The Judiciary

The ‘Activist’ Court

OK. I am not, nor have I ever been, a lawyer. I took Constitutional Law in college just a few short years ago — 40, maybe — and I don’t devour Supreme Court cases, judiciously reading the footnotes and the footnotes to the footnotes.

So, you ask, why do I feel compelled to comment on the latest Ricci case? I am not going to discuss Title VII or the lower-court rulings or the effect on Judge Sotomayor’s appointment to the Supreme Court. Rather, I have another angle.

Sotomayor is No Reverse Racist

The following appears originally in The Washington Times of Monday, June 15.

By now, most people have heard — negatively — about the 2006 case Ricci v. DeStefano, in which 18 New Haven firefighters (17 white and one Hispanic) were not promoted after passing the required tests because there were no blacks whose test scores were high enough to qualify them for promotion.

Law and Literature

Long a believer in and advocate of alternative sentencing, I am bemused by the recent creativity of one federal trial judge.

District of Columbia Judge Ricardo Urbina ordered a pharmaceutical executive convicted of making a false statement to government investigators about his company’s actions in a patent dispute to write a book in lieu of being sentenced to prison.

Stop Whining About Sotomayor

Senate Republicans are turning everybody off with all their whining about the timetable for Sonia Sotomayor’s confirmation hearings.

No sooner had Judiciary Committee Chairman Patrick Leahy (D-Vt.) set July 13 as the date for her first hearing than Mitch McConnell (R-Ky.), Jeff Sessions (R-Ala.), Tom Coburn (R-Okla.) and Jon Kyl (R-Ariz.) started sobbing about needing more time. “We’d have to read 76 cases a day to review her entire judicial record by that date,” they complained.

No Surprise on Quotas

According to a new Quinnipiac University poll, most U.S. voters strongly disagree with Sonia Sotomayer’s position on the New Haven, Conn., firefighters case.

This comes as no surprise to me, and as faithful readers of this blog will attest, last week I plotted a strategy to make the most of this real GOP advantage.

Of course, that strategy was overwhelmed by the idiotic discussion, led by that brilliant Republican strategist Rush Limbaugh, who called the Hispanic Supreme Court nominee a “racist.”

Republican Good-Cop/Bad-Cop … Will it Work?

You have to love these Republicans as they approach the Supreme Court hearings for Sonia Sotomayor.

Right out of the box you have the usual right-wing cabal spewing forth hateful venom. Comparing her to the Ku Klux Klan, calling her a racist, issuing condescending remarks about her intellectual heft. In a 24/7 news cycle and cabal blather that encourages the most outrageous comments imaginable, because they make “news,” these attacks are over the top.

The Others

The Sotomayor issue defaults not so much to law as to literature. It is not about Race but The Others. That she would identify herself as Latina, woman, New York Puerto Rican — the pundits recall poet Miguel Piñero’s phrase Nuyorican — while she would see The Others — Rick Perry, John Lennon, Tolstoy, Charles Aznavour, the Pope, TinTin, William Butler Yeats, Dick Morris, St. Francis, Picasso, Richard Petty, Stanley Dunham, Jimmy Swaggart, Old McDonald and Dr. Porsche — as a soulless and generic bunch of white guys all packaged in the same crate shows a mind with the subtle and nuanced sensibilities of a granite field marker.

Sotomayor: Great Judge, Strict Constructionist

The following appears originally in The Washington Times of Monday, June 1.

Suppose a black female nurse is seriously injured during her work at a hospital and is forced to take a medical leave of absence. When she returns almost a year later, she reapplies for new jobs but doesn't get any offers of comparable salary and seniority. For one of the jobs for which she was turned down, two white women with disabilities are chosen. For another job for which she was rejected, a younger white male is hired.

The Empathy Element

Leave it to Barack Obama, a brilliant and nuanced thinker-politician, to add empathy to the list of characteristics he considered in choosing his first Supreme Court appointee. What an interesting and fresh feature to add to the confirmation process.

Empathy is a psychosocial aspect of all our behavior. We are products of our history. While our history is an important part of everything we do and think, it is not the only part. It is an influence. Some justices — Clarence Thomas is an example — rule in unpredictable ways if their personal empathy is the decisive factor in their decisionmaking. The aphoristic debate whether ours is a government of laws or of men (and women, increasingly) suggest, incorrectly, that we cannot be both.

On Sotomayor: Right-Wing Hate Targets American-Dream Judge

Judge Sonia Sotomayor is the American Dream judge by any American standard — someone who started without advantages, worked hard, excelled often and rose to great heights through diligence and talent. Yet here comes the right-wing hate machine, desperate to foment fear, at times appealing to racism, determined to defame a great American and destroy what is left of the sectarian Republican Party.

Let’s be clear. The public face of the Republican Party on this issue, as on most, is: America's most brilliant radio entrepreneur, Rush Limbaugh, devoutly admired by supporters but viewed as an extremist buffoon by millions of swing voters. Newt Gingrich, America's most ambitious politician, seeking to go for the political jugular but unable to resist the gutter-ball. And Tom Tancredo, who has done more than any living Republican to turn Hispanics to the Democrats through the manner in which he conducted the immigration attack.