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A post from DoubleX intern Jessica Dweck:
In an Onion-esque piece of news this week, the New York Times reported
that Justice Anthony Kennedy ordered a student newspaper to “tidy up”
its coverage of his recent appearance at a high school assembly.
Kennedy, an ardent protector of First Amendment rights—and apparently,
irony–allowed the young journalists to attend the event on the
condition that his office would pre-approve any articles written about
him.
Why would Justice Kennedy do such a thing? Two reasons. First, the
Bill of Rights protects speech in part to encourage transparency and
create a Millian
slurry of ideas in which the creamy globs of truth eventually float to
the top. An inaccurate or misleading quotation by reporters with
exclusive access to Kennedy's speech would be nearly impossible to
correct. Second, and perhaps more fundamentally, the Supreme Court has a deep-seated interest in practicing defensive PR ... (Read the rest of this article in DoubleX.)
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A post from DoubleX writer K.J. Dell'Antonia:
Supreme Court followers (and NPR listeners) heard an outrageous story
today—that of an innocent man who spent more than two decades in prison
for a murder he didn't commit before evidence of the apparent gross
racism and misconduct of the police and prosecutors who put him there
was uncovered. It's hard not to crave justice for this man—but what
seems just for him will make justice less likely for everyone else.
Lawyers for Terry Harrison have argued that although it's long been
clear that prosecutors cannot be sued for doing their job—for actually
prosecuting a defendant for a crime—there is no immunity for
investigative activity. Harrison claims he can sue his prosecutors for
their participation in what was at best a botched investigation and at
worst an outright conspiracy to arrest the wrong person for the crime.
In other words, he's not suing them for prosecuting his trial, he's
suing them for helping to put him in a position to be tried in the
first place ... (Read the rest of this article in DoubleX).
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The Senate Judiciary Committee voted in support of Judge Sonia Sotomayor this morning almost entirely along partisan lines—13 to 7, with Sen. Lindsey Graham of South Carolina the only Republican in favor. Sotomayor would be the first Hispanic Supreme Court justice. She made it through her hearings without the “meltdown” that Graham said would be needed to stop her confirmation, and also without giving Republicans any additional ammunition to oppose her. Yet today’s "no" voters included John Cornyn of Texas, who chairs the National Republican Senatorial Committee and so presumably thinks about the long-term national health of his party, and comes from a state that is 36 percent Hispanic, and Jon Kyl of Arizona, which is almost 30 percent Hispanic. The GOP stance leaves the party without an answer to this headline in Politico: “Democrats have huge day with Hispanics.”
Why don’t the Republicans seem to care? Three reasons ... (Read the rest of this post, or the entire conversation on the Sotomayor hearings in Double X.)
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A post from Double X writer Meredith Simons:
When a pack of smartly-uniformed firefighters strode out of Sonia
Sotomayor's confirmation hearing Thursday, they were greeted by a
throng of reporters—and six girls in green t-shirts, their
point-and-shoots at the ready. The members of Greater King David
Baptist Church's Girl Scout troop had just listened to two of the
firefighters testify, and now they crowded together, photographing the
firemen as they walked by. This was the best day of their trip. (Read more in Double X.)
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A guest post from Double X intern Meredith Simons:
If Sen. Jeff Sessions' 20 minutes with Sonia Sotomayor this afternoon is
any indication, Republicans feel a new urgency in this second (and
final) round of questioning. Before he began, Sessions' aides
distributed 70-page packets of highlighted, tabbed documents regarding
Sotomayor's tenure with the Puerto Rico Education and Legal Defense
Fund. When his turn came, Sessions dispensed with the usual niceties
about how well the nominee is holding up and jumped right in, accusing
Sotomayor of promoting the idea that judges' "backgrounds, sympathies,
and prejudices" should and do affect judicial decisions ... (Read more in Double X.)
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A post from Double X writer Meredith Simons:
Of all the stylistically tone-deaf things Sen. Lindsey Graham said to
Sonia Sotomayor Tuesday, the worst was his declaration that he was
going to tell a 55-year-old judge with 18 years of appellate experience
how the world works ... (Read more in Double X.)
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I prefer Sotomayor’s effort to put her wise Latina point in context to
the talking points the Obama administration previously came up with ... (Read more in Double X.)
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On Slate, Walter Dellinger and Linda Greenhouse
agree that Judge Sotomayor has little to fear from today's Supreme
Court ruling in favor of the white New Haven firefighters who sued
their city when it threw out the results of a test for promotions.
Justice Kennedy's majority opinion barely mentions the brief panel
opinion Sotomayor signed. Justice Alito's concurrence is a little more
critical, but not much. Court observers, including me, will patiently
explain that the Supreme Court came up with a whole new rule in its
decision today, which it wasn't Sotomayor's job, as a Second Circuit
judge, to do. This is how the law is supposed to develop: The lower
courts abide by their own precedents, and the Supreme Court's prior
rulings, until the high bench tell them to shift course.
But as Linda points, out the right will try to make hay
with today's decision anyway. Alito gave them some pretty good lines.
He talks about the idea that the white firefighters who sued deserve
"sympathy," an idea that is in the opinion Sotomayor ... (Read more at DoubleX.com.)
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Now that the insulting question of whether Sonia Sotomayor is just
another Harriet Miers has subsided, a new one arises: Does Barack
Obama's nominee have more in common with conservative justice Sam
Alito? Liberals opposed Alito far more strenuously than they did
current Chief Justice and George W. Bush nominee John Roberts. An
Italian from working-class roots who also attended Princeton, Alito
wields the same, "up from the bootstraps" personal history as
Sotomayor. And—much like the Obama administration's emphasis on its
nominee's "wisdom accumulated from an inspiring life's journey"—the Bush White House stressed... (To read the rest of this post, visit our new website DoubleX.com!)
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You're right, Hanna. The White House, and Sotomayor, too, by agreeing to the walk back,
are giving the "wise Latina" mini-fracas more air, not less. Her speech
sparked an interesting and even vital discussion this week about the
value of having judges with different life experiences on the bench.
Now we move to hedging and hemming and hawing? I'll ask the next
question they'd all be better off not spending the weekend fielding... (To read the rest of this post, visit our new website DoubleX.com!)
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A guest post from Cornell law professor Eduardo M. Peñalver, who
clerked on the Second Circuit for Judge Guido Calabresi and on the
Supreme Court for Justice John Paul Stevens:
As some of you have pointed out, considered in the context the rest of her speech, it is clear that Sotomayor merely meant
that appointing “a wise Latina woman with the richness of her
experiences” to the bench would (on average) do more to improve
judicial decision-making than appointing a(nother) comparably wise
white male judge. Understood in this way, the comment is benign and,
more importantly, almost certainly true.
Crucial to understanding Judge Sotomayor’s argument is... (To read the rest of this post, visit our new website DoubleX.com!)
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Jason Linkins
has a great piece up at Huffington Post quoting Justice Samuel Alito on
the virtues of judicial empathy. (“When I get a case about
discrimination, I have to think about people in my own family who
suffered discrimination because of their ethnic background or because
of religion or because of gender. And I do take that into account.")
And also quoting Antonin Scalia on the power of courts to “make law.”
To which I add... (To read the rest of this post, visit our new website DoubleX.com!)
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A guest post from Yale law professor Heather Gerken:
Over the last day, I’ve been fielding calls from
reporters, members of your tribe, many of whom have asked some
variation on the following questions: “What role does identity politics
play on the Supreme Court, and should those who support civil-rights
causes be happy about Judge Sotomayor’s nomination?” (This, for what
it’s worth, is almost a direct quote).
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There is only one sensible answer to such questions. Please stop.
Honestly. It’s embarrassing even to have to say this, but let me spell
it out... (To read the rest of this post, visit our new website DoubleX.com!)
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Unsurprisingly, Rush Limbaugh just called
Barack Obama and Sonia Sotomayor "reverse racists." He is referring to
the controversy over Sotomayor's line, from a speech given in 2002,
that she believed a Latina woman would make a better decision than a
white man. Limbaugh might have ground to stand on had Sotomayor been
making a blanket reference to the inherent superiority of Latina women
to white men. But she wasn't. As Hanna pointed out yesterday,
Sotomayor was talking about sex discrimination cases, about which there
is evidence that having female judges leads to outcomes that appear to
be fairer for women. She was not being a reverse racist; she was being
a pragmatist, and perhaps, a wee bit of an activist in that moment... (To read the rest of this post, visit our new website DoubleX.com!)
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Dahlia, I agree—the more I digest Sotomayor's Berkeley speech, the more I also appreciate it.
Where Sandra Day O'Connor was too macho to admit that being a woman on
the high court made her different, and where Ruth Bader Ginsburg is
still hesitant to step too far from that party line, Sotomayor is frank
and full-throated... (To read the rest of this post, visit our new website DoubleX.com!)
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Sam, I had the exact opposite reaction to Sotomayor’s claims of ordinariness
yesterday. My thought was, “How refreshing. Instead of making multiple
earnest claims about her vast personal humility, here we finally have a
nominee who actually is humble.” Or at least appreciates that she
didn’t make it this far on her own steam... (To read the rest of this post, visit our new website DoubleX.com!)
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Accepting Obama's nomination to replace Justice Souter on the Supreme Court, Sonia Sotomayor said:
I hope that as the Senate and American people learn more about me,
they will see that I am an ordinary person who has been blessed with
extraordinary opportunities and experiences.
Set aside the choice to describe her childhood—growing up with diabetes
in a poor, single-family household—as having been "blessed with
extraordinary opportunities." What troubles me is the plea from a woman
just nominated to fill one of the most powerful, demanding,
intellectually challenging positions in the nation to be viewed as
"ordinary"... (To read the rest of this post, visit our new website DoubleX.com!)
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Emily, Hanna: To me, Sotomayor's speech
is most interesting for its embrace of a way of thinking about identity
politics that seems almost mystical in nature: She stresses the
experiential over the rational. In beginning the speech with
descriptions of the Puerto Rican food she loves, she emphasizes the
ways in which we're the products of hundreds of years of culture and
genetics; she lavishes attention on a particular "Puerto Rican" way of
loving and living to suggest how old and deep our identities are. This
is identity politics, yes, but it's bound up with a sensual, visceral
sense of the texture of life that I don't usually hear in the language
of judges... (To read the rest of this post, visit our new website DoubleX.com!)
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Emily, you pull out the critical quote from Sotomayor's speech:
"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."
This quote does not go down easy. As Stuart Taylor pointed out last week, what if Samuel Alito
had said: "I would hope that a white male with the richness of his
traditional American values would reach a better conclusion than a
Latina woman who hasn't lived that life." We would chuck him over to
some Idaho compound, no?... (To read the rest of this post, visit our new website DoubleX.com!)
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Every day the media attention paid President Obama’s Supreme Court shortlist
gets a little more bogged down in reviving cheesy literary archetypes. Articles
like this one unerringly paint Judge Sonia Sotomayor as the tempestuous
“Fiery Latina” to Solicitor General Elena Kagan’s tender “Den Mother,” and then
contrast both to Diane Wood’s brainy “Bench Balancer.” Why do these three types
seem so eerily familiar?? Hmm. Might it be because... (To read the rest of this post, visit our new website DoubleX.com!)
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