July 21, 2009

WHITE MEN of the world, unite. That seemed to be the message of Republican Party during the four days of Senate confirmation hearings for Supreme Court nominee Sonia Sotomayor.

Not content to question Sotomayor about her actual judicial record or ideas, Republican members of the Senate Judiciary Committee attempted to turn the hearings into forum on how oppressed white guys are.

Alabama Sen. Jefferson Beauregard Sessions III led the charge. During the hearings, he stopped just shy of labeling Sotomayor a racist for her statement in 2001 that she hoped a "wise Latina" judge would bring a more balanced perspective to judicial matters than a white male who didn't have the same life experiences.

The right-wing blowhards of talk radio have been flogging this quote for months--without ever pointing out that Sotomayor said in the same speech, "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."

Sonia Sotomayor at the first day of her Senate confirmation hearings

Sessions, however, doesn't seem "so capable."

"The personification,” in the words of Associated Press, "of a party with an overwhelmingly white, Southern, religious membership," Sessions warned in his long-winded opening statement that "impartiality," not "empathy"--or "prejudice," as he later called it--must guide the legal system. Using empathy as a guide, said Sessions, would lead to "a Brave New World where words have no true meaning and judges are free to decide what facts they choose to see. In this world, a judge is free to push his or her own political and social agenda."

Sessions is one to talk about "social agendas." As Washington Monthly pointed out, his main "achievement" as a former federal attorney in Alabama "was prosecuting three civil rights workers, including a former aide to Martin Luther King Jr., on trumped-up charges of voter fraud."

Also during his career in Alabama, Sessions called the NAACP "un-American" and "communist-inspired," saying that it "forced civil rights down the throats of people."

Sessions was actually blocked from the federal bench in 1986 for having made what he later claimed were "private jokes" about the Ku Klux Klan and the NAACP. At Sessions' confirmation hearings for the position of U.S. District Court judge in Alabama, Thomas Figures, a Black Assistant U.S. Attorney, told Senate Judiciary Committee members that "during a 1981 murder investigation involving the Ku Klux Klan, Sessions was heard by several colleagues commenting that he 'used to think they [the Klan] were okay' until he found out some of them were 'pot smokers.'"

Figures also said that Sessions had called him "boy" on a number of occasions, and cautioned him to be careful what he said to "white folks."

SESSIONS WASN'T alone among Republicans in making wild accusations about Sotomayor.

South Carolina Sen. Lindsey Graham decided to blast Sotomayor for supposedly being too "hostile" to lawyers who appeared before her. After quoting a series of anonymous gripes allegedly made by lawyers who appeared before Sotomayor, Graham asked Sotomayor if she thought she had "a temperament problem."

That's something male nominees--including those with reputations for being combative, like Antonin Scalia--never seem to get asked.

Then there was the bizarre exchange in which Oklahoma Sen. Tom Coburn pressed Sotomayor on her beliefs about the Second Amendment, asking her if citizens have the "right to personal self-defense."

When Sotomayor said she couldn't think of a Supreme Court case that addressed the issue in that language, Coburn told her that the "American people" wanted to "know if they can defend themselves in their homes." Sotomayor then attempted to describe a hypothetical case in which Coburn had threatened her, and she had gone home, got a gun and shot him--and the senator interjected, in a mocking impersonation of the Ricky Ricardo character on the I Love Lucy series: "You'd have a lot of 'splaining to do!"

Each Republican had to bring up Sotomayor's role in the Ricci case--a lawsuit filed by an almost all-white group of firefighters over the decision of the city of New Haven, Conn., to invalidate a promotions exam after zero Black applicants out of 27 candidates and only two Latinos out of 29 candidates qualified for a promotion after taking the test.

Sotomayor was part of a three-judge panel of the U.S. Second Circuit Court of Appeals that ruled against the white firemen, who were charging "reverse discrimination." The U.S. Supreme Court recently reversed this appeals court decision.

For his part, Sessions seemed amazed that Sotomayor's opinion in the case differed from that of her circuit court college Jose Cabranes--because, after all, they're from the same ethnic background. "You voted to stay with the decision of the circuit," said Sessions. "And in fact, your vote was the key vote. Had you voted with Judge Cabranes, himself of Puerto Rican ancestry, had you voted with him, you could've changed that case."

As Steven Benen wrote in Washington Monthly, "Imagine how absurd it would have been if, during [Samuel] Alito's confirmation hearings, [Wisconsin Sen.] Russ Feingold pressed him on why he didn't vote in a certain case with another Italian American judge."

But, of course, the Republicans' questioning of Sotomayor wasn't about her legal expertise, but about attacking affirmative action and anti-discrimination policies.

And so, the Republicans called as a witness Fox News pundit and anti-affirmative action activist Linda Chavez. Chavez told the Judiciary Committee, "It is clear from [Sotomayor's] record that she has drunk deep from the well of identity politics. I know a lot about that well, and I can tell you that it is dark and poisonous."

Chavez went on to call Sotomayor an "ethnic activist and judge." "Identity politics," Chavez lectured, "involves a sense of grievance against the majority, a feeling that racism permeates American society and its institutions, and the belief that members of one's own group are victims in a perpetual power struggle with the majority."

And what implicated Sotomayor in these thought crimes, according to Chavez? That Sotomayor "opposed the death penalty as racist," made "arguments in support of bilingual education and tried to equate English language requirements with national origin discrimination," and "dissented from an opinion that the Voting Rights Act does not give prison inmates the right to vote."

Of course, you don't need to be "poisoned" by identity politics to believe that racism does permeate American society--statistics regarding everything from unemployment to housing to education to who ends up in prison bear out this judgment. Likewise, it's hardly a radical position to make the connection between racism and capital punishment, English-only policies, and laws that bar felons (a disproportionate number of whom are people of color) from voting.

IF ONLY Sotomayor were as radical as the Republicans seem to think she is--representing a voice for those systematically oppressed in American society--her nomination would be something to celebrate.

The problem, though, is that the evidence suggests Sotomayor is far more moderate than the right is making her out to be. As Washington Post columnist E.J. Dionne wrote when she was first nominated:

Republicans would be foolish to fight the nomination of Judge Sonia Sotomayor to the U.S. Supreme Court because she is the most conservative choice that President Obama could have made. And even though they should support her confirmation, liberals would be foolish to embrace Sotomayor as one of their own because her record is clearly that of a moderate. It is highly unlikely that she will push the court to the left. Indeed, on many issues of concern to business, she is likely to make the Chamber of Commerce perfectly happy.

Sotomayor's record is largely "middle of the road"--she is nothing like the "judicial activist" imagined by Republicans. She , for example, upheld the Bush administration's global gag rule, which prohibited organizations receiving U.S. family planning funds from providing abortion or abortion assistance to women in need.

In other cases, Sotomayor ruled that investors couldn't proceed with a class-action suit accusing Wall Street banks of fraudulently pricing public offerings; and she dissented from an appeals court ruling that families of the victims of the 1996 crash of TWA Flight 800 could sue TWA, Boeing and a parts manufacturer for damages.

Sotomayor's moderate stance extends to cases of racial bias as well. She wrote the appeals court opinion throwing out a discrimination case filed by George and Judy King, Black passengers who were bumped from a flight to the Bahamas.

The Kings maintained that white passengers who didn't have confirmed reservations were allowed on, while their own boarding passes were confiscated. Sotomayor ruled that anti-discrimination laws are trumped by the international Warsaw Convention, which regulates the liability of airlines in international flights (and which does not ban racial discrimination).

As the New York Times reported:

The Kings were simply told that uniformity in air travel law is important, and that if they did not like being discriminated against, they should take it up with the transportation secretary. In another case, Judge Sotomayor wrote a decision ruling that Charlina Williams, a Black woman, was not qualified for a job she was passed over for. And she tossed out the claim that three Black prison guards were singled out for discipline because of their race. Stefanie Lindquist, a University of Texas law professor, examined the race cases in which Judge Sotomayor wrote the majority opinion and found that she ruled for the plaintiffs in roughly 25 percent. According to Ms. Lindquist, who consulted a database covering 1975-96, the average appeals court judge ruled for the plaintiffs in race cases nearly 40 percent of the time.

Even in the Ricci decision, Sotomayor's legal reasoning wasn't about "upholding affirmative action" or the idea that the firefighters' test was inherently unfair to applicants of color. Instead, the reasoning was that the city of New Haven was within its rights to try to find a fairer test in order to protect itself from being sued by minority firefighters.

Such decisions show, as corporate lawyer Lauren Rosenblum Goldman told the Wall Street Journal, that there "is no reason for the business community to be concerned" about Sotomayor.

And despite the right's concerns about Sotomayor's "empathy," there are plenty of people who would beg to differ.

One of them is Jeffrey Deskovic, who was wrongfully convicted of murder and rape at the age of 17 and spent 16 years in prison until he was finally proven innocent and released in 2006.

In 1997, Deskovic appeared before Sotomayor and the Second Circuit Court of Appeals to appeal his conviction, based on DNA evidence showing he didn't commit the crime. But his case was dismissed in large part because of a technicality--paperwork from his lawyer was submitted to a lower court four days past the deadline, due to misinformation from a court clerk. As Deskovic wrote:

To our dismay, Judge Sotomayor and her colleague refused to reverse the ruling. "The alleged reliance of Deskovic's attorney on verbal misinformation from the court clerk constitutes excusable neglect that does not rise to the level of an extraordinary circumstance," they wrote. "Similarly, we are not persuaded that...his situation is unique and his petition has substantive merit." A second appeal to Sotomayor's court resulted in the same decision. The U.S. Supreme Court refused to hear my case, and I remained in prison for six more years.

Deskovic's case is just one of many in the U.S. injustice system where more empathy would be in order. Yet in the foregone conclusion that is Sotomayor's nomination, no one will be raising questions about why Deskovic had to spend six more years in prison because of a legal technicality. In fact, when Deskovic contacted several senators' offices to see if he could testify at the Sotomayor hearings, he was brushed off.

But Jeffrey Deskovic knows his story matters. As he put it, "There are human consequences to these decisions."