At the end of her first term as a justice of the Supreme Court of the United States in 2010, Sonia Sotomayor began work on her memoir. In her best-selling My Beloved World (2013), she describes the trajectory that lifted her from a seemingly hopeless beginning as a Puerto Rican child in the Bronx public housing projects to the pinnacle of the American justice system. The brains she was born with, combined with the discipline and self-reliance she needed to stay alive as an 8-year-old who was left to manage her own diabetes, fueled her rise from the projects to the Supreme Court. Along the way, she earned a Princeton degree with highest honors, a law degree from Yale, a job as an assistant district attorney in New York City, and then a judgeship on a federal district court bench.
Court reporter Joan Biskupic picks up the story where Sotomayor left off. Breaking In: The Rise of Sonia Sotomayor and the Politics of Justice is less a biography than a political history. Biskupic was intrigued by the symbiotic intersection of the rise of Latinos in America and the unlikely ascent of the Puerto Rican justice. “Sotomayor had the intelligence and perseverance to do what no other Hispanic had done,” writes Biskupic, but she also needed a constellation of factors, both strategic and fortuitous, to breach the bronze portals of the highest court of the land. Biskupic examines how America’s changing culture and demographics worked in Sotomayor’s favor, and how she used the wheeling and dealing and political strong-arming behind the nomination and confirmation of judges on the federal bench to her advantage by enlisting well-placed supporters and powerful advocacy groups.
Biskupic handily describes the political machinations involved in the process. Carlos Ortiz, former president of the Hispanic National Bar Association who worked for Hispanic appointments to the bench, notes, “Sotomayor learned to make the right connections. There is no question about that. She knew who to be in contact with, who to tell about her interests.”
She obtained the backing of both of New York’s then-senators, Republican Alphonse D’Amato and Democrat Daniel Patrick Moynihan. When her nomination for a spot on the Second Circuit Court of Appeals was stalled by Senate Republicans, Senator D’Amato was up for re-election and lagging in the polls. The supporters of Sotomayor, including Hispanic members of Congress and local Bronx officials, promised him the Hispanic vote in return for pressuring the Republican leadership to schedule the Senate vote. Sotomayor won confirmation by the Senate, but D’Amato lost the election to Chuck Schumer anyway.
Sotomayor’s ethnicity is central to her story. She is Puerto Rican, a member of an immigrant group that during her lifetime greatly increased its political standing and influence. But at the time she began going to school, Puerto Ricans labored with a 10 percent unemployment rate, higher than that of both blacks and whites. They completed an average of seven years in school, lower than that of any other group in New York City. Because of this, Puerto Ricans were vilified by whites, blacks, and others who were further along the path to assimilation. “The Puerto Rican problem” designated people who arrived with few skills and little or no knowledge of English, who overcrowded schools and depleted social services.
Because of this, someone like Sotomayor was automatically stigmatized. In addition, her innate extroversion was amplified by the exuberance of Latin culture, and this too was held against her, even when she became a Supreme Court justice. Her propensities for fire-engine-red nail polish, unruly hair, and “flashy” jewelry were singled out by the news media as markers of her otherness. Those comments stung. “The slights, the snickers, the silent judgments that reinforce that most crippling of thoughts: ‘I do not belong here,’” she wrote in a dissent she read from the bench. The establishment viewed her as an outsider who somehow broke the mold and would rupture the discreet fabric of the venerable Supreme Court. In places where diversity is valued, a distinct ethnicity can be a plus. But SCOTUS is such an august institution that it is difficult to introduce change. Everything is determined by tradition and precedent.
Full disclosure: Like Sotomayor, I am a Latina—not from Puerto Rico, but from Cuba. I spoke no English before I went to school; I favor bright colors, lively music, and spicy food. So I may be oversensitive in perceiving a negative tenor in the violent language describing Sotomayor’s “disruptiveness”:
barrel-ahead style. . . clashed with the usual order . . . She was not one to wait her turn . . . disrupting the norm . . . . exuded a hurricane force . . . shattered the decorum . . .
Even the book’s title, Breaking In, suggests violence: It is necessary for the Latina to “break in” to the Anglo and Anglicized establishment. The way is barred, so she can’t “ease” or “slide”—let alone “walk”—in.
At the same time, it is true: She is different. She looks different and she acts differently from the other justices. To ignore that would be to ignore a very important part of who she is.
There are two ways to assimilate. You can elide your difference and lose yourself, or you can study the other culture in order to navigate it and find your way to where you want to go without sacrificing your identity.
It will come as no surprise that Sotomayor faces sexist criticism as well. Most of the slurs and characterizations of Sotomayor are no different from those leveled against women who dare to aspire to “a man’s job.” “Bossy,” “blunt,” “brash,” “domineering,” “disruptive” translate into “leader,” “direct,” “bold,” “authoritative, “innovative” when the subject is a man. Sotomayor recognizes this in her memoir. Told by a friend at Yale that she argued “just like a guy,” she responds that she has “always argued like a man, more noticeably in the context of those days, when an apologetic and tentative manner of speech was the norm among women.”
Guido Calabresi, formerly dean of the Yale Law School, who was on the Second Circuit Court of Appeals with Sotomayor when Obama nominated her, asserted that the criticism that she was too aggressive during oral arguments was sexism, plain and simple. He proved it with the record he kept of the questions asked by Sotomayor compared with those of the male judges. He “found her tough and demanding,” Biskupic reports, “but not beyond the norm of what lawyers and other spectators should expect from the bench. ‘She isn’t rude,’ he said, ‘but she goes after you.’”
Sotomayor gave a cogent explanation of her aggressive behavior years later, Biskupic notes. To be promoted in the felony division of the D.A.’s office, she said, “All of the first . . . people selected, myself included, were highly aggressive, very in-your-face prosecutors—because that’s the model that they all were.”
Her boisterous style upsets SCOTUS, but outside the court it demonstrates her authenticity and vulnerability, Biskupic reports. The other justices are very reserved; Sotomayor is the “people’s justice”—she connects and communicates with people. She never fails to tell them her inspiring story and the crucial role of affirmative action in making it possible. Based on her scores alone, her admission to Ivy League schools “would have been highly questionable,” she has admitted. There is no stronger advocate for affirmative action in education.
Biskupic opens the book with a scene at the end of Sotomayor’s first term on SCOTUS. The justices are seated in a room steeped in history, celebrating the end of the term. They follow the tradition that dictates that they sit while their clerks entertain them with parodies of themselves. That done, Sotomayor’s clerks cue up salsa music, Sotomayor jumps up and asks Chief Justice John Roberts to dance with her. He is very hesitant, but briefly goes along. She goes to each justice in turn, eliciting a few reluctant steps from each one.
For Biskupic, the episode is emblematic of Sotomayor’s personality, ethnicity, determination, and her effect on other people. About the party’s ending, she wrote:
…emotions were strong … and Sotomayor’s enthusiasm was catching . . .
But some people were not as amused, and the episode increased their skepticism of Justice Sotomayor. They thought she was calling too much attention to herself, revealing a self-regard that challenged more than the Court’s decorum. [Some, including a justice, said] it was just too much blurring of the lines between the clerks, who traditionally took the stage at the party, and the justices, who sat in judgment in the audience.
In an interview with National Public Radio, Biskupic wondered, “Will the same characteristics that got [Sotomayor] to the Supreme Court potentially interfere with her effectiveness with her fellow justices? When she asked them to dance, they got up. When she asks them to follow her on the law, I’m not so sure.”
Despite Biskupic’s obvious esteem for Sotomayor’s intellect, ambition, and perseverance, she harbors some doubt that Sotomayor’s “difference”—her reluctance to compromise when even the liberals disagree with her, her exuberance and flamboyance, her celebrity and her disregard of certain time-worn traditions of the court—will ultimately stand her in good stead. Biskupic compares Sotomayor with the other women justices, and Sotomayor comes up a little short. Nevertheless, Biskupic does provide a lot of evidence that attests to the justice’s abilities.
Will Sotomayor’s difference work in her favor or against her? The world is rapidly changing. Things (like gay marriage) that were unthinkable a few short years ago are now commonplace. Is it so far-fetched, then, to hope that the first “people’s” justice, one who goes where none have gone before by sharing the intimate details of her life, writing a best-seller that has garnered her millions of dollars, dropping the New Year’s Eve ball in Times Square, and appearing on Sesame Street will earn acceptance by her peers on the bench by virtue of her undeniable intellect and, yes, charm?
Only time will tell.
In this week’s Wednesday 5: magazine covers that got it right when depicting powerful women; how presidents talk about women in SOTU speeches; an in-depth interview with Patti Smith; an online site that connects neighbor with neighbor—even in New York City; and a young girl in Afghanistan uses boxing as an avenue to freedom.
Powerful Women, Shot with Respect
Alanna Vagianos, who has a “Women’s Fellowship” at The Huffington Post, tracks down reports that add scientific weight to what we all know: The media continually focuses more attention on the looks and personality traits of powerful women than on those of powerful men. The sexist sneering may have reached its nadir when Time published the cover Vagianos calls “Powerful Pantsuit Lady Crushes Hapless Men with Her Heel.” Still, “after a bit of research,” Vagianos found 23 non-sexist covers. Six of them portray Hillary Clinton—in smiling mood, not as a virago. See the covers here. Look for the portraits of Sonia Sotomayor, Janet Yellen, and Christine LaGarde; they are shot as icons of dignity, maturity, and wisdom. As if they were men.
How Presidents Talk About Women in SOTU Speeches
Last night, as President Obama delivered another State of the Union speech, artist and programmer Brad Borevitz analyzed the speeches to examine how “women and women’s issues play a greater role in SOTU speeches over the years.” Olga Kazan of The Atlantic distilled the major findings of Borevitz’s analysis of the language of these speeches dating back to the 1920s. She writes, the chart “does provide a strikingly accurate representation of female participation in American society over the decades.” Here’s what the analysis of the speeches revealed:
- “Women” barely make an appearance until the 1940s, when women began to participate both in military efforts and the workforce in greater numbers.
- “Women” garner little mention until the 1980s, the decade when Sandra Day O’Connor became the first female Supreme Court justice and Geraldine Ferraro became the first female candidate for vice president.
See the chart and read more at The Atlantic.
This Sunday, the Financial Times Magazine published a fabulous story on Patti Smith, the 67-year-old singer-songwriter, poet and visual artist, who became a highly influential component of the New York City punk rock movement of the 197os. Of that iconic and dynamic period in American history she told reporter Simon Schama:
Good Postings Make Good Neighbors
In the old days (when we grew up), families on a block knew their neighbors. These days, even many suburbanites, like city-dwellers, protect their privacy by staying aloof. There’s a newish remedy for this standoffishness: As Sally Wendkos Olds reports in NYCityWoman, an online site, nextdoor.com, seeks to re-create that easy informality by enabling neighbors to post questions like “Why wasn’t the trash picked up today?” “Where can I find a quiet restaurant?” “Does anybody know a good math tutor?” This kind of Molly Goldberg–style help is sorely missing in contemporary life. Olds cites New Yorkers who have used the site to, variously, find a neighbor who could take a woman’s son to school, promote a local art fair, organize a block party, find a quiet place to read. Twenty-six thousand websites are connected to Nextdoor, five hundred of them in New York City. Given our new canniness about surveillance, some of us may be wary of laying down yet another email trail. Sally Olds spells out Nextdoor’s strategy for protecting privacy.
Boxing for Freedom in Afghanistan
In this week’s dose of inspiration & activism, we share with you a short documentary film featuring a young Afghani girl, Sadaf Rahimi, who has decided to challenge Afghan traditions of what girls can and cannot do. She is a young student and female boxer. The documentary portrays the larger struggle of the nation’s women for freedom through Sadaf, who is a symbol of the fight.
Wednesday 5: Women and U.S. Foreign Policy, Rosa Parks, Heart Disease, Sonia Sotomayor, & ‘Paperman’
In this week’s Wednesday 5 Web roundup, Hillary Clinton orchestrates a major step toward incorporating women’s and girls’ advancement into U.S. foreign policy; intriguing facts we didn’t know about the life of Rosa Parks; a call to action for black women on the risks of heart disease; Supreme Court Justice Sonia Sotomayor is upgraded to rock-star status; and an Oscar-nominated animated short film, Paperman, that allows us to pause and appreciate the beauty in simplicity.
A Major Step Toward Incorporating the Advancement of Women and Girls into U.S. Foreign Policy
Secretary of State Hillary Rodham Clinton watches as President Barack Obama signs a presidential memorandum, “Coordination of Policies and Programs to Promote Gender Equality and Empower Women and Girls Globally,” in the Oval Office, Jan. 20, 2013. (Official White House Photo by Pete Souza shared under Creative Commons License)
It seems fitting that as part of her last official duties as secretary of state, Hillary Clinton watched as President Barack Obama signed a new presidential memorandum to strengthen the country’s work to advance gender equality worldwide. The initiative, according to the White House blog, spans from
“. . . establishing the White House Council on Women and Girls, to launching a multilateral initiative to expand women’s political and economic participation, to developing a new strategy to prevent and respond to violence against women, to implementing a national action plan to promote the inclusion of women in conflict resolution and peace processes, to focusing on women and girls for greater impact in our global health and food security initiatives.”
This new measure is part of a shift to incorporate “the advancement of women and girls into U.S. foreign policy.” That shift can been seen tangibly in the appointment of the first-ever Ambassador at Large for Global Women’s Issues, Melanne Verveer.
Rosa Parks—What We Don’t Know
Rosa Parks, the brave soul who refused to give up her seat on a segregated Alabama bus, is arguably one of the more well-known figures of the Civil Rights Movement. On Monday, a flurry of tributes (Ms. Magazine blog, US News & World Report, The New York Times) honored this heroine on what would have been her 100th birthday. The United States Postal Service also revealed a new stamp in her honor. What we learned from these tributes is that for the woman deemed “the first lady of the Civil Rights Movement,” there’s still much we do not know about her. Jeanne Theoharis, professor of political science at Brooklyn College of the City University of New York, took up the torch of sharing the lesser-known facts about Parks’s life. Some of the surprises she shared in her Huffington Post blog included: Parks had been thrown off the bus a decade earlier by the same bus driver; her arrest had grave consequences for her family’s health and economic well-being; and Nelson Mandela was indebted to her, telling her after his release from prison, “You sustained me while I was in prison all those years.” Theoharis’s newly published book on Parks details the decades-long activism of this stalwart woman—before and after her famous rebellion on that bus.
Image via Wikipedia shared under Creative Commons License.
RELATED: Black History Month: Five Stand-Up Women, by Deborah Harkins
Heart Disease–No. 1 Killer of Women, Higher Risks for Black Women
This month, Women’s Voices will feature a collection of articles in honor of Black History Month and American Heart Month. Just this Monday, Dr. Patricia Yarberry Allen and Dr. Timothy Dutta spoke on calculating the risks of a heart attack—the No. 1 killer of women. The disease doesn’t differ in its impact only when it comes to men and women, it also differs when it comes to race. The folks at Ebony magazine remind us that in particular, “Black women are disproportionately affected by heart disease; the death rate is 30 percent higher for Black women than their White counterparts.” Click here to read more about how black women can take small steps to improve their health and fight their risks of heart disease, not just in February, but as an ongoing lifestyle adjustment.
Sonia Sotomayor, the People’s Judge (and Rock Star)
It’s no secret that we are fans of Supreme Court Justice Sonia Sotomayor—the first Hispanic and third woman appointed to the United States Supreme Court. Not only has she emerged as a woman’s voice for change, she is also a championing voice for countless others. Since her appointment in 2009, she’s garnered many labels. But since the release of her memoir, “My Beloved World,” we’ve been tickled by the new monikers attributed to the esteemed Justice. The New York Times is the latest to add to the growing list of encomiums, calling her a “book-tour rock star” and “queen of the best-seller list” in a recent article on Sotomayor’s book-tour circuit. When’s the last time a Supreme Court justice was referred to as a rock star? Never. She shared with Jodi Kantor, of The New York Times, the nature of the “change” she hopes to implement:
“Justice Sotomayor said that encouraging others through her personal story—the diabetic child of a poor, non-English-speaking alcoholic, the first Hispanic member of the Court—was an even more important contribution than her jurisprudence. “It is my great hope that I’ll be a great justice, and that I’ll write opinions that will last the ages . . . .But that doesn’t always happen. More importantly, it’s only one measure of meaning in life. To me, the more important one is my values and my impact on people who feel inspired in any way by me.”
Here’s this week’s dose of beauty and inspiration: Paperman, a black-and-white animated short film produced by Walt Disney Animation Studios and directed by John Kahrs. The short has received a nomination for Best Animated Short Film at the 2013 Academy Awards. It’s simply beautiful storytelling. No words, just moving music and animation. Enjoy!
This past inaugural week, Justice Sonia Sotomayor presided over the swearing-in of Vice President Joseph Biden—and then flew to New York to spread the word about her new memoir, My Beloved World, including this appearance on The Daily Show.
In the segment below, Sotomayor doesn’t really describe her South Bronx childhood or the challenges she faced in her early career, though she also says she wrote the book to “make sure that I don’t forget the real Sonia” as she finishes her third year on the Supreme Court. She also hints at some of the dynamics that enable nine strong personalities, who often disagree, to craft the nation’s jurisprudence “all with the same passion.” We learned quite a bit from the interview, and confirmed our early enthusiasm about this most historic of Justices.
In this week’s Wednesday 5, we ponder whether criticism of Kate Middleton’s official portrait is inherently sexist; hope for a black female heroine we can relate to in Django Unchained; marvel at (and also try to understand) Jodie Foster’s Golden Globes speech; feel incredibly inspired by one woman’s idea to create father-daughter dances in prison; and applaud Justice Sonia Sotomayor for making history (again!).
Kate Middleton Portrait Buzz: Art Criticism, Sexism, or Something Else?
Last week’s unveiling of the the portrait of Kate Middleton, commissioned by the royal family for Britain’s National Portrait Gallery, resulted in an onslaught of criticism. Although Middleton herself praised the portrait by artist Paul Emsley as “brilliant,” others, particularly those in the media, weighed in that the portrait shows the duchess as old, dour, bland, awkward, and worn, among other not-so-nice adjectives. With all the hoopla, Samantha Villenave of Hyperallergic.com posed an important question, one we thought should be commended:
“Do these comments reflect the painting, or rather the unflattering light in which Kate is portrayed? Is the problem, in the eyes of the critics, media, and general public, an issue with the actual painting, or rather with a standard set for such a public persona, and for women in general?”
Perhaps, says Andrew Rigsby, one of the site’s readers, the portrait might have been a “very intimate conversation between the artist and his subject. . . We could really be looking at the way Lady Middleton really feels after all her time under the far too hot lights of the paparazzi.”
Read more at Hyperallergic.com.
Invisibility in Django Unchained: Broomhilda in Chains
Even with all the praise and accolades that Quentin Tarantino’s film Django Unchained is receiving for the creation of a unique black hero, Eisa Ulen of Truthout.org argues that the film nevertheless continues an age-old trope in Hollywood—that of the damsel in distress. The film itself centers on the saving of Broomhilda (Kerry Washington), the wife of the character Django (Jamie Foxx), who has been captured and tortured by slave owners. What we’re given, writes Ulen, is a female character who is a perpetual victim in need of saving:
This lost opportunity to authentically render the real-life heroism of Black women during slavery weakens the film. When Broomhilda first sees Django, she faints. When the shootout occurs, she can’t manage to grab a gun and fire even one shot all by herself. When Django comes back for her after the shootout, she doesn’t help plan the destruction of Candie Land. When the mansion where she was sexually assaulted on a regular basis is blown apart, she can only close her ears and smile approvingly at her man’s cunning power.
The alternative? How could the film and the character been been portrayed differently? “I would have liked to see her kick ass, too,” says Ulen. “I would have liked to see Broomhilda unchained.”
Read more at Truthout.org.
Jodie Foster’s Golden Globes Speech
‘Tis the season. Awards Season, that is. And with Awards Season come the notable speeches that will be archived, shared, replayed, and spoofed all over the Web. Jodie Foster (who, by the way, at 50 years old, is stunning), received the Cecil B. DeMille award at the Golden Globes on Sunday night and left the audience—well, speechless. At times rambling, at times meaningful, at times confusing, Foster’s speech (read full text here) has been making the headlines since Sunday evening. Ellen DeGeneres called it an “amazing and laudatory act.” The Associated Press wasn’t impressed, deeming it “long, breathless and rambling” and “anything but predictable.” Salon says it was “awkward and at times angry and brave and strange.”
Whatever your thoughts on Foster’s speech (perhaps you feel all of the above), we did find moments where she spoke powerfully and with an urgent call to action to be authentic and to make a contribution to the world. Foster concluded:
I will continue to tell stories, to move people by being moved: the greatest job in the world. It’s just that from now on, I may be holding a different talking stick. And maybe it won’t be as sparkly. Maybe it won’t open on three thousand screens. Maybe it will be so quiet and delicate that only dogs can hear it whistle. But it will be my writing on the wall: Jodie Foster was here. I still am, and I want to be seen, to be understood, deeply, and to be not so very lonely.
Jodie Foster Speech, Golden Globe Awards 2013
Angela Patton: A Father-Daughter Dance . . . in Prison
Children of incarcerated parents are saddled with the knowledge that they will be without their mother or father as they go through life. Angela Patton, a nonprofit professional working with girls in Richmond, Virginia, believed it was wrong that daughters have to be separated from their fathers because of barbed wire and bars. “Because a father is locked in [jail] does not mean he should be locked out of his daughter’s life,” says Patton. So she created Camp Diva, which helps support “at-promise” girls ages 11 to 17 and works to help girls and fathers stay connected and in each others’ lives. Watch the recent TEDx Women Talk in which Patton shares her story of creating a very special father-daughter dance in prison that provides a way for girls to connect with and invite their fathers into their lives. Her strategy isn’t just about securing father-daughter bonds, it’s also about curbing rates of men returning to prison. “When fathers are connected to their children, it is unlikely they will return to jail,” says Patton.
Angela Patton on Father-Daughter Dances in Prison, TED Talks
Making History (Again): Supreme Court Justice Sonia Sotomayor
On January 20, Associate Justice Sonia Sotomayor will administer the oath of office for Vice-President Joe Biden. She will become the first Latina to administer an oath of office. Equally significant, she is among only three other women who have administered the oath in the history of the United States. Those women are Judge Sarah T. Hughes (President Johnson, 1963); Justice Sandra Day O’Connor (Vice- President Dan Quayle, 1989); and Justice Ruth Bader Ginsburg (Vice-President Al Gore, 1997). 2013 is shaping up to be a very good year for Justice Sotomayor. Her new memoir, My Beloved World, is receiving rave reviews for its candor and for being, according to NPR, “disarmingly personal.”
It wasn’t “Casey at the Bat” on Wednesday night in Washington. Instead, it was congresswomen at the plate and in the field, taking on women from the news media in a softball game to raise money for the Young Survivors Coalition, an organization that deals with breast cancer issues. The congresswomen, led by captains Kelly Ayotte, Jo Ann Emerson, Kirsten Gillibrand and Debbie Wasserman Schultz, found that their early-morning practices paid off as they defeated the newswomen, 5-4. Wasserman Schultz got the game-winning RBI as Linda Sanchez scored the winning run. On the losing side were such players as Dana Bash of CNN, Jackie Kucinich of USA Today, Lynn Sweet of the Chicago Sun-Times and Amy Walter of ABC News. The game was a festive event with Justice Sonia Sotomayor throwing out the first pitch, which she did get over the plate, and Speaker John Boehner and Minority Leader Nancy Pelosi both making appearances, although not at the same time. The cry from the newswomen when all was said and done, “Wait till next year.”
Doris Dukes was a cashier at WalMart when she realized that “The Wal-Mart Way” did not include clear, consistent rules for who gets promotions in the stores. She called a lawyer — and became, more than ten years ago, the lead plaintiff in Wal-Mart v. Dukes, a class action sex-discrimination lawsuit against one of the world’s largest corporations. As the New York Times pointed out in December, “The suit now speaks for more women than the combined total of active-duty personnel in the U.S. Army, Air Force, Marines, Navy and Coast Guard.”
WalMart is asking the Court to strike down two major decisions by the Court of Appeals, last year, in California. The Ninth Circuit found that Dukes, the 62 other named plaintiffs, and reams of statistical and anecdotal data had demonstrated that Wal-Mart’s well-known diversity policies had not overcome a corporate culture and associated practices that have systematically made it harder for women and people of color to advance in the company.
Among those practices are company-wide rules against discussing compensation, which can lead to an employee never even knowing that her pay is significantly lower than her white/male peers. A similar rule was at the heart of the infamous 2007 Supreme Court decision Lilly Ledbetter v. Goodyear Tire & Rubber Co. (550 U.S. 618), which in effect told Lilly Ledbetter that she had no redress when she learned too late that she and other women had been discriminated against. As WVFC’s Faith Childs observed in early 2009, after the decision “lower courts around the country have been busy deepening its effect, turning away suits charging discrimination based on sex, race and disability.” While that decision was reversed in part by the Lily Ledbetter Fair Pay Act, signed in 2009 by President Obama, that bill didn’t really fix the problem. More systemic redress for women was contained in the still-stalled Paycheck Fairness Act, which has been blocked in the Senate partly due to provisions that would make it easier for women to obtain legal damages from corporations. Barring such legislative relief, Wal-Mart v. Dukes may set the tone for the next few decades.
The attorneys who joined Doris Dukes’ case to hundreds of others spent ten years assembling their case. They found women at multiple levels of the hierarchy in hundreds of Wal-Mart stores who talked of being told women should stay home with their kids, that men “needed” management jobs more, and that if women were paid less it was simply that they weren’t aggressive in asking for raises. Counsel also secured salary and promotion data that demonstrated that whatever one thinks of this or that practice, its result is unmistakable:
Too big to sue?
This week, the Court will not be asked to evaluate the specific antidiscrimination claims of Dukes and her co-plaintiffs, but whether the case itself is legitimate. Wal-Mart’s briefs state that the class’s incredible diversity means that it’s not a true class, since all they share is gender; they also claim that the case violates specifics of the laws governing class action, which have been significantly narrowed since landmark cases such as Brown v. Board of Education. And the sheer size of the class, they maintain, makes crafting any remedy near-impossible and damages that would threaten to bankrupt the defendants. The company maintains that the large number of its stores, managers, and employees means that pay and promotion decisions “turn[ed] on decisions made by individual store managers,” without the commonality among class members required for class certification. Hundreds of companies and organizations filed briefs in support of Wal-Mart’s challenge, including Intel, Costco, the Equal Employment Advisory Council, Pacific Legal Foundation, Altria Group, Inc., Bank of America Corporation, Cigna Corporation, Del Monte Foods Company, Dole Food Company, Inc., Dollar General Corporation, Dupont Company, Fedex Corporation, General Electric Company, Hewlett-Packard Company, Kimberly-Clark Corporation, McKesson Corporation, Microsoft Corporation, NYSE Euronext, Pepsico, Inc., Tyson Foods, Inc., United Health Group Incorporated, United Parcel Service, Inc., Walgreen Co.and Washington Legal Foundation.
Dukes and her co-plaintiffs counter that the class’ diversity is its strength, and that they can show that “sex discrimination at Wal-Mart was the inevitable byproduct of a strong and centralized corporate system that originated in the company’s Home Office in Bentonville, Arkansas, and permeated each of the company’s stores in the United States.” In support of Dukes for the Court were the U.S. Women’s Chamber of Commerce, the National Partnership for Women & Families, National Women’s Law Center, NAACP Legal Defense and Educational Fund, Inc., National Association for the Advancement of Colored People, Leadership Conference on Civil and Human Rights, AARP, Disability Rights Education and Defense Fund, Inc., Latino Justice PRLDEF, Asian American Justice Center, Asian Law Caucus, Lawyers’ Committee for Civil Rights Under Law, and Public Citizen, among others.
If the Court agrees with Wal-Mart that there’s no legitimate class action, Dukes supporters say, this will make it much harder to take on employment discrimination. Marcia Greenberger of the National Women’s Law Center (above left) told an American Constitution Society briefing on the case last week that the impact would not be limited to women: “Older workers, workers with disabilities, workers of color — all would find it harder to make their employers accountable,” she said.
And justice for all?
No one’s placing bets yet on the Court’s decision in June. Tomorrow’s oral arguments promise to be fascinating, given that most of the current court decided Ledbetter in 2007 and ruled for corporations’ rights in Citizens United in 2010 — including Antonin Scalia, whose recent comments declaring that women aren’t included in the Civil Rights Act have caused some to ask Scalia to recuse himself from Dukes.
However, the New York Times‘ Linda Greenhouse, looking at the current Court term, found some perhaps surprising stats: “Employees suing companies for civil rights violations have won all three cases decided so far… By wide margins, the court has rejected arguments put forward by corporate defendants in several cases. It refused to permit corporations to claim a personal-privacy exemption from disclosure of law-enforcement records under the Freedom of Information Act. It permitted a liability suit to proceed against an automobile manufacturer for not installing the safest kind of back-seat passenger restraint. And in a unanimous opinion on Tuesday, the court refused to throw out a lawsuit by investors alleging that a drug manufacturer’s failure to disclose reports that some patients using its cold remedy had lost their sense of smell amounted to securities fraud.” And no one is overlooking the fact that this is the very first such case to be decided by a Court that is, for the first time, one-third female — including, noted the Times‘ Adam Liptak, Justice Sonia Sotomayor, who voted to certify an even larger class action in an antitrust case involving eight million merchants, including Wal-Mart, when she was a judge on the United States Court of Appeals.
We’ll have a full popcorn bowl handy while we read the live blogs of the arguments. By all means, let’s comment on them together below — and then place our bets on the outcome in June.
Ah, September. The end of summer, back to school . . . and Menopause Awareness Month.
This year, WVFC is taking a page from the presidential playbook and offering our version of the State of the Union message: a look at The Year in Menopause.
We polled several WVFC board members and contributors, and came up with the following review, with its hits, misses, and wipeouts. For every sweet moment, like the confirmation of two Supreme Court justices or Kim Cattrall playing a menopausal woman on screen, there were a few we could have done without (including Kim Cattrall playing a menopausal woman on screen). Feel free to add your own comments to the mix, along with milestone events we might have missed.
August 2009: Sonia Sotomayor is confirmed as a Justice of U.S. Supreme Court, despite the concern of some legislators about her overuse of empathy and talk generated by talk radio about her menstrual cycle.
September 2009: ABC premieres “Cougar Town,” featuring Courtney Cox as a recently divorced 40-something entering the dating scene. Women grimace with annoyance and some recognition.
December 2009: A Christmas gift: Meryl Streep as a sexy, zestily lustful woman of a certain age in It’s Complicated.
February 2010: MORE magazine, in its newest revamp, changes its tagline from “The Magazine for Women Over 40” to “Women of Style and Substance.” Thanks for the clarification, we guess.
May 2010: The ‘M’ word hits prime time. While promoting her new concert tour, “”More Today Than Yesterday,” on Entertainment Tonight, Diana Ross mentions the challenges of menopause. So does Kim Cattrall, promoting Sex in the City 2. We cheer at seeing menopause in the movies, until the film actually comes out. To quote one incensed gynecologist we know: “The worst stereotypes about menopause, the worst advice about bioidentical hormones–as if menopause were a near-fatal illness.”
Leave it to Helen Mirren to top that by posing nude in a bathtub for a feature in New York magazine. 60 is sexy!
August 2010: Woman’s Day launches the weekly blog/water cooler “The Big M,” on dailywd.womansday.com. First post: “The Big M: An Enigma.”
The House-Senate Joint Economic Committee, chaired by veteran Congressmember Carolyn Maloney,right, releases “Women and the Economy 2010: 25 Years of Progress But Challenges Remain.” Women are now officially over half of those working. Now tell us why we don’t have half the power.
Tilda Swinton swoons over a plate of prawns, falls for her son’s sexy friend, and refuses to be undone by it all in I Am Love.
And Kyra Sedgwick finally nabs a Best Actress Emmy for “The Closer.” Fifth try.
September 2010: The new issue of Vogue arrives, featuring Halle Berry. At 44, Berry is one of the magazine’s oldest cover girls (who isn’t married to a head of state). Inside, she’s candid about not just workout and makeup tips, but her diabetes, and the strict diet regimen she follows to ensure her health.
On many levels, August 2009-September 2010 was not a brilliant year–we need only look back at WVFC’s coverage of unemployment among women over 50, the BP oil spill, and looming threats to Social Security, among other topics, for proof of that fact. But as far as menopause was concerned, it wasn’t a terrible year, all things considered. Of course, we at WVFC want a better report for Menopause Awareness Month 2011. After all, that’s what we’re here for.
I recently came up with an idea: that it would be revelatory to ask as many women who were willing to “nominate” our next world leaders to choose who, among women, they’d put forward to lead the world. This seems more apt than ever, given last week’s decision by the Supreme Court, which may guarantee even more corporate sponsorship of our elected officials.
Is your present Supreme Court not delivering on its promise to you as a U.S.citizen, in its responsibility to adjudicate, interpret and set in place the law of the land, according to the Constitution?
For example, do you think that ExxonMobil, Inc. or General Electric qualify as “persons”? A person who might, say, end up standing with you in the unemployment line? Who might hold your hand with its own “human” mitts when your health insurance claim is denied by other corporations called big insurance companies (who are, according to the Court, “people” too)? Do you think EXXON or AIG or (name any other big corporation) will place their little flesh-paws over the hand that rocks the cradle?
Before we cue the violins to play Barbra singing “People Who Need Corporate People,” how about this: a little speculation about another kind of Nine? Another kind of court: worldwide, and populated by women. Not corporate faux-protoplasm propping up those already in power, but living women, nominated by other women. They just might come up with some new ways to interpret what it is to be human, and what it means to take responsibility for saving the world.
At dinner one night, I tried on the idea with WVFC co-founder Laura Baudo Sillerman and a few others. Then I asked a few more women, then a few more, and finally published the first names on the Huffington Post. I’m hoping that many more women will weigh in. My assistant, Diana Arterian, and I will tabulate the results. Then, on this page and elsewhere, we’ll announce THE NINE, an “international court” of nine women who could spin the world back on its axis and maybe even save us.
What do you think? Is it time for us to start imagining a new kind of world, since this one ain’t working? Is it time for us to try a different approach — say, give the other gender a chance at running things?
Most of the handful of women I polled, of all ages, would like to see women given a chance at piloting the ship for a while. We’ve had men in the majority in just about every area of governance and power — everywhere on the planet. If women were in charge, would things improve? How about The Nine, an international court of women, enlightened governance?
Please respond by nominating one or two or nine women who you think could take charge and give us a chance to save ourselves and the planet. At a certain point, I’ll tally the results to see who The Nine are, but we are not so interested in how many votes any single “candidate” gets as which names appear.
By the way, here are just a few of the names I’ve gotten so far. (We’ve added links to WVFC stories when possible, and Wikipedia when not. — Ed.) So add your votes for them as well, if you like — and still, please, give us at least one more.
UPDATE: Nominations for Nine Women to Run the World will be considered complete on February 14, 2010. If you have not yet “cast your vote” – please do it soon!
- Hillary Clinton (Secretary of State, U.S.)
- Michelle Obama (First Lady, U.S.)
- Mary McAleese (President, Ireland)
- Ellen Johnson Sirleaf (President, Liberia)
- Barbara Boxer (U.S. Senator, California)
- Ariana Huffington (Journalist, Activist, Founder, Huffington Post)
- Margaret Thatcher (Former Prime Minister, U.K.)
- Victoria Donda (Argentinian Politician)
- Melinda French Gates (Philanthropist)
- Shirin Ebadi (founder, Center for Human Rights in Iran)
- Sheila Bair (chair, FDIC)
- Elizabeth Warren (Law Professor)
- Anousheh Ansari (Business Entrepreneur)
- Esther Dyson (Journalist, Philanthropist)
- Adrienne Rich (Poet)
- Azar Nafisi (Author, Professor)
- Sylvia Earle (Oceanographer)
- Sandra Day O’Connor (Former Supreme Court Justice, U.S.)
- Aung San Suu Kyi (Nobel Laureate, Activist, Myanmar)
- Ruth Bader Ginsburg (Supreme Court Justice, U.S.)
- Isabel Allende (Author, Activist)
- Caroline Kennedy (Philanthropist, Author)
- Jane Goodall (Anthropologist, Author)
- Toni Morrison (Nobel Laureate, Author)
- Wislawa Szymborska (Nobel Laureate, Poet)
- Noor al-Hussein (Queen of Jordan, Philanthropist)
- Sonia Sotomayor (Supreme Court Justice, U.S.)
- Kathleen Sebelius (U.S. Government Official)
- Maria Shriver (First Lady, California, Author)
- Mary Robinson (Former President, Ireland)
- Fran Pavley (Environmentalist, Activist)
- Gloria Steinem (Journalist, Activist)
- Nadine Strossen (Lawyer, Former President of the ACLU)
- Amy Lehman (Doctor, Activist)
- Karen Armstrong (Author)
- Edwidge Danticat (Author, MacArthur Fellow, Haitian)
- Oprah Winfrey (Television Talk Show Host, Philanthropist)
- Eve Ensler (Author, V-Day Founder)
- Marsha Moss (Public Art Curator)
- Rachel Maddow (Rhodes Scholar, Public Health Ph.D., MSNBC host).
- Maxine Singer (Biochemist, Former President, Carnegie Institute)
- Madeleine Albright (Former U.S. Secretary of State)
- Martha Coakley (Attorney General, Massachusetts)
- Patricia Strachen (Editor)
- Vandana Shiva (Physicist, Philosopher, Eco Feminist, Activist, and Author)
- Medha Patkar (Social Activist)
- Hu Shuli (Journalist)
- Esther Dyson (Journalist, Philanthropist)
- Margaret Wheatley (President of the Berkana Institute)
- Vicki Flaugher (Entrepreneur)
- Dr. Jane Lubchenco (Sec. of Commerce for Oceans and Atmosphere and NOAA Admin.)
- Reverend Alexia Salvatierra (Exec. Dir. of Clergy & Laity United for Economic Justice of California)
- Dr. Holmes Hummel (Dept. of Energy)
- Alisa Gravitz (Founder of Green America)
- Sheila Kuehl (Former U.S. Senator and Assemblywoman)
- Constance “Connie” Rice (Civil Rights Activist, Lawyer)
- Kavita Ramdas (Head of the Global Fund for Women)
- Louise Arbour (Former UN Human Rights High Commissioner and Canadian Supreme Court Justice)
Please add your nomination. Nominate your mother, your sister, your mentors and neighbors. Just let us know in the comments section below. Who should we be following?
Thanks for adding a name — even your own.
Carol Muske-Dukes, Poet Laureate of California, is a novelist, the author of seven books of poetry, and an essayist and activist. She also writes for The New York Times Op-ed page and book reviews, and is a former poetry columnist for the LA Times. Ms. Muske-Dukes is a founding Director of the Ph.D. Program in Literature and Creative Writing at the University of Southern California, where she is a professor. Join her California Poet Laureate project, The Magic Poetry Bus: http://magicpoetrybus.org!
I really can’t explain why, but my eyes welled up as I watched Sonia Sotomayor take the Judicial Oath on Saturday to become the 111th Justice of the Supreme Court, the third woman and the first Hispanic to sit on that exalted bench. I cheered and applauded as she concluded, flanked by her brother and especially by her mother, the diminutive woman whose determination propelled her children out of the urban ghetto into university and the professions of medicine and law — and who held the Bible as her daughter joined the highest court in the land.
Was I so moved because I too am Hispanic, the child of a Cuban immigrant? Were my tears remembering the dreams of the ’60s, the feminist fights for goals the mainstream ridiculed? Was I awed by the indomitable power of a mother’s love? Or was it the evidence that the American dream still lives, despite the corruption and degradation of long-held ideals?
I suppose all play a part. But I think above all it was empathy — understanding and sharing the pride of achievement felt by mother and daughter, the reward for years of sacrifice and striving and deferral of momentary pleasures for the sake of future ones. Empathy is that quality so maligned by Sotomayor’s opponents: “America needs judges who are guided and controlled not by subjective empathy that they find inside themselves, but by objective law that they find outside themselves,” said Sen. Orrin Hatch (R-UT).
Hatch is one of the senators who has openly feared that Sotomayor might bring her experiences — as an outsider, an “other,” a poor kid from the projects, an Ivy Leaguer, a woman, anything but an Anglo male — to bear when she renders judgment in the highest court of the land.
“You will be free, as a United States Supreme Court justice, to basically do what you want, with no court reviewing those decisions,” Texas Senator John Cornyn told Sotomayor on the third day of her confirmation hearing. It’s not difficult to detect the fear that she will have power that he won’t be able to challenge, the ability to upset some aspect of the privilege he’s taken for granted all his life.
|The Colbert Report||Mon – Thurs 11:30pm / 10:30c|
|The Word – Neutral Man’s Burden|
Again and again, the senators appeared incapable of the kind of self-knowledge that Sotomayor demonstrated when she acknowledged that her gender and her Latina heritage might have an effect on her judging. They wouldn’t understand that a person who doesn’t acknowledge and confront his prejudices will be incapable of overcoming them. They didn’t seem to be able to accept the validity of a world view different from their own or, by implication, their inexorable march to demographic minority status.
Yet, despite all the railing against “empathy” and emphasis on the cold letter of the law, Cornyn seemed to be unaware of the irony in his remarks as he implied that the judge hadn’t shown any empathy when she rejected the firefighters’ claim (Ricci v. DeStefano) on the basis of precedent:
So you decided that … the city was justified in disregarding the exams, and thus denying these firefighters, many of whom suffered hardship in order to study and to prepare for these examinations, and were successful, only to see that hard work and effort disregarded and not even acknowledged in the court’s opinion.
In some ways, Senators Cornyn and Hatch, Sessions and the others are right to be alarmed and fearful that Sotomayor could change the court and influence its decisions. Every new justice alters the dynamic of the court. Thurgood Marshall, the first black justice, and the first women, Sandra Day O’Connor and Ruth Bader Ginsberg, have all — not just through their arguments, but by their mere presence — given their colleagues new optics through which to view the world. And now, thanks to Justice Sonia Sotomayor, the Court will have yet another.
Today, Judge Sonia Sotomayor became Justice Sotomayor — the first Hispanic Supreme Court Justice.
WVFC has been watching these weeks before her confirmation with great interest — with news blogs as President Obama chose her and a sharp commentary by Diane Vacca of the deep sexism in the media’s treatment of the third female Justice in history.
Late last week, the Senate confirmed her by a vote of 68 to 31; Senator Lindsey Graham, who had been a harsh questioner during confirmation hearings, voted in favor, while Senator Sessions and former Presidential candidate John McCain lined up with the rest in opposition. (Watch a video of Al Franken’s announcement here.)
Justice Sotomayor started work today with a very full plate. Bloomberg News outlines some of what’s coming up right away:
Her first test will come Sept. 9, when the justices hear an unusual second round of arguments in a campaign finance case to consider overturning the century-old ban on corporate political giving. The case concerns a documentary film critical of Secretary of State Hillary Clinton, then a candidate for the 2008 Democratic presidential nomination.
Later in its 2009-10 term, which formally starts in October, the court will consider the ability of private citizens to sue over religious monuments on public property, determine the constitutionality of a government agency that oversees the accounting industry, and consider whether youths can be sentenced to life in prison for crimes other than murder.
In addition, notes Amy Davidson at The New Yorker, the judge who ended the baseball strike is not quite through with baseball, as Major League Baseball’s exclusive contract with Topps for “approved” baseball cards is up for examination:
Since when are such monopolies legal? As it happens, the Supreme Court has agreed to hear a case addressing that very question, American Needle v. N.F.L., this fall. It concerns the N.F.L. and hats, but could have big implications—an ESPN.com columnist said it “could easily be the most significant legal turning point in the history of American sports.” Sotomayor has already saved baseball; can she now save baseball cards?
We’re guessing that after 17 years on the bench, facing off with Major League Baseball, and keeping her cool as the Senate Judiciary Committee made her answer the same questions over and over, the hard, essential work of the Court will feel like a breeze. We look forward to hearing about her as we watch the next session of the Court.
For updates on Day Two of the Senate hearing on Sotomayor, scroll to the end of this post.)
This week, two 53-year-old women were front and center on the national stage: Judge Sonia Sotomayor, as Senate hearings on her nomination to the Supreme Court began, and a primary care physician from Louisiana named Regina Benjamin, who was appointed today to the long-vacant office of Surgeon General.
Dr. Benjamin, a member of the second class at Morehouse School of Medicine, received the prestigious Macarthur Foundation “genius grant” for her health center the Bayou Clinic. She has been variously called “an angel in a white coat” and “a healing force,” so named by the Readers Digest for her work after Hurricane Katrina:
After finishing with med school, [Benjamin] ignored lucrative job offers elsewhere and returned to the region, laboring at the clinic from 7 a.m. until past midnight. On weekends, she traveled across three states to work as an itinerant emergency room physician to pay the bills. There was never any question that she would rebuild. Again, the question was “How?”
“Bill me.” Benjamin, in a white lab coat with a stethoscope around her neck, was on the phone with the pharmacist at CVS. The week after Katrina, she had begun treating patients at the community center, where 240 cots were set up for homeless townspeople. Benjamin’s “office” was now the stage of the auditorium. She conducted examinations right there, without even a curtain for privacy. The nearest bathroom was downstairs.
People arrived with ugly gashes from clearing debris, infections from the foul water, and allergies from the mold. All Benjamin could do was ask them about their medical history; she had no records to consult. Patients’ lifesaving medications for diabetes, asthma and blood pressure had been washed away in the storm. Benjamin treated them all at no charge…..
And when the clinic caught fire in January 2006, Benjamin didn’t blink an eye. She wrote later in a New York Times essay:
How bad could the fire be, I wondered, if they needed me to unlock the door? Really bad. When I arrived, the clinic was still in flames. Everything the staff, volunteers and donors had struggled to rebuild had burned, literally, to the ground. The medical records we’d recovered were now ashes…. [In our trailer next door] we set about re-stocking and continued seeing patients. Through all of this, we never missed a day’s work.
Losing the new clinic building was a blow not only to us, but also to our community. Patients came by, some of them crying, others just hugging me and letting me know I wasn’t in this alone. An elderly woman sent her daughter over with $7 in an envelope to help us rebuild, which we will surely do.
You might have thought that such heroism would make Benjamin invulnerable to sexist commentary. However, as Feministing.com noted, commenters at the New York Times’ Web site immediately began making comments about Benjamin’s body type, not her record in taking care of underserved communities.
Across town from where President Obama announced Benjamin’s appointment, the Senate Judiciary Committee began its hearings into the nomination of Second Circuit judge Sonia Sotomayor to the U.S. Supreme Court. The months since her nomination was announced, WVFC’s Diane Vacca wrote last month, has yielded a barrage of race- and gender-based attacks on a nominee with more experience than the current Chief Justice. Thanks to Women’s Media Center for some of the highlights:
And in the hearings, a number of Senators have continued to touch many of the same themes — despite the fact that confirmation appears assured, a fact admitted by all in the room.
The room was full of tension on Monday; at one point committee chairman Patrick Leahy abruptly cut off Sen. Kirsten Gillibrand, one of the two introducing the nominee, saying “Only if you can wrap it up in ten seconds.” Gillibrand grinned and did it in five.
Senator Jeff Sessions, whose own judicial nomination was once quashed by Judiciary due to his past support of segregation, challenged Sotomayor’s common-sense assertion that one’s experience will affect their reasoning:
During a speech 15 years ago, Judge Sotomayor said, ‘I willingly accept we who judge must not deny the difference resulting from experience and heritage, but attempt continuously to judge when those opinions, sympathies and prejudices are appropriate.” And in that same speech she said, ‘My experiences will affect the facts I choose to see.’ Having tried a lot of cases, that particular phrase bothers me.
And Lindsay Graham, of South Carolina, worried again Sotomayor’s remark in a 2001 speech that a “wise Latina” might make a better judge than a white male, “even after meeting her for more than 30 minutes this afternoon,” the Washington Post noted:
“My criticism about her comment and the speech that she gave wasn’t that I think this lady is a racist,” Graham said, later continuing: “There is no evidence of that, but this statement is troubling and I did tell her this, ‘If I said it, it would be over for me. No matter how well-intentioned I was and no matter how much I tried to put it in context, that would be it.’ And you all know that.” He added, “being an average, every-day white guy … that does not exactly make me feel good hearing a sitting judge say that.”
Both Senators mentioned Obama’s recent mention of “empathy” as a desirable trait in Justices, as if it were somehow antithetical to justice — even though, as the American Constitution Society blog noted, none other than former Chief Justice Thurgood Marshall called it essential: “[I]t is perfectly proper for judges to disagree about what the Constitution requires. But it is disgraceful for an interpretation of the Constitution to be premised upon unfounded assumptions about how people live.” U.S. v. Kras, 409 US 434.
Graham and Sessions’ unease also reflected a complicated response to the historic election of Barack Obama, and the President’s explicit determination to make appointments that reflect a diverse spectrum of America (perhaps underlined today by the appointment of Benjamin). Watch below as Sotomayor begins, in her brief statement, to address that unease, while quietly ensuring that they know she’s not someone to be messed with.
As questioning began Tuesday, committee chairman Patrick Leahy opened the hearing gently, but then Sessions, his counterpart took the mike — and went directly to those anxieties. Los Angeles Times reporter Robin Abcarian described the most testy exchange, starting with Sotomayor’s “wise Latina”comment:
“You have suggested that a judge’s background and experience will impact their decision, which goes against the American ideal that a judge will be fair to every party, and every day when they put on that robe they will put aside their personal prejudices.”
Sotomayor kept her cool as Sessions pressed her on the famous statement she made to a group of students at Duke University that appellate court judges make policy.
“The job of Congress is to decide what policy should be for society,” said Sotomayor. “I was focusing on what district court judges do and what circuit court judges do. District court judges find the facts and their finding doesn’t bind anybody else. Appellate judges establish precedent … that precedent has policy ramifications because it binds not just the litigants in that case, but it binds litigants in cases that may be influenced by that precedent. If my speech is heard outside the few minutes that YouTube presents … it is very clear I was talking about the policy ramifications of precedent.”
Sessions was not buying it. “Judge, I don’t think it’s that clear.”
Scott Horton points out, in The Daily Beast, the piece de resistance of Sessions v. Sotomayor:
In the contest flagged by many as the main event—the questioning by the new ranking member who has coordinated the Republican effort to derail her nomination, Alabama’s Jeff Sessions—Sotomayor scored a KO. Perhaps the soft-spoken Sessions knocked himself out. Criticizing her now oft-quoted “wise Latina” speech, which Sotomayor effectively walked back only minutes earlier in response to questioning from Sen. Patrick Leahy (D-VT), Sessions said he wished that Sotomayor were more like federal Judge Miriam Cedarbaum, who “believes that judges must transcend their personal sympathies and prejudices.” Sessions had apparently not scanned the audience very carefully, and Sotomayor quickly picked up on his slip. “My friend Judge Cedarbaum is here,” Sotomayor replied. “We are good friends, and I believe that we both approach judging in the same way, which is looking at the facts of each individual case and applying the law to those facts.” The moment was like that in Woody Allen’s Annie Hall, when a preening know-it-all cites media guru Marshall McLuhan and Allen pulls McLuhan out from behind a movie poster to disprove his point.
Instead of scoring on the issue that Sessions had picked for his lead, he allowed Sotomayor to debunk it. Cedarbaum, a well-regarded conservative appointed to the bench by President Reagan, quickly leaped to Sotomayor’s defense: “I don’t believe for a minute that there are any differences in our approach to judging, and her personal predilections have no effect on her approach to judging,” she told The Wall Street Journal’s Jess Bravin
Later in the day Senator John Kyl gave a gentler version of Sessions’ line of attack, going in exhaustive detail through the “wise Latina” speech and Ricci v. di Stefano, the New Haven case in which Sotomayor’s Second Circuit ruled against a discrimination complaint by a white firefighter. Imagining a nation with more women and people of color on the bench, Kyl said slowly: “Many fear that you believe that things would be different.”
The idea that such a difference would smash, not enrich, the idea of justice was alive in the room — so much so that Sotomayor kept repeating, in answer after answer, that she would treat all plaintiffs the same.
As for Senator Graham, James Oliphant notes that he took some time to pull quotes from “Almanac of the Federal Judiciary, a guidebook to federal judges:
The almanac solicits comments from lawyers who practice before the judges profiled in the book — and because of the delicate nature of the feedback, the comments are anonymous. The lawyers quoted complained that Sotomayor was a “bully” and a “terror” on the bench, suggested she wasn’t “that smart” and was rude to lawyers who made arguments she didn’t like.”
Sotomayor replied that she knew she was a “tough questioner,” and left it at that — at least for today.
At Slate, Emily Bazelon wishes the exchange had gone on longer, and quotes as affirmation the Court’s current sole female Justice:
Highly respected judges like Richard Posner and Frank Easterbrook make the lawyers appearing before them cower, and no one says boo to them about it. When states invite lawyers to evaluate judges, “often these evaluations have proven to be an open invitation to biased assessments in which competent, even-tempered female and minority judges are rated as subpar and lacking in judicial temperament,” a symposium by the National Association of Women Justices found. In 1994, former Justice Sandra Day O’Connor wrote that “attorney evaluations of judicial performance revealed a ‘pattern of bias’ ” against women on the bench.
Justice Ruth Bader Ginsburg, who doesn’t have to mince her words for the senators, nailed this when I had the great luck to talk to her two weeks ago. “The notion that Sonia is an aggressive questioner—what else is new?” she said. “Has anybody watched Scalia or Breyer up on the bench?” If Sotomayor gets on the court, she said, “she’ll hold her own.”
I first learned about President Obama’s choice of Judge Sonia Sotomayor to fill the Supreme Court vacancy from my husband. “Everybody’s saying she was chosen because she’s both a woman and Hispanic,” he said. “Nobody’s mentioning that she went to Princeton, where she graduated Summa cum Laude, and that from there she went to Yale Law, where she made the Law Review.”
Even before Obama announced his choice, some were circling the wagons, working out strategies of attack in order to defeat the nominee, whoever it might be. It’s no surprise that Sotomayor is being assailed. What is surprising— although at this point, I suppose it shouldn’t be—is that criticism is levied without any regard for actual fact. How, for example, can a person who graduated first in her class in high school, then with highest honors from an ivy league college, and finally from an ivy league law school as an editor on the law review, also be “not the brainiest of people” or “maybe not the smartest ever,” as dismissed by the anonymous sources in Jeffrey Rosen’s indictment of Sotomayor in The New Republic?
It has been noted that Sotomayor’s history and that of Justice Alito are occasionally tangential. Both went to Princeton, but only Sotomayor graduated with (highest) honors. She also won the Pyne Prize, Princeton’s highest undergraduate honor. Both went to Yale Law, and both were editors of the Law Journal. Yet Alito’s intellectual prowess was never called into question before his confirmation hearing.
When it became clear that Sotomayor’s intellect couldn’t be the basis for rejection, attention turned to her “temperament.” The New York Times reported that “some lawyers describe her as ‘difficult’ and ‘nasty,’” that she is “sharp-tongued” and “testy,” a “terror on the bench” who “behaves in an out-of-control manner.” (Interestingly, the original title of the article, “Sotomayor’s Sharp Tongue Raises Issue of Temperament,” has been revised. The “sharp tongue” is now a “blunt style.”) In fairness, the Times also cited favorable opinions. Nevertheless, one can’t help but notice how often a forceful woman who is outspoken and unafraid to speak her mind or advocate for a cause she believes in is characterized as “domineering” or “difficult,” but a man with similar qualities is admired as “strong,” “forthright,” “commanding” and so forth.
Take Justice Scalia, whose aggressive questioning—some would say bullying—from the bench is admired in some quarters. Last February a student asked him why the proceedings of the Supreme Court may not be photographed or televised, given that the court publishes transcripts of its sessions, which are open to the public. “Read the next question,” Scalia replied. “That’s a nasty, impolite question.” Scalia’s rudeness hasn’t disqualified him from doling out justice in the highest court.
Cynthia Fuchs Epstein, a City University of New York sociologist who specializes in gender, writes about an English study which showed that women were always seen as either “nice mice” or dragons. “That’s exactly what I found in my study of women lawyers,” Epstein told me, “that women who were assertive were seen as unduly aggressive, and women who were seen as quiet were seen as incompetent to be effective in a courtroom. It’s a no-win situation. In a sense, that’s what’s happening to Sotomayor.” Epstein thinks that since “she’s not a flaming a liberal by any means, they can’t go after her on that score. I think what they’re trying to do is just diminish her, and they’ll use whatever they can. There are some very handy things around in the culture which have to do with what’s considered the proper demeanor of a woman. There are not too many norms for the proper demeanor of a woman on the court.”
G. Gordon Liddy, known to some of us as the Watergate Plumber, evidently believes in the head-on Neanderthal assault. On his radio show Liddy said, “Let’s hope that the key conferences aren’t when she’s menstruating or something, or just before she’s going to menstruate. That would really be bad. Lord knows what we would get then.” That someone would say that today—never mind privately, but on the radio—is appalling. The gratuitous contempt is mind-boggling, and the ignorance of female sexuality (Sotomayor is 55) astounding.
Other critics are focusing on substantive issues which they consider germane to her appointment. Wendy Long, of the conservative Judicial Confirmation Network, speaks of “her terrible record of reversals by the Supreme Court.” Let’s look at the record: The Supreme Court reviewed five of the 232 opinions Sotomayor wrote in the 11 years she served on the Second Circuit; of those five, it reversed three, a 60 percent rate. To put that in context, the Supreme Court overturns three-quarters of the decisions it decides to review. Yet by the time Samuel Alito was nominated by George Bush in 2005, the National Law Journal points out, every one of Alito’s decisions on the 3rd Circuit had been reversed, which was “barely noted and did not count against [Alito].”
Some attacks are just laughable. The Hill reports that Sotomayor’s avowed enjoyment of typical Puerto Rican dishes “has prompted some Republicans to muse privately” that her ethnic culinary preferences “would somehow, in some small way influence her verdicts from the bench.” But others are being taken much more seriously.
Curt Levey, executive director of the conservative legal group Committee for Justice, has called Sotomayor a “wild-eyed judicial activist” because in 2005 at Duke University she said the “Court of Appeals is where policy is made.” Yet Justice Antonin Scalia, the “patron saint of non-activist judges,” as Rachel Maddow calls him, “baked” the same view into an opinion he wrote in 2002 (Republican Party of Minnesota v. White): “Not only do state-court judges possess the power to ‘make’ common law, but they have the immense power to shape the state constitutions as well.” And he added, in a footnote to the same ruling: “…. judges of inferior courts often ‘make law,’ since the precedent of the highest court does not cover every situation.”
Then there’s the line that you may have heard echoed across the political spectrum, usually lifted from its context and cited as prima facie evidence of her bias and “reverse racism,” notably by Rush Limbaugh and Newt Gingrich. “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.”
While Sotomayor has apparently acknowledged to the President that she might have chosen her words more judiciously, the point she was making at Berkeley in 2001 was about the importance of diversity on the Supreme Court.
[O]ur experiences as women and people of color affect our decisions. The aspiration to impartiality is just that—it’s an aspiration because it denies the fact that we are by our experiences making different choices than others. As recognized by legal scholars, whatever the reason, not one woman or person of color in any one position but as a group we will have an effect on the development of the law and on judging.… The people who argued [seminal decisions in race and sex discrimination] cases before the Supreme Court which changed the legal landscape ultimately were largely people of color and women.
Conversely, Sotomayer argued, “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.”
From that reasoned set of observations, we have talk radio, columnists and T-shirts, for all we know, calling Sotomayer a “racist.”
All this is only the beginning. Some groups are now demanding a filibuster, while Professor Adia Harvey notes that it may be time for a full-court women’s muster along the lines of the 1990 campaign in support of Anita Hill—a campaign that sees the point where racism and sexism converge, and calls it out.
It’s going to be an interesting summer.
Last night, President Obama called all three of the women we last mentioned as potential Supreme Court Justices and told them he had chosen the very first on our list, 55-year-old New York judge Sonia Sotomayor — despite a whisper campaign that had already questioned her intelligence and called her a “fiery Latina” instead of the more respectful “potential first Hispanic Justice.” Sotomayor has more combined experience, at every level of the judicial system, than any current member of the Court:
- The Associated Press starts with Sotomayor’s compelling biography: “Sonia Sotomayor’s path to the pinnacle of the legal profession began in the 1960s at a Bronx housing project just a couple blocks from Yankee Stadium, where she and her family dealt with one struggle after another.”
- In its May 15 profile, the New York Times calls her “Baseball’s Savior” for her role in ending the 1994 baseball strike. The Times also noted that she runs what lawyers call a “hot bench,” demanding much from attorneys who appear before her bench at the Court of Appeals: “Questions come fast and furious, and lawyers have to be fully prepared.”
- About that whisper campaign, which is likely to continue (as with all nominees): It began early with a much-discussed piece in The New Republic, which quoted comments from a judicial handbook and anonymous law clerks, and questioned her intelligence and painted her as domineering, even though writer Jeffrey Rosen admitted, “I haven’t read enough of Sotomayor’s opinions to have a confident sense of them, nor have I talked to enough of Sotomayor’s detractors and supporters to get a fully balanced picture of her strengths.”
American University law professor Darren Hutchison analyzes the written comments critics refer to in criticizing Sotomayor, and notes that “domineering” is not language normally used about male justices such as Antonin Scalia:
For Sotomayor, being a sharp interrogator and requiring lawyers to be “on top of it” are negative qualities. These traits are not negative in most men, certainly not white men… In Scalia, toughness is positive; in Sotomayor, it is nonjudicial. If Scalia asks irrelevant questions, he is just being a dutiful “law professor” trying to hold the attention of his class. If Sotomayor does the same thing, she is just interested in hearing herself talk. When Scalia duels harshly with litigants, the “spectators” watch in amazement. If Sotomayor asks tough questions, she is seen as difficult, temperamental and excitable. The disparate treatment is too dense to deny.
At WVFC, we’ve been rooting for every woman on the shortlist. But we’ll be keeping extra-close watch on the cable-TV noise if they try to pull the “too aggressive” or “fiery Latina” or “affirmative action” card and try to stop her confirmation.