Thursday, June 11, 2009

Rosen Writes on Race and Sotomayor

Jeffrey Rosen's first analysis of Supreme Court nominee Sonia Sotomayor sparked very heated responses. I described his article as a "hatchet job," and many other bloggers and media joined the fray. Rosen subsequently distanced himself from the original essay.

Now, Rosen has shifted gears -- mirroring a evolving approach by Republicans who oppose Sotomayor. Rosen's latest work on Sotomayor analyzes her views on "race" and "gender," rather than her purported intellectual shortcomings and temperament. In a Time article, "Where Sonia Sotomayor Really Stands on Race," Rosen primarily examines matters that have already received a tremendous amount of airplay. For example, he discusses the Second Circuit ruling in Ricci v. DeStefano, a speech Sotomayor delivered at the University of California at Berkeley, and a SCOTUS blog analysis of the numerous race cases Sotomayor has decided. Based on this review, Rosen concludes that:
An examination of Sotomayor's career supports the idea that on the bench, she has been a racial moderate, not a radical. At the same time, her opinions and speeches suggest that her views about race, multiculturalism and identity politics are more nuanced, complex and provocative than either her critics or her supporters have allowed. And for that reason, if confirmed, she could influence the racially charged issues the Supreme Court will confront over the next few decades in unexpected ways.
I agree with this conclusion. Nothing in the cases Sotomayor has decided or the speeches she has delivered suggests that she is a radical on issues of race. Instead, Sotomayor exhibits nuance -- a claim I made weeks ago after reviewing the entirety of her Berkeley talk. Accordingly, I am glad to see Rosen approach the issue with the complexity that Sotomayor (and the public) deserves.

One-Sided Analysis of O'Connor and Ginsburg Position on Gender
Despite my general approval of his new article, there are a few moments where Rosen's analysis lacks depth. For example, Rosen, like many other commentators, cites quotations by Justice Ginsburg and Justice O'Connor which suggest that these two women view gender as irrelevant to judging and to law. Rosen's use of these comments, however, distorts the complexity of Ginsburg's and Sotomayor's views on the subject of identity and judging.

As I have argued several times on this blog, Ginsburg and O'Connor have made statements in judicial opinions that contradict the "gender neutral" quotations that Sotomayor's detractors frequently cite. For example, in J.E.B. v. Alabama, Justice O'Connor agreed that prosecutors could not use peremptory challenges to exclude potential jurors based on sex. O'Connor, however, wrote separately to emphasize that gender remains relevant in law:
We know that like race, gender matters. . . . [O]ne need not be a sexist to share the intuition that in certain cases a person's gender and resulting life experience will be relevant to his or her view of the case. . . .Individuals are not expected to ignore as jurors what they know as men--or women. . . .

[T]o say that gender makes no difference as a matter of law is not to say that gender makes no difference as a matter of fact. I previously have said [the same thing about race]. . . .Though we gain much from this [ruling], we cannot ignore what we lose. [W]e have added an additional burden to the state and federal trial process, taken a step closer to eliminating the peremptory challenge, and diminished the ability of litigants to act on sometimes accurate gender based assumptions about juror attitudes.
O'Connor also urged the Court not to extend J.E.B. to private lawyers because she wanted them to have the opportunity to maximize the number of women on juries for cases raising issues such as sexual harassment.

Furthermore, in Grutter v. Bollinger, O'Connor wrote the lead opinion which held that the University of Michigan law school had a compelling reason for wanting racial diversity: enhancing "viewpoint" diversity and the robust exchange of ideas in the classroom. O'Connor's opinions in J.E.B. and Grutter discredit the idea that she does not believe that race and sex matter. Rosen and others who continue to hold O'Connor (and Ginsburg) out as women who discount gender's relevance have failed to interrogate arguments that undermine their simplistic portrayals (on Ginsburg, see: Sotomayor's Opponents Apply Racial and Gendered Double-Standard).

Analysis of Death Penalty and Race
Rosen also contends that Sotomayor's position on race and the death penalty could impact future caselaw. Apparently, Sotomayor linked the death penalty with racism while she was a prosecutor for the State of New York. Rosen asserts that: "The court rejected that claim in 1987, but Sotomayor might be sympathetic to it." This statement, however, simplifies the Court's highly criticized 1987 ruling in McCleskey v. Kemp (which I have discussed on this blog). In McCleskey, a closely divided (5-4) Court rejected the petitioner's argument that Georgia applied the death penalty in a racially discriminatory fashion. Even if the "sophisticated" statistical analysis McCleskey introduced into evidence proved a racial correlation, he did not show in his own case that race mattered, nor could he demonstrate that Georgia maintained the death penalty because it wanted the racial patterns to occur.

Four justices, however, dissented from the majority opinion. Also, after he retired, Justice Powell, who wrote the majority ruling, listed McCleskey as a decision he "regretted." If Powell had changed his mind earlier, a majority of the Court would have concluded that racism impacted application of the Georgia death penalty.

Rosen should also consider the position of Justice Scalia, who voted with the majority in McCleskey. Although he sided with Georgia, Scalia wrote a memorandum to the other justices prior to the ruling in which he conceded that jurors and prosecutors operate on arbitrary biases like race. Scalia, however, says that this fact is "ineradicable," and he votes to reject McCleskey's claim -- despite his own statement that he needs no additional "proof" regarding the operation of race among jurors and prosecutors. If Scalia had voted in a manner that followed the logic of his memorandum and if Powell had changed his mind earlier, then a 6-3 majority would have agreed with Sotomayor. Brennan and Marshall, who dissented, opposed the death penalty altogether.

Sotomayor's feelings about the death penalty are not extraordinary, relative to the views of other justices. Much of the analysis of Sotomayor, however, decontextualizes her comments by failing to consider the breadth of her work and by failing to consider strikingly similar commentary by other judges.

Finally, the weight of academic literature, government studies, and even Supreme Court rulings on the death penalty supports Sotomayor's conclusion. In 1990, the General Accounting Office conducted an extensive analysis of existing studies on the death penalty. After eliminating unreliable studies and controlling for nonracial factors, the GAO found a pervasive pattern of race-based application of the death penalty -- particularly in the instance of a white victim. This bias sends more whites than blacks to the death chambers (because most murders are intraracial), but it legitimizes Sotomayor's view of the death penalty. The most racist aspect of the death penalty is the lack of empathy for black murder victims. McCleskey's study showed the same pattern.

Between 1930 and the early 1970s, almost 90 percent of the individuals executed for rape were black men, and all of the victims were white. This number is unexplainable on grounds other than race, particularly given the intraracial nature of rape. The Supreme Court invalidated the death penalty for rape in 1977, on the grounds that it was a disproportionate punishment for a crime that fell short of murder. Nevertheless, in other cases, members of the Court have cited to the race and rape statistics in order to contest the lawfulness of the death penalty.

Although Rosen's latest effort on Sotomayor improves upon his initial analysis, he fails to offer sufficient context in some places. Alas, he is certainly not alone on this issue.


liberal dissent said...

I have to disagree on the issue regarding the "better than" statement in her Berkeley speech; that statement is definitely a radical one. The fact that her judicial opinions don't exhibit this kind thinking is what puzzles me, precisely because it is so out of place with everything else she's said either on the bench or off, including the rest of the speech in which she said it.

Anonymous said...

Rosen never distanced himself from his original essay, and the people in the know say that his original analysis was right on the money, no one just wants to offend Sotomayor becase she is a woman of color.

liberal dissent said...

Do you think a vague reference "people in the know" is going to convince anyone at all?

Darren Lenard Hutchinson said...

Anonymous, you are WRONG. Rosen pulls back his comments in a second article on Sotomayor - even saying that the title (The Case Against Sotomayor) was an unfortunate choice by editors. Later, on a New Republic blog, he castigated Republicans who cited his article as evidence that Sotomayor was unfit for the Supreme Court. And then he reiterated this them on NPR - and vowed never to blog again, due to the "confusion" his article created.

Finally, people have absolutely no difficulty criticizing people of color. But if they do so, they need to support their observations. Whisper campaigns smack of prejudice. If "people in the know" have a point- they should make it.

Liberal dissent: I feel that you are falling prey to the "taking it out of context" problem. All this statement says is that on some issues (like discrimination) people who have lived the experience will probably have greater insight than others. I do not believe that is a radical concept. This does not mean that others cannot make the "right" decision (what is "right" anyway?). When the issue of "diversity" comes up in constitutional law, I always ask my students to consider whether the evolution in law related to race, gender and sexual orientation would have occurred without the involvement of persons from those groups in the political and legal process. Usually they "get" it after that line of discussion. The presence of women in the legal profession as judges, lawyers and law professors has dramatically reshaped theory and the actually policies related to gender discrimination, including issues like sexual harassment (which was not even recognized as a form of discrimination until feminist scholars wrote about it). Women legal scholars also contributed to evolution of "domestic violence" law, rape law (especially the implementation of "rape shield" laws -- which exclude a woman's sexual history as a defense to rape), and other issues. On this issue, I agree: women did a BETTER job than men illuminating the problem of sexism. Does this mean that men cannot read these materials and reach the right decision? No! But without women as lawyers and judges, the volume of material on this subject would be a lot weaker (hence: not better than it currently is). This is not controversial. This is reality.

Darren Lenard Hutchinson said...

Liberal dissent: "People in the know" was exactly the problem with Rosen's first article! It looked like a "whisper campaign" rather than true analysis.

liberal dissent said...

She didn't qualify her remarks as pertaining solely to cases involving say, prejudice or sexism, though. The problem I have with the statement, beyond the discomfort over someone theorizing that a certain cultural background makes one wiser, is that it's just plain wrong. Sotomayor's own history of rulings shows that I think. I honestly believe that O'Connor (or whoever actually said it) was right when they said a wise old man and a wise old woman will come to the same decisions.

Besides which, once you start down this road of thinking it becomes too easy to rank and segregate each justice based on their background. Would a white, male judge who has children be "wiser" when it comes to deciding legal issues involving children than Sotomayor, who does not have any? Would someone who faced even worse poverty and racism than Sotomayor come to better decisions than her? Obviously I wouldn't think so, and I don't think Sotomayor would either.

I won't argue that our country's body of law is stronger for the collective presence of female jurists, I just don't think that on an individual level I would impart some special wisdom to judge of some specific background or another. Once the legal philosophies is out there, I don't think a female judge would necessarily do a better job of incorporating it into precedential opinion.

On one tangent, by the way, while I think our legal system is stronger for rape shield laws and sexual discrimination laws, I think there has been a tendency to extend the law too far on both of these in certain circumstances. I am thinking especially of FRE 413 (making admissible "Evidence of Similar Crimes in Sexual Assault Cases") and some sexual harassment opinions I've read that have contorted Title VII beyond common sense.

Darren Lenard Hutchinson said...

Liberal Dissent - I could not help but laughing when I saw you do the same thing Rosen did - citing to O'Connor's "wise man" language without citing to her discussion of gender in JEB. Please look that over and then tell me what you think.

Second, if you draw the statement out of context, it appears that her comment is unqualified, but that is absolutely untrue. This part of the discussion concerned a conversation she had with Judge Cederbaum. Cederbaum mentioned that white male judges presided over civil rights and women's equality cases. Sotomayor first responded by noting that the litigation strategies and legal theories were devised by women and persons of color. She also cited to studies which show that women judges differ from male judges in cases involving gender issues (like sexual harassment). And she concludes with the "wiser" comment. If you fail to read the article completely, it's easy to portray the comment as radical. Reading the entire article, however, makes this conclusion unsupportable.

I also reject the "ranking" and "segregating" argument. My background certainly influences the way I view the law. My colleagues are also shaped by their own experiences. BUT that does not mean that we cannot learn from each other and listen to empircal data and research. Because everyone comes out of "experiences" no ranking needs to occur.

Finally, I do not believe that the evidence rule you discuss is a product of feminism -- or a product of "experience." Are you referring to the rule that relaxing the prior bad acts exclusion for child sexual offenders? This was simply politics (even though those crimes have high rates of recidivism).

Darren Lenard Hutchinson said...

Liberal Dissent: Read the passages following the "wise" comment. They certainly qualify, explain and add nuance to the comment.

Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case. I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown.

However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Other simply do not care. Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.

The passage preceding the comment does so as well:

In our private conversations, Judge Cedarbaum has pointed out to me that seminal decisions in race and sex discrimination cases have come from Supreme Courts composed exclusively of white males. I agree that this is significant but I also choose to emphasize that the people who argued those cases before the Supreme Court which changed the legal landscape ultimately were largely people of color and women. I recall that Justice Thurgood Marshall, Judge Connie Baker Motley, the first black woman appointed to the federal bench, and others of the NAACP argued Brown v. Board of Education. Similarly, Justice Ginsburg, with other women attorneys, was instrumental in advocating and convincing the Court that equality of work required equality in terms and conditions of employment.

Anonymous said...

The following is an exerpt from the Rosen's follow up piece on SS. As you can see, Rosen clearly doesn't distance himself from the article(though he does say that the headlne was too provocative). In his view, the people (read Greenwald) badly mischaractarizedhis argument. Just read it.

I've just returned from London to find that my piece on Sonia Sotomayor has provoked an energetic response in the blogosphere.
Many people have mischaracterized my argument, and I can understand why. The headline--"The Case Against Sotomayor"--promised something much stronger than I intended to deliver. As soon as the piece was published, I regretted the headline, which I hadn't seen in advance. The piece was not meant to be a definitive "case against" Judge Sotomayor's candidacy. It was intended to convey questions about her judicial temperament that sources had expressed to me in the preceding weeks. That's why I concluded the piece not by suggesting that Sotomayor was unqualified for the Supreme Court, but by suggesting that "given the stakes, the president should obviously satisfy himself that he has a complete picture before taking a gamble."

liberal dissent said...

I have read over her opinion in J.E.B. and I still don't see in there anything analogous to the "better decision" line of Sotomayor's. O'Connor mentions that one's background will inform a juror's decisions, offering as an example the fact that women are more likely to convict than men in a rape case. O'Connor doesn't say that women will more properly convict than men, just that they are more likely to.

No ranking needs, or should, occur, that's why I don't like Sotomayor's comment. I have read her speech as a whole and I don't read it quite the same way as you do. Her analysis of the O'Connor line and her proffer of her own views on it seem to me to be out of left field, and while it flows from the Cederbaum part of the discussion, it is not really a part of it. She's saying "My background is going to effect how I rule--and it's going to make me better at my job than that other guy." I have no problem with her words AFTER she says that line. They just aren't consistent with her "better" one.

FRE 413 allows prior evidence of bad acts in cases of sexual assault against anyone. I was under the impression that its origin at least lies partially in feminist legal theory (though I know it has been criticized by feminist legal theorists), but I don't have the academic resources to track down any specific articles. I do know FRE 413 was enacted through the Violent Crime Control and Law Enforcement Act of 1994, which also enacted the Violence Against Women Act which had very strong support from feminist organizations. Obviously it was mainly a political act (and the recidivism rate for sex crimes is lower than a lot of other crimes, so I think that was mainly a political cover).

Darren Lenard Hutchinson said...

Anonymous: Rosen's initial argument billed itself as a "case against Sotomayor." His second article pulls back from this claim and he blames his editors for the title. He also says that Winter's footnote was unclear -- even though he intially portrayed it as a clear indictment of Sotomayor. In a New Republic blog, Rosen later chides conservatives for using his article to oppose Sotomayor. Rosen says he was only concerned with her temperament and having a strong liberal powerhouse on the Court, but that he felt she was otherwise qualified. Finally, on NPR he says he'll get out of the "blogging" business altogether (due to the flap). Sorry, but that is backing away from the article. But there's nothing wrong with that. People should restate their positions once they have been discredited.

Darren Lenard Hutchinson said...

Liberal dissent: I find your position intriguing -- and unsupportable -- that O'Connor takes a neutral position on the issue of a juror's sex on gender-related cases. Even if she simply wanted "diversity" of ideas, this goes against the conservative rhetoric which discounts gender altogether. Also, it does not take much "thinking" to conclude that O'Connor believed that women's experiences would lead them to a better conclusion; otherwise, she would not have advocated limiting the JEB standard to prosecutors. Her concern is with gender-based state action -- not eradicating gender altogether. Clearly, she believed the substantive outcome in cases are qualitatively different with gender diversity--not different in the negative sense, but in a better direction.

Also, you questioned the relationship between identity categories and viewpoints altogether, using O'Connor's "wise" man commmentary. Her JEB concurrence goes against the notion that gender is socially irrelevant.

Finally, and this will have to be a matter of "perspective," I simply think you put too much weight on the sole word "better." Perhaps it seems disjointed to you because you are misreading that single sentence.

liberal dissent said...

I read J.E.B. a little differently, too. I am not sure why you think that O'Connor's belief that a criminal defendant should be able to peremptorily challenge jurors based on sex but prosecutors shouldn't, somehow supports the idea that she thinks a female jury would come to a "better conclusion". In fact, you could argue the opposite; she uses as an example that female jurors are more likely to convict in a rape trial. Extrapolating this, she seems to believe that the male defendant in a rape trial should have the right to exclude female jurors, but a prosecutor shouldn't be allowed to exclude males.

And even if she did believe a female jury could come to a better decision than a male one, a) she might just be holding judges to a higher standard than jurors, or b) is just being inconsistent--O'Connor was not a justice known for her consistency (for example, her decisions in Bowers v. Hardwick and Lawrence v. Texas).

And it's not just the word "better." She spends a good chunk of the speech talking about her experiences in growing up latina. She then attributes this "better" decision to a latina's experiences. I still am not sure what she means; is she saying that one person's culture provides some greater wisdom than another's? I reject that.

Obviously if you think that she was referring solely to discrimination cases we're starting out with different assumptions, so arguing probably won't get us anywhere. I still find that one section of the speech disturbing.

Darren Lenard Hutchinson said...

It makes little sense to "hold judges to a higher standard" than jurors when Court doctrine does not allow judges to overrule jurors - unless some very outlandish thing has occurred among jurors. This was the basis for cases like McCleskey and it is the reason why most efforts to appeal convictions result in losses for defendants. If judges accept -- and encourage -- juror bias (you never relected on Scalia, by the way), then they are accepting that the law itself is biased. This is not a less "disturbing" situation than Sotomayor's "better" comment. In fact, I think it is even worse. Her words were in an essay, not a court opinion.

Finally, O'Connor was actually very consistent in Bowers and Lawrence. Bowers and Lawerence were both Due Process cases. O'Connor joined the majority in Bowers. In Lawrence, however, she concurred in a separate opinion and argued that the case should have been decided on Equal Protection grounds. Accordingly, she did not vote to overrule Bowers. Having said that, she is "inconsistent," or nuanced. I also believe Sotomayor is, which is why the word "better" does not unnerve me. If you view her opinions, the full article, the way she qualifies and contextualizes her arguments, then it is difficult to feel threatened by the statement. But I will agree to disagree.

Anonymous said...

'The most racist aspect of the death penalty is the lack of empathy for black murder victims.'

If you care about black murder victims, given an intraracial nature of murder, you should be the staunchest supporter of death penalty.

Darren Lenard Hutchinson said...

Anonymous: Although I disagree with the death penalty, I could accept equal application of it. I am a staunch supporter of equality - not the death penalty.

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