Sunday, May 31, 2009
Ted Olson and David Boies Are Either: Ignorant About Gay Rights Litigation, Trying to Sabotage Same-Sex Marriage, Or Are Arrogant Heterosexuals
Gay rights groups have generally condemned the litigators' decision to file a federal lawsuit, arguing that working with state legislatures and in state courts is the most promising path. I agree with this, and I have recently written an article on this same subject that is a forthcoming publication in the Connecticut Law Review (Connecticut recognizes same-sex marriage after a court ruling).
Over the last twenty years, the GLBT rights movement has made significant progress. The Supreme Court has issued two rulings that favor GLBT rights, but these decisions came after years of work in state and local governments, courts, and human rights commissions and with corporations. These efforts significantly altered the legal status quo with respect to sexual orientation.
GLBT groups learned an important lesson about "timing" and "venue" after suffering major defeats in the 1980s and early 1990s. After experiencing setbacks with the Supreme Court's blatantly homophobic ruling in Bowers v. Hardwick (which upheld Georgia's anti-sodomy law) and in several lower court cases challenging the military's discriminatory policy, GLBT activists embraced a strategy that pursued change at the local level and subsequently in federal courts. That strategy, culminating with rulings in Romer v. Evans and Lawrence v. Texas, proved highly successful.
Today, marriage equality advocates have pursued the same strategy, and they are currently achieving more success than any other progressive social movement. The only litigation in the federal system brought by seasoned GLBT rights activists center around benefits and employment, which are "safer" issues than marriage (especially in a poor economy). Given the level of public opposition to same-sex marriage, the current ideological composition of the Supreme Court, and the embryonic nature of same-sex marriage in the states, it is highly unlikely that the Supreme Court would rule in favor of plaintiffs claiming a constitutional right to same-sex marriage. Boies and Olson are playing with fire.
Despite the attendant risks of the lawsuit and the complaints from GLBT rights groups, Boies and Olson are determined to go all the way to the Supreme Court, if necessary. While the title of this blog entry may strike readers as being a bit melodramatic, I stand by it wholeheartedly. Bringing this litigation proves that Olson and Boies are either ignorant of the history of gay rights litigation, trying to sabotage same-sex marriage, or are arrogant heterosexuals who believe that they know more about this issue that experienced GLBT rights activists. Pick your poison, men.
PS: Another option: Boies and Olson are best friends with Justice Kennedy, and he told them that he is "down" with the cause!
Today, Senator Lindsay Graham joined the theatrics and has demanded that Sotomayor apologize for the comment, saying that it calls into question her objectivity. Graham's demand for an apology, however, raises concerns about his own ability to read or to conduct research. The SCOTUS blog has published an empirical study of all of the race cases that Sotomayor decided as a judge, and there is absolutely no evidence which demonstrates that she lacks objectivity. In fact, in one case, she cast a dissenting vote arguing to save the job of a racist white cop. But Sotomayor's opposition is undaunted by facts.
Sotomayor versus Rehnquist and Scalia
I find it odd that conservatives have as sudden concern that judges might exhibit racial biases. The late Chief Justice Rehnquist and Justice Scalia, for example, have a history of voting against persons of color and in favor of whites in racial discrimination cases, but they have never received the same level of scorn from conservatives.
Prior to joining the Supreme Court and before he became elevated to Chief Justice, Rehnquist made many horrible statements about race. For example, he was a law clerk for Justice Jackson when Brown v. Board of Education was pending. Rehnquist wrote a memorandum in which he urged the judge to confirm the "separate but equal" ruling in Plessy v. Ferguson -- the case that legitimized Jim Crow and segregation. Rehnquist denied that the memorandum expressed his own viewpoints, although Jackson voted with the Brown majority. Jackson's administrative assistant also offered sworn testimony in which she stated that Jackson's law clerks always wrote memos that advised the judge how to decide cases, rather than summarizing the judge's own viewpoints (her testimony describes the role of most law clerks across the nation).
Rehnquist also wrote two additional memos for Jackson that urged him to rule against blacks who sued the Democratic Party to challenge its "White Primaries" in Texas. The Democratic Party argued that as a "private" organization, it was not bound by the Constitution. Rehnquist agreed and asserted that:
The Constitution does not prevent the majority from banding together, nor does it attaint success in the effort. It is about time the Court faced the fact that the white people of the south don’t like the colored people; the constitution restrains them from effecting thru (sic) state action but it most assuredly did not appoint the Court as a sociological watchdog to rear up every time private discrimination raises its admittedly ugly head.Rehnquist's argument mirrors the Supreme Court's logic in Plessy and in the Civil Rights Cases (a 19th Century case that struck down a federal law banning racial discrimination in places of public accommodation).
Before he became a judge, Rehnquist also opposed a Phoenix, Arizona ordinance banning racial discrimination in local places of public accommodation (hotels, restaurants, etc.). Furthermore, while he was an Attorney General in the Nixon administration, he proposed a constitutional amendment that would have banned "busing" in order to achieve school desegregation.
Despite his "nasty" and clearly racist rhetoric, Rehnquist was confirmed as an Associate Justice and later as Chief Justice. It is not surprising that in most race cases he decided, Rehnquist voted against persons of color and in favor of whites.
Justice Scalia did not have the pronounced record on race that Rehnquist had prior to becming a judge, but his voting record is nearly identical, if not more conservative. One of the most striking racial moments for Justice Scalia involved a case regarding the death penalty. I wrote about this case and Scalia's views on race in an earlier blog post, which I will now quote:
In McCleskey v. Kemp, the Court rejected a constitutional challenge to the Georgia death penalty. A study showed that race strongly impacted prosecutors' decisions to seek the death penalty and jurors' decisions to impose it. . . .Scalia, like Rehnquist, argued that the Court needed to just get with the program about race: whites just operate on racial bias, and there is nothing the Court can do about it.
The majority found that, notwithstanding the study, McCleskey failed to prove discrimination in his particular case. Scalia voted with the majority, but he wrote a memorandum to the other justices in which he expresses a far more fatalistic view of race-based decision making than Sotomayor embraces in her speech:Since it is my view that the unconscious operation of irrational sympathies and antipathies, including racial, upon jury decisions and (hence) prosecutorial decisions is real, acknowledged in the decisions of this court, and ineradicable, I cannot say that all I need is more proof.Sotomayor, like Scalia, believes that race and sex impact legal decision making, but Sotomayor believes that judges have to struggle to overcome this limitation. Scalia, by contrast, acknowledges race-based decisions among jurors and prosecutors, but he would not exercise his authority as a judge to remedy the situation--even in a life or death situation.
By contrast, in cases with whites or male plaintiffs, Scalia has described women and persons of color as politically powerful and white men as the true "victims" of discrimination and a callous Supreme Court (See: Conservative Judicial Empathy? You Betcha!). Scalia has demonstrated repeatedly where his empathy lies. Despite his racial statements, Scalia remains a beloved conservative, objectively fighting for truth and equality (yes -- dripping with sarcasm).
If Rehnquist's and Scalia's comments and actions as judges are not worthy of rebuke and disdain, then conservatives should discontinue their collective meltdown over Sotomayor's comment. Certainly, conservatives cannot believe that white men should get to sit on the Court despite their demonstrated hostility to persons of color, while Sotomayor, whose statement they have taken out of context in order to portray her as a racist, cannot. Neither Sotomayor's comments nor her rulings as a judge come nearly as close to doing the racial damage that Scalia and Rehnquist have caused with their opinions. If conservatives continue this line of reasoning, they will never gain the support of significant numbers of women or persons of color and will continue to remain outsiders in national politics.
For links to all of my articles on Sotomayor, CLICK HERE.Update: The New York Times has published a similar article: Rogues, Robes and Racists
Perhaps he should have gone to Crawford, Texas instead. That destination seems less controversial -- even during times of great national crises, like wars and unpopped housing bubbles.
Of course Democrats also complained about Bush's Crawford trips, the first one occurring six months into his presidency -- a month-long excursion. Bush had a wonderfully cynical line in response: "I think it is so important for a president to spend some time away from Washington, in the heartland of America." New York City is not the "heartland" (I'm not sure Crawford is either), but it is certainly a magical place. So, let the Obamas enjoy a day away from DC.
Saturday, May 30, 2009
Republicans' Latest "New" Strategy on Sotomayor Is Another Loser
Kenneth Starr Praises, Offers Support for Sonia Sotomayor
The Blog "Hot Air" Stays True to Its Name With Article Suggesting Supreme Court Intentionally Delaying Ruling in Ricci
Media Matters: NYT, Fox and MSNBC Delete Sotomayor Comment Regarding Her "Socio-Economically Poor Background"
Will Wonders Ever Cease: Senator Grassley Discovers Sotomayor Is Not "Aggressive" or "Obnoxious"
Rosen Writes on Race and Sotomayor
WWKD: Ricci v. DeStefano Will Likely Turn on Justice Kennedy
Sotomayor Hearings To Begin on July 13
Does a Judge's Gender Matter? Ask "Proud" Laura Bush
Sotomayor's Opponents Apply Racial and Gendered Double-Standard
Hypocrisy Alert: Conservatives Angry That Sotomayor Is Not a Judicial Activist (Part II)
Sotomayor's Diverse Former Law Clerks Give Her Strong Endorsement
No Longer "PC Liberal Fascist Rhetoric": Conservatives Are Suddenly Concerned About Race!
"Racist" Sotomayor Defends White Employee From Dismissal Due to His Circulation of Racist Literature
Major Hypocrisy Alert: Washington Times Condemns Sotomayor for Strictly Adhering to the Text of Statute When Deciding Felon Voting Case
Andrew McCarthy's Argument Against Sotomayor Would Disqualify O'Connor and Scalia as Well!
Peggy Noonan to Republicans: Let's Play Grown-Up
Judge Guido Calabresi, Superstar Legal Scholar, Gives Sotomayor Strong Endorsement
Is Justice Alito a Biased Judicial Ideologue Who Only Focuses on His "Background"?
Ilya Shapiro and Dana Milbank Float the "Dumb Broad" Stereotype
Fearing Political Consequences GOP Might Back Down From Sotomayor Fight
Conservative Judicial Empathy? You Betcha!
The Audacity of Hypocrisy: Mike Huckabee Says Appointing "Maria" Sotomayor Will Lead to an "Extreme Court"
Sotomayor = Supreme Court Pick! Plus: Anti-Conservative Talking Points
Rosen's Reviewers Suddenly Get Names!
Strikingly Similar: Comparing Sotomayor's Views on Sex and Race With Statements By O'Connor, Ginsburg, Scalia and Kennedy
Scalia v. Sotomayor: The Use of Gender-Coded Language to Evaluate a Judge's "Temperament"
Rosen Defends His Misreading of a Judicial Footnote: Says Judge Winter's Writing "Not a Model of Clarity"
Earth to Orrin Hatch: Even Conservative Judges Make Policy!
Hatchet Job: Jeffrey Rosen's Utterly Bankrupt Analysis of Judge Sonia Sotomayor
"Racist" Sotomayor Defends White Employee From Dismissal Due to His Circulation of Racist Literature
Here is a clip from the SCOTUS blog's analysis [Note: In the federal system, 3-judge panels hear all appellate cases, and one judge writes the opinion for the panel.]:
Other than Ricci, Judge Sotomayor has decided 96 race-related cases while on the court of appeals.In one case, Sotomayor "dissented from the majority’s holding that the NYPD could fire a white employee for distributing racist materials."
Of the 96 cases, Judge Sotomayor and the panel rejected the claim of discrimination roughly 78 times and agreed with the claim of discrimination 10 times; the remaining 8 involved other kinds of claims or dispositions. Of the 10 cases favoring claims of discrimination, 9 were unanimous. (Many, by the way, were procedural victories rather than judgments that discrimination had occurred.) Of those 9, in 7, the unanimous panel included at least one Republican-appointed judge. In the one divided panel opinion, the dissent’s point dealt only with the technical question of whether the criminal defendant in that case had forfeited his challenge to the jury selection in his case. So Judge Sotomayor rejected discrimination-related claims by a margin of roughly 8 to 1.
Of the roughly 75 panel opinions rejecting claims of discrimination, Judge Sotomayor dissented 2 times.
Given these statistics, the SCOTUS blog concludes that: "[I]t seems absurd to say that Judge Sotomayor allows race to infect her decisionmaking." I concur. Alas, I am afraid that conservative opposition to Sotomayor has absolutely nothing to do with "facts." Accordingly, these types of studies may have very little impact, if at all, on the negative rhetoric.
Major Hypocrisy Alert: Washington Times Condemns Sotomayor for Strictly Adhering to the Text of Statute When Deciding Felon Voting Case
Background of the Case
The Hayden case involved a lawsuit brought by black and Latino inmates challenging a New York elections law that denies them the opportunity to vote. The inmates claimed that the law violated Section 2 of the Voting Rights Act, which applies to any state election requirement that has the "effect" of discriminating on the basis of race -- regardless of the state's underlying intent.
In 1996 the Second Circuit split evenly on the merits of an identical lawsuit. In 2006 Hayden was consolidated with a similar case and brought before the entire Second Circuit for review. The full Second Circuit dismissed the lawsuit by an 8-4 vote. Sotomayor dissented, as did esteemed judges Barrington Parker, Guido Calabresi and Robert Katzman. There were five separate concurring opinions.
In two other felon voting cases, the Ninth Circuit reached a different conclusion than the Second Circuit, but the Eleventh Circuit reached the same conclusion. The voter statutes in those two cases, however, are broader in scope, banning felons from voting even after release.
Hayden Majority's "Expansive" Statutory Interpretation
The majority in Hayden concedes that the plain language of the Voting Rights Act does not exempt felon-related voting legislation and that it applies to "any" voting requirement. Accordingly, to reach its conclusion, the majority decides to look beyond the plain language of the statute:
There is no question that the language of [Section 2 of the Voting Rights Act] is extremely broad —- any “voting qualification or prerequisite to voting or standard, practice, or procedure” that adversely affects the right to vote -— and could be read to include felon disenfranchisement provisions if the phrase is read without the benefit of context and background assumptions supplied by other statutory and Constitutional wording, by history, and by the manifestations of intent by Congress at the time of the VRA’s enactment and thereafter.Normally, a judge's decision to look beyond the language of a statute in order to come up with an interpretation that is not supplied by the law's plain meaning would send conservatives into a lather. Indeed, Justice Scalia is known for sticking closely to the plain language and insisting that Congress change the statute if it dislikes the outcome in a particular case. Scalia also rejects efforts to "find" the meaning of legislation by resorting to legislative history -- which the Hayden majority explicitly does. Narrow statutory reading is a hallmark of judicial restraint, which conservatives claim to love. Apparently, the Washington Times does not like this rule if following it would produce a liberal result.
We are not convinced that the use of broad language in the statute necessarily means that the statute is unambiguous with regard to its application to felon disenfranchisement laws. In any event, our interpretation of a statute is not in all circumstances limited to any apparent “plain meaning” . . . . Here, there are persuasive reasons to believe that Congress did not intend to include felon disenfranchisement provisions within the coverage of the Voting Rights Act, and we must therefore look beyond the plain text of the statute in construing the reach of its provisions. . . .
The Hayden dissenters chided the majority for essentially rewriting the statute to reach its conclusion. Because the case was decided on a motion to dismiss, the court was required to treat the allegations in the complaint as facts -- meaning that the court had to accept as true plaintiffs' assertion that New York's felon law systematically excluded blacks and Latinos from voting. Therefore, the only question the court needed to decide at this stage of the litigation was whether the Voting Rights Act applied to the case. Despite the plain language of the statute which imposes a broad prohibition against discriminatory laws, the majority dismissed the case.
Sotomayor's dissent epitomizes the judicial restraint that conservatives claim to appreciate. She also seems to respect the institutional power of Congress. Sotomayor argues that:
The duty of a judge is to follow the law, not to question its plain terms. I do not believe that Congress wishes us to disregard the plain language of any statute or to invent exceptions to the statutes it has created. The majority’s “wealth of persuasive evidence” that Congress intended felony disenfranchisement laws to be immune from scrutiny under § 2 of the Act . . . includes not a single legislator actually saying so. But even if Congress had doubts about the wisdom of subjecting felony disenfranchisement laws to the results test of § 2, I trust that Congress would prefer to make any needed changes itself, rather than have courts do so for it. I respectfully dissent.Perhaps appreciating the irony that its editorial attacks Sotomayor for exercising judicial restraint, the Washington Times does not even attempt to engage this portion of her argument. The newspaper's silence on this issue speaks volumes.
The Washington Times Distorted Analysis
Despite the fact that the Hayden majority concedes that its ruling looks beyond the plain language of the statute, the Washington Times inaccurately concludes that Sotomayor offers a "dubious and extremely broad reading of the Voting Rights Act." This is plainly false. Sotomayor's reading, as demonstrated above, is in fact quite narrow and limited to the text of the statute.
The Washington Times also makes hay of the fact that she only wrote a brief (but apparently very broad) dissent. But with a lead opinion, five concurrences and three additional dissents, her decision to remain brief is hardly remarkable -- except perhaps to journalists.
The Washington Times also butchers the Hayden majority's logic. The case does not turn on the fact that "the Voting Rights Act was passed to help further the aims of the Constitution's 14th and 15th Amendments [and] the 14th Amendment specifically allows states to deny the vote to those convicted of crimes." Instead, as the majority explicitly concedes (see footnote 10), the Voting Rights Act was passed to enforce the Fifteenth Amendment, which (following interpretative rules established by conservative Supreme Court precedent) places a direct limitation on state authority supplied by the Fourteenth Amendment.
Accordingly, even if the Fourteenth Amendment allows states to restrict the ability of felons to vote, they cannot exercise this power in a way that amounts to racial discrimination. The Voting Rights Act elaborates the Fifteenth Amendment antidiscrimination principle and provides that "intent" is not a requirement of a violation. On this issue, the dissent has the better argument.
The Washington Times also makes the absurd claim that Sotomayor's opinion would allow Congress to "prohibit New York from doing something the Constitution itself specifically endorses." That is absolutely preposterous. The plaintiffs only argued that New York cannot discriminate on the basis of race in the voting context. The complaint does not argue the felon disenfranchisement statutes are per se unconstitutional -- and neither does Sotomayor.
The logic employed by the Washington Times would allow states to pass laws providing that only "black and Latino" or "white" felons cannot vote because, after all, states can ban all felons from voting pursuant to the Fourteenth Amendment. But this is an absurd result. Because the Voting Rights Act does not require "intent," New York's felon voting policies could operate as the practical legal equivalent of this hypothetical (and clearly unlawful) statute. Sotomayor and the other dissenters simply would have given the plaintiffs the opportunity to prove this point.
The most interesting aspect of this case is the fact that it turns on statutory interpretation -- not the announcement of a new constitutional right. Accordingly, Congress could merely reverse the ruling, if it disagrees. This is precisely the course of action Congress took with respect to the Ledbetter decision. This is precisely the argument that Justice Scalia frequently makes with respect to statutory interpretation.
Driven by partisan politics rather than ideological consistency, the Washington Times criticizes Sotomayor for following Scalia's lead and issuing a narrow reading of a plainly worded statute. The Washington Times should retract its misleading, blindly partisan, and "un-conservative" editorial.
Friday, May 29, 2009
Would Judge Sotomayor be qualified to serve as a juror? Let's say she forthrightly explained to the court during the voir dire (the jury-selection phase of a case) that she believed a wise Latina makes better judgments than a white male; that she doubts it is actually possible to "transcend [one's] personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law"; and that there are "basic differences" in the way people "of color" exercise "logic and reasoning." If, upon hearing that, would it not be reasonable for a lawyer for one (or both) of the parties to ask the court to excuse her for cause? Would it not be incumbent on the court to grant that request?There are so many ways to criticize this argument. Here are a few.
Should we have on the Supreme Court, where jury verdicts are reviewed, a justice who would have difficulty qualifying for jury service?
First, lawyers and judges are often turned away from jury duty precisely because attorneys in the cases fear that if other lawyers serve as jurors, they will either have undue influence on the jury or will rely upon their prior knowledge when deciding how to vote. This certainly would nt make them unqualified to remain judges or lawyers.
Second, jurors are removed if there is a sufficient likelihood that they would exercise bias against a particular litigant, not simply because they are a product of their own experiences.
Third, McCarthy's argument would disqualify Justice O'Connor and Scalia from serving on the bench because these two justices unapologetically embrace the idea that identity shapes jurors. In an earlier blog post, I analyzed the "striking similarities" between Sotomayor's comments on race and sex and statements by other members of the bench. I will quote from my previous analysis of O'Connor and Scalia at length because they are relevant to this discussion.
O'Connor and Gender Perspectives
In the case J.E.B. v. Alabama, for example, the Supreme Court held that prosecutors could not use their peremptory challenges to exclude prospective jurors based solely on gender. Justice O'Connor agreed with the decision, but she wrote separately to take issue with the notion that gender is socially irrelevant:
We know that like race, gender matters. A plethora of studies make clear that in rape cases, for example, female jurors are somewhat more likely to vote to convict than male jurors. . . .Moreover, though there have been no similarly definitive studies regarding, for example, sexual harassment, child custody, or spousal or child abuse, one 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. . . .Sotomayor's analysis mirrors the thoughtfulness that O'Connor brings to this issue. In particular, Sotomayor, like O'Connor, accepts the gender-neutrality mandate, but she believes that the law loses something in pursuit of this goal. Although O'Connor focuses on jurors instead of judges, given the importance of jurors to legal process -- especially in criminal law -- her analysis, if true, means that a good amount of legal decisions potentially rest on race and gender factors. Furthermore, if this analysis is true, then it suggests that judges could potentially operate on the same impulses. . . .
[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.
And while she voted with the majority in J.E.B, her concurrence asserts that the Court should not extend the case to cover the decisions of private lawyers. She is specifically concerned that lawyers representing women in sexual harassment and other cases related to gender would no longer have the opportunity to place a helpful amount of women on juries. O'Connor's reasoning would have carved out an explicit role for gender in legal decision making. The distinction between judge and juror in this context is meaningless.
Interestingly, beloved conservative Justice Scalia is more fatalistic than either O'Connor or Sotmayor. He says that judges cannot do anything about jurors' racial biases -- even if it is a life or death situation. Here's my previous analysis.
Even a conservative like Justice Scalia has acknowledged race-based decision making among jurors. Shockingly, Scalia believes that the Court cannot remedy these decisions -- even when a litigant's life is at stake. In McCleskey v. Kemp, the Court rejected a constitutional challenge to the Georgia death penalty. A study showed that race strongly impacted prosecutors' decisions to seek the death penalty and jurors' decisions to impose it. Race operated most severely in cases involving black defendants accused of killing white victims, but the statistics showed that any person who killed a white individual had a greater likelihood of receiving the death penalty.
The majority found that, notwithstanding the study, McCleskey failed to prove discrimination in his particular case. Scalia voted with the majority, but he wrote a memorandum to the other justices in which he expresses a far more fatalistic view of race-based decision making than Sotomayor embraces in her speech:
Since it is my view that the unconscious operation of irrational sympathies and antipathies, including racial, upon jury decisions and (hence) prosecutorial decisions is real, acknowledged in the decisions of this court, and ineradicable, I cannot say that all I need is more proof.Sotomayor, like Scalia, believes that race and sex impact legal decision making, but Sotomayor believes that judges have to struggle to overcome this limitation. Scalia, by contrast, acknowledges race-based decisions among jurors and prosecutors, but he would not exercise his authority as a judge to remedy the situation -- even in a life or death situation.
If Sotomayor is unfit for the bench because she concedes that she struggles to remove herself from her own experiences, then O'Connor and Scalia are unfit as well because they believe the Court should not stop jurors from making decisions based on the own backgrounds and previous experiences. To date, conservatives have made arguments against Sotomayor that would disqualify O'Connor (an advocate of gender and racial perspectives for jurors), Scalia (an emotional and empathetic justice who says that the Court can do nothing about jurors' racial biases), and Thomas (who often writes passionately against affirmative action from his own perspectives as a black conservative). What disarray!
This blog has been very sympathetic to the GOP in order to foster open debate. I have written numerous articles criticizing liberals -- even getting cited several times by Glenn Reynolds and many other conservatives. I have defended Michael Steele, George Bush, Sarah Palin, and even Rush Limbaugh from unfair criticism. But I have been unable to validate the "other side" in my response to Republican criticism of Sotomayor. Most of the popular conservative critiques of Sotomayor are inaccurate, deceitful, hypocritical, nasty, and politically suicidal.
As someone who desires a multi-party system, the GOP's recent implosion is disheartening. The country almost has just 1.5 parties at the moment. Unless the Republican Party embraces moderate positions in the shortrun, it will continue to live on the fringe of national politics. Parties have had to adjust historically. The Republican Party was the original home of the "Massachusetts Liberal." The Democrats were the slaveowning confederates. Clearly, historical developments caused the parties to shift in order to survive.
Outside of self-interest, the public deserves reasoned debate about judicial appointments. Personally, I believe that the Framers placed the appointments process in the political branches because they knew that ideology is relevant to judging. Even if they did so for other reasons, by delegating authority over judicial appointments to the President and the Senate, the Framers have created an inherently political process. Yet, both sides of the aisle are feigning a meltdown over the prospect of a nominee having a particular ideological bent. The deceitful shenanigans regarding ideology, not to mention "empathy," are pure distractions.
Most educated individuals have formed some type of awareness and opinion (even if tentative) of the most compelling issues that our nation and the world community face. These are the type of issues the Supreme Court analyzes. The fact that judges have a particular ideological background does not mean that they are closed to debate or to precedent. Instead, it simply means that when they review and apply the law in each case, they will bring their own background to the table, and this will inform passionate debate and possibly outcomes in many instances. If you do not think Scalia or Thomas (or Ginsburg and Stevens) operate this way, you are delusional, deceitful or clueless about the Supreme Court.
Here's a clip from Noonan's essay:
I concur. Nevertheless, if The Onion is correct, filling the airwaves with "thoughtful exchanges" will lead to a major panic and backlash: Oh, No! It's Making Well-Reasoned Arguments Backed With Facts! Run!
Barring extraordinary revelations, Judge Sotomayor is going to be confirmed. She's going to win. She does not appear to be as liberal or left-wing as others who could have been picked. She seems reminiscent of the justice she will replace, David Souter. She will likely come across in hearings as smart, spirited, a middle-aged woman who's lived a life of grit, determination and American-dream proving.
Republicans can be liberated by the fact that they're outnumbered and likely about to lose. They can step back, breathe in, and use the Sotomayor confirmation hearings to perform a public service: Find out what the future justice thinks and why she thinks it, explain what they think and why they think it, look at the two different philosophies, if that's what they are. Don't make it sparring, make it thinking.
Don't grill and grandstand, summon and inform. Show the respect that expresses equality and the equality that is an expression of respect. Ask and listen, get the logic, explain where you think it wrong. Fill the airwaves with thoughtful exchanges
Update: RNC Chair Michael Steele and Republican Senator John Cornyn(of Texas with many Latino voters) have come out condemning conservative attacks on Sotomayor.
Thursday, May 28, 2009
Calabresi was the Dean during my days at Yale Law School, and I, like most people, found him fair-minded and very open on issues. In fact, I first met Calabresi while I was deciding among law schools, and I passionately "shared" my thoughts with him regarding what I viewed were the law school's shortcomings. He was engaging and thoughtful, even though in hindsight I conclude that I might have exhibited too much chutzpah.
Calabresi continues to approach issues with openness, and he has offered his powerful voice in support of Sotomayor. Calabresi has responded to claims that Sotomayor has a "temperament" issue. Several commentators have raised that matter, citing the notorious Almanac of the Federal Judiciary. But as Calabresi argues (and as I examined in a prior blog post), the reality of sexism (and racism) likely impact the way in which many lawyers evaluate Sotomayor's tough style during oral arguments.
Assertiveness in women -- especially women of color -- is perceived as inappropriate. In men, however, toughness proves that they are strong and capable. The Almanac of the Federal Judiciary primarily describes Sotomayor's assertive questioning as a negative, but with respect to Justice Scalia, whom many people view as exceedingly difficult during oral arguments, the book depicts his toughness in very positive terms.
Perhaps Calabresi's statements can help lay the "temperament" issue to rest. Calabresi says that he monitored Sotomayor during oral arguments and found that her style was not out of line with her male colleagues.
Calabresi believes that sexism explains the negative reviews of her questioning style. According to Calabresi: "Some lawyers just don’t like to be questioned by a woman. . . It was sexist, plain and simple." Calabresi's comments confirm the results of empirical data regarding male attorneys' evaluation of female judges. Calabresi also says that he viewed Sotomayor's toughness as a positive quality and that her rigorous questioning persuaded him shift his positions several times in the past.
Other esteemed judges and law professors offer support for Sotomayor in the article, including Professor Laurence Tribe, Judge John O. Newman, and Judge Richard Wesley. Several lawyers also say that her toughness shows that she takes cases very seriously and that she wants to resolve important issues. I concur.
Update: I neglected to mention that the title of the New York Times article described Sotomayor as having a "sharp tongue," which is sexist language. The authors have changed the title to describe her as having a "blunt style." It is amazing when people casually use language that proves the point they are questioning.
Related Reading on Dissenting Justice: Scalia v. Sotomayor: The Use of Gender-Coded Language to Evaluate a Judge's "Temperament"
If Alito believes he "has" to think of his background when he decides certain cases, does that mean he is unfit for the bench? Not really. I would apply the same standard to Sotomayor.
See also: Conservative Judicial Empathy? You Betcha!
New Conspiracy Theory: Chrysler Dealerships Selectively Closed Based on Owner's Political Party Affiliation
Evidence appears to be mounting that the Obama administration has systematically targeted for closing Chrysler dealers who contributed to Republicans. What started earlier this week as mainly a rumbling on the Right side of the Blogosphere has gathered some steam today with revelations that among the dealers being shut down are a GOP congressman and closing of competitors to a dealership chain partly owned by former Clinton White House chief of staff Mack McLarty.Remain Calm
Did anyone tell these people that nearly 80% of car dealers give money to the Republican Party and are therefore likely owned by Republicans? The statistics mean that we should see substantially more Republican-owned dealerships among closed sites. Get the information on OpenSecrets.Org (which allows the reader to search for campaign donations by industry).
Jeffrey Rosen was originally responsible for giving this narrative heels in a discredited article that he has twice disclaimed. Nevertheless, Shapiro and Milbank have kept the fans going, and Shapiro even cites to Rosen's original analysis.
Shapiro and Milbank Say Much, Prove Little
Shapiro and Milbank fail for the same reasons that plagued Rosen's analysis. Neither has isolated anything in her writings that discredit her as a judge or intellectual. Shapiro says that Sotomayor has not issued any "important" decisions, but he never defines what this means. Even if one could define the term in this context, this would hardly disqualify her from the bench. While the Supreme Court has the luxury to take the "sexiest" and most compelling cases (because it has discretionary review for the most part), lower federal courts do not. They take cases as they come to them.
Also, during Sotomayor's tenure, the Second Circuit has not been the hotbed of judicial activity as the more ideologically partisan circuits, like the Ninth, Fourth and Fifth Circuits. It is more mainstream and tightly wrapped ideologically. Today's Second Circuit is not known for its blazing judicial battles. But the absence of opinions that provide dissertations on unresolved legal issues cannot mean Sotomayor is less qualified. The use of this standard would have rendered unqualified most of the justices in the Supreme Court's history.
I also find it disturbing that none of Sotomayor's negative reviewers demonstrates through independent analysis why Diane Wood or Elena Kagan -- persons whom Sotomayor is most often compared -- are more qualified to sit on the Supreme Court. Shapiro, for example, simply states that Sotomayor is "far less qualified for a seat on the Supreme Court" than Kagan or Wood. But Shapiro does not substantiate this claim by applying his own standards to Wood and Kagan. He does not cite to Wood's "important" decisions, and he does not review Kagan's articles that have reshaped legal analysis. Indeed, Kagan has a relatively thin publication record, given her acclaim and achievements, and many of her publications are in "home" journals (i.e., journals edited by students at the school where she was teaching at the time of publication), and significant portion are "tribute" articles that honor deceased jurists. Nevertheless, the popular analysis summarily describes Kagan as immensely qualified and Sotomayor as weak. What accounts for the difference?
I am not attempting to discredit either Kagan or Wood. Instead, I seek to reveal that Sotomayor's detractors have failed to make the case that she is an intellectual "lightweight" or that she is less qualified than others on the shortlist. Either her reviewers are sloppy journalists or they are moved to their positions by some motivation that has nothing to do with her work. Pick your poison.
I had originally intended to include Jonathan Turley on the list with Shapiro and Milbank. Earlier Turley stated that Sotomayor "is not the intellectual powerhouse that many academics had hoped for." He now says that:
Like a number of other professors and commentators, I have expressed disappointment in the fact that Sotomayor’s opinions lack of deeper view of the law or any particularly profound observations on the law. Conservatives, however, take this lack of depth in these opinions as evidence that Sotomayor is not smart or competent. This is demonstrably absurd.His more recent analysis offers a more engaging approach.
The irony is too much to bear. Some people in a political party that barely contains any nonwhite members believe they can win a public relations battle describing a Latina as a racist. Mike Huckabee, who last year insisted that the nation amend the Constitution to reflect "God's standards," believes appointing "Maria" Sotomayor would lead to an "Extreme Court." And people with far fewer accomplishments (and much longer lives) have dismissed the summa cum laude Princeton graduate and Yale Law School alumna as an intellectual lightweight. The whole mess was an avalanche of hypocrisy.
As Professor Nan Hunter reports, many conservatives previously opposed her nomination to the court of appeals on the sole ground that it would enhance the likelihood that she would later move to the Supreme Court. Thus, Republicans have always opposed her for nonsubstantive reasons. The pattern has continued. But, as the Politico reports, it might soon come to an end.
Wednesday, May 27, 2009
Conservative Judicial Empathy
Obama has elaborated the idea of empathy, stating that he believes a Supreme Court justice should understand "how our laws affect the daily realities of people's lives" and should identify "with people's hopes and struggles."
Using Obama's own words, I have compiled a listing of examples where Justices Scalia and Kennedy have expressed empathy in their judicial opinions. If conservatives believe that empathy is a bankrupt concept, then they should reject its use by rightwing and right-leaning justices.
In Johnson v. Transportation Agency of Santa Clara County, the Supreme Court rejected the claim of Paul Johnson, a white male employee who alleged that his employer unlawfully promoted a woman over him by taking sex into account pursuant to an affirmative action plan. Scalia's vigorous dissent argues that advocates of race and gender equality are politically powerful and that the Court's ruling would encourage employers to hire "unqualified" women and persons of color in order to avoid costly litigation.
Exhibiting a great deal of empathy, Scalia concludes that poor white males are the true victims of discrimination and in need of judicial protection:
[T]he only losers in the process are the Johnsons of the country, for whom [the antidiscrimination statute] has been not merely repealed but actually inverted. The irony is that these individuals -- predominantly unknown, unaffluent, unorganized -- suffer this injustice at the hands of a Court fond of thinking itself the champion of the politically impotent.Scalia satisfies Obama's empathy standard because he uses Johnson's experience to discuss "how our laws affect the daily realities of people's lives" and to "identify with people's hopes and struggles."
In United States v. Virginia, the Supreme Court invalidated the Virginia Military Institute's policy of excluding women. Scalia's lone dissent expresses empathy with citizens of the state and with male students:
Today the Court shuts down an institution that has served the people of the Commonwealth of Virginia with pride and distinction for over a century and a half.Scalia portrays VMI as the victim of modern social movements that seek to dismantle traditional notions of gender. For example, he quotes at length from a book entitled "The Code of a Gentleman" that VMI required all first-year cadets to possess. The book lists traditional concepts of manhood, which Scalia believes, regrettably, that the Court's ruling will destroy:
A gentleman . . . [d]oes not speak more than casually about his girl friend. Does not go to a lady's house if he is affected by alcohol. . . Does not hail a lady from a club window. . . [N]ever discusses the merits or demerits of a lady. . . Does not slap strangers on the back nor so much as lay a finger on a lady. . . .If Obama's search for empathetic justices appalls conservatives, then Scalia's emotional discussion of male valor should anger them as well.
I do not know whether the men of VMI lived by this code . . . But it is powerfully impressive that a public institution of higher education still in existence sought to have them do so. I do not think any of us, women included, will be better off for its destruction.
Justice Kennedy is a right-leaning moderate. In 2007 he authored the Court's ruling in Gonzales v. Carhart which upheld the federal prohibition of "partial-birth abortion." A particular passage of Kennedy's ruling empathizes with women whom Kennedy believes would later regret having the procedure:
Respect for human life finds an ultimate expression in the bond of love the mother has for her child. . . .Whether to have an abortion requires a difficult and painful moral decision. . . .While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. . .Severe depression and loss of esteem can follow. . . .As a male, Kennedy cannot draw upon any personal experience as a person who has terminated a pregnancy. Accordingly, he can only empathize with women's feelings as stated in Court submissions, although he concedes the absence of "reliable data" on this issue. Based on his empathy and concern for this particular class of women, notwithstanding the lack of clear evidence, Kennedy argues that Congress can ban the procedure for all women -- even though the Court had invalidated a similar state law in 2000.
It is self-evident that a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound when she learns, only after the event, what she once did not know: that she allowed a doctor to pierce the skull and vacuum the fast-developing brain of her unborn child, a child assuming the human form.
Finally, in Parents Involved in Community Schools v. Seattle School District No. 1, the Court invalidated policies designed to maintain racial integration public schools. Although Kennedy joined the four conservatives to create a majority ruling invalidating the policies, he wrote separately to disagree with the conservatives' assertion that states did not have a "compelling interest" in preventing racial segregation in schools. Kennedy, however, prefers more subtle policies to achieve this goal. Kennedy explains that explicit, rather than covert, race policies harm individual "dignity":
To be forced to live under a state-mandated racial label is inconsistent with the dignity of individuals in our society. And it is a label that an individual is powerless to change. Governmental classifications that command people to march in different directions based on racial typologies can cause a new divisiveness. The practice can lead to corrosive discourse, where race serves not as an element of our diverse heritage but instead as a bargaining chip in the political process. On the other hand race-conscious measures that do not rely on differential treatment based on individual classifications present these problems to a lesser degree.Like Scalia, Kennedy fulfills Obama's "empathy" test because he expresses his own understanding of how race-based legislation "affects the daily realities of people's lives." If conservatives believe that Obama's empathy standard is illegitimate, then they should condemn Kennedy for modeling it in his opinions.
The preceding analysis discusses just a few of the many instances of conservative judicial empathy. Conservatives judges have "empathized" with white male discrimination plaintiffs whom they view as victims of feminism and civil rights. They have empathized with hypothetical women whom they feel are so distraught over their choice to have partial-birth abortions that their anxiety justifies a complete ban of the procedure. They have also empathized with whites subject to diversity and integration policies in the educational setting on the grounds that the conscious use of race offends their dignity. If conservatives truly believe that empathy has no role in judging, then they should reject displays of empathy among conservative justices. Do not hold your breath.
Update: More on Conservative "Empathy"
Talking Points Memo via Media Matters has a great report on President Bush and empathy. Apparently, when he introduced nominee Clarence Thomas, he marketed him as a "man of great empathy."
Tuesday, May 26, 2009
The Audacity of Hypocrisy: Mike Huckabee Says Appointing "Maria" Sotomayor Will Lead to an "Extreme Court"
Huckabee blasts Obama for picking Sotomayor, arguing that:
Sotomayor comes from the far left and will likely leave us with something akin to the "Extreme Court" that could mark a major shift. The notion that appellate court decisions are to be interpreted by the "feelings" of the judge is a direct affront of the basic premise of our judicial system that is supposed to apply the law without personal emotion. If she is confirmed, then we need to take the blindfold off Lady Justice.Oh, the melodrama! I do not accept Huckabee's characterization of Sotomayor's judicial philosophy. Nevertheless, I will hold aside my objections in order to focus on Minister Huckabee's deep hypocrisy.
Huckabee claims that appointing Sotomayor will bring bias and extremism to the Court. But his own views of the Constitution are far more dangerous and unjustifiable than anything in Sotomayor's background. During the 2008 Republican primaries, Huckabee made an interesting argument about the Constitution. He said that it should be amended to comply with "God's standards":
[Some of my opponents] do not want to change the Constitution, but I believe it's a lot easier to change the constitution than it would be to change the word of the living God, and that's what we need to do is to amend the Constitution so it's in God's standards rather than try to change God's standards. . . .Huckabee has the audacity to call Sotomayor an extremist, but he wants to undo over two centuries of constitutional law that precludes the establishment of religion. I will take Sotomayor's "empathy" and proven record of accomplishment over Huckabee's desire to amend the Constitution in order to impose his view of "God's standards" upon the rest of the country. As my colleague Professor Jamie Raskin so aptly stated, replying to a fellow Maryland State Senator who invoked the Bible in order to oppose same-sex marriage:
"People place their hand on the Bible and swear to uphold the Constitution. They don't put their hand on the Constitution and swear to uphold the Bible."Huckabee could learn a lot from Raskin.
Well, it looks like the smackdown against the smackdown worked. Obama has shown courage in the face of conservative distortion and apparently chosen Sonia Sotomayor for the bench.
Anti-Conservative Talking Points
Conservatives and so-called liberals launched an effort to discredit Sotomayor as soon as Justice Souter announced his retirement. Nothing in Sotomayor's background substantiate the claims that her detractors have made.Here are some great talking points to deal with the inevitable conservative meltdown over the prospect of Sotomayor's appointment.
Jeffrey Rosen started this narrative with his unbalanced analysis of Sotomayor. Several sources have persuasively rebutted his flawed analysis.
Conservatives are doing their best to depict Sotomayor as an unthinking leftist. But the SCOTUS blog has published a 4-part series analyzing her body of cases as an appellate judge. Her record speaks more persuasively than the conservative rhetoric.
Ideology and Judging Are Mutually Inconsistent
Both parties advance this bizarre rhetoric -- but only when the opposite party has the power to make the appointment. Decrying "ideology," liberals went after Bush's nominees, and conservatives are poised to battle Obama's choices. Both sides, however, are absolutely deceitful on this issue. Ideology is perfectly consistent with judging, and politicians throughout American history have recognized this fact. Ideology, however, does not necessarily prevent an individual judge from engaging in debate, adhering to precedent, or making reasonable conclusions about the law.
Driven by Identity
Several commentators have extracted sentences out of a speech Sotomayor delivered at the University of California at Berkeley in order to portray her as a judge governed by identity politics, rather than logic. That argument, however, severely distorts the substance of her speech, and it also ignores the extent to which identity actually matters within law. Justices from O'Connor to Scalia have made the same argument.
Lacks Judicial Temperament
Rosen, selectively drawing from reviews in the Almanac of the Federal Judiciary, depicted Sotomayor as a domineering fireball. But a comparison of the Almanac's review of Scalia reveals that the two judges both seem to have a tough and highly engaging style at oral arguments. Nevertheless, the book portrays this as a negative quality in Sotomayor and a positive one in Scalia. The disparity corresponds with negative stereotypes about strong and intelligent women.
Given the many ways in which opponents of Sotomayor have attempted to prevent her nomination, I am surprised that Obama followed through with it. In fact, I thought Elena Kagan would get the nod. But a lot of advocacy and responses to the distorted analysis seem to have worked. Also, Obama skillfully waited until debate had taken place before moving on her candidacy. Kudos!
Update: The White House has more extensive (and definitely better) talking points: White House Armed With Talking Points For Sotomayor Fight--Evoke Her "Empathy"
In his most recent article, Dionne discusses Obama's centrist politics. Dionne argues that in order to build a political coalition to support his policies, Obama employs multiple, perhaps conflicting, messages.
To support his argument, Dionne describes a gathering of media commentators at the White House prior to Obama's recent speech on national security. Dionne's portrayal of the event demonstrates that Obama intentionally retools his message in order to mollify all ideological camps (except for the far right). According to Dionne:
The disturbing aspect of Obama's effort to create [a broad political coalition] is that building it requires him to send rather different messages to its component parts. Playing to several audiences at once can lead to awkward moments.Obama's coalition strategy sounds a lot like the "triangulation" moves by Bill Clinton that Democrats feverishly (foolishly?) condemned during the 2008 primaries and unlike the themes of transparency and change that formed such an integral part of his campaign narrative. Perhaps the orchestrated event proves that Obama, like other politicians, employs mixed messages and stages his appearances in order to broaden political support and to win votes and support.
Last Thursday afternoon, for example, the White House invited in journalists, mostly opinion writers, to sell them on the substance of the president's big speech on Guantanamo and the treatment of detainees.
Unbeknown to the writers until afterward, they had been divided into two groups, one more centrist with a sprinkling of moderate conservatives, the other more liberal. (I was in the liberal group.) The president made an unscheduled appearance at each briefing. As is his way, he charmed both groups.
The idea, as far as I can determine, was to sell the liberal group on those aspects of Obama's plan that are a break from George W. Bush's policies, and to sell the centrist group on the toughness of the president's approach and the fact that it squares with Bush's more moderate moves later in his second term.
The closing passage of Dionne's essay suggests that the President's secret maneuver caused him discomfort.. According to Dionne, Obama's efforts to maintain smooth relations with so many different ideological groups could backfire:
[E]stablishments have a habit of becoming too confident in their ability to manipulate people and events, and too certain of their own moral righteousness. Obama's political and substantive gifts are undeniable. What he needs to realize are the limits of his own mastery.Dionne's essay comes across as a very subtle and diplomatic effort of an adoring fan to criticize Obama for manipulating people with shifting rhetoric. Dionne also seems to suggest that Obama needs to take more definitive and consistent stances on policy issues because the "two-step" strategy will have clear limitations. Dionne's analysis shows that scrutiny and support for a politician are not mutually inconsistent concepts. Perhaps other members of the media will soon discover this fact as well.
The defiant action of North Korea in testing a long-range missile with military applications last month, and its latest act of defiance in reportedly carrying out an underground nuclear test on May 25, can be attributed--at least partly, if not fully--to its conviction that it will have nothing to fear from the Obama administration for its acts of defiance.Although Raman concedes that North Korea conducted its first underground nuclear test in 2006, he nevertheless argues that:
After Obama assumed office in January, whatever hesitation that existed in North Korea's policy-making circles regarding the likely response of U.S. administration has disappeared, and its leadership now feels it can defy the U.S. and the international community with impunity.Raman also complains that Obama, like President Carter, could create an image of the United States as "soft and confused" on foreign policy. Raman, however, fails to disclose the fact that North Korea's "missile program" began and grew substantially during the 1980s and 1990s, while presumably "tough and coherent" Republicans and a Democrat occupied the White House.
North Korea began flaunting its missile power long before Obama's presidency. In 2002, President Bush made his infamous speech that placed North Korea, along with Iran and Iraq, on a list of nations constituting an "axis of evil." The next year, North Korea became the first country ever to withdraw from the Nuclear Nonproliferation Treaty. North Korea previously announced its intent to withdraw from the pact during the Clinton administration, but shifted course following international diplomacy and pressure from nations, including the United States.
In 2006, four years after Bush's axis of evil declaration and after years of "strong" warfare in Afghanistan and Iraq, North Korea tested a nuclear missile, provoking international outrage. That same year, Iran defied international pressure and stated that it would resume its uranium enrichment program and that it would discontinue voluntary measures that gave international inspectors access to its nuclear facilities.
Now, in 2009, North Korea has conducted additional missile testing. According to Raman this likely would not have happened if Obama were not soft on foreign policy and national security. Raman's argument, however, seems very "weak" on history and strong on partisanship.
Sunday, May 24, 2009
The American Thinker has published an essay that condemns the proposed measures. The article, written by John Griffing, makes many familiar arguments, including that the proposed law would violate freedom of expression. Griffing's article, however, contains many distortions that greatly undermine his analysis.
Freedom of Speech
Griffing argues that, if passed, the hate crimes measure would violate the First Amendment, and he likens the proposed law to the notorious Sedition Act of 1789, which made it a crime to "write, print, utter or publish" material criticizing the President, Congress or the United States. The proposed legislation, however, provides no support for Griffing's claim.
The measure that recently passed in the House, for example, would create federal criminal liability when a person "willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person" due to the "actual or perceived race, color, religion, or national origin of any person" or "because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any person." The proposed statute also contains language stating that its terms shall not "be construed to prohibit any expressive conduct protected from legal prohibition by, or any activities protected by, the Constitution."
As the Supreme Court held in the 1993 Wisconsin v. Mitchell decision, laws that prohibit acts of bias-motivated violence generally do not violate the First Amendment. The Court's unanimous opinion, authored by staunch conservative Chief Justice Rehnquist, concluded that Wisconsin's hate crimes statute did not impermissibly punish speech or thought because the measure reflected the state's finding that bias-motivated crimes "inflict greater individual and societal harm" than ordinary violent crimes. The Court also analogized the hate crimes statute to federal employment discrimination laws, which had already survived a First Amendment challenge.
The Court's second observation is worthy of elaboration. Consider the following hypothetical scenarios. One year, a company refuses to give any employee a pay raise due to financial constraints. Unless the decision violates an employee contractual provision, then it likely constitutes an unassailable business decision.
Suppose, instead, that the same company refuses to give any employee a pay raise because only white workers passed a performance test that the company used to determine who would qualify for the salary increase. Without additional information, most people would not believe that the second scenario constitutes a legitimate business decision shielded by the First Amendment. Instead, as conservatives have passionately argued with respect to Ricci v. DeStefano, the racially motivated employment decision might violate federal antidiscrimination laws. Racial motivation, however, is the only factor that separates the two hypothetical scenarios and that transforms an ordinary business decision into a violation of federal law. If conservatives truly believe laws that punish behavior motivated by discriminatory ideas or thoughts violate the Constitution, then they should withdraw their objections to Ricci and to affirmative action.
The government's interest in preventing the prohibited conduct seems even more compelling in the hate crimes context than in the employment situation. Stripped of biased motivation, the underlying decision in the employment setting is generally lawful. The removal of bias in the hate crimes scenario, however, does not render the underlying behavior legitimate. Indiscriminate acts of arson, gun violence, and fire bombings, for example, usually lack a legitimate purpose and are likely illegal.
This distinction also reveals the fundamental flaw in Griffing's effort to analogize hate crimes legislation to the Sedition Act of 1789. The Federalist Party passed the Sedition Act in order to punish Democratic-Republicans and political commentators who criticized the Adams administration in writings and speeches. Political speech is a core interest of the First Amendment.
The First Amendment, however, offers no protection for a person who tosses a bomb into a black church or a synagogue -- even if the perpetrator acts upon strongly held political beliefs. Similarly, the First Amendment would not shield an individual from prosecution if he or she, acting on political ideology, commandeers an airplane and crashes it into a national monument. Thus, if the proposed measure ultimately becomes law, the Fred Phelps congregation could still march across the country spreading the "good news" that "God hates fags." Church members, however, could not seek solace in the First Amendment if their own hatred of "fags" led them to inflict bodily injury upon GLBT people.
Finally, Gillings makes the factually inaccurate claim that the hate crimes measure would create "special" rights for "homosexuals." Gillings argues that: "The legislation contains provisions that will increase the penalties for acts committed against certain protected groups . . . and giv[e] special legal stature to homosexuals and those with sexually-related "disabilities" (Apparently, Gillings has misread the proposal as regulating violence motivated by the victims' "sexually-related disabilities" rather than "disability").
Gillings's argument fails in two important respects. First, Gilling describes remedies for particular societal harms as unfair "special" advantages. This is an inaccurate characterization of the law. The Constitution, for example, protects the "free exercise" of religion because the country emerged out of a particular history of religious intolerance in England -- not because the Framers wanted to give religious people "special" advantages.
Gilling's special rights argument also fails because the proposed measure is drafted neutrally and would apply to any person with a "sexual orientation," race, "gender," etc. The religious freedom analogy helps here as well. Religious freedom protects the atheist and the believer. Similarly, the neutrally drafted hate crimes legislation would protect whites and persons of color, men and women, GLBT people and heterosexuals, etc. In fact, the Mitchell decision discussed above applied the Wisconsin hate crimes statute to a black-on-white racial hate crime.
Even though I tend to support hate crimes measures, I am doubtful that they deter the prohibited offenses. But, as conservatives often remind us, the criminal law metes out punishment in addition to deterring offenses. I am primarily supportive of these laws because they allow the government to make an important statement about the nation's values, which I suspect many Americans believe should include disapproval of all forms of violence, including hate crimes.
In the abortion context, conservatives have argued -- and the Supreme Court has agreed -- that Roe v. Wade does not prohibit states or the federal government from passing laws that express a preference for "childbirth" over "abortion" (e.g., by denying funds for abortion-related services and requiring mandatory waiting-periods and the distribution of information intended to encourage women not to have abortions). Given this precedent, the proposed legislation does not strike me as being constitutionally impermissible or aberrational.