Updated: Benjamin and Sotomayor Set to Change .. Well, Everything

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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.”

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