Jean Podrasky and Grace Fanzano are among the hundreds of couples who’ve thronged to Washington this Easter week to watch the Supreme Court hear arguments in two different cases involving same-sex marriage.
This past weekend, people started lining up to attend the Court session, which has become the hottest ticket in Washington, D.C. But Podrasky, 48, will attend as a special guest of one of the Justices: her first cousin, Chief Justice John Roberts.
Today the Court will hear arguments in Hollingsworth v. Perry in order to evaluate the constitutionality of California’s Proposition 8—a voter initiative, passed in November 2008, that erased the right to marriage established by the California Supreme Court earlier that year. Tomorrow they will hear a challenge to the 1996 Defense of Marriage Act in Windsor v. New York. The stakes are high for couples like Podrasky and Fanzano: According to the Williams Institute, a legal think tank, the repeal of Prop 8 can affect 100,000 California couples, while the Defense of Marriage Act, which prohibits federal recognition of same-sex marriages, has direct impact on the 20 percent of the estimated 645,000 same-sex couples in the U.S. who live in jurisdictions where they can legally marry.
“I know that my cousin is a good man,” Podrasky writes in a blog post written for the National Center for Lesbian Rights. “I feel confident that John is wise enough to see that society is becoming more accepting of the humanity of same-sex couples and the simple truth that we deserve to be treated with dignity, respect, and equality under the law. I believe he understands that ruling in favor of equality will not be out of step with where the majority of Americans now sit.” According to the polls, Podrasky is right in that last statement: Nowhere in this country does the legalization of same-sex marriage enjoy less than majority support, with more conservative states clocking in at 54 percent and support much higher elsewhere. And, as has been widely noted, those polls are a sign of swift and profound change from the political landscape of just a decade ago.
Full disclosure: I can hardly count myself a neutral observer. As many WVFCers know, I married my longtime partner in Canada in 2010; before then, my wife and I were co-plaintiffs in the 2004 lawsuit Shields v. Madigan (we lost).
And while I was a newspaper reporter, I had the privilege of interviewing Edith Windsor, now the lead plaintiff in the New York case, in 2007—the same year she married the love of her life, Thea Spyer, in Canada, after they’d already been together for 42 years. (In the photo at left, Windsor is the winsome wife at right.)
I interviewed Windsor for an article about the Empire State Pride Agenda’s “Marriage Ambassadors,” trained volunteers who traveled throughout New York talking to congregations and legislators to share the challenges faced by real-life gay couples. And as the movie below makes clear, such activism was par for the course for Windsor, a computer programmer for IBM, and attorney Spyer: It also bore fruit in 2011 in the New York State Legislature. But by then, Spyer had died (she died in 2009), and Windsor had been hit with an estate tax of more than $300,000 that would never have been required if Thea had been Theo. Thanks, “Defense of Marriage Act.”
I’ll leave it up to the political pundits and SCOTUS-geeks out there to take bets on how wide or narrow the ruling will be, and to monitor the responses from potential swing voters Roberts (whose health-care ruling last year was unexpected) and Justice Kennedy, a moderate jurist who is now famous for a pair of pro-gay-rights rulings, Romer v. Evans (1996) and Lawrence v. Texas (2003). But whatever happens this week or in June, few expect the status quo to continue indefinitely.
“There’s no putting this genie back in the bottle,” Florida-based Republican strategist Ana Navarro said Sunday on CNN. “This is now undeniable. The shift is here. We’re not going back.”
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.
We knew the legal landscape for women in 2011 would be bumpy by the way it began: with Antonin Scalia, one of the Supreme Court’s most senior members, saying that women did not qualify as “persons” under the Civil Rights Act, just a few weeks after the Senate had failed, once again, to pass the Paycheck Fairness Act. Those concerned about upcoming cases knew we had to be more alert than ever.
And some of the year’s news was indeed harsh.
- In the high-profile Wal-Mart v. Dukes, Justice Scalia led the five-judge majority that ruled against the million-plus women who would otherwise have been able, as a class, to pursue redress from Wal-Mart for wage discrimination. The ruling immediately led to review of all such cases and recently to some similar “decertifications,” which may make it harder than ever for women to join forces to remedy discrimination.
- In Flores-Villar v. United States, the Court punted when asked about immigration statutes with potentially unequal effects on women, ruling 4-4 (with Justice Kagan not participating) to allow the discriminatory statute to stand. “In doing so,” stated the National Women’s Law Center, “four Justices indicated by their vote that they would not have applied the strong heightened scrutiny standard for laws that discriminate on the basis of sex established in past Supreme Court cases. For those who have assumed that such strong protection is secure, it was an ominous sign.”
Still, there was also encouraging Supreme Court news, in our first term with a fully one-third female Court. The presence of two younger women, Elena Kagan and Sonia Sotomayor, turned the usually stately court into a “hot bench,” with Sotomayor in particular being unafraid to pepper litigants with persistent questions. As for Kagan, she impressed many who’d questioned her appointment: Kagan’s work so far suggests that “she is in fact the opposite of a progressive zealot,” writes Washington Post’s Ezra Klein. “By the end of Kagan’s first term, conservatives like former Bush solicitor general Paul Clement (who will likely argue against the health-care law this coming spring) and Chief Justice John Roberts were giving Kagan high marks.” While the center of the court is still Scalia, Chief Justice John Roberts, and Justice Anthony Kennedy, “The addition of Justices Sotomayor and Kagan has brought two fresh voices and new perspectives,” Irv Gornstein of Georgetown University Law School told USA Today.
Beyond the Court, some of the year’s highlights were better news.
- The Equal Rights Amendment, once championed by First Lady Betty Ford and long left for dead, has been revived in Congress with an unusually diverse set of co-sponsors, and new coalitions like United4Equality are developing innovative plans to secure ratification by 2015. Stay tuned.
- Even with its inconclusive ending, the legal response to Nassifatou Diallo’s assault charges against IMF director Dominique Strauss-Kahn was a pioneering example of a woman being taken seriously when up against a powerful man. It stunned three countries, ended Strauss-Kahn’s presidential prospects in France, and energized advocates as they remembered the trailblazing Anita Hill.
- Domestic workers, building on a historic 2010 legislation in New York State, will now receive further long-denied workplace protections, including a minimum wage and overtime provisions, under new rules published just this week by the Department of Labor under Secretary Hilda Solis. Currently, workers classified as ‘companions’ are exempt from the FLSA’s minimum wage and overtime pay requirements. When established in 1974, such exemptions were meant to apply to casual babysitters and companions for the elderly and infirm, not workers whose vocation was in-home care service, and who were responsible for their families’ support. With an aging American population, there has been increased demand for long-term in-home care, and as a result the in-home care industry has grown substantially. The proposed rule would expand minimum wage and overtime protections for the 1.79 million home-care workers employed by third parties, like staffing agencies, and would ensure that those employed by families and performing skilled in-home care work are covered. “The care provided by in-home workers is crucial to the quality of life for many families,” said Solis as she announced the changes. “The vast majority of these workers are women, many of whom serve as the primary breadwinner for their families. This proposed regulation would ensure that their work is properly classified so they receive appropriate compensation and that employers who have been treating these workers fairly are no longer at a competitive disadvantage. “
- Another perennial, the U.N. Convention for the Elimination of All Forms of Discrimination Against Women (CEDAW), has received new oomph this year at the United Nations and by Secretary of State Clinton, whose Strategic Plan for Women, Peace and Security includes a specific push for CEDAW ratification. Last week, President Obama today also signed an executive order to mandate the implementation of a sweeping National Action Plan on Women, Peace, and Security (link leads to a pdf version). The plan stresses CEDAW as it instructs the disparate elements of the government’s foreign policy machine to proactively seek women’s engagement and women’s empowerment abroad, as a tool to advance American economic and security interests.
What’s on the horizon for 2012? It’s hard to predict legislative futures, and the Supreme Court docket is far from complete. But there are already some things we will be following.
- Coleman v. Maryland Court of Appeals. Daniel Coleman, an employee of the Maryland Court of Appeals, claims he was fired on account of his race and because he requested sick leave, in violation of Title VII and the FMLA, respectively. The lower court dismissed both claims, and the court of appeals affirmed. The Court is set to decide whether state employees can sue for damages for violations of the Family and Medical Leave Act (FMLA).
- Magner v. Gallagher. The Fair Housing Act prohibits housing discrimination on the basis of race, color, religion, sex, familial status or national origin. In Magner v. Gallagher, a group of rental-property owners in St. Paul, Minnesota, sued the city and several officials over aggressive code enforcement. At question, perhaps echoing Wal-Mart, are competing interpretations of whether policies have “disparate impact.” The question before the Court: whether rules or practices that seem neutral on their face but that have the effect of harming minorities or women can be challenged under the Fair Housing Act.
- But there’s no doubt that all eyes will be on the unprecedented five-hour argument, scheduled for June, about the numerous challenges to the national health care law, the Affordable Care Act. The Court will rule on four different questions, and if the challenges are upheld, these rulings may leave all or some of the programs currently up and running in tatters. Either way, such a major shift in health care policy cannot help but have serious implications for all of us in the Women’s Voices for Change community.
There will no doubt be surprises in at least some of the above, and wild cards yet to come. In this election year, legal issues will make more (and bigger) ripples than usual. With so much hanging in the balance, here at WVFC we’ll be watching it all. We invite you to join us.
Betty Dukes and Christine Kwapnoski, two of the named plaintiffs in Wal-Mart v. Dukes, the flagship lawsuit dismissed Monday by the U.S. Supreme Court, say they are not deterred. Dukes, the lead plaintiff, is telling the press that “even though we didn’t get the ruling that we had hoped for, we still are determined to move forward and to present our case in court.” Kwapnoski, a Sam’s Club assistant manager in California, added, “When I go back to work tomorrow, I’m going to let them know we are still fighting.”
Wal-Mart was pleased with the decision: Gisel Ruiz, executive vice president for personnel, hailed the suit’s dismissal. “Wal-Mart has had strong policies against discrimination for many years. The court today unanimously rejected class certification and, as the majority made clear, the plaintiffs’ claims were worlds away from showing a companywide discriminatory pay and promotion policy.” Ruiz added that “Walmart has a long history of providing advancement opportunities for our female associates and will continue its efforts to build a robust pipeline of future female leaders.” All agreed that even though the court didn’t rule on the plaintiffs’ substantial evidence of discrimination, the majority’s statement that they had too little in common to constitute a class was a serious blow to many such suits based on a history of discriminatory “pattern and practices” by large corporations.
“I feel like we just rolled the clock back decades,” said Philadelphia labor official Janet Ryder, who met with WVFC today at Philadelphia City Hall, where a local coalition protested the ruling. “These discrimination cases are expensive. How are women, how are people of color going to do it on their own? This court just made it incredibly hard for us to join together and do it.” Ryder, of the Philadelphia Central Labor Council (AFL-CIO), and other union officials told WVFC that they’re still collecting testimony from Wal-Mart workers and sorting out what to do next. “ Wal-Mart is not too big for justice,” added Wendell Young of the United Food and Commercial Workers. “We will continue to hold Wal-Mart to fair workplace standards for its 1.4 million associates and its women employees who deserve the right to press their claim that they have lost wages and been denied promotions based on Wal-Mart’s history of unfair practices.”
Still, the court’s decision doesn’t make their task easy. At the Supreme Court, where such advocates as the Feminist Majority Foundation gathered Monday “to show that we were standing with the women of Wal-Mart,” Marcia Greenburger of the National Women’s Law Center summed up what the crowd was feeling.
Today, in a 5-4 ruling, the Supreme Court issued a devastating decision undoing the rights of millions of women across the country to come together and hold their employers accountable for their discriminatory practices. The court has told employers that they can rest easy, knowing that the bigger and more powerful they are, the less likely their employees will be able to join together to secure their rights. The women at Wal-Mart — together with women everywhere — will now face a far steeper road to challenge and correct pay and other forms of discrimination in the workplace.
The decision itself was both unanimous and a 5-4 split decision. Even the more liberal justices Ruth Bader Ginsburg, Elena Kagan, Sonia Sotomayor and Stephen Breyer agreed with the majority opinion, written by Justice Antonin Scalia, that the million-plus potential class action did not fit into the particular class-action rules under which the action had been brought. But the latter justices issued a lengthy dissent to Scalia’s assertion that the class was near-inconceivable and that the discrimination they were alleging was unlikely because it made no business sense. Slate’s Dahlia Lithwick shared our outrage at his statement that “left to their own devices most managers in any corporation — and surely most managers in a corporation that forbids sex discrimination — would select sex-neutral, performance-based criteria for hiring and promotion.” Many women would beg to differ; one WVFC reader chiming in on our Facebook page said that she was a former Wal-Mart employee and that “those 11 years were the worst of my life.”
At times, Ginsburg’s dissent reads like interpretation for the empathetically challenged. She referred more directly to the actual data presented by plaintiffs, including Kwapnoski’s testimony of abusive managers “telling her to doll up by wearing more makeup and dressing better while working on a loading dock,” to explain how discretion for managers might manifest as sexist treatment of employees. Citing a Supreme Court precedent regarding “disparate impact” on women and minorities, she adds: “Wal-Mart’s delegation of discretion over pay and promotions is a policy uniform throughout all stores. The very nature of discretion is that people will exercise it in various ways. A system of delegated discretion, Watson held, is a practice actionable under Title VII when it produces discriminatory outcomes.”
The group led by Ginsburg asserts that the majority should have sent the case back to lower courts for a possible alternative way to proceed, instead of dismissing it entirely. But then it wouldn’t have been hailed as a milestone by The Wall Street Journal. After the ruling was handed down, Wal-Mart stock rose significantly. This court thus proved true to recent form, having already ruled against class actions in the two other cases of this term’s “class action trifecta” WVFC was watching, like AT&T v. Concepcion. While court-watchers were mostly unsurprised by the result, many have suggested a number of public-policy solutions, from even more women on the court to a renewed push for the Paycheck Fairness Act. We’re guessing that all of the above, and much more, will be necessary before it’s all over.
We’re still waiting for the actual decision, but the initial impact in today’s Supreme Court ruling in Wal-Mart v. Dukes is clear: Wal-Mart Stores will not have to face the largest sex-discrimination lawsuit in history. As CNN’s Jeffrey Toobin explains below, the decision is unanimous, though Justices Ruth Ginsberg wrote an opinion suggesting that there might be another way for the women to proceed. Check back for more details, including a report on one of the rallies just called by the National Women’s Law Center to protest the ruling.
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.
This afternoon, the Senate Judiciary Committee is scheduled to begin its deliberations on the nomination of Solicitor General Elena Kagan to be an Associate Justice of the Supreme Court. Like her confirmation hearings, in which Kagan alternately sparred with committee members and joked along with them (see Diane Vacca’s WVFC report), these deliberations will be televised live, to the delight of legal-political junkies everywhere. With the inevitable delays, it’s less like a World Cup final than like America’s signature sport: a long no-hitter, destined for extra innings.
Not that there’s much suspense about the outcome. The committee’s most powerful Republicans have all but ruled out the filibuster, leaving little question that Kagan’s nomination will be forwarded to the full body and that she’ll be confirmed over the next month or so.
What is in play, though, is full-bore partisan politics on both sides, most likely resulting in sound-bite fodder for 2010 and 2012 campaign commercials. Here’s a guide to some of Judiciary’s key players, what we’re likely to see from them in the coming weeks, and the political themes triggered by the Supreme Court.
The Gray Eminences. “I’ll be fair. I always am,” Utah’s Orrin Hatch said genially as the hearings opened, underscoring his image as wise-yet-concerned elder statesman. As the hearings began, it was Hatch who advised Kagan to be discreet about her own politics. Once they were over, though, he declared his opposition to her nomination, saying that her track record at Harvard Law School and in two administrations showed signs of a secret “activist judicial philosophy.” Hatch’s opposition, writes the Christian Science Monitor, sets the tone for other GOP senators to follow in the upcoming votes.
Hatch had signaled his line of thinking early in the hearings when he assailed iconic former Chief Justice Thurgood Marshall, saying “There’s no doubt that he was an activist judge.” He then earnestly questioned how Kagan, as Solicitor General, could have so vigorously defended federal campaign-finance laws during Court deliberations on the Citizens United case. (That case turned into the 5-4 Roberts Court decision that was decried by every Democratic senator during the hearings — including New York eminence grise Charles Schumer, who called the Citizens United decision “confounding and deeply troubling.”)
Iowa senator Charles Grassley, perhaps the most senior member of the committee since the death of Ted Kennedy, stuck to familiar GOP themes. He pressed Kagan to state her support for recent Court decisions declaring the Second Amendment (the right to keep and bear arms) a “fundamental right” for all Americans, then urged her to do the the same for a 30-year-old decision the little-known 1972 Minnesota case Baker v. Nelson, a precursor to current struggles over same-sex marriage.
The Northeast Cabal. Across the aisle is committee chair Patrick Leahy (D-VT), who, despite collegial joshing with Hatch and Grassley, made enough passionate statements about Citizens United and other Roberts Court decisions to shoot his next set of commercials. The same was true for Rhode Island’s gentlemanly Sheldon Whitehouse. Regional wild card: Massachusetts’s Scott Brown, who introduced his constituent Kagan at the start of the hearings, but may now come under pressure to fall in line with his fellow Republicans.
Aligned with the Northeast Democrats, philosophically if not geographically, are Wisconsin’s Russ Feingold and Minnesota’s two senators, Amy Klobuchar and Al Franken. During the hearings, they sought reassurance from Kagan on issues of civil liberties and executive power, while racking up TV time criticizing the Roberts Court on issues ranging from guns to mandatory-arbitration clauses. “Why are we no longer trusting in juries?” Franken asked.
The Southern Gentlemen. Much attention is focusing on South Carolina’s Lindsey Graham, often hailed as the lone Republican “maverick” (now that John McCain has disavowed the title). He remains one of the only possible Republican votes in favor of Kagan’s nomination. Still, while Graham giggled with Kagan on the first day of her hearings, he socked away plenty of B-roll for future campaign commercials about the War on Terror, asking Kagan “You know we’re at war, right?” and criticizing her past policies at on military recruiting Harvard Law School.
Similar commercials could conceivably be produced for Alabama’s Jeff Sessions, seen in the group photo above gazing into the camera lens. Sessions signaled his opposition as the hearings started, telling reporters that he “couldn’t rule out” a filibuster. After taking his seemingly obligatory swipe at “activist judge” Marshall, Sessions spent an extensive amount of time grilling Kagan about Harvard Law and recruiting, telling her that she had “demeaned” the military. His follow-up questions were extensive.
As for Texas senator John Cornyn, he did elicit from Kagan her fullest statement of judicial philosophy: that unlike Chief Justice John Roberts, she doesn’t see the role of a Justice as simply calling “balls and strikes,” but as using judgments to evaluate complex cases. The rest of Cornyn’s questioning focused on such GOP themes as the Second Amendment and the new-old kid on the block, the Commerce Clause, a sensitive issue for Tea Party voters convinced that President Obama aims to reshape the U.S. economy with it.
The rise of the West. Just above Texas, of course, is Oklahoma, and its senator Tom Coburn (left) struck a number of Tea Party chords, longing audibly for the time “years ago, when things weren’t like this.” Arizona’s Jon Kyl, following Orrin Hatch’s lead, took his own shot at Thurgood Marshall (“might be the epitome of a results-oriented judge”). He went on to review, slowly, cases in which the Roberts Court has ruled in favor of major corporations, citing them as good examples of the Constitution at work. However, even further West is one of Kagan’s strongest supporters, Dianne Feinstein (right), whose future commercials might nonetheless feature her pressing Kagan on abortion rights or the limits of executive power.
As we prepare to go online with this story, the wires report that the games have begun: Sessions will ask for the hearings to be delayed for a week, as allowed by Senate rules. Stay tuned, and keep your eyes peeled for campaign commercials with the Supreme Court as a backdrop.
It didn’t take long. Not surprisingly, even before President Obama had finished announcing his choice of Elena Kagan to fill the Supreme Court vacancy left by the retirement of Justice John Paul Stevens, controversy began to surge around his nominee.
In the course of her career, Kagan was the first woman to serve as Dean of the Harvard Law School and the first woman to be U.S. Solicitor General. Her confirmation would, for the first time in the Court’s history, bring the number of female justices to three. She would also be the first justice in 39 years not to have previously been a judge.
The consensus among media commentators is that Kagan rose to the top of Obama’s short list of brilliant legal minds because, alone among them, she hadn’t left the paper trail that a judge’s opinions create. Unlike Judge Diane Wood, the favorite of progressives, Kagan’s position on abortion and other controversial issues is not a matter of public record. She’s published relatively few scholarly articles and has been very circumspect about revealing her opinions. The thinking is that the administration prefers not to become embroiled in contentious confirmation hearings, and that the paucity of information about Kagan would make her more easily confirmable.
Yet critics from both the right and the left are assailing Obama’s choice. Sen. Jeff Sessions (R-AL) decried “Ms. Kagan’s lack of judicial experience,” even though five years ago during the confirmation hearings for Bush Supreme Court nominee Harriet Miers, Sessions affirmed that “It is not necessary that [Miers] have previous experience as a judge in order to serve on the Supreme Court.”
Begrudgingly acknowledging some of her accomplishments, Sen. John Cornyn (R-TX) said Kagan is “someone who has obviously a stellar academic background, but someone with no real-world experience and someone with no judicial experience.” Damned if you do, and damned if you don’t.
Sen. Minority Leader Mitch McConnell (R-KY) sneered, “The American people instinctively know that a lifetime position on the Supreme Court does not lend itself to on-the-job training,” ignoring the fact that at least 40 of the 111 Supreme Court justices to date had never sat on a bench before their confirmation. Some of the most outstanding justices (Marshall, Warren, Brandeis, Frankfurter, and Rehnquist, for instance) are in this group. And one of the most significant decisions in American history, Brown v. Board of Education, which formed the basis for ending segregation, was decided by a Court composed exclusively of justices who had never been judges.
On the other side of the ideological divide, Salon blogger Glenn Greenwald fears that Kagan would move the Court to the right. He questions her commitment to diversity, based on the 43 new hires she made for the Harvard Law faculty, most of whom were white men. (Four were minorities and nine were women.) Greenwald, like Kagan’s opposition on the right, is deeply suspicious of her, nailing her as “a blank slate, institution-loyal, seemingly principle-free careerist who spent the last 15 months as the Obama administration’s lawyer vigorously defending every one of his assertions of extremely broad executive authority.”
Kagan’s public record may slight, but it is available. Greenwald has admitted that he didn’t know about a letter Kagan co-signed in 2005, which denounced a proposal of Sen. Lindsey Graham (R-SC) that would have deprived persons charged with terrorism of the right of habeus corpus, a provision of the Military Commissions Act that was eventually nullified by the Supreme Court.
The most contentious aspect of Kagan’s record is her passionate opposition to the military’s Don’t Ask, Don’t Tell policy and her consequent decision not to give military recruiters free rein on the Harvard campus. Some charge that this decision indicates Kagan’s anti-military bias, yet she also hosted dinners for veterans at the university. Since both Secretary of Defense Robert Gates and Admiral Mike Mullen testified last February to their commitment to ending DADT, the whole argument seems rather irrelevant to me.
Kagan is known to be a consensus-builder, someone with a great capacity for listening to both sides, like the president who’s appointed her. Part of her program for transforming the Harvard Law School was to expand its aging faculty, which she did by hiring several distinguished conservatives in addition to liberals. In the Clinton administration Kagan was the lead negotiator on a bill that was to give the FDA power to regulate the tobacco industry. Working with the bill’s author, John McCain (R-AZ), she also succeeded in enlisting the support of Bill Frist (R-TN), both important Republicans. If confirmed, Kagan will be replacing the justice who is credited with having crafted arguments and negotiations in a way to win over the swing vote to form a majority. Justice Stevens played this role, a crucial one for the progressive minority.
Sexist attacks were leveled at Justice Sonia Sotomayor, and Kagan is in for more of the same. It isn’t necessary “to go too deep in analyzing the babe,” decreed Rush Limbaugh, following rapidly on Obama’s announcement. “I guess she can change her mind,” he said. “She’s a woman.”
There are persistent rumors that Kagan, who never married, is gay—as though it’s not possible that a woman might choose career over marriage. Or maybe she is gay. Does it really matter? Today? In the 21st century? The American Family Association thinks it does. They believe “no lesbian is qualified to sit on the Supreme Court.” They fear her affirmative vote legitimizing gay marriage in the event the Court decides to take such a case, which seems likely. On the other hand, gay blogger Andrew Sullivan believes that asking Kagan about her sexuality is not “illegitimate,” as he put it, “and it is cowardly not to tell.”
Unfortunately, as a nation we have become extremely polarized. Only a few decades ago, the Senate advised and mostly consented to the president’s nominees. The privilege of appointing justices who reflected the president’s political philosophy was freely granted. The opposition knew its turn would come in the next election cycle or two. Today, outright hostility is the norm. Stay tuned for what could be a rocky ride. I can assure you it won’t be dull.
My ideal candidate to replace Justice John Paul Stevens (third from left in photo) on the Supreme Court is a brilliant, young, Asian-American Protestant lesbian with finely honed negotiating skills acquired perhaps in the legislature, but not on the bench. We don’t live in an ideal world, of course, so it is exceedingly unlikely that we’ll see all these qualities united in one person. Let’s consider each on its merits.
Diversity matters. Speaking of her own contribution to the composition of the court, Justice Ruth Bader Ginsburg said that “women bring a different life experience to the table. All of our differences make the conference better.” In 21st-century America, where women constitute the majority of the population, of the work force, and of college graduates, why should we remain a small minority in the highest court of the land? In this regard, we lag behind other democracies, such as Canada, where four of the nine justices are women, including the chief justice.
The next Supreme Court justice doesn’t necessarily have to be Asian-American or Protestant or gay, but adding the collective experience of significant groups cannot but enrich the conversation. Roman Catholics now dominate the court, and the other two justices are Jewish. Obama has made overtures to the gay community; the majority of Americans are comfortable with their gay neighbors. Would social conservatives in the Senate go so far as to reject someone because of sexual preference? I suppose they might, but probably not openly. That would fall to Glenn Beck and Rush Limbaugh.
That the nominee will be brilliant goes almost without saying. The president can be relied upon to choose someone who will meet his own exacting standard. Many argue that universities other than Harvard, Yale and Princeton should be represented. I suppose that’s true, but I don’t feel strongly that institutional diversity should be an issue. All the current justices studied law at either Yale or Harvard. If it were true that those schools produce people who think alike, we wouldn’t see the polarity that exists in the court today. (Full disclosure: I hold advanced degrees from Yale and another Ivy.)
All of the present justices were appellate judges when nominated. Justice O’Connor demonstrated the value of having someone who wasn’t previously a judge: her legislative experience enabled her to negotiate compromises. Justice Stevens will be missed for that very reason. He was the one who found ways to persuade Justice Kennedy to throw his swing vote in with the liberals to win a majority.
The nominee should be young because appointment to the Supreme Court is for life. Presidents use their appointees to cement their legacy, trying to choose individuals who share their ideology. I know that’s become a dirty word, but right now there’s a very bright line separating conservative and progressive issues. It is the president’s right to nominate someone who believes in the same causes he (or she) does. At least initially. Justices Stevens and Souter, both appointed by Republican presidents, severely disappointed the expectations of conservatives.
Choosing a nominee who is not already a judge has the advantage of giving less fodder to the opposition, because she has no opinions available for scrutiny. On the other hand, she could turn out to be something other than the president expected. Under Chief Justice Warren Burger, who was appointed by Nixon, the court handed down controversial and transformative decisions like Roe v. Wade.
The president will also have to take into account political consequences that have nothing to do with the confirmation process. Sen. Amy Klobuchar (D. MN), for example, was under consideration until she removed her name from the list a week or so ago: Minnesota has a Republican governor who would replace her with a senator from his own party.
One thing is certain: whoever Obama nominates, the opposition is sure to dig in its heels and give him a hard time. So he might as well go for it and the choose the nominee he really wants. Trying to make a choice that will please everyone is an exercise in futility.
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.
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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.
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.
Conferences happen a lot at Georgetown Law School, many with names like “Fair and Independent Courts in a New Era.” But this week’s conference by that name was dedicated to Sandra Day O’Connor, the first woman on the Court, and at least two of the women on President Obama’s reported short list for the Court were in town for the event. After news leaked that one potential nominee, Judge Diane Wood, was scheduled to meet with the President, “Television cameras filmed Ms. Wood on Wednesday as she walked through the crowd of legal scholars and judges,” reported the New York Times. Wood told reporters “she had long planned to attend the conference and would not answer any questions at the event about the Supreme Court.” Also on the speakers’ list for the conference: Solicitor General Elena Kagan, left, who like Wood is already a target of conservative Web sites opposing Obama’s potential nominees.
Meanwhile, Court buzz also followed the Washington arrival of Governor Jennifer Granholm of Michigan, in town for a clean-air summit and the President’s announcement of new fuel-efficiency standards. The Christian Science Monitor’s Vote Blog whispered that Granholm is “no stranger to the Obama White House. In fact, during the 2008 campaign, she’s the one they called in to prep then-Senator Biden for the high stakes vice presidential debate. And considering Biden’s loquacious nature, this was a titanic assignment. And considering that the debate was not Titanic-like, it speaks highly of Granholm’s abilities.”
In case you’re not convinced of the need for a woman’s appointment to the Court, this week has provided two reminders.
- First, on Monday, came the Court’s 7-2 decision in AT&T Corp. vs. Noreen Hulteen et al., allowing discrimination in pension benefits if the employee in question took maternity leave before 1979: “The year before, Congress changed the law and said pregnancy must be treated like other temporary disabilities. In a 7-2 decision, the court agreed with AT&T Corp. and refused to award pension credits to those who took a pregnancy leave before the change. The ruling in AT&T vs. Hulteen reversed a decision of the U.S. 9th Circuit Court of Appeals.”
- Today’s Christian Science Monitor reports on a new study showing that on courts that include women every member would tend to vote differently:
The research, conducted by Lee Epstein of Northwestern University Law School in Chicago and Christina Boyd and Andrew Martin of Washington University in St. Louis, found that on most issues, there was no difference in the voting patterns of male and female judges. But in sex-discrimination cases, female judges were about 10 percent more likely to rule for the party bringing the suit.
Female appeals-court judges also appeared to have an impact on their male colleagues. The study found that when male and female judges sit together on a sex-discrimination case, the men are almost 15 percent more likely to rule for the plaintiff than when only men are ruling. The study controlled for ideological leanings.
“If Obama is considering two fairly moderate people, one a woman and the other a man, we would expect the woman to cast more liberal votes in sex-discrimination cases,” two of the researchers wrote in The Washington Post on May 3. “The same would be true if the president were considering two very liberal candidates, again, one a man and one a woman.
The recently argued Supreme Court case over the strip-search of a 13-year-old girl, though not a sex-discrimination case, illustrates how often-like-minded judges of opposite sexes can see things differently. During the argument, Ginsburg expressed indignation at the idea of an adolescent girl being asked to shake out her bra and panties in front of school administrators.
Justice Stephen Breyer seemed to shrug. “In my experience, when I was eight or 10 or 12 years old, you know, we did take our clothes off once a day, we changed for gym, OK?” he said.
In an interview later with USA Today, Ginsburg elaborated on her perspective in the case – and that of some of the male justices. “They have never been a 13-year-old girl,” the justice said. “It’s a very sensitive age for a girl. I didn’t think that my colleagues, some of them, quite understood.”
Read WVFC’s briefs on both Kagan and Wood here; below, watch Ginsburg talk about her job. We hope she won’t be the only female Justice much longer.