Archive for the ‘Judges’ Category

The Most Dangerous Supreme Court Case

Written by Rebecca Zietlow on July 23rd, 2009

There’s been a lot of talk recently about the Supreme Court’s Ricci case, but by far the most important case decided by the Court this year is Ashcroft v. Iqbal. In that case, the Court upheld the dismissal of a civil rights claim broughashcroft_CV_20090519130315t by a Pakistani immigrant held in the wake of 9/11 against the Attorney General of the United States.  What’s surprising is not that the Court dismissed the case, since even the least jaded among us would have anticipated that outcome.  What’s really significant about Iqbal is that the Court applied a new rule to all civil cases that will make it much more difficult for all civil rights plaintiffs, indeed all plaintiffs in general, to survive a motion to dismiss.  The Court’s new rule is that a judge can dismiss any claim when the judge believes that the plaintiff’s claim is not plausible.  What will judges rely on to make this determination?  According to Justice Kennedy, the judge should rely on “judicial experience” and “common sense.”   That’s not what the Federal Rules of Civil Procedure say – they only require that the complaint include a “short and plain statement of the claim.”

Why does this matter?  It matters because the Iqbal decision is an invitation for judges to rely on their own discretion to decide whether a plaintiff can use the system of “discovery” to get information to back up his or her claim.  It matters because the judges and members of Congress on the committee to draft the Federal Rules of Civil Procedure could not have made their intention more clear – they required the plaintiff only to give notice or his or her legal claim and back it up with a minimal statement of facts, so that plaintiffs could get access to federal courts.  Iqbal has been cited 500 times by federal judges since it came down less than two months ago.  Many of the judges citing the case were granting motions to dismiss.

The Iqbal hurdle will be the hardest to overcome for exactly the type of people who most need the federal courts – civil rights and employment discrimination plaintiffs.   They have the least resources to get the information they may now need to convince skeptical federal judges that they deserve their day in court.  That’s why Iqbal is not only the most important case to come down this year, it is also probably the worst.

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.

Comparing Umpiring and Judging: Idiotic or Unintentionally Insightful

Written by Henry L. Chambers, Jr. on July 15th, 2009

Chief Justice Roberts famously deemed his vision of judging similar to his vision of umpiring.  According to him, both the judge and the umpire are supposed to call balls and strikes and nothing more.  This vision of judging and the implication that judging is almost robotic has been criticized by some as far too simplistic, particularly as applied to a Supreme Court justice.  Nonetheless, Republican senators have repeatedly noted the umpire/judge analogy during the Judge Sonia Sotomayor’s confirmation hearing.

However, if Roberts had thought a bit harder, he would have realized that the umpiring analogy is a very sensible one, just not for the proposition he claimed.  Umpires are charged with calling balls and strikes.  They have a rulebook that defines what is a ball and what is a strike.   However, as any true baseball fan knows, that is only the beginning of the story.  Few umpires call strikes that are high in the umpire_study_08101.jpgstrike zone defined by the rulebook.  Some umpires are known for having a wide strike zone and some are known for having a narrow strike zone.  Depending on where the umpire stands, he can have a difficult time determining whether an inside pitch is a strike or a difficult time determining if an outside pitch is a strike.  Nonetheless, every umpire would claim merely to be calling balls and strikes.  The variation in umpiring is understood in baseball and is taken to be part of the game.  As long as the umpire is consistent with his calls and does not have a wide strike zone for some and a narrow strike zone for others, the deviation from the defined strike zone of the rulebook is accepted.  One irony, of course, is that the discretion (or deviation from the rulebook) that is deemed a part of baseball umpiring is far broader than any deviation from the law that Roberts would claim tolerate.  Nevertheless, Roberts’ true feelings about judicial discretion and Supreme Court judging can be found in the Court’s recent Ricci decision, where he and four of his colleagues simply changed the rulebook rather than call the balls and strikes of that case.

Jeff Sessions: Empathy Towards One Litigant Means Bias Toward the Other Litigant?

Written by Robert Justin Lipkin on July 13th, 2009

Senator Minority lead Jeff Sessions made the astounding remark on Face the Nation Sunday that when a judge shows empathy toward one litigator, it means he or she will show bias toward the other litigant. What can this possibly mean? Showing or experiencing empathy means taking the appropriate action to experience oe0fbcabb6007999e.jpgr appreciate the circumstances, needs, and feelings of another person, especially when the other person is a member of group with which one is not terribly familiar. If I own a service station and have a conflict (or just want to understand) someone who breeds horses, empathy is the attempt to put myself in the breeder’s circumstances by asking the breeder questions relevant to our conflict. Empathy is the attempt to put myself in the other fellow’s shoes. If I’m a judge assigned to settle the conflict between the service station owner and the breeder empathy requires me to try to appreciate each party’s gripe as sympathetically as I can. As a judge empathy requires me to appreciate everything I can about each party relevant to the rules governing the legal conflict. Understood in this manner, empathy for one litigant cannot mean bias toward the other. Rather, it means appreciating each party’s circumstances and each party’s complaint.  I must try to appreciate why each party feels wronged and what is required to make them feel whole. Yet, according to Senator Sessions, empathy is inappropriate, perhaps even dangerous, because it’s a zero-sum game. If I genuinely empathize with one party, I must show bias toward the other party. It’s difficult to understand how a leading figure in the Senate can be so unaware of the role empathy plays in human conflict resolution. Just imagine a parent settling an argument between two children. Empathy doesn’t require favoring one child at the expense of the other. It means understanding each child’s complaint sympathetically and impartially and then fashioning a resolution that is fair to both children.

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.

More from Bill Moyers’ Journal

Written by Robert Justin Lipkin on June 12th, 2009

Earlier this week I posted virtually the entire transcript from a Bill Moyers’ Journal program on the role of the media in American society. Let me reprise one exchange that demonstrates the way the media should handle unsubstantiated claims in this case concerning Judge Sonia Sotomayor. Bill Boyer first quotes Bob Schieffer interviewing Senator Kyl on Face the Nation.

BOB SCHIEFFER I want to get right to the quote that has caused all of the controversy that Washington has been talking about all week. What Justice, or Judge Sotomayor said in the speech eight years ago. And here it is. She said, “I would hope that a Latina woman, with the richness of her experience, would more often than not, reach a better conclusion than a white male, who hasn’t lived that life.” Senator Kyl, is that enough to keep her from being confirmed as a Justice on the Supreme Court?

BILL MOYERS: So, instead of deconstructing the quote, Bob plays the beltway card: is this going to cause her not to be confirmed?

JAY ROSEN: Well, first of all, Bob Schieffer forgot to ask himself whether the controversy that had gripped Washington was a legitimate controversy. And surely that’s one thing we need him for.

BILL MOYERS: Who’s to decide that? Legitimacy-

JAY ROSEN: Well-

BILL MOYERS: -or illegitimacy?

JAY ROSEN: Well, Tom Goldstein, an author of the SCOTUSblog, which is a very carefully put together blog about the Supreme Court, and a law professor – looked at the record of Sotomayor’s decisions. In 96 cases, where there were discrimination claims before the court, she decided against the claim of discrimination 78 times. And there were only about ten where she sided at all with a plaintiff charging discrimination.

Now, if you know that, if you know that record, then the whole controversy looks kind of fake from the beginning. And so, what Bob Schieffer did was take what Washington is buzzing about, refused to fact check it, take it as a given, and ask a kind of insider political question. “Is this going to sink her nomination?” Which is premature and which abandons his role as a journalist in determining what is a legitimate controversy. What should we be arguing about? Which views have standing as facts, as fact-based?

This is a good example of distinguishing between legitimate and illegitimate controversies. Indeed, this record might give progressives pause, but in no way can it be used support the contention that Judge Sotomayor believes in race-based justice. Bob Schieffer, a distinguished journalist, failed in his responsibility to the public by pursuing a baseless, sensationalist question rather than attending to the actual record which strongly suggests there’s no possibility of inferring from Judge Sotomayor’s judicial record the sort of radical the Republicans are so intent on portraying her as.

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!

Sotomayor, Roberts and Empathy

Written by Henry L. Chambers, Jr. on May 27th, 2009

As Bobby has suggested in a few posts already, empathy is an important issue that ought to be properly understood.  Empathy is, as my colleague has noted, the ability to put ontmpphpgnqizv1.jpgeself in someone else’s shoes.  Empathy can come from a mindset or a set of experiences.  Empathy is not necessarily a prelude to rooting for one litigant over another or for deciding a case for or against a particular litigant or set of litigants.  Rather, empathy is a prelude to understanding what effect an interpretation of a law might have on all litigants.  In some circumstances, understanding the effect of an interpretation of law is key to making a proper decision.  I will not get into that issue particularly deeply here other than to note that in cases where the chilling effect of a rule on the exercise of a constitutional right is an issue, empathy may be particularly useful.  Empathy may be useful in determining the existence or magnitude of the chilling effect of a rule and, therefore, whether the particular legal rule at issue is appropriate.  At the very least, a lack of empathy is a negative trait.

Of course, we know that empathy is usually considered a positive trait.  Much of the point of playing up a nominee’s background is about suggesting that even though the nominee is elite, she can put herself in someone else’s shoes.  Chief Justice John Roberts is a good example of this phenomenon.  When he was nominated, much was made of his supposed everyman background.   The fact that he worked in a mill during his summers in college to earn money was touted to suggest that he was just an average guy who could put himself in the shoes of others or had had experiences that would allow him to understand what blue-collar workers understood.  His experiences may have been useful in helping him develop empathy for the less well off given that Roberts had gone to boarding school and his father was a Bethlehem Steel executive.  The point is not whether Roberts can actually empathize with the common man, but that empathy is considered a positive trait and facts that suggested empathy were considered unabashed plusses for Roberts.

Consequently, the discussion of empathy surrounding Judge Sonia Sotomayor has an Alice-in-Wonderland quality.  Judge Sotomayor’s personal history suggests broad experience-based empathy.  Given her racial background, her educational background and her employment history, with stints as a prosecutor, law firm partner, trial judge and appellate judge, she almost certainly understands the law, litigants and average people from many different perspectives.  Of course, it is possible that she yet has no empathy.  Nonetheless, the issue must be whether she has empathy, not whether empathy is good to have.  Some may argue that a suggestion that Judge Sotomayor’s racial background gives her greater empathy with common people than others is unfairly essentialist.  However, the notion that the experiences of a 54-year-old Puerto Rican American from New York are no different than those of a 54-year-old Caucasian American from Indiana (like John Roberts) and will likely not create a different empathy profile is laughable.  We can have a discussion about whether Judge Sotomayor is empathetic and in what ways, but we ought to be far past the discussion of whether empathy is generally a good characteristic for a judge to possess.

Is “Empathy” a Code Word for Judicial Liberalism?

Written by Robert Justin Lipkin on May 25th, 2009

When President Obama uses the term “empathy” as a virtue any desirable Supreme Court nominee should possess, it appears to some that he’s simply preparing the public for his choice of a liberal for the Supreme Court. But this is a radically misunderstanding of the nature of empathy as well as the President’s reasons for bringing to center stage. Empathy is a critical concept in moral reasoning, except in that species of “moral” reasoning designed to imtmpphpdfem9d1.jpgpose one’s values on others. The reason for directing the lion’s share of empathy toward the downtrodden and marginalized is simply because in the guise of abstract rules and virtually people-independent categories, the powerful have cornered the market on empathy. They use empathy to favor qualities they embrace to the exclusion of those equalities of which they are unfamiliar or for which they have no use. In ideal circumstances, each party to litigation warrants empathy–each person’s perspective deserves exploration and understanding. Empathy and equality are inextricably interconnected moral concepts. If contemporary discussions of empathy place a thumb of the side of those ignored by a one sided-legal system, it’s not because ideally they have a special claim to empathy.  Rather, it is because as far as empathy is concerned they’ve been radically short-changed by a judicial culture experiencing the world from the narrow and “lofty” heights of prestigious law schools and the insulated halls of appellate courts. What makes any serious observer believe that arcane concepts and contrived forms of reasoning involved in adjudication should take precedence over or trump the experiences litigants? The law needs to be understood by how it affects the lives of those who find themselves held within its clutches. Empathy doesn’t introduce an incorrigibly subjective element into the rule of law. In fact, empathy doesn’t eliminate the rule of law; it makes the law relevant to the people law is designed to serve.  Why is this so difficult to fathom?