Archive for the ‘Gender’ Category

Thoughts on the Sotomayor Hearings

Written by Rebecca Zietlow on July 16th, 2009

When I wasotomayor.jpgs a first year student at Yale Law School, some of the upper level students organized a conference on “Women of Color and the Law.”  The speakers at this conference spoke about the failure of our law to adequately address the needs of women of color, and the role of women of color as lawyers.  The conference had a strong impact on me and my friends.  While in law school, we focused in our classes and our extracurricular activities on the law’s relationship to women of color and other people who have been historically disempowered in out society.  After law school, as a legal services lawyer in the South side of Chicago, I personally witnessed the failure of the law to address the needs of my clients, who were primarily women of color.  Now, there is a woman of color, Sonya Sotomayor, who is about to become a member of the top Court in our country.  I never would have imagined this moment when I was in law school, or when I was a practicing lawyer.

As far as I know, Sotomayor was not present at the Women of Color Conference.  It occurred years after she graduated from Yale.  However, during her hearings she has found herself discussing some of the issues addressed by the speakers at that meeting – the impact of a experience on how a person understands the law, and the importance of a judge mitigating his or her personal views when he or she is interpreting the law.  In a world dedicated to the myth that justice is blind (that is, that judges are not influenced by their backgrounds and experiences), her nuanced explanations are a tough sell.  Fortunately, she is maintaining her composure, and her strong record and the large Democratic majority in the Senate virtually insure that she will be confirmed.  I look forward to that day.

Why Women on the Court?

Written by Robert Justin Lipkin on July 10th, 2009

It should astonish anyone with moderately progressive (fair and just) sensibilities that only two women have so far served on the Court. Can it be seriously argued that for at least the past fifty years, say, no more than two women have been qualified to serve? If not, male power directed toward discriminating against women can be the only explanation of this shameful phenomenon. How has the Court been impoverished by excluding women? Further, what consequences for law and justice has this exclusion wrought? Consider the following recent interview with the lone women on the Court for some insight into these questions.

Out with a Whimper

Written by Rebecca Zietlow on July 2nd, 2009

The Supreme Court’s season is over, and it ended not with a bang, but a whimper.  The Court did not strike down the Voting Rights Act after all (thank goodness).  The Court ruled in favor of the white firefighters in Ricci, as expected, but avoided the Equal Protection issue.  And, despite disparaging remarks and jokes during the oral argument over the case, eight members of the Court agreed that strip search of a 13 year girl alleged to have brought an Ibuprofen pill to school violated the 4th Amendment.  As many commentators have noted, the Court is moving to the right, but it could have moved a lot farther.

Why the whimper instead of a bang?  Could it be that members of the Court are influenced by politics?  The most interesting case to me is the strip search case.  Justice Ginsburg, the only woman on the Supreme Court, was open about her concern that her male colleagues were insufficiently attentive to the sensitivities of a 13 year old girl.  Did the fact that  another woman, Sonya Sotomayor, sits in the wings to be confirmed to the Court, have an impact of those colleagues as they mulled over that case?  Did the fact that Sotomayor is a person of color influence the members of the Court considering overruling the landmark Voting Rights Act even as conservative politicians were accusing Sotomayor of being a racist?  We will never know.

The Cowardice of the Fringe Anti-Abortion Movement

Written by Robert Justin Lipkin on June 5th, 2009

Why is it that the fringe anti-abortion movement target physicians who perform abortions at the rfinal-5.jpgequest of woman, not the woman themselves. (Of Course, I’m not advocating targeting either.) The fringe movement calls these physicians “murders, ” “butchers,” “terrorists,” and so forth. The problem here is that physicians who perform abortions do not force themselves upon women and compel them to undergo abortions. For the most part, women seeking abortions are making informed, thoughtful choices at least as informed and thoughtful as most of the choices adults make. Targeting physicians, of course, from the perspective of the fringe anti-abortion movement, is good policy. No one would tolerate attacking women seeking abortions. Good policy or not, it is cowardly in the extreme and condescending toward women.  Why isn’t this point recognized and revealed for what it is?

Sotomayor and Race

Written by Rebecca Zietlow on June 4th, 2009

Given the years of virulent racism that minorities in our country have faced throughout our history, it is a bit shocking to see right wingers like Newt Gingrich and Rush Limbaugh accuse Suprefinal-4.jpgme Court nominee Sonia Sotomayor, the first Hispanic ever nominated to that Court, of being a “racist,” based solely on one remark that she made in a speech seven years ago.   On this subject, I highly recommend Charles Blow’s recent New York Times editorial, “Rogues, Robes and Racists.”   As Blow notes, there is no evidence in Sotomayor’s life, legal career or judicial record of her ever acting like a racist.  Blow contrasts Sotomayor’s record with that of Chief Justice John Roberts, who was reported by Newsday magazine to have made racist and sexist jokes while working in the White House for the President Reagan.  What is most significant is that Roberts didn’t just talk the talk, he has spent his entire career walking the walk, working to roll back the civil rights gains of women and minorities from the 1960s and 1970s.  As Bobby notes below, quoting Jeffrey Toobin, Roberts has continued this pattern as Chief Justice, ruling against criminal defendants, non-white civil rights plaintiffs (he ruled in favor of the white plaintiff challenging the use of race to avoid the re-segregation of Seattle public schools) and plaintiffs suing corporations.  Does that mean Roberts is a racist?  Not necessarily, but as Blow observes, there is a heck of a lot more evidence of his racism than there is of Sotomayor’s.

Blow’s editorial is so powerful and eloquent that I really don’t have much to add.  What I can add, however, is a bit of context to the speech that has gotten Sotomayor into so much hot water.  In a speech during a symposium on Latino judges, hosted by La Raza Law Journal, Judge Sotomayor said that “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.”  Why would Sotomayor say such a thing?  It is clear from reading her speech that Sotomayor was asked to comment on how her experience as a Latina woman colors her perception of issues on the bench.  This subject is understandable given the Critical Race Theory roots of the La Raza publication that hosted Sotomayor’s speech.  At the risk of over-simplification, one theme of critical race theory is questioning the assumption that law is neutral and un-biased, and examining the ways in which our laws reinforce the existing power structures in our society, including the privileging of the concerns of white people, men, and the rich.

I have no idea what Sotomayor thinks about critical race theory, but it is clear from her speech that she is responding to this CRT critique of the law.  In her speech, Sotomayor describes her personal experiences as a “NewYorkrican” and acknowledges that these experiences have an effect on how she sees the world.  But in a much less quoted remark at the end of the speech, Sotomayor goes on to observe, “I am reminded each day that I render decisions that affect people concretely and that I owe them constant and complete vigilance in checking my assumptions, presumptions and perspectives and ensuring that to the extent that my limited abilities and capabilities permit me, that I reevaluate them and change as circumstances and cases before me requires.”  That’s the most we can hope for from any judge, and Sotomayor’s judicial record reflects the fact that she has been pretty successful at it.

In his majority opinion striking down two local school districts’ attempts to use race as one factor in school assignments in order to reduce racial stratification in the public schools, Justice Roberts famously noted, “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”  I agree with Roberts’ sentiment, but I also agree with the Critical Race Theorist view that race discrimination is more complicated than Roberts’ remarks suggests – that we are all affected by unconscious bias.  Given the choice between Roberts’ overly simplistic remark and Sotomayor’s sophisticated evaluation, and the choice between their records on racial issues, I prefer Sotomayor.

Why Sotomayor Is a Good Choice

Written by Rebecca Zietlow on May 28th, 2009

There are three reasons why I think Sonia Sotomayor is a good choice to be the next Justice on the United States Supreme Court.  First, her nomination is historic.  If confirmed, Justice Sotomayor will be the first Latina, the first woman of color, and only the third woman to serve on the United States Supreme Court (not to mention the first Supreme Court Justice to grow up in a public housing project!).  Second, Sotomayor is an incredibly accomplished, brilliant woman who is highly qualified for the job.  Third, Judge Sotomayor has the right temperament and philosophy for the Supreme Court today.

It is difficult to overstate the historic significance of President Obama’s choice of a Latina woman as his first nomination to the Susotomayor.jpgpreme Court.   To illustrate my point, consider this:   When I was a student at Yale Law School in the late 1980s, the law students held a one day strike for diversity, calling for diversity in the faculty, student body and law school curriculum.  To protest the fact that at that time Yale had never had a woman of color on the faculty, a classmate of mine created paper effigies of all the faculty members and hung them from the ceiling of the law school.  Hanging from the ceiling was a long row of white men, several white women, and several men of color.  No women of color.  Now imagine if my classmate had done the same with the United States Supreme Court throughout our history.  Out of 115 paper effigies (based on my unofficial count), 111 of them would be white men, two would Black men, and two white women.  Again, no women of color.

The fact that Justice Sotomayor would be the first Latina and the first woman of color ever to serve on the United States Supreme Court, and a person who comes from a low income background, matters because the Supreme Court makes decisions that affect all of our lives, including the 52% of us who are women and the 26% of us who are non-white.  It matters because life experience, including our gender, race and economic backgrounds, affects how all of us view the world, and how judges view the law.  This does not mean that Justice Sotomayor would always rule in favor of women, people of color (regardless of their gender), and poor people, who appear before the Court.  Her record on the lower federal courts makes this abundantly clear.  What it does mean is that Justice Sotomayor would bring a life experience to the Court that would enrich the Court’s consideration of legal issues and make the Court more connected to the impact of its decisions on all of us.

Second, Justice Sotomayor’s qualifications are outstanding.  She graduated at the top of her class from Princeton, one of the nation’s top universities and an incredibly competetive institution.  She excelled as well at Yale Law School, where she served on the Law Review.  Sotomayor has extensive experience as a prosecutor and as a private attorney, and 17 years as a federal judge.  I am incredulous that anyone could argue that Sotomayor lacks the credentials to be a Supreme Court justice.  These critiques simply have no foundation.  Sotomayor’s record speaks for itself.

Finally, I believe that Sotomayor has the right temperament for the Court at this time.  This is where I differ from those liberals who have argued that they would prefer someone with a stronger ideological focus.   By all accounts, Sotomayor is a liberal to moderate person who enjoys engaging legal arguments and listens to all sides before making decisions.  However, she is no shrinking violet and is not likely to be intimidated by the more conservative, more senior members of the Court.  (After all, the woman grew up in a Bronx housing project!!!)

Sotomayor’s record is also so far from the “liberal activist” label that conservative critics are trying to link to her that the label simply won’t stick.  It’s about time that we recognized that (as I have argued in previous columns) the only activism that has occurred in  the United States Supreme Court in the past twenty or so years has been conservative retrenchment against progressive political policies.  If confirmed, Sotomayor will bring strong experience, diversity, and a balanced approach to the law that belies that conservative activism.   As a person with progressive politics who is sick and tired of the activism of the conservative Rehnquist and Roberts Courts, I say, bring Sotomayor on!

The Ideal Supreme Court Nominee

Written by Rebecca Zietlow on May 7th, 2009

As a constitutional law professor who spends so much of my time analyzing Supreme Court opinions, I cannot resist opining on what I believe to be the most important qualifications of the next Supreme Court justice.  First, the qualifications which don’t matter as much to me: I would not apply any litmus test on any particular subject, and I neither expect nor particularly want the next Supremtmpphpeiswgm1.jpge Court justice to be able to restore the liberal activism of the Warren Court.  Instead, I agree with President Obama that the most important qualification should be empathy – the ability to understand and relate to the way that the law actually affects real people.  The current Supreme Court has shown a blind eye towards average working people in cases such as the Lilly Ledbetter case, instead consistently favoring the interests of big business.  The importance of empathy is one of the reasons why I argued two weeks ago that the President should appoint more women to the Supreme Court.  To be clear, this is not because I believe that women are inherrently more empathetic, but because Supreme Court justices, like everyone else, see the world through the eyes of their own personal experience.  Therefore, the more different experiences that the Justices bring to the Court, the better.   For the same reason, I hope that President Obama considers racial diversity in his decision-making process, and favors those with less privileged backgrounds.

The second most important characteristic of the ideal Supreme Court nominee would be that he or she has some respect for the political process, and for the ability of lawmakers to consider constitutional values and limitations when they are making laws.  The members of the current Supreme Court have shown a remarkable disrespect for legislatures, including Congress, for example striking down civil rights legislation in the name of separation of powers and sovereign immunity.  This disrespect may be due to the fact that none of the current members of the Supreme Court have ever held political office, and only one, Justice Stephen Breyer, has worked within that process, as special counsel for the Senate Judiciary Committee.  Such experience would not be a pre-requisite for the ideal Supreme Court nominee, but it would certainly be a plus.

Third, the ideal Supreme Court nominee whould have a good knowledge of history, especially United States history.  It should be a person who understands the momentous transformation that our country and our constitution underwent during Reconstruction, a person who appreciates the persistent and overwhelming prejudice that African Americans have suffered in our country since then.

Finally, the ideal Supreme Court nominee must be both young and healthy.  This observation is not “agist,” but pragmatic.  Supreme Court nominations are arguably the means by which the President makes the most lasting impression on the country, as both Presidents Bush recognized when they nominated young Justices who are likely to be around for many years.  I have every hope that President Obama will appoint an excellent, qualified person to the Supreme Court, one who can use his or her persuasive powers to start to move the Court away from its rightward trajectory of recent years.  Whoeever it is, I want that person to be around for a long time.

Do we Need More Women on The Supreme Court?

Written by Rebecca Zietlow on April 23rd, 2009

Throughout the entire history of the United States Supreme Court, only two women, Justices Sandra Day O’Connor and Ruth Bader Ginsburg, have ever served on that institution.  Since O’Connor retired and was replacetmpphpzkofoc1.jpgd by Samuel Alito, there is only one woman on the Court.  This is so despite the fact that women make up a slight majority of the population,  approximately 34% of lawyers, and 43% of judges.  With the possibility of several Justices (perhaps including Justice Ginsburg herself) retiring from the Court in the near future, it is worth considering whether we need more women on the Supreme Court.  The answer to this question is far from obvious.  Arguably, we need the best possible people on the Court, regardless of their gender.  Moreover, some might argue that it would be discriminatory to prefer a candidate based on her gender.  However, these arguments do not take into account what many of us know as a matter of instinct – judges, like all other people, view issues through the lens of their own life experience and predilections.  In the Twenty-First Century, is it really OK to have only one person of nine on the top court in the land who has experienced life and the law as a woman, like over half of our population?

A couple of recent case have raised this concern to the forefront of my mind.  The first is Carhart v. Gonzalez, a 2007 case in which the Court upheld a congressional ban on a form of late term abortions.  The Court disregarded the opinion of nine professional associations of doctors, including the leading American College of Obstetricians and Gynecologists, who recommended the procedure as significantly safer than the other form of late term abortions permitted by the statute.  Instead, the Court agreed with Congress that the procedure was never justified to protect the health of women.  Why overlook the substantial weight of the medical evidence?  Justice Anthony Kennedy explained, “Respect for human life finds an ultimate expression in the bond of love the mother has for her child.”  Justice Kennedy’s Cahart opinion is reminiscent of Justice Bradley’s concurrence to an 1872 case, Bradwell v. State, explaining that women did not have a constitutional right to be lawyers because “the paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother.”  As the lone woman on the current Supreme Court (and a mother of two), Justice Ginsburg argued in dissent, Kennedy’s “bonds of love” language “reflects ancient notions about women’s place in the family and under the Constitution.”  Yet now it is also part of our Twenty-First Century constitutional jurisprudence.

The second example occurred just this week during the oral argument before the Ctmpphpomsiak1.jpgourt in the case of Safford v. Redding, in which school officials strip searched a 13 year girl because her former friend said that she might have drugs.  While Justice Breyer joked about having things put in his underwear when he was twelve, Justice Ginsburg angrily pointed out that 13 year old girls tend to be incredibly self conscious about their bodies.  Can we really expect even well meaning judges who joke about underwear to adequately protect the privacy rights of 13 year old girls, who can be traumatized for life when they are told to shake out their bras and underwear by school authorities based not even on  a reasonable suspicion that they might possess contraband? No wonder Justice Ginsburg says that she is lonely!

So, do we need more women on the Supreme Court?  You bet we do!

What’s the Fuss About?

Written by Rebecca Zietlow on April 9th, 2009

I was disappointed to hear that two of President Obama’s finest nominees, Prof. Dawn Johnsen and Dean Harold Koh, have recently been under attack by Republicans in Congress and their allies in the media.  As I earlietmpphplse92p1.jpgr commented on the page, Dawn Johnsen is a highly respected law professor who is an expert on executive power and mechanisms for ensuring that members of the executive branch comply with their ethical responsibilities.  It would be difficult to imagine a person who is better qualified to head the Office of Legal Counsel, which was plagued by questionable ethical practices during the Bush presidency.  Dean Koh is also a highly respected law professor, a towering intellect who awed me and my fellow students when he was a young new professor at Yale Law School.  Now Dean of that school, Koh also has served in both the Bush and Clinton administration and he is an internationally known expert on human rights and international law.   As with Johnsen it is impossible to imagine a person who is better qualified for the position in the State Department to which Koh has been nominated.  Yet Koh has come under attack in the media, and Republicans are threatening to filibuster Johnsen’s nomination.  What’s all the fuss about?

As Dahlia Lithwack has observed, “President Obama could have named a pair of mild-mannered tax attorneys to these high government positions. Instead, he opted to pick precisely the sorts of people we most need there: fierce advocates who care deeply about these agencies and the law as it applies to them.”

Hockey: The New Gentleman’s Sport?

Written by Henry L. Chambers, Jr. on December 3rd, 2008

Sean Avery, a National Hockey League player with the Dallas Stars, has been suspended indefinitely for crude comments made about NHL players going out with his former girlfriends.  The comments were likely directed at Avery’s former girlfriend Elisha Cuthbert and her current datemate Dion Phaneuf, an NHL player with the Calgary Flames.  The comments were made the morning on the day of a game between the Stars and the Flames. Gary Bettman, the commissioner of the NHL, immediately suspended Avery indefinitely and Avery did not play in the game. 

Bettman claimed that the suspension was based on the comments and the fact that they reflected poorly on the league.  This was not Avery’s first instance of bad behavior and almost certainly will not be his last.  However, suspending a player for speaking ill of his former girlfriend and her new boyfriend hardly seems the kind of behavior that requires league discipline, even if the former girlfriend is an American starlet.

Though the comments were incredibly tacky, it is doubtful that the suspension was based merely on the content of the comments or the number of Avery’s past transgressions.  The suspension may well have been based on the mess the NHL would have had to deal with had Avery and Phaneuf been on the ice at the same time.  In most sports, fighting is prohibited and punished heavily with fines and suspensions.  To the contrary, fights in professional hockey are common and condoned, though not necessarily encouraged.   Almost any perceived transgression is a reason to “drop the gloves.”  The likelihood or near certainty that serious and dangerous fisticuffs would have ensued if Avery and Phaneuf had been on the ice together may have been too much for the league to risk. 

However, if concern over a serious fight was a part of the league’s calculus in suspending Avery, was that concern reasonable?  Certainly, one can understand that those offended by Avery’s remarks may have been looking for revenge.  However, the proper response might have been to tell the Calgary Flames and Phaneuf that even though Avery’s comments were rude and crude, payback would not be tolerated.   Of course, it is tough to send that message when a minor beating for a negligible transgression is just part of the game. 

On the other hand, it may be even more troubling if the content of the comments were the reason Avery has been suspended.  The comments, though inappropriate, are not comments regarding hockey or the integrity of the game.  Rather, they were just mean things to say to his ex-girlfriend and her new boyfriend.  If comments in that context really are reasons to suspend a professional athlete and force him to miss at least one game paycheck for his trouble, maybe hockey really is becoming the new gentleman’s sport or maybe it is just a reflection of old prideful chauvinism.   Where is America’s number one hockey mom, Sarah Palin, when we need her to unpack this cultural riddle?