Essentially Contested America

It’s been reported that the White House scrambled yesterday to assuage worries from liberal groups about Judge Sonia Sotomayor’s scant record on abortion rights, delivering strong but vague assurances that the Supreme Court nominee agrees with President Obama’s belief in constitutional protections for a woman’s right to the procedure.” But “vague assurances” are insufficient.  Remember John Sununu and Warren Rudman gave strong assurances that David Souter would be a solid conservative. I support Judge Sotomayor’s nomination, but the American people deserve to know whether she is committed to the full range of privacy rights as the Court has articulated those rights over the past half-century.

From any reasonable perspective, Judge Sonia Sotomayor seems to be a highly qualified jurist with a compelling life story.  Her judicial philosophy seems to minimalist eschewing broad, comprehensive solutions to constitutional controversies.  Indeed, there’s little evidence that Judge Sotomayor will fail to be a consistent judicial liberal in the image of President Obama.  But nevertheless at least with respect to a woman’s control over her reproductive rights, is there any reason for concern? Is it conceivable that she could turn out to be the Left’s David Souter? Does anyone know her views on abortion well enough to assert that she will be a reliable vote to uphold Roe or more important that she will refrain from joining the conservatives on the Court in permitting the states to regulate abortion to death? It would be helpful to separate this question from the question of whether Roe should be overturned or, which perhaps amounts to the same thing, whether it should be preserved in name only. Let’s set aside these questions and focus on Judge Sotomayor’s views on abortion. My question then is whether President Obama has conceivably made a mistake in nominating Judge Sotomayor to the Court from the point of view of his stated support of Roe at least with respect to the continued viability of a woman’s right to choose?

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 Supreme 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!

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 oneself 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.

The moderate second circuit court of appeals judge Sonia Sotomayor has been nominated to fill Justice Souter’s seat on the United States Supreme Court. While not a truly progressive choice, Judge Sotomayor is a qualified and competent judge whose confirmation is very likely. One interesting dispute has arisen over President Obama’s conception of the qualifications of a Supreme  Court Justice, namely whether such a jurist should exhibit the virtue of empathy.  It seems both commentators on both the Right and the Left seem to have a limited sense of what this term means. Empathy means putting yourself in the other person’s shoes.  It does not mean agreeing with the other person once you do so. So empathetic judges do not nor should not agree with those with whom they empathize just because they understand these individuals better than if they remain insensitive to their predicaments. ECA will post more on the nominee and the role of empathy in adjudication over the course of the next few months.

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 impose 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?

Preventive detention is incarcerating someone considered too dangerous to be permitted walk freely in American society. Such an individual cannot be tried either because he or she has not committed a crime or because for one reason or other they cannot be convicted in a court of law. The reason for incarcerating such villains is to protect the innocent. This is clearly a noble and righteous goal that any responsible government should pursue. There’s only one problem. Indefinitely incarcerating someone whose not been convicted of a crime is anathema to American constitutionalism, fundamental American rights and values, and the rule of law.  It’s precisely the sort of practice that is arbitrary, tyrannical, and intolerable in any constitutional democracy worth the name. Moreover, it’s the sort of practice President Obama campaigned against. So can the president now be contemplating instituting a practice that was one of the central elements in the Bush administration’s lawless regime?  Consider Obama’s remarks from his May 21st speech:

I am not going to release individuals who endanger the American people. Al Qaeda terrorists and their affiliates are at war with the United States, and those that we capture — like other prisoners of war — must be prevented from attacking us again. Having said that, we must recognize that these detention policies cannot be unbounded. They can’t be based simply on what I or the executive branch decide alone. That’s why my administration has begun to reshape the standards that apply to ensure that they are in line with the rule of law. We must have clear, defensible, and lawful standards for those who fall into this category. We must have fair procedures so that we don’t make mistakes. We must have a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified.

I know that creating such a system poses unique challenges. And other countries have grappled with this question; now, so must we. But I want to be very clear that our goal is to construct a legitimate legal framework for the remaining Guantanamo detainees that cannot be transferred. Our goal is not to avoid a legitimate legal framework. In our constitutional system, prolonged detention should not be the decision of any one man. If and when we determine that the United States must hold individuals to keep them from carrying out an act of war, we will do so within a system that involves judicial and congressional oversight. And so, going forward, my administration will work with Congress to develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution.

It’s difficult to see how any of these standards designed to create a system of prolonged (aka preventive) detention can conceivably comport with the rule of law. Perhaps the president has deluded himself into believing that it’s possible to construct “an appropriate legal regime” that enables us to transform preventive detention into a constitutionally permissible practice. But it can’t be done. No matter what “safeguards” are conscientiously put in place in such a legal regime when you put lipstick on a pig, to borrow from the campaign rhetoric used by both sides of the electoral contest, you still have a pig. All the clever contrivances designed to make preventive detention appear benign and consistent with the underlying reasons for launching the American republic in the first place will fail and with it the constitutionally grounded hope Obama had promised the American people.”Yes, we can” didn’t stand for “yes, we can violate the Constitution.” Did it?

After years of woeful neglect, health care reform is now thankfully at the top of the national agenda.  What’s missing from President Obama’s and Congress’ consideration?  A single payer health care system.  This omission is a huge mistake, since it is likely that only a single payer health care system  can solve our nation’s health care woes.

There are two reasons why our nation needs health care reform now: The first is the cost, and the second is the lack of accessibility of our current system.   Shockingly, 50 million people in our country currently lack health insurance.  At the same time, those of us fortunate enough to have health insurance face mounting costs and cuts in coverage by our employers.  Meanwhile, the cost of medical care in the United States is twice the average in other industrialized nations.  Patients aren’t the only one bearing these costs, either.  From small business owners to General Motors, American employers are being crippled by their responsibilities to pay health insurance premiums.

Why consider single payer?  Because it is the only system that would solve both flaws in our current health care system by expanding access and lowering costs.  Expanding the risk pool of a single insurance carrier to include every person in the country would reduce the costs of health care to all of us because it would include miliions of people who are now healthy but simply unable to afford insurance.  Moreover, if the insurer is the government rather than the private insurance industry, we can save as much as a third of our current health care costs, which currently go to funding medical insurance companies.  Finally, if everyone is insured, everybody will have access to cheaper preventive health care instead of waiting until they are so sick they have to go to the emergency room and rely on expensive life saving measures.

The single payer solution is so clear, no wonder 59% of physicians and 62% of Americans support it!  Yet despite this support, a single payer plan is not currently being considered by President Obama, nor is Representative Conyers’ bill, H.R. 676, receiving much consideration in Congress.  Why not?  The health care insurance industry is a powerful lobby, it’s far too easy for opponents of single payer to demonize it as “socialized medicine” and therefore Un-American, and many are concerned about raising taxes to fund a single payer system.  While it is not possible to just make the insurance lobby go away, the other two objections are easily answered.

Let’s make this clear – single payer is not socialized medicine.  Under a single payer system, the government would not run the health care system, it would just fund the system that already exists, absent the private insurance companies.  Our health care system would be similar to that of every other industrialized nation.  (As an aside, those other nations are home to industries that compete with our American companies without being saddled with health care costs.)

Nor would a single payer system cost more than the existing system.  As I have explained, it would cost at least 30% less than the existing system.  The difference would be that our health care would be funded by tax dollars instead of employer subsidies, employee co-payments and deductibles, and payments by uninsured patients.  Yes, our taxes would go up, but taxes would be our only health care costs.  American businesses would be able to compete on the international market, and small business owners would be able to stay in business.  The millions of dollars saved by employers could be invested in raising salaries of existing employees and hiring new employees.

Imagine being able to go to the doctor whenever you need one without worrying about paying the full bill, a co-payment or a deductable.  Imagine not fearing bankruptcy if God forbid you or a member of your family suffers from a catastrophic illness or injury.  Imagine not seeing your real wages go down every year as your meager raise is eaten up by higher medical expenses.  Imagine an economy in which small businesses flourish and larger corporations can compete in the international market.  All of this is possible, and it is within out reach – if our elected representatives will consider the single payer solution.

A reasonable process for choosing a Supreme Court nominee is to find the intersection of the people a president wants to appoint and the people the president believes he can get through the Senate.  Given the makeup of the Senate and the unlikelihood that President Obama’s would nominate someone out of the mainstream, President Obama likely will not have to think twice about whether his nominee can get through the Senate.  Barring a self-inflicted politically mortal wound or stunningly amateurish vetting, almost any person President Obama would like to have serve on the Court should get Senate approval.  Of course, the president might choose a safe nominee he happens to like just to avoid a potentially contentious confirmation process and to allow him to avoid the use of any political capital.  However, it is because the president need not think twice about whether his nominee can get through the Senate that he literally ought not think twice about whether his nominee can get through the Senate.  If he follows that advice, he should simply pick whomever he wants for the job.  If President Obama happens to like jurists who cause Republicans no heartburn, so be it.  However, he ought to consider being at least as bold as Republican presidents before him by selecting someone who he really wants to see on the Court and who has the potential to be there a long time.  Indeed, the president arguably ought to welcome some Republican grumbling and some no votes.  Republican opposition would serve at least two purposes.  The first would allow the president to counter claims from his left that his choice is far too traditional a choice if current Republicans declined to challenge the choice.  The second would continue the sometimes-followed tradition of voicing opposition to Supreme Court nominees.  This would allow Democrats to push back reasonably on potential nominees that Republican presidents in the relatively near future might select.  Keeping opposition to Supreme Court nominees viable continues to remain important.  Indeed, some of the problems with Supreme Court rulings we have now can be traced to insufficient opposition to nominees.  It is not so much that the nominees should have been defeated, it is that they should have been scrutinized far more.  President Obama voted against the confirmation of Chief Justice Roberts and Associate Justice Alito.  He ought to consider nominating someone against whom some Republican senators will feel compelled to vote.

      Should Supreme Court Justices receive their legal education from an elite law schools?  What about the thousands of graduates of non-elite law schools who arguably can bring diversity to the multi-faceted questions of social policy the Supreme court decides?  The real question, in my mind, is this: Is it obviously the case that an ace from an elite law school who is arguably deficient in social skills, judgment, the capacity to emphasize, and other moral virtues, no doubt difficult if not impossible to quantify, is necessarily or even highly likely to be superior as a judge to a pretty good student from a non-elite law school who demonstrates these moral or personal virtues? 

        No question, we don’t always have to choose between these qualities.  But the fact that we immediately jump to embrace to an “excellent record” which almost always means an elite background suggests we’re not very serious in exploring the moral or character virtues non-elite students might have. And these virtues are almost always produced or enhanced by life experiences that often the elite students lack.

        Of course, this discussion is directly related to the jurisprudence of judging. If rules and abstract questions of the nature and interpretation of laws is, for the most part, the extent, of judging, then perhaps elitism is the only reasonable path to pursue. But if these constitute only a part of good judging, then the uncomfortable discussion of what other elements are necessary to good judging, like, empathy, should be a required exercise.  To put the point in general terms, if empathy and other human virtues are required elements in good judging, is it obvious or even plausible that students from elite schools have more empathy because they excel in “objective” criteria?

        Perhaps, in the end an elite education, clerkship, and background as a judge or a highly successful lawyer are considered so important by those who possess these qualities because they control entry into many of these legal institutions and will naturally perpetuate their own power.  This might be cynical, but sometimes we can learn from cynical reactions to entrenched attitudes and practices.