Sotomayor, White Grievance Politics & the Supreme Court

Two of America’s leading sexist bigots, Rush Limbaugh and Newt Gingrich, recently cited a 2001 speech delivered by federal Appeals Court Judge Sonia Sotomayor as proof of her racism. As a liberal partisan, my instinctive reaction is disgust at their cynical attempt to exploit white identity grievance politics against the first Hispanic Supreme Court nominee. Conservatives have been singing the same tune since Richard Nixon’s “law and order” campaign in 1968 with enormous destructive impact upon American civic life.

Nonetheless, Sotomayor’s words and conservative critics reaction to her nomination, is instructive about our race/gender biases as well as the false ideal of objectivity in a Supreme Court justice. By now, many of us have read the following passage from Sotomayor’s 2001 speech to the University of California, Berkeley, School of Law:

“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 O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O'Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that 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 white male who hasn't lived that life.”

First, let’s address the argument between Sotomayor and those who believe that competent judges should reach the same conclusions regardless of their backgrounds, while Sotomayor acknowledges the impact of life experience upon her decisions. It happens there is truth in both arguments.

For example, it might surprise many Americans to learn that the Supreme Court with judges as ideologically different as Antonin Scalia and Ruth Bader Ginsburg could ever reach a unanimous decision. Yet, it’s not unprecedented for the Supreme Court to announce numerous unanimous decisions early in its term. Indeed, on January 27th of this year, the Supreme Court announced five unanimous decisions with respect to civil rights laws protecting workers against employer retaliation. The rights of workers and employers are often wedges between liberals and conservatives, yet Scalia and Ginsburg voted the same way on five such cases earlier this year.

However, Sotomayor is also correct. As legal scholar and former Supreme Court clerk Christopher Eisgruber, persuasively argues, the Constitution contains too many abstract and vague references such as the Equal Opportunity Clause, for nine individuals to interpret the law without any ideological predisposition. Typically, as Eisgruber pointed out to me in a podcast interview two weeks ago, precedent and text regardless of their judicial philosophies restrain lower court jurists. Even the famous case involving fire fighters in New Haven, Connecticut that have conservative critics frothing at the mouth against Sotomayor was a ruling largely based upon precedent and two of her colleagues voted the same way.

Yet as Eisgruber also noted in our interview, historically, liberals and conservative jurists alike are eventually compelled to be “activists” and intervene through judicial review whenever a clause in the Constitution is simply too vague to provide sufficient guidance. As someone who clerked for conservative U.S. Court of Appeals Judge Patrick E. Higginbortham and liberal Supreme Court justice, John Paul Stevens, Eisgruber knows whereof he speaks.

Most of the time, an appeals court judge can be an “umpire” as Chief Justice John Roberts famously put it during his 2005 confirmation hearings. Much of the time, Supreme Court justices are impartial actors and personalities as different as Ginsburg and Scalia often rule the same way. Sotomayor’s background suggests that when the law and Constitution are clear, she will likely be representative of that tradition.

Nonetheless, history also suggests that the next Supreme Court justice will be confronted with cases during their tenure that transcend the text drafted by America’s founders two centuries ago or feel compelled to overturn the will of congress. For example, future Supreme Courts may preside over cases with respect to civil liberties and the technology of functional magnetic resonance imaging (brain mapping) in which neither the Constitution nor legal precedent are applicable. It also seems inevitable the Supreme Court will eventually preside over a case that transcends the will of state legislatures or congress with respect to gay marriage to ensure equal protection for all citizens.

And that leads to the Sotomayor phrase about "a wise Latina woman” that has some conservatives behaving as if their sphincter muscles are on fire. I largely agree with Sotomayor’s 2001 speech. Even so, I believe her words about “a wise Latina woman” were ill chosen. Nonetheless, this latest conservative “outrage” is a mere distraction taken out of context. Conservatives are longtime practitioners of America’s fear industrial complex and the Sotomayor nomination is merely the latest example.

When it’s one of their presidents they want justices with a reliable predisposition towards conservative activism. If a Democrat is in the White House conservatives emphasize restrained moderation. In fairness, liberal activists also emphasize moderation whenever confronted with nominees such as Roberts and Alito but gear up for a fight to advance our cause when we have a Democratic president. Such is the game of politics and elections do have consequences.

Race/gender absolutely influences our worldview and can’t help but have an impact on a Supreme Court justice. Denying that is disingenuous and we shouldn’t. Nor should we fear it. Rather, a diversity of perspectives on our nation's highest court represents America at its best. Presently, this is an uncomfortable reality for many conservatives who don’t want to relinquish the benefits of “white privilege” and feel insecure about a black Democratic president nominating a female Hispanic judge. Unless of course that justice is pliable to their worldview as Clarence Thomas has been.

It happens that I have a measure of empathy for their discomfort. My formative years were in Rockland County, New York and it was largely white bread cookie cutter suburbia when I was a kid. Although I live in Brooklyn, New York, today, I occasionally feel nostalgic about that provincial homogenous existence of my youth. I love the diversity of my adult neighborhood but even a liberal like myself is not above such sentiments.

Nonetheless, white male hegemony domination of the Supreme Court is an anachronism best discarded. Sotomayor's nomination to the Supreme Court is a reflection of our society's maturation and represents progress. As for conservatives and their childish grievances, I say spare the rod and spoil the child.

That 100 Days Leadership Thing

A charismatic president assumes power in a time of unprecedented turmoil after his hapless predecessor becomes a hated symbol of inertia. Financial institutions previously trusted for their forbearance are exposed as reckless stewards while the global economy implodes and regular folks who did nothing wrong are ruined. As job losses mount, unscrupulous demagogues at home and abroad exploit the chaos for nefarious objectives.

Discredited conservatives accuse the new president of socialism while anarchists under the guise of populism are determined to expropriate and redistribute private capital’s wealth no matter what the consequences. Yet the nation rallies to the new president even as progress is slow, uneven and plagued with setbacks. Critics on the left, including his wife, believe the new president is overly cautious while conservatives view him as akin to the anti-Christ.

The public discourse is volatile as the new president confounds his critics and towers over the body politic. Sound familiar? Generation-Y liberals may assume I’m referring to President Barack Obama’s first 100 days that we’ll be reading about next week. I am of course referring to President Franklin Delano Roosevelt, who first established the 100 days benchmark in 1933. FDR’s first 100 days were the foundation of twenty-years of Democratic Roosevelt/Truman administrations that forever changed American society and its place in the world.

FDR himself was brilliant and flawed as he navigated the country through perilous waters domestically and internationally. His leadership enabled America and its allies to prevail in World War Two and establish an enduring middle class. Yet there was also a dark side to the FDR years as the “imperial presidency” was launched and Japanese civilians were “relocated.” The imperial presidency later metastasized during the cold war following the 1947 National Security Act under Harry Truman.

Ultimately, the FDR years, like any presidency was a product of its time. Skirmishes between labor and business were violent. The gap between rich and poor was grotesque. Much of rural America didn’t have electricity and whites routinely murdered their black neighbors. Anti-Semitic demagogues such as Father Charles Coughlin polluted the airwaves. Industrial leaders like Henry Ford as well as national hero, aviator Charles Limburg, openly expressed their admiration for Adolph Hitler.

Capitalism as well as the concept of democracy itself seemed to be retreating as Hitler in Germany, Josef Stalin in Soviet Russia and Italy’s Benito Mussolini maneuvered for global domination. The Japanese Empire brutally worked to establish their “Asian Co-Prosperity Sphere and carved up the Chinese mainland in the 1930s. Americans hoped to avoid foreign wars and FDR promised to keep us out as he plotted behind the scenes to save civilization.

In any era, leadership is not for the meek or faint of heart. FDR projected jaunty confidence and empathy for the downtrodden as he defined America’s center of political gravity on his terms. His leadership style was one of calculated confrontation and FDR skillfully utilized his political capital to take on conservative agents of the status quo at home while inspiring an international alliance against implacable enemies abroad. Seventy-five years after his first inauguration many historians regard him as America’s greatest president.



President Obama’s current challenges and leadership style is understandably compared to FDR – especially has we approach his 100 day benchmark. His support remains notably impressive in spite of the plutocratic dynamic duo of Larry Summers and Timothy Geithner or his waffling with respect to prosecuting crimes committed by the Bush Administration.

Every week we set new records for unemployment claims and the Wall Street bailouts continue. Yet the public continues to believe in his leadership. I do too even as I fret over Obama’s handling of the banking crisis and worry his presidency will be consumed by efforts to stabilize Afghanistan and Pakistan.

My interpretation of President Obama’s political standing is that his support is partly attributed to a conservative minority that is bereft of ideas and maturity. There is the faux populist outrage of “tea parties” to the sniveling temper tantrums of conservatives when Obama shakes hands with Hugo Chavez. Newt Gingrich and Rush Limbaugh look like fools as they critique Obama’s handling of the Somali Pirates hostage crisis while the administration initiates a successful rescue operation. Republicans in Texas and Georgia speak openly of secession while a more sophisticated majority wants to come together and solve problems.

The public face of conservatism is angry, xenophobic, homophobic, shrill and insipid and no longer taken seriously. It's not just that conservative ideology is thorougly discredited as it was in 1933. Sarah Palin, Rush Limbaugh, John Boehner and Newt Gingrich are almost cartoonish in their political opposition. Hence, the real debate with respect to public policy about issues ranging from the potential fall of Pakistan, engaging Iran, addressing global warming, strengthening public education, rebuilding infrastucture, renewable energy and health care is between the center and the left. The center of political gravity is being redefined by Barack Obama because Republicans don't belong at the grownups table.

On the left, people like me critique the administration so he will seize the moment and push the envelope further. We want accountability for the Bush Administration’s crimes, a swift reversal of the Wall Street centric economy that has placed millions of Americans on the abyss of destitution and a public option for health care. The end result of impatient liberal/left critics and America’s puerile conservatives is that President Obama owns the political center just as FDR did.

Whether Obama takes full advantage of his unique stature will take far longer than 100 days to know. This is only the end of the beginning.

Uncle Michael

The Republican Party is compromised of three core constituencies:

1) Predatory corporatists who steal from wage earners and destroy the planet.

2) Religious lunatics who believe "end times" are just around the corner, proselytize that anyone who doesn't accept Jesus Christ as their personal savior is condemned to eternal damnation and don't support civil liberties for homosexuals.

3) Angry racists.

To the detriment of the Republican Party, Rush Limbaugh has been the face and voice of all three-core constituencies. To counteract the Limbaugh brand, Republicans recently elected Michael Steele, an African American as their party's national chairman. Mr. Steele, a shameless apologist for the GOP's predatory corporatists, is working hard to soften the party's social image and had the temerity to suggest that the hateful Rush Limbaugh was not the real leader of his party. Sadly, Mr. Steele was coerced into apologizing to Mr. Limbaugh after a resulting backlash from the GOP's xenophobic/racist/misogynistic core.

One wonders how any self-respecting and decent human being could apologize for suggesting their political party was not led by a man who once said,

"I mean, let’s face it, we didn’t have slavery in this country for over 100 years because it was a bad thing. Quite the opposite: slavery built the South. I’m not saying we should bring it back; I’m just saying it had its merits. For one thing, the streets were safer after dark."

From this day forward, anyone who cowardly panders to Rush Limbaugh and the Republican Party's insipid indecency he represents, should be called an "Uncle Michael."