruling in a suit brought by the Bush administration, a federal judge in New York City has found that the city’s fire department used racially discriminatory tests for entry-level hires from 1999 through 2007. Judge Nicholas Garaufis, appointed to the bench by President Bill Clinton in 2000, blamed the tests for the stark underrepresentation of Hispanics and African-Americans in the department.
As Garaufis set out in a 93-page opinion, available here, the city admitted entry-level candidates to the fire department academy for that period based solely on written tests. The exam had no elements that tested practical performance on the job, he found, even though the city’s expert acknowledged at trial the importance of “non-cognitive abilities” for entry-level firefighters.
The pass rate on the two exams used was substantially higher for white applicants than for African-Americans: 90 percent and 97 percent for whites compared to 60 percent and 85 percent for blacks. For both exams, Garaufis noted, the pass rate was based solely on the number of openings at the academy, not on some job-related measurement of the knowledge or abilities needed for new recruits. The upshot, the judge concluded, was that the city had no defense for the racially disparate impact on fire department hiring.
The city says it has changed its procedures and is hiring more black firefighters. The city’s law department told the New York Times that African-Americans comprised one-third of the most recent graduating class of probationary firefighters. Still, the law department said that as of May, blacks comprised about 3 percent and Hispanics about 6 percent of the total force of 11,529 firefighters in a city where Hispanics and blacks each comprise about 27 percent of the total population.
Garaufis notes that New York City is a repeat offender in its firefighter hiring practices. A federal judge found the department guilty of racial discrimination in hiring in 1973; the decision prompted the city to contract with a firm to develop new written and physical exams, but the initiative was scrapped for budgetary reasons. In developing the tests used until 2007, Garaufis says, the city took no special steps to validate the procedures as racially neutral.
Garaufis distinguishes the Supreme Court’s ruling in Ricci by contrasting New York’s disregard of the racial-neutrality issue with the conscious effort in that regard by the firm that New Haven hired to develop the exams used in late 2003 to select firefighters for possible promotion to lieutenant and captain. Writing for the majority in Ricci, Justice Anthony M. Kennedy cited the steps the firm took to include African-Americans in developing the New Haven tests as the main reason for concluding there was no “objective, strong basis in evidence” for the New Haven civil service board to refuse to certify the results of the exam despite the racial disparity between white and black firefighters.
As Justice Ruth Bader Ginsburg pointed out in dissent, however, the main reason to question the tests’ validity was the decision to give 60 percent weight to the written portion of the exam and 40 percent to the oral. That decision was not based on modern testing methodology but on a collective bargaining agreement between New Haven and the firefighters union negotiated in 1989, when the fire department was — even more than today — overwhelmingly white.
Admittedly, the New Haven test was better designed than those in New York City that consisted exclusively of written questions. In his opinion, Kennedy said New Haven failed to show why a 30/70 formula would have been valid. At the time, the city thought that the applicable precedent permitted — and perhaps required — it to change hiring or promotion procedures based on a prima facie showing of disparate racial impact. In any event, as Ginsburg said, there was “strong reason” to think that the 60/40 formula was not likely to identify the most officer-worthy candidates.
Ginsburg and the other dissenters wanted to send the case back for more evidence under the court’s new standard; the majority decided otherwise. Despite the disagreement, the law is clear that employers, both private and government, must have hiring and promotion policies that are racially neutral in form and in practice. Perhaps the ruling will help employers focus on that obligation, but civil rights groups reasonably fear that the ruling hinders rather than helps the goal of true equal opportunity in the country’s fire halls and elsewhere.
Sunday, July 19, 2009
Confirmation Hearings: Poor Reviews, but Show Must Go On
The Founding Fathers did not decide that the Supreme Court would have nine justices. That goes back to 1869. They did not decide that the court would begin each term on the first Monday in October. That goes back to 1917.
The Framers also did not decide that Supreme Court nominees would appear in front of a Senate committee before a vote on their confirmation. That practice goes back only to 1925. And only since the 1960s have senators made extensive use of the procedure to try to learn the nominee’s legal views and to air their own views on the hot legal issues of the day.
So the constitutional design does not depend on the Supreme Court confirmation hearing. We would not break faith with the Framers to dispense with a practice with so much evasion and circumlocution by the nominee and so much political posturing by the senators.
Despite the bad reviews, however — and the reviews for Judge Sonia Sotomayor’s four days on the witness stand were poor at best — the show must go on. President Obama and his advisers took all the time they needed to explore the nominee’s record and views before making a selection. Both the Senate and the public were entitled to their chance to see and hear the nominee for themselves before entrusting her with lifetime appointment to the Supreme Court.
There’s no denying that, despite her impressive academic and professional qualifications, Judge Sotomayor was less than stellar on the Broadway of the political stage. She may have been “disciplined and good humored” (Jeffrey Rosen of The New Republic in The New York Times), but to many she appeared to be “over rehearsed” (David Broder, Washington Post)
Perhaps Sotomayor “accomplished her goals” (attorney Andrew Pincus in The Wall Street Journal, emphasis added). But “it is not at all clear what all this accomplished” (law dean Erwin Chemerinsky, also in the Journal). “A kabuki dance,” (Mark Shields, PBS NewsHour).
Sotomayor and her White House handlers bear principal responsibility for this lifeless performance. It was a decision born of politics, not judicial ethics, to present herself as a legal automaton who simply follows precedent as long as stare decisis says to. No wonder that one senator asked her whether judging amounts to nothing more than following a recipe in a cookbook.
Sotomayor rightly began with and returned often to her life story: a good one, to be sure. But again it was nothing but politics that led her to emphasize her early years as a prosecutor and then to claim all but complete ignorance of the legal positions that the Puerto Rican Legal Defense and Education Fund took during her 12 years with the organization, including service as chair of the litigation committee.
Senators on both sides of the dais, however, must share in the responsibility for the unedifying spectacle. Veteran Democrats Herb Kohl of Wisconsin and California’s Dianne Feinstein opened by complaining about the limited information from the most recent nominees: John Roberts and Samuel Alito. But among all the Democrats only Feinstein succeeded in eliciting a nugget of useful information: Sotomayor’s agreement that the woman’s health remains a “compelling consideration” in testing the validity of abortion regulations.
For their part, Republicans went on and on and on about the “wise Latina woman” speeches, well after the questions were yielding any useful information or perspective. One longed for Judiciary Committee Chairman Patrick Leahy to bang the gavel and say, “Asked and answered. Let’s move on.”
More substantively, no Republican senator recognized the patent inconsistency in stressing the power of elected legislators, not courts, to make laws but at the same time pressing Sotomayor to interpret the Second Amendment to limit gun control laws enacted by elected state and local governments. And no Republican senator gave Sotomayor credit for her decision in the New Haven firefighters case to follow the apparent precedent and to uphold the decision by local officials in the case.
Of course, the show lacked drama from the outset. Sotomayor’s nomination by a still popular president was assured of confirmation in a Senate with a 60-vote Democratic majority. Republicans found no smoking guns in her record apart from the “wise Latina” speeches. By the end, even her critics were conceding her to be a mainstream judge with no evident problems of temperament in this setting at least.
What kind of justice will Sonia Sotomayor be? Democrats hope and Republicans expect that she will fit in comfortably with the court’s liberal bloc — still only four strong in most instances. Perhaps. But University of Texas law professor Sanford Levinson may be quite right in his end-of-show prediction to the New York Times that Sotomayor will be the same “basically cautious person” on the bench that she was on the stand. The hearings may not have told us what we wanted to know, but they quite possibly told us all there is to know about Justice Sonia Sotomayor.
The Framers also did not decide that Supreme Court nominees would appear in front of a Senate committee before a vote on their confirmation. That practice goes back only to 1925. And only since the 1960s have senators made extensive use of the procedure to try to learn the nominee’s legal views and to air their own views on the hot legal issues of the day.
So the constitutional design does not depend on the Supreme Court confirmation hearing. We would not break faith with the Framers to dispense with a practice with so much evasion and circumlocution by the nominee and so much political posturing by the senators.
Despite the bad reviews, however — and the reviews for Judge Sonia Sotomayor’s four days on the witness stand were poor at best — the show must go on. President Obama and his advisers took all the time they needed to explore the nominee’s record and views before making a selection. Both the Senate and the public were entitled to their chance to see and hear the nominee for themselves before entrusting her with lifetime appointment to the Supreme Court.
There’s no denying that, despite her impressive academic and professional qualifications, Judge Sotomayor was less than stellar on the Broadway of the political stage. She may have been “disciplined and good humored” (Jeffrey Rosen of The New Republic in The New York Times), but to many she appeared to be “over rehearsed” (David Broder, Washington Post)
Perhaps Sotomayor “accomplished her goals” (attorney Andrew Pincus in The Wall Street Journal, emphasis added). But “it is not at all clear what all this accomplished” (law dean Erwin Chemerinsky, also in the Journal). “A kabuki dance,” (Mark Shields, PBS NewsHour).
Sotomayor and her White House handlers bear principal responsibility for this lifeless performance. It was a decision born of politics, not judicial ethics, to present herself as a legal automaton who simply follows precedent as long as stare decisis says to. No wonder that one senator asked her whether judging amounts to nothing more than following a recipe in a cookbook.
Sotomayor rightly began with and returned often to her life story: a good one, to be sure. But again it was nothing but politics that led her to emphasize her early years as a prosecutor and then to claim all but complete ignorance of the legal positions that the Puerto Rican Legal Defense and Education Fund took during her 12 years with the organization, including service as chair of the litigation committee.
Senators on both sides of the dais, however, must share in the responsibility for the unedifying spectacle. Veteran Democrats Herb Kohl of Wisconsin and California’s Dianne Feinstein opened by complaining about the limited information from the most recent nominees: John Roberts and Samuel Alito. But among all the Democrats only Feinstein succeeded in eliciting a nugget of useful information: Sotomayor’s agreement that the woman’s health remains a “compelling consideration” in testing the validity of abortion regulations.
For their part, Republicans went on and on and on about the “wise Latina woman” speeches, well after the questions were yielding any useful information or perspective. One longed for Judiciary Committee Chairman Patrick Leahy to bang the gavel and say, “Asked and answered. Let’s move on.”
More substantively, no Republican senator recognized the patent inconsistency in stressing the power of elected legislators, not courts, to make laws but at the same time pressing Sotomayor to interpret the Second Amendment to limit gun control laws enacted by elected state and local governments. And no Republican senator gave Sotomayor credit for her decision in the New Haven firefighters case to follow the apparent precedent and to uphold the decision by local officials in the case.
Of course, the show lacked drama from the outset. Sotomayor’s nomination by a still popular president was assured of confirmation in a Senate with a 60-vote Democratic majority. Republicans found no smoking guns in her record apart from the “wise Latina” speeches. By the end, even her critics were conceding her to be a mainstream judge with no evident problems of temperament in this setting at least.
What kind of justice will Sonia Sotomayor be? Democrats hope and Republicans expect that she will fit in comfortably with the court’s liberal bloc — still only four strong in most instances. Perhaps. But University of Texas law professor Sanford Levinson may be quite right in his end-of-show prediction to the New York Times that Sotomayor will be the same “basically cautious person” on the bench that she was on the stand. The hearings may not have told us what we wanted to know, but they quite possibly told us all there is to know about Justice Sonia Sotomayor.
Thursday, July 16, 2009
With Hearing Over, Sotomayor Assured of Early Confirmation
Supreme Court nominee Sonia Sotomayor now appears assured of confirmation by early August after surviving four days of Senate hearings with her qualifications acknowledged, her judicial record mostly unscathed and her personal character complimented even by Republican critics.
The Democratic-controlled Judiciary Committee scheduled a meeting on Sotomayor’s confirmation for Tuesday (July 21) some seven hours after the panel’s ranking Republican, Alabama’s Jeff Sessions, declared he would oppose any delaying tactics by the GOP and hoped for a floor vote before the Senate breaks for its August recess. Republicans may still ask for a week's delay in the committee vote, however, to allow time to review Sotomayor's written answers to questions submitted during the hearing.
With Democrats holding a 60-vote majority, Sotomayor’s confirmation has been a foregone conclusion almost since Obama chose her in late May to succeed retiring Justice David H. Souter. But Sessions’ assurance now means that Sotomayor will join the court in time for the Sept. 9 reargument of an important campaign finance case testing the constitutionality of laws restricting corporate and union expenditures on political campaigns.
Sotomayor ended more than 15 hours on the witness stand around 1 o’clock on Thursday after gaining qualified endorsements of her judicial record from two GOP senators. South Carolina’s Lindsey Graham and Texas’s John Cornyn both repeated criticisms of Sotomayor’s speeches discussing the role of race and gender in judicial decision-making, but expressly stepped away from any broad criticism of her record in 17 years on the bench, including the past decade on the Second U.S. Circuit Court of Appeals.
“Your record as a judge has not been radical,” Graham said. Later, he added, “You have as a judge been generally in the mainstream.” In his turn, Cornyn also described Sotomayor’s opinions as “mainstream.”
To a man, the committee’s seven Republicans also had nothing but praise for Sotomayor’s patience and self-control under their generally critical questioning on, among other issues, unfavorable evaluations of her temperament on the bench.
Only once did Sotomayor appear visibly to be disturbed by a question. The exchange came on Thursday when Sessions asked whether she had displayed “a lack of courage” in ruling on the New Haven firefighters’ reverse discrimination suit in a summary decision without a full written opinion by the three-judge panel.
“No, I didn’t show a lack of courage,” Sotomayor said, her voice firm and her visage stern. She called the appeals court’s decision, a one-paragraph adoption of the district court’s opinion, “a thorough, complete discussion” and then repeated: “No, I did not lack courage.”
After Sotomayor ended her testimony and left the hearing room, two of the plaintiffs in the case, Ricci v. DeStefano, criticized the appeals court’s decision as well as the procedure. Ben Vargas, the only Hispanic among the 18 white plaintiffs, said the group was “devastated” by the one-paragraph decision.
The firefighters went to court after the civil service board scrapped the results of a promotions exam because no African Americans scored high enough to qualify for immediate appointments. The suit, Frank Ricci explained, was aimed at ensuring “our right to advance in our profession based on merit regardless of race.”
The Supreme Court sustained the firefighters’ suit in a 5-4 decision on June 29. Sotomayor repeatedly told senators the appeals court’s decision was dictated by Second Circuit precedent. Republican senators continued on Thursday to challenge the point.
GOP senators also tried again, but again without success, to press Sotomayor for more specific views on abortion, gun rights and gay marriage. But Sotomayor was more emphatic than she had been on Wednesday in promising that she has an open mind on two of those issues, gun rights and gay marriage, that are likely to come before the Supreme Court in the near future.
The court is currently being asked to review a decision by the Seventh Circuit Court of Appeals that declined to apply the Second Amendment to state and local gun control laws. The Supreme Court’s 2008 decision in District of Columbia v. Heller recognized an individual right to possession of a handgun in the home, but the ruling applied only to the federal government.
Sotomayor joined a Second Circuit ruling that, like the Seventh Circuit in a Chicago case, said the issue of “incorporating” the Second Amendment right to the states was for the high court to decide. Despite the ruling, Sotomayor said she has “a completely open mind” on the question. “I understand the importance of the right,” she added, “and all I can say is I keep an open mind on the incorporation doctrine.”
Sotomayor gave similar assurance when asked about recognizing a constitutional right to marriage for same-sex couples. “I would come to that issue with a completely open mind,” she said.
More than 30 public witnesses testified before the panel, quickly marched through the paces over less than seven hours with only a few senators present at any time. The leadoff witness was Mary Boies, representing the American Bar Association’s Standing Committee on the Federal Judiciary, which voted unanimously to rate Sotomayor as “well qualified” for the Supreme Court. The committee said it found no substance to criticisms of her temperament and dismissed criticism of her opinions as “lengthy” and “less than imaginative” as focused on “writing style, not substance.”
Among other witnesses, representatives of minority bar groups, traditional civil rights organizations, and law enforcement praised Sotomayor. Critics included gun rights and victim rights advocates, an anti-abortion leader, and several opponents of racial preferences.
The Democratic-controlled Judiciary Committee scheduled a meeting on Sotomayor’s confirmation for Tuesday (July 21) some seven hours after the panel’s ranking Republican, Alabama’s Jeff Sessions, declared he would oppose any delaying tactics by the GOP and hoped for a floor vote before the Senate breaks for its August recess. Republicans may still ask for a week's delay in the committee vote, however, to allow time to review Sotomayor's written answers to questions submitted during the hearing.
With Democrats holding a 60-vote majority, Sotomayor’s confirmation has been a foregone conclusion almost since Obama chose her in late May to succeed retiring Justice David H. Souter. But Sessions’ assurance now means that Sotomayor will join the court in time for the Sept. 9 reargument of an important campaign finance case testing the constitutionality of laws restricting corporate and union expenditures on political campaigns.
Sotomayor ended more than 15 hours on the witness stand around 1 o’clock on Thursday after gaining qualified endorsements of her judicial record from two GOP senators. South Carolina’s Lindsey Graham and Texas’s John Cornyn both repeated criticisms of Sotomayor’s speeches discussing the role of race and gender in judicial decision-making, but expressly stepped away from any broad criticism of her record in 17 years on the bench, including the past decade on the Second U.S. Circuit Court of Appeals.
“Your record as a judge has not been radical,” Graham said. Later, he added, “You have as a judge been generally in the mainstream.” In his turn, Cornyn also described Sotomayor’s opinions as “mainstream.”
To a man, the committee’s seven Republicans also had nothing but praise for Sotomayor’s patience and self-control under their generally critical questioning on, among other issues, unfavorable evaluations of her temperament on the bench.
Only once did Sotomayor appear visibly to be disturbed by a question. The exchange came on Thursday when Sessions asked whether she had displayed “a lack of courage” in ruling on the New Haven firefighters’ reverse discrimination suit in a summary decision without a full written opinion by the three-judge panel.
“No, I didn’t show a lack of courage,” Sotomayor said, her voice firm and her visage stern. She called the appeals court’s decision, a one-paragraph adoption of the district court’s opinion, “a thorough, complete discussion” and then repeated: “No, I did not lack courage.”
After Sotomayor ended her testimony and left the hearing room, two of the plaintiffs in the case, Ricci v. DeStefano, criticized the appeals court’s decision as well as the procedure. Ben Vargas, the only Hispanic among the 18 white plaintiffs, said the group was “devastated” by the one-paragraph decision.
The firefighters went to court after the civil service board scrapped the results of a promotions exam because no African Americans scored high enough to qualify for immediate appointments. The suit, Frank Ricci explained, was aimed at ensuring “our right to advance in our profession based on merit regardless of race.”
The Supreme Court sustained the firefighters’ suit in a 5-4 decision on June 29. Sotomayor repeatedly told senators the appeals court’s decision was dictated by Second Circuit precedent. Republican senators continued on Thursday to challenge the point.
GOP senators also tried again, but again without success, to press Sotomayor for more specific views on abortion, gun rights and gay marriage. But Sotomayor was more emphatic than she had been on Wednesday in promising that she has an open mind on two of those issues, gun rights and gay marriage, that are likely to come before the Supreme Court in the near future.
The court is currently being asked to review a decision by the Seventh Circuit Court of Appeals that declined to apply the Second Amendment to state and local gun control laws. The Supreme Court’s 2008 decision in District of Columbia v. Heller recognized an individual right to possession of a handgun in the home, but the ruling applied only to the federal government.
Sotomayor joined a Second Circuit ruling that, like the Seventh Circuit in a Chicago case, said the issue of “incorporating” the Second Amendment right to the states was for the high court to decide. Despite the ruling, Sotomayor said she has “a completely open mind” on the question. “I understand the importance of the right,” she added, “and all I can say is I keep an open mind on the incorporation doctrine.”
Sotomayor gave similar assurance when asked about recognizing a constitutional right to marriage for same-sex couples. “I would come to that issue with a completely open mind,” she said.
More than 30 public witnesses testified before the panel, quickly marched through the paces over less than seven hours with only a few senators present at any time. The leadoff witness was Mary Boies, representing the American Bar Association’s Standing Committee on the Federal Judiciary, which voted unanimously to rate Sotomayor as “well qualified” for the Supreme Court. The committee said it found no substance to criticisms of her temperament and dismissed criticism of her opinions as “lengthy” and “less than imaginative” as focused on “writing style, not substance.”
Among other witnesses, representatives of minority bar groups, traditional civil rights organizations, and law enforcement praised Sotomayor. Critics included gun rights and victim rights advocates, an anti-abortion leader, and several opponents of racial preferences.
Wednesday, July 15, 2009
GOP Senators Step Up Criticism of Sotomayor Testimony
Supreme Court nominee Sonia Sotomayor’s second full day of reaffirming her commitment to objectivity while giving few clues about her views on disputed legal issues drew sharp criticism from Republican senators Wednesday but no complaints from Democrats.
Judiciary Committee Republicans made their sharpest criticism to date of Sotomayor after questioning her again about the “wise Latina” speech and unsuccessfully trying to pin her down on abortion and gun rights. Sen. Jeff Sessions of Alabama, the committee’s ranking Republican, told reporters that the veteran federal judge had been “muddled, confusing, backtracking on issue after issue.”
Sen. John Cornyn, R-Texas, was similarly critical after using most of his allotted time to dissecting the now infamous 2001 campus speech comparing potential decisions by a “wise Latina judge” to those of a white man. “We’re asking about speeches,” Cornyn told reporters, “and we’re not getting very good answers.”
To Cornyn, Sotomayor again backed away from her comments, insisting that they had been misunderstood. “My words failed,” Sotomayor said. “They didn’t work.” She reaffirmed her description of the remark on Tuesday as “a rhetorical flourish that fell flat.”
Both Cornyn and Sen. Tom Coburn, R-Okla., also pressed Sotomayor for views on abortion issues, but got little by way of new information. To Cornyn, Sotomayor denied telling the White House anything about her views on abortion before President Obama nominated her for the high court in late May. “I was asked no questions by anyone including the president about my views on any specific issue,” Sotomayor said.
Cornyn cited a post-nomination Washington Post story describing unidentified White House advisers as assuring advocacy groups that Sotomayor will support abortion rights on the court. The story also quoted a former partner of Sotomayor in private law practice as saying she supports abortion rights.
Sotomayor answered that she had never discussed her personal views about abortion with the colleague. She also noted that she had joined in a ruling to uphold the Bush administration’s so-called “Mexico City” policy, which denied federal funding to groups that provide abortion services overseas.
To Coburn, Sotomayor repeated a summary of the Supreme Court’s Planned Parenthood v. Casey decision as protecting a woman’s “constitutional right to terminate a pregnancy in certain circumstances” with state regulations permitted if they did not impose an “undue burden” on that right. But she declined to give a specific answer to Coburn’s question whether a woman could have an abortion in the 38th week of pregnancy if the fetus was determined to have spinal bifida. “I can’t answer that question in the abstract,” Sotomayor said.
Coburn, an obstetrician, also got no direct answer when he asked whether the definition of viability in abortion decisions should change as technology enables survival of fetuses as early as the twenty-first week of pregnancy. “That’s not a question that a court reaches out to answer,” Sotomayor said.
Sotomayor also declined to give a direct answer to Coburn’s question whether a citizen has a constitutional right to self-defense. And she again defended her part in a recent decision declining to extend the Supreme Court’s gun-rights decision, District of Columbia v. Heller, to state and local governments.
“I was applying both Supreme Court precedent and Second Circuit precedent that has said it’s not incorporated,” Sotomayor said. “It’s not what I believe,” she added. “It’s what the law has said about it.”
Outside the hearing, Sessions said he was “troubled” by the answer. “She flatly stated that [the right to bear arms] is not a fundamental right,” Sessions said.
Later, Sessions also pressed Sotomayor on her role before appointment to the bench as a board member with the group now known as LatinoJustice PRLDEF. For a second day, Sotomayor generally minimized her direct knowledge of the group’s litigation, including one case seeking to compel the state of New York to provide Medicaid funding for abortion for poor women.
Sessions was openly incredulous, telling Sotomayor that it appeared she was “more active than you suggested” in the previous day’s answer. At day’s end, Sessions said, “I remain baffled.”
Under questioning from Republican Charles Grassley of Iowa, Sotomayor cited judicial ethics rules to avoid any answer about same-sex marriage or the constitutionality of the federal Defense of Marriage Act. Grassley pointed to a 1972 Supreme Court decision, Baker v. Nelson, dismissing a same-sex marriage suit for “lack of a substantial federal question.”
When Sotomayor declined to give a view, Grassley noted that the judge had pledged support for precedent on many other issues. “Why are you hedging on this?” he asked. Sotomayor refused to budge.
Democratic senators also got no direct answers on their, friendlier questions, which covered topics ranging from privacy and criminal law to environmental and financial regulation. At the lunch break, committee chairman Patrick Leahy of Vermont acknowledged that his mind was “periodically” drifting as the junior-most of the panel’s 12 Democrats were getting their turn to question Sotomayor.
But Leahy, who has participated in confirmation hearings since Justice John Paul Stevens’ questioning in 1975, forcefully disagreed with the Republican critique of Sotomayor’s testimony. “I can’t think of any woman who has answered more questions in depth,” Leahy said.
The hearing resumes at 9:30 a.m. Thursday. “There are a lot of questions still to be asked,” Sessions told reporters.
Judiciary Committee Republicans made their sharpest criticism to date of Sotomayor after questioning her again about the “wise Latina” speech and unsuccessfully trying to pin her down on abortion and gun rights. Sen. Jeff Sessions of Alabama, the committee’s ranking Republican, told reporters that the veteran federal judge had been “muddled, confusing, backtracking on issue after issue.”
Sen. John Cornyn, R-Texas, was similarly critical after using most of his allotted time to dissecting the now infamous 2001 campus speech comparing potential decisions by a “wise Latina judge” to those of a white man. “We’re asking about speeches,” Cornyn told reporters, “and we’re not getting very good answers.”
To Cornyn, Sotomayor again backed away from her comments, insisting that they had been misunderstood. “My words failed,” Sotomayor said. “They didn’t work.” She reaffirmed her description of the remark on Tuesday as “a rhetorical flourish that fell flat.”
Both Cornyn and Sen. Tom Coburn, R-Okla., also pressed Sotomayor for views on abortion issues, but got little by way of new information. To Cornyn, Sotomayor denied telling the White House anything about her views on abortion before President Obama nominated her for the high court in late May. “I was asked no questions by anyone including the president about my views on any specific issue,” Sotomayor said.
Cornyn cited a post-nomination Washington Post story describing unidentified White House advisers as assuring advocacy groups that Sotomayor will support abortion rights on the court. The story also quoted a former partner of Sotomayor in private law practice as saying she supports abortion rights.
Sotomayor answered that she had never discussed her personal views about abortion with the colleague. She also noted that she had joined in a ruling to uphold the Bush administration’s so-called “Mexico City” policy, which denied federal funding to groups that provide abortion services overseas.
To Coburn, Sotomayor repeated a summary of the Supreme Court’s Planned Parenthood v. Casey decision as protecting a woman’s “constitutional right to terminate a pregnancy in certain circumstances” with state regulations permitted if they did not impose an “undue burden” on that right. But she declined to give a specific answer to Coburn’s question whether a woman could have an abortion in the 38th week of pregnancy if the fetus was determined to have spinal bifida. “I can’t answer that question in the abstract,” Sotomayor said.
Coburn, an obstetrician, also got no direct answer when he asked whether the definition of viability in abortion decisions should change as technology enables survival of fetuses as early as the twenty-first week of pregnancy. “That’s not a question that a court reaches out to answer,” Sotomayor said.
Sotomayor also declined to give a direct answer to Coburn’s question whether a citizen has a constitutional right to self-defense. And she again defended her part in a recent decision declining to extend the Supreme Court’s gun-rights decision, District of Columbia v. Heller, to state and local governments.
“I was applying both Supreme Court precedent and Second Circuit precedent that has said it’s not incorporated,” Sotomayor said. “It’s not what I believe,” she added. “It’s what the law has said about it.”
Outside the hearing, Sessions said he was “troubled” by the answer. “She flatly stated that [the right to bear arms] is not a fundamental right,” Sessions said.
Later, Sessions also pressed Sotomayor on her role before appointment to the bench as a board member with the group now known as LatinoJustice PRLDEF. For a second day, Sotomayor generally minimized her direct knowledge of the group’s litigation, including one case seeking to compel the state of New York to provide Medicaid funding for abortion for poor women.
Sessions was openly incredulous, telling Sotomayor that it appeared she was “more active than you suggested” in the previous day’s answer. At day’s end, Sessions said, “I remain baffled.”
Under questioning from Republican Charles Grassley of Iowa, Sotomayor cited judicial ethics rules to avoid any answer about same-sex marriage or the constitutionality of the federal Defense of Marriage Act. Grassley pointed to a 1972 Supreme Court decision, Baker v. Nelson, dismissing a same-sex marriage suit for “lack of a substantial federal question.”
When Sotomayor declined to give a view, Grassley noted that the judge had pledged support for precedent on many other issues. “Why are you hedging on this?” he asked. Sotomayor refused to budge.
Democratic senators also got no direct answers on their, friendlier questions, which covered topics ranging from privacy and criminal law to environmental and financial regulation. At the lunch break, committee chairman Patrick Leahy of Vermont acknowledged that his mind was “periodically” drifting as the junior-most of the panel’s 12 Democrats were getting their turn to question Sotomayor.
But Leahy, who has participated in confirmation hearings since Justice John Paul Stevens’ questioning in 1975, forcefully disagreed with the Republican critique of Sotomayor’s testimony. “I can’t think of any woman who has answered more questions in depth,” Leahy said.
The hearing resumes at 9:30 a.m. Thursday. “There are a lot of questions still to be asked,” Sessions told reporters.
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