Eshu’s blues: Media circus throws another temper tantrum over Sotomayor nomination
Printer-friendly version
Send to friend
PDF version
Opponents of Sonia Sotomayor’s nomination claim to be fighting against the rise of an “activist court” – “which is what the ruling class of this country calls any court which occasionally intervenes on behalf of historically repressed peoples.” Such politicians are much more comfortable with jurists such as Chief Justice Roger B. Taney, who famously proclaimed that Blacks have no rights that a white man is bound to respect. The modern-day Taneys don’t have much tolerance for uppity Puerto Ricans, either.
<!–break–>
Eshu’s blues: Media circus throws another temper tantrum over Sotomayor nomination
by michael hureaux perez
“The country is standing at an explosive crossroads regarding questions of race, class, and gender, both domestically and internationally.”
The current fuss over Sonia Sotomayor’s U.S. Supreme Court nomnation has much less to do with her philosophy of law as expressed in any decisions she may have been part of, than to a speech which contained a low-key discourse on race, class and gender oppression. The speech was delivered before a group of Latino law students at the University of California in Berkeley eight years ago. Sotomayor is being pilloried for speaking hypothetically about the role that personal experience can play in the life of a jurist. Reflecting on her own experience as a woman of Puerto Rican ancestry who came up in the South Bronx forty years ago, Sotomayor offered the following comment in the closing moments of her address:
“Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice (Sandra Day) O’Connor has often been cited as saying that a wise old man and a wise old woman will reach the same conclusion in deciding cases… I am not so sure I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a man who has never had that life.”
Sotomayor was speaking quite cautiously in defense of the idea that experiences of race, gender, and class can make one more sensitive to arbitrary or capricious effect within the constraints of the law. Her address at Berkeley was largely a response to her colleague Judge Miriam Cedarbaum, who apparently has often expressed guarded concerns about the potential effect of individual experience in interpretations of the law. Judge Cedarbaum, according to Sotomayor, has a deep and abiding concern about the need of judges to achieve a greater degree of fairness and integrity based upon what both woman call “the reason of law.” In her speech Sotomayor chose to ask whether it is possible to achieve such a goal in all, or even most, cases – which is a reasonable question for a legal mind to pursue. If Sotomayor’s question is rooted in racist theory, as the blogosphere is whining about right now, let it be said unequivocally that the Supreme Court has had far worse contaminants in its history.
“The late Chief Justice William Rehnquist was a great admirer of his predecessor Roger B. Taney, of the notorious Dred Scott decision.”
For example, the preceding Chief Justice of the United States, the late William Rehnquist, was a great admirer of his predecessor Roger B. Taney (he of the notorious Dred Scott decision). Everyone knows Taney said black people had no rights white people were bound to respect. Fewer folks know that Taney argued that way because he believed that the original framers of the Constitution never intended for the document to be “liberally” interpreted by succeeding generations. Taney, in denying Scott’s petition for freedom, was declaring his intent to embalm the Constitution, and Rehnquist, in his sojourn as Chief Justice of the Supreme Court, did his best to defend Taney’s contributions to a petrified philosophy of law and justice.
The common idea among Rehnquist and his disciples like Anton Scalia and Clarence Thomas is that they are defending us all from what they call an “activist” court, which is what the ruling class of this country calls any court which occasionally intervenes on behalf of historically repressed peoples. Sotomayor may well offer half of an attentive ear to such populations, and that can’t be tolerated. Hence all the pissing and moaning about her appointment at a moment when the country is standing at an explosive crossroads regarding questions of race, class, and gender, both domestically and internationally.
The funny unfunny part of all this is that nothing underscores Sotomayor’s concerns more precisely then the firestorm that her nomination has engendered. Here is a woman who rose from one of the toughest ghettos in the country to become a Yale law student and a nominee to the Supreme Court, someone who has met any “merit” criteria that the right wing geniuses of the “new federalism” would care to haul out. And yet a relatively innocuous statement she made about the impact of race, gender and class upon the common philosophy of the law is blown entirely out of proportion, and a woman who grew up around the racist destruction of the neighborhoods of the Bronx is reviled as a racist. Only in Amurrika.
“Obama suggested to the media that Sotomayor would no doubt have ‘re-spoken’ her words had she known they would cause such furor.”
Well, Sonia Sotomayor may not be a jurist who meets with some abstract legal standard overseen by big time oxycodeine dealers like Rush Limbaugh, but she declares that she wants to interrogate the racial and class based presumptions that continue to play a role in the interpretation of law. As one of my students informed me, Sotomayor did not claim that simply being Latina would make her a better judge than a white man. She implied – or hoped – that the experience of a Latina would grant such a judge broader insight into the workings of the law. Oh, the horror! How dast anyone insist on an institutionalization of nuance in what remains of the corporate justice system?
Meanwhile, Sotomayor’s so-called sponsor, Barack Obama continues to play his usual lukewarm role. The other day, Obama suggested to the media that Sotomayor would no doubt have “re-spoken” her words had she known they would cause such furor.
Unfortunately for President Phony, the actual meaning of Sotomayor’s words is crystal clear to anyone who has the gumption to look them up. Barack Obama could have defended the statement as a whole, and he chose not to, with one of his usual displays of spinelessness that come into play whenever the more rabid elements of the corporate right start barking. One would think a big, bad Harvard law professor could find the strength to energetically defend his choice of a candidate for a position that could be affecting lives into the next three decades. But as usual, the president is playing the Clinton card. Methinks I hear the rattling chains of the spirit of the Lani Guinier nomination.
In the meantime, the usual mediated fit that the more demented elements of late capitalist culture throw whenever they don’t get their way continues to drive the national discussion around the Sotomayor nomination – yea, verily, the circus has once again come to town. Ladies and gentlemen, in the center ring, the usual Sound and Fury, signifying nothing.
BAR columnist michael hureaux perez is a writer, musician and teacher who lives in southwest Seattle, Washington. He is a longtime contributor to small and alternative presses around the country and performs his work frequently. Email to: tricksterbirdboy@yahoo.com.
Freedom Rider: The Sotomayor Hype
Printer-friendly version
Send to friend
PDF version
by BAR editor and senior columnist Margaret Kimberley
Blacks and progressives should prefer a "wise Latina" to the usual Supreme Court fare, any day. "The white male perspective has ruled unchallenged for centuries and has done great damage to human beings around the world." However, just because Sonia Sotomayor is under attack from raging racists, doesn’t mean she should get a free pass from the Left. "Sotomayor should not be allowed to escape scrutiny because of race pride and meaningless swooning from white liberals."
<!–break–>
Freedom Rider: The Sotomayor Hype
by BAR editor and senior columnist Margaret Kimberley
“She is called a ‘centrist,’ a label which tells us little in an age when the political pendulum doesn’t ever swing back to the left.”
The nomination of Sonia Sotomayor to the Supreme Court should be an opportunity to assess her record, and to critically assess the Obama administration and develop strategic responses to his actions. Instead, most of the discussion post nomination has focused on one speech Sotomayor gave in 2001 and the person of color boot strap story so beloved by the corporate media and liberal whites.
Appeals Court Justice Sonia Sotomayor has been considered a possible Supreme Court justice for some time. She was always at the top of the list of possible replacements for retiring Justice David Souter. The White House floated the Sotomayor trial balloon and when it wasn’t shot down, decided to move forward.
Sotomayor has impressive credentials, that is to say she attended the universities that ambitious people have to attend if they expect to be appointed to the federal judiciary or anything else of note. If confirmed by the Senate she will be only the third woman and the first Latina Supreme Court justice. The media love the story of a Puerto Rican whose widowed mother lived in a housing project while she worked two jobs to support her children.
The pulling up by the bootstraps story can be a very dangerous one. Inherent in the “she came from the projects” exultation is a racist, class conscious condemnation of people who happen to live in public housing. Many public housing residents are productive, honest people. Some end up leaving, some don’t and those who don’t shouldn’t be vilified if they don’t attend ivy league schools and sit on the federal bench.
“The media love the story of a Puerto Rican whose widowed mother lived in a housing project while she worked two jobs to support her children.”
Praise for the humble beginnings story is also dangerous because it provides an easy way out for white America. Like voting for Barack Obama, singing the praises of Sonia Sotomayor allows white people to let themselves off the hook when they ought to examine their nation’s continuing racism and their role in it.
Sotomayor’s nomination is historic, just as Obama’s elevation to the presidency is historic. However historic her rise, it should not be allowed to absolve her from acting on behalf of citizens and not on behalf of corporations and an oppressive government. Obama’s hyped up “historic” accomplishment has allowed him to be a wolf in sheep’s clothing, spreading war and codifying the worse aspects of Bush era rules on indefinite detention. Sotomayor should not be allowed to escape scrutiny because of race pride and meaningless swooning from white liberals.
Lacking in the media is any substantive reports of her decisions on the federal bench. She was originally appointed by president George H.W. Bush 1991 and later to the court of appeals by Bill Clinton in 1997. She is called a “centrist,” a label which tells us little in an age when the political pendulum doesn’t ever swing back to the left. In the fifty most recent discrimination cases (*link scouts blog) on which she ruled, she and her colleagues accepted a finding of discrimination only three times.
“The white male perspective has ruled unchallenged for centuries and has done great damage to human beings around the world.”
Yet one statement she made is getting particular attention, and for all the wrong reasons, giving rightwing talking heads much to wring their hands over. In a 2001 speech she made the following statement:
“I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life. 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.”
While her rulings in discrimination cases receive scant attention, this one comment is repeated over and over again. The statement rings true. The thoughts of white men have been deemed normative, the only thoughts worthy of consideration. White male jurists kept slavery in place, and segregation and sex discrimination. What is wrong with a Latina perspective determining the law? The white male perspective has ruled unchallenged for centuries and has done great damage to human beings around the world. The “wise Latina” argument should work just fine, but when Republicans attacked the president didn’t defend her very strongly. Instead, in typical Obama fashion he insisted that she would “restate” the remark. The fact Obama chose her means that she is probably not the second coming of Thurgood Marshall. He told us early on that he would not pick anyone who could be called a liberal jurist:
"I will seek somebody who is dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role. I will seek somebody who shares my respect for constitutional values on which this nation was founded, and who brings a thoughtful understanding of how to apply them in our time.
As I make this decision, I intend to consult with members of both parties across the political spectrum."(Emphasis mine.)
As I make this decision, I intend to consult with members of both parties across the political spectrum."(Emphasis mine.)
Republicans will make racist hay and compare Sotomayor to a KKK member, but that is no reason to dismiss accountability from her or from Obama. The rush to defend her from attacks by Newt Gingrich or Rush Limbaugh should not be a reason to let her escape hard questioning. After all, the power to make lifetime judicial appointments is supposed to be a reason to put Democrats in the Oval Office. If Obama has to ask Republican permission before he makes a nomination, then we have one more argument against the importance of Democrats being in office.
Sotomayor is an unknown quantity whose long history of court rulings demand full examination. If that doesn’t happen, we will have another Obama, and one of those is quite enough.
Margaret Kimberley’s Freedom Rider column appears weekly in BAR. Ms. Kimberley lives in New York City, and can be reached via e-Mail at Margaret.Kimberley(at)BlackAgandaReport.Com.
Sonia Maria Sotomayor — She’s No Clarence Thomas, But No Thurgood Marshall Either
Printer-friendly version
Send to friend
PDF version
by BAR managing editor Bruce A. Dixon
What is and what should be the story around the nomination of Judge Sonia Sotomayor to the high court? Is the main story a celebration of how humble origins and hard work won out? Should we spend all our time and energy refuting the racism of Republican talking heads, and none examining her record, and how she arrived at the door of the Supreme Court? Is this a good time to explore what a just and democratic society must demand from its courts — more nonwhite faces in high places? More rights for corporations? Or more justice for people? And if this isn’t a good time, is that time ever coming?
<!–break–>
Sonia Sotomayor: She’s No Clarence Thomas, But No Thurgood Marshall Either
by BAR managing editor Bruce A. Dixon
The bubble of false reality corporate media have blown around the nomination of Sonia Maria Sotomayor begins with the racist rants of Limbaugh, O’Reilly, and a host of Republican senators and talking heads. It encompasses a torrent of righteous air and ink denouncing the racists, along with an inspiring story of humble origins, hard work and determination to succeed. It feeds the ongoing narrative of America’s ultimate triumph over old fashioned racism by allowing highly qualified and carefully vetted minorities to join its ruling elite. And it includes the view of places like Business Week, which designate the nominee “centrist” and a “moderate,” a view that corporate media revealingly agree is nonpolitical,” which means that the prerogatives of America’s business elite are not now and never will be up for discussion.
Absent from the conversation around the Sotomayor nomination are all but the most cursory review of her legal career before being appointed a federal judge by George Bush — a mere twelve years of legal experience, five as a prosecutor for the D.A.’s office in Manhattan, and another seven as partner at the international law firm of Pavia & Harcourt. Summaries of her decisions are hard to find. Although much is made of the fact that she will be only the fifth judge not a white man to sit on the high court, few detailed comparisons are made between her legal career and those of Thurgood Marshall and Clarence Thomas. Finally there are no attempts to discuss the unique, and not always positive role that the US Supreme Court plays or ought to play in the life of the country.
All these concerns are outside the bubble, not only for corporate media, but for the blogs and commentators who allow corporate media to draw the limits of their universe.
Sotomayor’s first job out of law school was as a prosecutor in the Manhattan D.A.’s office. Her time as a prosecutor roughly coincides with the end of the first decade of New York’s infamous Rockerfeller drug laws, a time when our nation’s historically discriminatory law enforcement apparatus began locking up larger percentages of black and Latinos than anywhere else on the planet. From there she moved on to a spot as associate, then partner at the international law firm of Pavia & Harcourt, and international law firm offering “…a full range of legal services to companies, individuals, and Italian and French governmental organizations and agencies… who do business in the United States as well as American clients who do business in the U.S. and abroad.”
Among Pavia & Harcourt’s areas of special focus are the enforcement of intellectual property laws, and obtaining writs of confiscation and seizure of goods believed to be in violation of such laws. In this selection from Ed Shanahan’s IP Law & Business he assembles quotes from the Wall Street Journal, the National Journal and the New York Times that paint a picture of Sotomayor’s passionate involvement on behalf of her corporate clients:
“…as the Wall Street Journal Washington Wire blog further explains in this colorful post, the “peak” of her career at the firm “came in representing Fendi in trademark actions against makers and sellers of counterfeit handbags and other items, according to George Pavia, the firm’s managing partner.”
Sotomayor, the WSJ reports, didn’t just fight for her clients in court.
“Firm founder George Pavia told the paper that when the firm would get a tip about suspect cargo, investigators “would trace where the shipment had gone—for example, to a warehouse or a store. Then, working with police, the firm would seek a warrant to view and attach the items. Often, the lawyers learned through experience, such visits would prompt angry responses from the merchants involved. But Sotomayor, who became a high-profile defender of the brand, seemed to enjoy going along. ‘On several occasions,’ Pavia said, ‘she went in wearing a Kevlar vest and seized the goods.’”
“(In this profile of Sotomayor, The New York Times adds to the judge’s legend: “One incident that figures largely in firm lore was a seizure in Chinatown, where the counterfeiters ran away, and Ms. Sotomayor got on a motorcycle and gave chase.”)
“The Journal also reports that Sotomayor played an integral role in what might be termed an IP publicity stunt aimed at calling attention to the then-growing problem of high-fashion knockoffs:
“With Sotomayor in charge, the firm decided in 1986 to stage a bonfire —to be known as the ‘Fendi Burn’—in the parking lot of the Tavern on the Green restaurant. There was a catch, however: the New York Fire Department refused to permit it.
“So the firm decided on the next best thing, crushing the items in garbage trucks, in an event that came to be known as the ‘Fendi Crush.’
“‘In the presence of the press…we threw masses and masses of handbags, shoes, and other items into these garbage trucks,’ Pavia said. ‘It was the pinnacle of our achievement, and Sonia was the principal doer.’”
No place on earth has more lawyers than the U.S., and in the late 80s, early 90s, New York City had more lawyers than anywhere in the country. This is how a young former prosecutor gets noticed and considered for the federal bench. Maybe Democratic senators and the White House of George H.W. Bush took note of her on their own. Maybe lobbyists and campaign contributors affiliated with her clients recommended her as someone who would look out for their interests. Take your pick. Either way, Bush put her on the federal bench in 1992.
For the twelve years she was a prosecutor and in private practice, right up until her appointment to the U.S. District Court, Sotomayor spent evenings, weekends and personal time, as an active board member of the Puerto Rican Legal Defense and Education Committee. During those years PRLDEF publicly opposed police brutality, the death penalty, felony disenfranchisement, and discrimination in housing and employment. It filed lawsuits to protect the voting rights of minorities in New York and the human rights of migrant workers. PRLDEF even sued an official of the Reagan administration for defamation over his public statement that most Puerto Ricans were on food stamps. No reports we have seen say that she personally filed those suits or that she ever appeared in court on behalf of litigants in discrimination and other lawsuits. As a board member she was reportedly involved in the planning and overall supervision of these activities.
After his graduation from Yale Law School in 1974, Clarence Thomas attached himself directly to the Republican party as a black man squarely against equal rights under the law. He became assistant attorney general in Missouri in 1974, chief counsel for Senator Sam Brownback in 1978, and in 1982, chairman of the Office of Economic Opportunity under Ronald Reagan, where he publicly defied the Congress by sitting on thousands of age and race discrimination complaints till the statute of limitations ran out on them. After only fourteen years as an attorney, Thomas had earned his appointment to the federal bench in 1989, and shortly after that to the Supreme Court.
The only other nonwhite person to serve on the US Supreme Court in two centuries has been Thurgood Marshall. Marshall’ graduated Howard University law school in 1933, where he was mentored by Charles Hamilton Houston. Houston was the architect of a decades-long crusade to use the courts to overthrow America’s Jim Crow segregation laws. After less than a year of private practice, Marshall joined Houston at the NAACP, where he spent the next quarter century crisscrossing the country, sometimes at the risk of his own life, defending African Americans in court who were falsely accused of murder and rape. Marshall took their cases, along with those of black people who directly challenged Jim Crow laws all the way to the Supreme Court where he won a phenomenal 29 out of 32 cases, including the 1954 Brown v. Board of Education, which ruled that separate school systems for blacks and whites were unconstitutional.
After 28 years of legal practice, far longer than either Thomas or Sotomayor, Marshall was named to the US Court of Appeals in 1961, US Solicitor General in 1965, and in 1967 was nominated to the Supreme Court by Lyndon Baines Johnson. Before donning the black robe Marshall had already fundamentally changed the American legal landscape. He had directly represented the poor and disenfranchised in the courts of dozens of states, raised money and public support for their legal defense. By the 1950s, Marshall was known around the country as “Mr. Civil Rights.” He is said to have taken a dim view of civil disobedience and many of the tactics of the Freedom Movement in the 1950s and 60s, but generally refrained from publicly voicing those sentiments, and defended some of them in court.
The comparative pre-judicial careers of these three seem to indicate that the speedy road to the federal bench is to be a useful right wing political operative like Thomas or a zealous advocate of multinational business, like Sotomayor. Defending the poor and changing history seems to be a longer and much less certain way to get a federal judgeship.
Sonia Sotomayor is no Clarence Thomas, to be sure. The PRLDEF did great work during the years she served on its board, but she can hardly claim sole credit for it. In any case, PRLDEF wasn’t her full time job, and certainly not what got her on the federal bench. She is no Thurgood Marshall either, not by a long shot. There are still lawyers who devote most of their practice to defending the poor and disenfranchised, and an even larger number who file suits against giant corporations on behalf of ordinary people. No matter their legal brilliance, those attorneys rarely get judicial appointments. Why? No Supreme Court Justice since Marshall has represented a defendant in a criminal case, let alone a death penalty case. Why? No Supreme Court Justices sued wealthy and powerful corporations on behalf of ordinary working and poor people either. Why?
Why should representing poor people as defendants in a court of law, or suing wealthy corporations on behalf of the ordinary people whose rights these powerful and immortal institutions trample upon every day rule a judgeship out of any lawyer’s future? Was that the founding fathers’ intent? More importantly, should it be ours?
A frank discussion of what a democratic society should expect from its court system is also long overdue. For the last generation, the courts have squatted squarely on the necks of working class Americans, relentlessly affirming the unearned privileges of a wealthy corporate elite over the rest of us, often in ways no governor, president or legislature would dare attempt. To name just a few instances, the courts have ruled that equal funding of public schools between wealthy and poor neighborhoods cannot be accomplished, even when state constitutions require it. Judges have affirmed that the First Amendment gives corporations the right to lie to and deceive the public for commercial gain, that patent laws allow US corporations to claim exclusive rights to crops grown by farmers for dozens of centuries in various parts of the world. The Supreme Court recently ruled that money, in the form of campaign contributions, is free speech, setting major roadblocks in the path of campaign finance reform.
We need to take note of the historic significance of the first Latina to be nominated to the Supreme Court. Like the embrace of a black president by most of the nation’s ruling elite, it does signify a departure from a kind of old fashioned nineteenth and twentieth century racism, at least insofar as the admittance of carefully vetted and well-qualified minorities to that elite goes. But the advancement of a few is not necessarily the advancement of democracy, or of the many.
The easy out for progressives around the Sotomayor nomination is to waste all their time and oxygen debating Republicans, ridiculing and refuting their racism. While this is important, it mustn’t be allowed to take all the air from the room. If we really want more than a change in the color of the faces at the top of American society, we’ll have to spend a lot more energy evaluating their corporate connections of our judges on every level, and determining who they really serve.
