The Struggle for Marriage Equality: A U.S. Update

I have made clear my support for marriage equality.  But this is not a post making the argument for legal recognition of same-sex marriages.  This is simply a report on the state of the struggle as of November of 2009. 

Hawai’i.  In 1993, the Hawai’ian State Supreme Court rules that the state law limiting civil marriage to heterosexual couples is unconstitutional unless the state can show (1) compelling state interests for the discrimination of same-sex couples and (2) that the limitation is narrowly drawn so that other rights are not impacted.  This case causes such panic that the U.S. Congress passes the so-called Defense of Marriage Act (DOMA) which forbids federal law from recognizing same-sex marriages–and any couples married in states which do recognize such from receiving any of the federal benefits which are given heterosexual married couples.  This “preemptive strike” was designed by the Republican controlled Congress to cause problems for Pres. Bill Clinton (D)’s reelection campaign against Sen. Bob Dole (R-KS), since it was presumed that Clinton would veto the legislation.  Instead, on 21 Sept. 1996, Pres. Clinton signed DOMA into law and went on to defeat Dole in November.  On 03 November 1998, Hawai’i voters amend their state consitution to allow the Hawai’i state legislature to limit marriage to heterosexual couples. In light of this, the Hawai’ian Supreme Court dismissed the suit challenging that law on 06 December 1998–so it was never decided whether the law would have been unconstitutional or not.  As of this writing, there have been no further efforts by marriage equality advocates to change the laws in Hawai’i in their favor and marriage remains reserved for opposite sex couples in the Aloha State.  Hawai’i has recognited “Reciprocal Benefits” for same-sex couples, having some of the legal recognitions of marriage, since 1997.

Massachussetts.  On 18 November 2003, the MA State Supreme Court ruled that banning same-sex mar riage violated the state constitution.  On 17 May 2004 same-sex marriage became legal in MA.  There was an abortive attempt in February 2004 to amend the state constitution to ban same-sex marriage, but it was never completed and there have been no further attempts.  The experience in MA seems to show that acceptance of marriage equality by a majority of the general public takes about two (2) years.

California.  California began recognizing same-sex Domestic Partnerships in 2000. At first these Domestic Partnerships had only a fraction of the legal rights of civil marriage, but they were expanded over time.  The mayor of San Francisco began offering same-sex marriage licenses in 2003 until the courts stopped him and ruled those marriages invalid.  29 September 2005, Gov. Arnold Schwarzenegger (R-CA) vetoes a legislative bill to legalize same-sex marriage. He vetoed a second such bill on 12 October 2007.  15 May 2008, the Supreme Court of CA rules that the state’s ban on same-sex marriage is unconstitutional.  Gay and lesbian couples begin to get married on 16 June 2008.  04 November 2008, CA voters pass Proposition 8, a ballot initiative that amends the state Constitution to outlaw same-sex marriage–it takes effect 05 November 2008 and marriage licenses to same-sex couples cease that day. A legal challenge to the law, claiming that this is more than an amendment, but a major revision of the Constitution (and thus cannot be enacted by simply ballot measure) is rejected by the CA Supreme Court (26 May 2009)–but the Court says that those marriages performed in the few months that same-sex marriage was equal will continue to be valid.    11 October 2009, CA Gov. Schwarzenegger signs into law the recognition in CA of same-sex marriages performed in other states.  Currently, marriage equality advocates are debating whether to try to repeal Proposition 8 in 2010 or wait until 2012 when electoral turnout will be greater because of the presidential election.  The 2012 date would give both advocates and opponents of same-sex marriage more time to mobilize supporters and try to change minds.

Connecticut.  Connecticut passed a Civil Unions law in 2005.  On 10 October 2008, the Connecticut Supreme Court ruled that discriminating against same-sex couples in civil marriage violated the state constitution.  The court ordered the legislature to legalize same-sex marriage.  12 November 2008, same-sex marriages began in CT.  23 April 2009, Gov. Jodi Rell (R-CT) signed into law the statutory recognition of same-sex marriages previously recognized only by court order.  On the same day, Gov. Rell signed a law that would convert existing same-sex civil unions into marriages beginning 01 October 2010.

Vermont.  On 20 December 1999, the VT State Supreme Court rules that denial of benefits and rights “incidental to marriage” to same-sex couples violates the states “common benefits” clause.  In response, the VT legislature created a same-sex “civil unions” law  in 2000 which grants same-sex couples the legal and civil rights and benefits of marriage, but without the name “marriage.” This civil unions law is signed by then-Gov.  Howard Dean(D-VT)–who later wishes he had pushed the legislature for full marriage equality.  The experience of VT with civil unions–and of many residents going to nearby MA for marriage ceremonies–over a 5 year period, leads for a strong push for same-sex marriage recognition, but this is opposed by Gov. Jim Douglas (R-V).  On 06 April 2009, the Vermont General Assembly passed legislation recognizing same sex marriages, but this was vetoed the same day by Gov. Douglas.  On 07 April 2009, the Vermont General Assembly overrode the governor’s veto with a two-thirds majority.  On 1 Sept. 2009, same-sex marriages began in Vermont.

Iowa.  On 03 April 2009, the Iowa State Supreme Court declared that civil marriage could not be restricted to heterosexual couples and, thus, recognized the legality of same-sex marriage.  An attempt to repeal this decision is underway, but amending the state constitution is not easy in IA.  An amendment must pass both houses of the state legislature two consecutive years running and then be confirmed by popular ballot.  Democrats currently control both houses of the state legislatur and the leadership has vowed to prevent any such legislation from reaching the floor. If the Republicans were to win back both houses of the state legislature in 2010, they could not introduce legislation to amend the constitution to ban same-sex marriage until January 2011. It would have to pass both chambers in 2011 and 2o12 and then be sent for ballot ratification. So, the earliest a repeal of marriage equality in IA could occur would be 2013 and marriage equality advocates are hopeful that state residents will be “used to” same-sex marriage by then and not go along with repeal.  The longer the law is on the book, the greater its chances for permanence.  As of 27  April 2009, same-sex marriages have been legally performed in IA.

Maine.  In 2004, Maine adopted a Domestic Parnerships law that granted same-sex couples some of the rights and benefits of marriage.  06 May 2009, Maine Gov. Baldacci signed the Marriage Equality Bill which would have allowed same sex marriages to begin on 11 September 2009.  However, Maine law allows for a People’s Veto by ballot initiative.  That initiative, called Question 1, hired the same firms that successfully repealed CA’s marriage equality through Proposition 8.  But marriage equality advocates were confident that they could defeat Q 1–and, initially, on election night 03 November, it looked like Marriage Equality won, but as the night wore on, the People’s Veto won 53-47%.  Thus, same-sex marriage was repealed without ever taking effect in ME on 03 November 2009.  Marriage Equality advocates are not sure where to start next in ME.

New Hampshire.  Same sex civil unions are legalized in 2008.  On 23 March 2009, the NH House of Representatives passes legislation recognizing same-sex marriage.  29 April, the NH Senate passes same-sex marriage with minor amendments designed to protect the religious liberty of churches, synagogues, mosques, etc. which have religious objections to same-sex marriage.  06 May, the NH House concurs with the amendments of the senate and the bill is sent to Gov. John Lynch (R-NH).  Lynch had previously said he would veto such legislation and there are not enough votes to override, but the amendments lead him to reconsider.  Lynch says he will sign the bill with a few further protections for religious liberty and outlines them.  On 03 June 2009, Lynch signs same-sex marriage into law–effective 01 January 2010.  There is an attempt at repeal in NH both by legislature and by ballot–they cannot start until 01 January 2010.  Because the law was passed so narrowly, nothing should be taken for granted.  Whether NH’s marriage equality law stays past January 2010 is yet to be decided.

New York.  New York passed legislation in 05 that recognized same-sex Domestic Partnerships with limited rights.  In 2007, New York’s State Supreme Court ruled that same-sex marriages performed elsewhere must be recognized by New York.  On 12 May 2009, the New York State Assembly (lower House) passed a law allowing same-sex marriages in New York and sent it to the New York Senate.  The New York Senate has 32 Democrats and 30 Republicans and it would take 32 votes to pass same-sex marriage.  The Senate has vowed a vote on the bill before the end of the year–presumably the delay is because they are currently 2 votes short. If the law passes the Senate, Gov. David Paterson has promised to sign it–has, in fact, been a strong champion of marriage equality.  Gov. Paterson faces a tough re-election fight in 2010 and it is not clear if any successor would sign the bill, so marriage equality advocates are pushing hard for passage this year.  Ballot initiatives are illegal in New York, so repeal would be more difficult–and the fact that NY already recognizes same-sex marriages performed out of state argues for the staying power of marriage equality if it can clear the senate this year.

New Jersey.  New Jersey legally recognized same-sex civil unions beginning in 2007 after the NJ Supreme Court ruled that same-sex couples were entitled to all the legal benefits of marriage.  Momentum has been growing for full marriage equality, but, originally advocates had not planned to initiate legislation until early 2010.  However, the defeat of incumbent Gov. Jon Corzine (D-NJ) by Atty. Gen.  Bob Christie (R-NJ) on 03 Nov. ’09 has led to a hurried run at the legislature.  Corzine is a GLBT advocate, whereas Christie has already promised to veto any such legislation.  NJ opinion is about evenly split.  If NJ passes same-sex marriage this year, Corzine will sign the law.  If not, they either have to wait until Christie is defeated, or build up enough support to override his veto. 

Washington, D.C.  In 1992, Domestic Partnerships for same-sex couples were recognized in the District of Columbia. Over the years these have been expanded ever closer to those of heterosexual marriage.  D.C. recognizes same-sex marriages performed elsewhere.  A bill to legally perform same-sex marriages in the nation’s capital cleared a key committee 4-1 this past Tues. ’10 Nov. 2009.  It is due to be voted on by the full city council on 01 Dec. and 10 of the 13 council members are co-sponsors of the bill, so passage is assured.  However, there may be a ballot initiative for repeal here as in ME.

Washington (state).  Domestic partnerships were approved in 2007 and expanded step-by-step until they now are civil marriage in all but name.  On 03 November, Washington residents voted by ballot initiative to keep this “all but marriage” law.  If the pattern of acceptance holds, Washington state will be ready to recognize same-sex marriages by 2012–especially if the legislature votes before then to recognize same-sex marriages performed elsewhere.

In 2004, as part of the effort to “re”-elect Pres. George W. Bush (R), who was in a very tight race with Sen. John F. Kerry (D-MA), Republicans pushed to drive up the conservatives at the polls by placing ballot initiatives in key states that would ban same-sex marriage constitutionally.  Between ’04 and ’08, over 20 states adopted amendments banning same-sex marriage.  Now, 2 of the states that banned same-sex marriage by constitutional amendment in ’04, are reconsidering.

Oregon.  Oregon was one of many states in ’04 which voted to amend its constitution to ban same-sex marriage, but, unlike some other states (e.g., Kentucky), OR did not ban civil unions or domestic partnerships, too.  In 2007, the OR state legislature passed legislation banning discrimination against LGBT persons and also allowed same-sex couples to register as domestic partners with limited benefits.  Marriage equality advocates are building on this base and are working for consciousness raising throughout the state in advance of plans to attempt to amend the state constitution, again, granting marriage equality in 2012.

Michigan.  Michigan was another of the many states which used ballot referenda to amend their constitutions to ban same-sex marriage in ’04.  But Speaker of the House Pro Tem (State Rep.) Pam Byrnes made good on a campaign promise last year and in June 2009 introduced an amendment to repeal the ban on same-sex marriage.  If the bill receives 2/3 support from both the state house and state senate, then it will go to voters for repeal in 2010.  I expect it to be a very close vote.

There are also civil unions or domestic partnerships in Nevada, Maryland, Colorado, and Wisconsin–which makes each of these states likely to be the next frontiers in the struggle for marriage equality.

In June, the Respect Marriage Act was introduced into both chambers of the U.S. Congress. If approved, the Respect Marriage Act would repeal the 1996 Defense of Marriage Act (DOMA), and allow the federal government to recognize same-sex marriages performed in the states that have them.

With the current makeup of the U.S. Supreme Court, I understand why marriage equality advocates are reluctant to challenge DOMA or state laws banning same-sex marriage in federal court.  I would like to see a friendlier Supreme Court makeup, first.  But it seems to me (a non-lawyer) that a good legal case can be made for ruling that banning same-sex marriage is unconstitutional.  1) Loving v. Virginia (1967) struck down state bans on interracial marriage–bans which, at that time, still existed in 13 states and the District of Columbia. Loving v. Virginia established that marriage is a natural right and that customs and prejudices cannot restrict the liberties of two people seeking the bonds of marriage.  Now, to date, that has only been applied to heterosexual couples.  2) Opponents of same-sex marriage argue that same-sex couples have never been recognized as marriage.  They compare it to other cases in which the courts have forbidden the relationships to be recognized as valid marriages:  cases of incest, or of an adult marrying a minor, or of bestiality.  But in Lawrence v. Texas (2003), the Supreme Court struck down the so-called “sodomy laws” of the various states–private homosexual acts between consenting adults cannot be made illegal.  Yes, there is far more to marriage than sexuality, much less sex acts, but this decision suggests that the Court already recognizes a difference between same-sex adult couples and the illegitimate relationships which opponents would use as an analogy: incestuous couples, liasons between an adult and a minor,  liasons between a human and an animal, etc.  If the law already distinguishes between same-sex couples (whose liberties to be a couple cannot be infringed) and other non-heterosexual couples (whose liasons can be declared illegal), then it seems that the argument made in Loving v. Virginia for heterosexual interracial marriages should apply to same-sex marriages.  3) The argument that marriage must entail the possibility of progeny fails on several counts–a. We would not marry any couple where the woman was past menopause or the man had any reasons to be infertile if the possibility of children were definitive of marriage.  b. Just as heterosexual married couples can adopt children or (now) use hi-tech means to become pregnant or hire a surrogate, so those options are also open to the same-sex couple, so that even if we consider children to be a usual component of marriage, same-sex couples are not thereby prohibited.   4) The argument that heterosexuality is a traditional component of the definition of civil marriage is irrelevant since definitions of marriage have changed over time.  Once marriages had to be arranged–and girls were married at ages we would now consider to be child sexual abuse.  Once interracial marriages or marriages between persons of different religious persuasions were considered null and void, but now they are not.  There is no reason that marriage cannot now evolve to include same-sex marriage.

If the Supreme Court were to rule in such a fashion, all the current state laws prohibiting same-sex marriage would be struck down.  Depending on how fast the makeup of the court changes, and who is confirmed (and how quickly) in judicial openings, I would think that such a ruling might occur sometime in the next decade–prior to 2020.  That’s my best guess.  In the meantime, the state-by-state struggles continue.

 

Is DOMA Unconstitutional?

From my series on GLBT inclusion in the church and other posts, regular readers will not be surprised that I believe that the 1996 law known as the [sic] “Defense of Marriage Act” or DOMA is unjust since it prevents the federal government from recognizing same sex marriages (even from states where they are legal) and from granting the normal federal rights which go with marriage (e.g., spousal benefits from Social Security; joint tax filings;).  But is it unconstitutional as well?  I write as an amateur.  I am neither a lawyer nor a constitutional scholar.  I invite those who are to check my reasoning.  But I think DOMA is unconstitutional.

First, let it be noted that in 1996 when DOMA was passed, not one state in the U.S. allowed same-sex marriages.  And most gay rights activists were focused on other issues than marriage equality.  But there was a fear that Hawai’i’s Supreme Court was about to rule in favor of same sex marriages (it didn’t) and DOMA was passed as a kind of preemptive strike. It was also designed very politically to hurt then-Pres. Bill Clinton because Republicans assumed he would veto it and then Sen. Bob Dole (R-KS) would campaign against him with that wedge issue all year.  But Clinton knew how to protect himself and so he calmly threw gays and lesbians under the bus by signing DOMA and robbing Dole of an issue.

We now have 6 states (MA, VT, ME, NH, CT, IA) which recognize same-sex civil marriages.  I expect the following states to follow within the next couple of years: NY, CA, NJ, WA,  and RI.  Several others will move to have civil unions,  which is often a first step to same-sex civil marriage.  New York and the District of Columbia have laws recognizing same-sex marriages performed in other states.

The Constitutional issues surrounding DOMA are mostly tied up with the “due process” and “equal protection” clauses of the 14th Amendment to the U.S. Constitution, which relate to the definitions of “marriage” and ‘spouse” in DOMA and the “full faith and credit clause” which refers to powers reserved to the states.  Public acts by one state must be recognized by the other states and by the federal government, unless those public acts are unconstitutional.  Supporters of DOMA argue that there is no right to marriage and thus DOMA is constitutional. But Loving v. Virginia (1967) found that marriage was an inalienable right–this case killed state laws that forbade interracial marriages. 

Defenders of DOMA reply that marriage has traditionally been defined as between a man and a woman. They imply that this definition has never been modified over the entire length of human civilization. This is patently false. Marriage has had numerous definitions.  In some societies plural marriages are still recognized as is concubinage, but these have long been banned in the United States.  Marriage today assumes that both parties are adults and legally able to enter into contractual relations, but traditionally women were married when they were barely post-pubescent (the Virgin Mary was probably no more than 14) and given away by their fathers to much older men–which today would be considered child abuse and pederasty.

Supporters of DOMA reply that if same-sex marriages are recognized the door is open to “marriages” between humans and animals (bestiality) or incestuous marriages (which have been rejected previously by courts).  But in Lawrence v. Texas (2003), which struck down state “sodomy” laws forbidding same-sex acts between consenting adults, the Supreme Court seems already to say that gay couples are NOT the same as pederasts or those practicing bestiality or other obscenities to which conservatives often  compare them. 

The logic of Lawrence v. Texas combined with Loving v. Virginia seems to me to give strong grounds for believing that DOMA is unconstitutional.  But defenders of DOMA claim that without something like it the religious liberty of those who believe same-sex marriage to be sinful will be violated.  I don’t think so. No church, synagogue, mosque, etc. which disagrees with same-sex marriage could be forced to perform them or allow their facilities to be used for them. The First Amendment protects them–just as it did for churches, etc. which believed that interracial marriage was wrong in the wake of Loving v. Virginia. Most churches and other religious institutions CHANGED their views and accepted interracial marriages, but neither change nor resistance to it is properly the concern of the courts or the secular government.

In fact, I would  argue that DOMA (and state bans on same-sex marriage) violates the religious liberty of faith groups who recognize same-sex marriages, like my church.  We can perform same-sex “weddings,” but our rites do not have the force of law. (Perhaps the solution is that the government should get out of the marriage business altogether and allow “marriage” to be a completely religious practice with no legal dimensions.)  Also, Christian marriage is not identical to legal marriage and never has been. Legal marriage allows me to sue my wife if I no longer want to live with her–not much Christian to that.

Nevertheless, as a civil, legal, matter, it seems to this amateur that the Defense of Marriage Act is  unconstitutional.

Why the Attacks on Empathy?

A president comes to the microphone and introduces his nominee to the Supreme Court to the world.  The president says, “I have followed this [nominee’s] career for some time, and he has excelled in everything that he has attempted. He is a delightful and warm, intelligent person who has great empathy and a wonderful sense of humor. He’s also a fiercely independent thinker with an excellent legal mind, who believes passionately in equal opportunity for all Americans. He will approach the cases that come before the Court with a commitment to deciding them fairly, as the facts and the law require.”  Obviously this was said by Pres. Barack H. Obama this past week about Judge Sonia Sotomayor and I’ve just changed the gender of the pronouns, right? Wrong.  The year was 1991.  The president was George H. W. Bush (R) and the nominee was (now) Justice Clarence Thomas!

About Thomas, Sen. Kit Bond (R-MO), emphasized his compassion and understanding of the impact of the Supreme Court on the lives of ordinary Americans in arguing for his confirmation.

Similar remarks by conservatives can be found with regard to other Supreme Court nominees (and sitting justices) they admire, including Justices Scalia, and Alito.  So, why the attack on empathy now?

The lack of empathy in a person is a defining characteristic of sociopathy–the mental illness where a person “has no conscience” because is unable to look at the world except from the view of “what’s in it for me.”  Unlike other psychoses and neuroses, sociopathy has no outward signs of odd behavior.  That’s why sociopathic mass murderers can live next door to people without them ever suspecting the “quiet young man” of the capacity for incredible evil.  Judges are not “brains in glass jars,” nor are they robots–and we don’t want them to be.  Show me a judge without empathy and I’ll show you a monster who should be in a padded room, not in robes on a bench.

Empathy is not being ruled by emotion without regard to the letter of the law.  Nor is it weak pity or sympathy.  Rather, empathy is the ability to transcend one’s own viewpoint to see the perspective of others.  It is the mental ability to “walk a mile in another’s moccasins” as the ancient Native American saying puts it.  It is at the root of morality.

Recall our discussion on moral discernment.  There is a role, along with reasoning, for the passions, and the virtues. In his wonderful book, Virtuous Passions, my friend, Father Simon Harak, S.J. (a Palestinian Christian, Jesuit priest, pacifist, theologian, peace activist, and so much more) argues against the pop-psychology view that our emotions are neither good nor bad, only our actions are moral or immoral.  While there is some truth in the idea that if I do not act on my bad emotions, I am better than otherwise, that is not the whole story.  After all, if you recited to me the testimony of a child being abused and the emotion I felt was joy, or delight, you would (rightly) think that something is wrong with me morally–even if I never came CLOSE to harming a child.  (This is why modern folk should not be so quick to dismiss old-fashioned advice about watching the material we read or watch.  We need not take a Victorian prudish attitude toward all things erotic to be concerned about pornography, for instance, or the “torture porn” of many horror movies and TV shows like 24, and The Unit.)

Morality is more than emotion or passion. It includes learning how to reason morally, it includes attention to one’s loyalties and interests, one’s deepest convictions, and one’s perception of the situation, too.  But the passions, especially empathy, are the root of morality.

What does that have to do with judges?  Well, as I have said before,  legal reasoning has  much in common with moral reasoning.  [Aside:  I hate it when well meaning liberals and progressives cite the old chestnut that “you can’t legislate morality.”  Of course you can.  In fact, MOST laws uphold some view of morality.  A law against murder or torture or rape or robbery is “legislated morality.”  To say one cannot legislate morality is sheer idiocy.  And it isn’t even original with liberals or progressives.  The saying was first touted by conservative racists against efforts to end segregation–which they called “legislating morality.”  Now, it is true, that morality has more than legal dimensions and that it is neither wise nor practical to try to turn every moral principle into a law.  That way lies totalitarianism.  Clashes over what should or should not be legislated,  are either clashes between different moral conclusions (e.g., the abortion debate) or are clashes about the wisdom of outlawing some morally problematic behaviors (e.g., clashes over gambling statutes, debates over which drugs should be banned, etc.).  Even debates over the  amount and type of taxation are debates with MORAL dimensions.]  In The Audacity of Hope, then Senator Barack Obama specifically named empathy as the center of his own moral system and makes the claim that it is at the center of any democratic form of government–certainly of the American experiment.  One cannot understand the struggle of the Abolitionists against slavery, for instance, without seeing that it was their empathy–their ability to put themselves into the situation of others–that drove them.  The same is true for the struggle of the suffragists and other women’s rights movements, the struggle against child labor, and for unions and for worker safety, the struggle against segregation, etc.  Our great failures as a society (e.g., imprisoning Japanese Americans during WWII “on reason of race”), including our legal justifications for those failings (e.g., The Korematsu decision or Plessy v. Ferguson) are failures of empathy as much as they are failures of reasoning.  As a presidential candidate, Obama cited a lack of empathy as one of the reasons he voted against the confirmation of Chief Justice Roberts, saying that 95% of the time the law is clear and the case is clear–and conservatives, liberals, centrists, etc. all reach the same conclusion.  But in that 5%, judges need to be able to get beyond the words on the page to their impact on people’s lives. (Whether Obama is correct in his assessment of Chief Justice Roberts is a separate question from his point about empathy.)

I am not arguing that Judge Sotomayor should not be questioned deeply.  I don’t know, for instance, that the claim that she is emathetic is true.  For instance, I have not seen much evidence that George H.W. Bush was right in claiming that Clarence Thomas was a man of great empathy. I don’t think his judicial record reflects that at all.  But that’s different than claiming that empathy is something BAD in judges.  It is something good that we should WANT in judges.  I have no desire to replace human judges with Artificial Intelligence computers just programmed with exhaustive knowledge of the law.

An editorial in the conservative National Review claims that “empathy” is just a “liberal code word” for “judicial activism.”  (They said this even before they knew whom Obama planned to pick.) Well, first of all, there is evidence that conservative judges are more likely to be activists who “legislate from the bench” than liberal or centrist judges do.  But this also misses the number of times that conservatives have praised empathy and related virtues like compassion.  A good judge, especially an appellate judge or Supreme Court justice, needs MORE than empathy, but not less.

Nor does empathy mean agreement with the other whose perspective one seeks to understand.  If the kind of terrorism that is spawned by warped versions of Islam is ever to be stopped (apart from debates on what tools should be used to stop it), we in the West MUST seek to understand the motives that drive our foes.  Nor should we be satisfied with quick and shallow summaries such as “they hate our freedoms,” or “they are religious fanatics,” etc.  We have to strive to see the world as they see it, to see Western (especially U.S.) actions from their perspective–even if we NEVER share that perspective.  Similarly, a judge may be very empathetic with a convicted criminal and still think that justice and the public safety demand a very harsh sentence.  A judge may be empathetic with an overworked public defender and still demand that she be ready for trial at 9 a.m. the next day or very empathetic with a prosecutor whose case just went south not because of police misconduct and still demand that the accused be set free–even if she suspects the accused is actually guilty–because that’s the law.  Empathy is not automatic agreement.

When I was a teen, my Sunday School teacher was a crusty old man who happened to be judge in the Duval County Florida Circuit (i.e, felony) court.  He and I often disagreed since he was a Republican and I was, even then, a liberal Democrat in my sympathies.  He was known as a tough trial judge and I can attest to that since I later worked in his court as a bailiff while trying to discern whether my own path should be toward theology or law.  His reputation did NOT include showing much mercy or compassion from the bench, but this part of his reputation I would dispute. I saw this judge show compassion and mercy for all sides from the bench–while running a very strict courtroom.  While trying to discern my future path I asked him what quality a judge most needed. He didn’t hesitate:  “The same thing a minister most needs, Michael, empathy–a feel for the human condition both in the large picture and in individual cases.  The most brilliant legal mind without empathy would be a horror.” 

In fact, we know from history that this is the case.  For the Nazi judges who were tried after WWII at Nuremberg were precisely that:  brilliant legal minds who lacked sufficient empathy to understand the horror of what they were doing to Jews, Gypsies (Rom), communists, gays–and all dissenters from the “orthodoxy” of the Third Reich.   

Judge Sonia Sotomayor must be questioned deeply about all sorts of matters in her confirmation hearings–and I could wish that the public had more input.  I am not defending her nor trying to preclude vigorous hearings–that’s a constitutional DUTY of the U. S. Senate.  But put me down in praise of empathy as a REQUIREMENT for all judges.

And today, I will lift a prayer for the cultivation of empathy by EVERYONE in our society–even by empathy’s current critics.

Obama Nominates Judge Sonia Sotomayor to SCOTUS

Well, I was wrong.  The conventional wisdom said that Obama would pick a Latina, adding another woman and the first Hispanic to the Supreme Court of the U.S. in one fell swoop–and the only person fitting such a description that also had the legal qualifications and experience was Judge Sonia Sotomayor of the 2nd Circuit of the U.S. Court of Appeals.  So, she was widely rumored as a frontrunner and the right actually began a whisper campaign against her the moment that Justice David Souter announced his retirement at the end of this term of the Supreme Court–before anyone was nominated.

 

But I was convinced that Judge Sotomayor was too obvious a choice.  Obama has picked surprising people to fill his cabinet posts (people are STILL surprised that he picked his arch-rival Hillary Clinton to become Secretary of State!) and, althought he has sought major diversity, has never picked just to have an affirmative action choice.  I thought he certainly wanted someone who was NOT an appellate judge, but a working politician.  So, I thought Gov. Jennifer Granholm (D-MI) of Michigan had  the inside track.  Also, despite the screams of the right, Judge Sotomayor is fairly centrist–not much more liberal  than Justice Souter whom she’d be replacing, and so I thought Obama would save her for replacing a conservative–that he would pick a strong liberal to replace Souter.

I was wrong.  Judge Sotomayor is the nominee. Obama wants her confirmed before the August recess of Congress, so that she will be ready to go when the SCOTUS begins its fall term on the first Monday in October.  I think the GOP will try to drag it out to September, but I don’t think they have the votes to block her confirmation.  She was nominated first for the federal bench by Pres. George H. W. Bush and then elevated to the 2nd Circuit Court of Appeals by Pres. Bill Clinton. So, Judge Sotomayor has twice been confirmed by the senate already.  Seven (7) Republican senators voted for her confirmation in ’97.  So, it will be hard to keep her off the Supreme Court.  But the Right is already trying.  The confirmation hearings will be nasty.

My one real concern is that with Sotomayor, 6 of the 9 SCOTUS justices will be Catholic.  The remaining 3 will be two Jews and one Protestant (John Paul Stevens, the oldest Justice serving).  In a country where Protestants are still a plurality, if no longer a strict majority, this is a very Catholic-dominated court.  There are 11 Catholics who have been on the SCOTUS in U.S. history–and 5 of those 11 are still serving.  This worries me some on church-state issues where Catholics have tended to support positions that I would consider violations of the 1st Amendment’s ban on all laws “respecting an establishment of religion.”  I haven’t seen an analysis of Judge Sotomayor’s church–state decisions but would like to do so. 

Obama is likely to have 1-2 more Supreme Court picks this term and, if he is reelected, at least 1 more pick in his 2nd term.  I hope the others are more liberal and are not Catholic.

Bio:  Judge Sonia  Sotomayor is 54.  Her parents came from Puerto Rico during WWII and both were working class people.  She grew up in the Bronx, NY and first became interested in the law as a girl reading “Nancy Drew” mysteries.  When she was diagnosed with childhood onset diabetes at age 8, she was told that diabetics did not have the physical stamina to become police officers or private investigators (not true). So, she became a judge.  She graduated from Princeton University in 1976 summa cum laude.  (So much for those who claim she is not intelligent!) She then graduated from Yale University Law School in 1979 after serving as editor of the Yale Law Review.  She has been a NYC prosecutor and a civil litigator for international corporations operating in the U.S.  She has been a trial judge and, when replacing Souter, will be the only member of SCOTUS who has served as a trial judge.  She has been a state appellate judge (appointed in 1991 by Pres. George H.W. Bush) and a Circuit Court appellate judge (appointed in 1997 by Pres. Bill Clinton).  Her name was previously floated as a replacement for Justice Sandra Day O’Conner when she retired from SCOTUS in ‘ 05.

This article shows convincingly that, although the rightwing noise machine will complain loudly about her nomination, they don’t have the votes to prevent her from being confirmed (or even to filibuster her nomination) –unless a major scandal would be uncovered (highly unlikely).  And Republican Senators like Mitch McConnell are on record as opposing the filibustering of judicial nominees–calling it obstructionist.  This won’t prevent them from reversing themselves now, but we can show them to be absolute hypocrites when they do reverse themselves.

Update:  The Senate Judiciary Committee  has just released its questionaire for Judge Sotomayor.  After she has filled it out, they will release her answers.  I indicated my questions for any replacement for Souter here.

Supreme Injustice in CA: Prop 8 Upheld

As expected (and dreaded by GLBT folks and allies), the California Supreme Court rejected arguments that ballot initiative “Proposition 8” passed last Nov. was more than an amendement, but a revision of the California Constitution.  If that argument had prevailed, Prop. 8., which bans same-sex marriage, would have been struck down since revisions cannot be made by ballot initiative alone, but must go through the state legislature.  The CA Supreme Court Judges, even those voting originally that the state constitution guaranteed marital equality, had indicated back in January during oral arguments that they were not open to the “revision” vs. “amendment” distinction.  The really bad news is that they relied on the argument of Prop. 8 litigator Ken Starr (of Monica-gate infamy!) that because the rights of convicted felons to vote can be stripped, so also can previously recognized rights of gay and lesbians be stripped from them.  Great. In effect, the court has just criminalized gayness.

However, the justices also ruled that the 18,000 same-sex marriages that took place in CA during the few short months of its legality (May-Nov. 2008) would remain valid.  As a gay friend (a pastor and fellow member of the Baptist Peace Fellowship) from CA emailed me:  This now creates a system in which some 18,000 gay couples in CA are in a situation analogous to that of free blacks in slave states before the U.S. Civil War–having rights denied to others “of their kind.”

This is not the last word.  Prop 8. supporters will work to get the marriages undone, too.  But  polling since last Nov. shows that Prop. 8 would probably fail (narrowly) if it were re-voted.   Marriage equality has gained ground since last Nov.  So, supporters of marriage equality will seek to undo Prop. 8 legislatively.  I think they will succeed, but if this is to stop going back and forth, I think CA may need a major constitutional overhaul which strengthens equal protections and makes it harder to strip rights from people.

This is one of the enduring tensions in the American form of government:  a democratic republic ordinarily means “majority rule.”  But the Framers of the Constitution also sought to protect the rights of minorities–to defend human rights and civil liberties against “majorities of the moment,” and “mob rule.”  Who and what is protected has been a debate for nearly 200 years, now.

Supreme Court Possibilities I: The Women

Who will Obama pick as Justice Souter’s replacement?  For international readers:  The federal judiciary is the only part of the U.S. federal government that is not elected.  Federal judges are appointed by the president “with the advice and consent” of the U.S. Senate (generally known as “senate confirmation”).  Will he appoint a centrist who can be more easily confirmed or will he try for a liberal with the intellectual heft of Justice Scalia and young enough to work for decades to shift the court back to the left?  As a progressive concerned about law in the pursuit of justice, human rights, and civil liberties, I believe that the Republicans will attempt to block WHOMEVER Obama appoints.  So, he might as well swing for the bleachers while his approval rating is sky high. 

 Because of age and health issues, Obama may get to nominate as many as five (5) Supreme Court justices in eight (8) years if, as seems likely at this point, he wins a second term in office.  That’s a rare opportunity for a U.S. president to re-shape the direction of the Supreme Court for decades to come.  Remember, Jimmy Carter (D) had no opportunity to nominate a Supreme Court Justice.  Ronald Reagan (R), on the other hand, picked 3:  Sandra Day O’Connner (Ret.), the first woman on the court, in ’81; Antonin Scalia in ’86; Anthony Kennedy, the unpredictable swing vote, in ’88. (Kennedy came after two rejected Reagan nominees, one of which was the notorious Robert Bork.) Bush I (Souter in ’90; Thomas in ’91), Clinton (Ginsberg in ’93; Breyer in ’94), and Bush II (Roberts in ’05; Alito in ’06) all were able to pick 2 Supreme Court justices during their tenures in office.  So, Obama’s opportunity, if he gets all 5 chances, is quite rare–and a major reason I thank God every night that John McCain did not win last November.

But in all likelihood the first 3 vacancies on the Court (likely to come this first Obama term) will be from the moderate-liberal wing of the Court. (Souter this year.  Probably John Paul Stevens (89 and appointed by Gerald Ford in ’75!) and Ruth Bader Ginsberg (76, who has twice now had cancer surgery).   These nominations will still change the Court’s dynamics, as all new justices do.  But in 5-4 ideological splits, the balance of power is unlikely to shift until one of the conservative justices retires.  Bush II’s nominees, Chief Justice Roberts (54) and Justice Alito (59) are relatively young and in good health.  Of the 3 remaining justices, Scalia is ’73, Kennedy is ’72, and Thomas is 60, but there have been rumors of Thomas’ poor health for years and I suspect that Kennedy would like to retire within 5 years, but is hoping that Obama gets only one term. (I don’t think Kennedy finds the current Court dynamics much more enjoyable than Souter did. Kennedy is conservative, but not a far right ideologue like Scalia, Thomas, Roberts, and Alito.)

Now, presidents who get re-elected usually have harder second terms than first (although Obama inherited so many problems and such an ambitious agenda that this may prove an exception). So, my guess is that he will appoint his most liberal justices now while his approval rating is high and the Senate Republican numbers are so small as to make blocking nearly impossible.  If he gets to nominate a replacement for one of the conservative justices, the rightwing pushback will be huge and, depending on what else he needs political capital for at the time, he probably won’t want a major judicial fight.  So, look for him to appoint a more centrist justice, then, when he can argue that the Court won’t be moved much to the left–but the effect will be cumulative.

For the current nomination, conventional wisdom is claiming that Obama will almost certainly choose a woman and, for once, I think the conventional wisdom is right.  So, in this post, I will concentrate on female possibilities.  (In case he surprises us, I will give a second post on possible male appointees, but I really think Obama will save them for another appointment.) Pressure is also on the president to appoint a Latina or an African-American, but Obama is not the type to appoint simply to fill a quota–diversity will be one consideration of many, not a trump card.

Because five (5) members of the current SCOTUS are Catholic and I’d like to see more religious diversity on the Court, I’ll list the religious affiliation of the possible nominees if I can find it.  Article 1 of the U.S. Constitution forbids any religious test for public office, but Catholics seem over-represented on the current SCOTUS.  Is it a coincidence that the 5 Catholics are also the 4 solid conservatives  (Chief Justice Roberts and Associate Justices Scalia, Thomas, and Alito) and the center-right swing justice (Kennedy)? The retiring Justice Souter is Episcopalian (once the dominant religious affiliation of Congress, the presidency, and SCOTUS, but no longer), Justices Breyer and Ginsberg are Jewish, and Justice Stevens lists his religion as “Protestant” without further qualification.

 Possible SCOTUS nominees:

• Jennifer Granholm, current governor  of Michigan (D), Catholic.  At 49, Gov. Granholm is young enough to serve several decades on the Court.  She is also term limited and so cannot run for re-elections as governor of MI.  Because she was born a Canadian and is a naturalized citizen, she is constitutionally unqualified to be president or vice president, but no other offices are barred. She has been MI’s Attorney General, but has never been a sitting judge, but Obama has indicated that he wants to return to an earlier tradition of looking outside the judiciary for this appointment.  We have a history of many SCOTUS justices from outside the judiciary, but not recently, and currently all 9 sitting justices are former U.S. appeals court judges.  Granholm is an honors graduate of the University of California at Berkeley (Phi Beta Kappa with two B.A.s, one in French and the other in political science) and an honors graduate of Harvard University Law School.  I like Gov. Granholm as a possibility.  She has a varied background (growing up in Vancouver, British Columbia),clerking for the U.S. Court of Appeals, time  as a Wayne County Corporation lawyer, and a former  contestant on The Dating Game.  These are experiences that most judicial nominees do not have, but she also has strong legal background. And she helped VP Joe Biden prepare for his vice-presidential debate by playing AK Gov. Sarah Palin in preparation.  We know her to be a political liberal, but since she is not a judge, we won’t know the details of her legal/judicial philosophy unless/until she is nominated and faces Senate confirmation hearings.
• Leah Ward Sears, 53, religion unknown,  is currently Chief Justice of the Supreme Court of the state of Georgia who has announced plans to retire from the GA Supreme Court this June (when she turns 54).  Chief Justice Sears is an African-American woman who would add to both the gender and racial/ethnic diversity of the SCOTUS.  She was born in Heidelberg, Germany on the U.S. army post where her father, now a retired Colonel,  was stationed.  She describes her judicial philosophy as moderate, but is considered the most liberal member of the Georgia Supreme Court. (Still, this IS Georgia!) Her judicial opinions do show the compassion and empathy that Obama has said he is looking for in a nominee.  B.S., Cornell University (1976); J.D., Emory University School of Law (1980); Ll.M., University of Virginia Law School (1995).  She has also done extensive study at the National Judicial College.  She was a partner with the law firm of Alten & Bird in Atlanta until 1993.  She has an honorary Doctor of Law degree from Morehouse College.  She was the first African-American woman to serve in the Superior Court of Georgia.  Also, she was both the first woman and first African-American to serve on the Georgia Supreme Court.  First appointed as Assoc. Justice in 1992 (by then Gov. Zell Miller), she became Chief Justice in 2005.  She has been chief of the judicial section of the Atlanta Bar Association and Chair of the American Bar Association’s Board of Elections. She founded and served as first president of Georgia Association of Black Women Attorneys.  She has numerous rulings on significant matters in numerous areas of law and reflects a center-left judicial approach.  E.g., She has argued that death by electric chair is cruel and unusual punishment, but did not debate the constitutional right of states to impose death as a penalty. In a lecture at her alma mater, Cornell University, Justice Sears, who has herself been divorced and remarried, spoke on the societal costs of the breakdown of families, but in ways that suggested she thought both liberals and conservatives were in error. (The lecture gave little clue to her views on same-sex marriage.)  On the other hand, she named her daughter, Brennan, after the late liberal Supreme Court Justice, so perhaps she has more liberal leanings than she has been able to display in her career to date.  Her stands on election law, government accountability, and taxation are all likely to draw sharp questions in Senate confirmation hearings.  She has long worked against women and child abuse–an area of law particularly lacking in the current SCOTUS makeup.  I like her and I think she could hold her own in Senate hearings, but I think she  is centrist enough that Obama may save her for a later nomination.
• Elena Kagan, 49, Jewish,  current U.S. Solicitor General.  This would not be the first time that a Solicitor General (who pleads the government’s cases before SCOTUS) became a future Supreme Court Justice.  The famed  Thurgood Marshall was LBJ’s Solicitor General before Johnson nominated him to become the first African-American Justice of SCOTUS.  Kagan was, until Obama nominated her for Solicitor General, the first woman Dean of Harvard University Law School where she was also Houston Professor of Law.  She had previously taught law at the University of Chicago Law School, where she worked alongside Obama.  She has also been Associate Chief Counsel to the White House in Bill Clinton’s administration.  B.A., (summa cum laude), Princeton University, 1981; M.Phil., Worcester College, Oxford University,1983; J.D., (magna cum lauda), Harvard University Law School, 1986.  She was supervising editor of the Harvard Law Review.  She was a law clerk for Judge Abner Mikva of the U.S. Court of Appeals for the District of Columbia Circuit and for Justice Thurgood Marshall, U.S. Supreme Court.  She was confirmed by the U.S. Senate for her current post which argues that she could be an easy confirmation for SCOTUS, but she has just settled into her current position. She is a strong liberal and barred the military from recruiting on the campus of Harvard Law School because of the law against gays and lesbians serving openly in the military.  If Kagan is not Obama’s pick this time, expect her to be a likely nominee before his first term is up.
• Pamela S. Karlan, 50, Jewish,  Montgomery Professor of Public Interest Law, Stanford University School of Law.  B.A., Yale University, 1980; M.A., Yale University Graduate School of Arts and Sciences, 1984; J.D., Yale University Law School, 1984.  Worked for the NAACP Legal Defense Fund.  Law clerk for Judge Abraham D. Sofaer of the U.S. District Court for the Southern District of New York; Law clerk for Justice Harry A. Blackmun, SCOTUS.  Member, American Academy of the Arts and Sciences and American Law Institute.  Taught at University of Virginia Law School before Stanford.  Has argued many cases successfully before the Supreme Court and runs the Supreme Court litigation clinic at Stanford.  An award winning teacher and the author of a standard textbook on public interest law.  Frequent commentator on legal affairs for Newshour with Jim Lehrer.  Co-editor of 3 leading casebooks on constitutional law and litigation.  A strong liberal, I think Karlan would be a fantastic choice. However, she is an out-lesbian and this might lead to a major confirmation fight.  The question here is how much political capital Obama is willing to spend. Gay rights is making progress, even in public opinion, but the Right may decide that Karlan would be a good rallying cause.  She is also a very published critic of the way Bush v. Gore distorted the 14th Amendment’s “equal protection” clause–something that is sure to draw Republican fire during confirmation hearings.  She has argued many cases before SCOTUS.
• Margaret McKeown 58, federal judge with the United States Court of Appeals of the 9th Circuit.  Appointed by Pres. Bill Clinton.  I can’t find much else out about Judge McKeown (including a photo), but the 9th Circuit Court is known for its liberalism and for having many cases reversed by the Supreme Court of the U.S. (SCOTUS), often in 5/4 split decisions. For this reason, alone, Judge McKeown would likely be highly scrutinized by Republicans and conservative Democrats in the Senate.  At her age, if Obama is wanting to pick younger justices who can shape the SCOTUS for decades, this is probably Judge McKeownn’s only shot at the high court.
• Johnnie B. Rawlinson, 57, an African-American woman, is currently a Federal Appeals Judge with the U.S. Court of Appeals of 9th Circuit Court, a position held since July 2000. She was appointed by Pres. Bill Clinton upon the recommendation of Sen. Harry Reid, who is now Majority Leader.  From 1998 to 2000, Rawlinson was U.S. District Judge for the District of Nevada, a position for which she was also recommended by Reid and nominated by Clinton.  But this means she has twice been confirmed by the U.S. Senate–when there were more Republicans than now (and they didn’t much like Clinton’s judicial picks, either).  B.S., North Carolina A & T. C University, 1974; J.D., McGeorge School of Law, University of the Pacific, 1979.  Private practice and then work in the Office of the District Attorney in Las Vegas, Nevada.  Again, if Rawlinson is the pick, this will be her time rather than later.  Yet I think Obama wants someone younger and not as centrist for this first SCOTUS pick.
• Judge Sonia Sontamayor, 54, Catholic, currently a federal appeals judge withthe 2nd U.S. Circuit Court of Appeals.  She shares something with the retiring Justice Souter:  they were both nominated to their current positions by the first Pres. Bush.  Sontamayor, a Latina who grew up in the Bronx, NYC, is a graduate of Yale law school.  When nominated, she was considered a political moderate, but today’s Republicans are likely to consider her a judicial liberal.  I have found little else about her, but she has been on the federal bench for some time and yet is young enough to be a major influence on the future of the SCOTUS. Her nomination would please both women and Hispanics and the 2nd Circuit Court of Appeals is not considered the bastion of liberalism that the 9th Circuit is.  Her appointment by the first Pres. Bush SHOULD make it easier for her confirmation, but conservatives HATED Bush I’s judicial picks, except for Clarence Thomas (whom liberals despise).  Much conventional wisdom says that Sotomayor is the favorite and there have been several attacks on her by conservatives recently that suggest that conservatives believe it.  But I am not certain. Sotomayor is a moderate-centrist.  So much so that, after the Harriet Myers disaster, Democrats in the Senate tried to get Bush II to nominate her, knowing that his wife wanted him to appoint a woman and that Bush II was trying to court Hispanic votes and wanted to name the first Hispanic to the Supreme Court.  Democrats saw Sotomayor as a moderate in the tradition of O’Conner who was retiring.  But Bush decided to push the Court further to the right.  I’m not sure Sotomayor now pushes the court back far enough left.  She might be a good pick for when one of the conservative justices retires–when Republicans would see her as a good compromise after getting strong liberals beforehand. On the other hand, Obama also needs to woo both women and Hispanics, and Judge Sotomayor is one of the few strong Latina’s high in the legal community.
• Rep. Linda Sanchez (D-CA-39), 40,  Catholic, would be, like Gov.  Granholm, a pick from outside the judicial world–back to the tradition of appointing working politicians to the SCOTUS.  Sanchez is young, a strong liberal who led the Congressional investigation into the Bush-era Dept. of Justice’s politically-motivated firings of 9 U.S. attorneys, and who challenged and won when Bush suspended the law demanding that government pay local contractors prevailing wages in the wake of Hurricane Katrina.  She sits on the House Judiciary Committee and co-founded the Labor and Working Families Caucus in Congress.  The daughter of Mexican immigrants (and the only member of Congress to have a sibling, her older sister, Loretta Sanchez (D-CA-47th), in Congress), Rep. Sanchez is a former member of the International Brotherhood of Electrical Workers (IBEW) and worked her way through both her undergraduate (B.A., University of California at Berkeley,1991) and law degrees (J.D., University of California at Los Angeles, 1995) as a union electrician–garnering plenty of that “real world experience” the president said he wants in his nominee.  She is the first Latina to represent part of Orange County (and one of the few Democrats to ever regpresent this conservative part of CA), and the first Head Start baby to serve in Congress.  She is only recently married (last month) to Jim Sullivan, who  fathered her child last year before they were married. (She told reporters that doctors had advised her at 39 not to wait if she ever wanted to have children.) This might lead to embarrassing questions at confirmation hearings, but the Senate is less male dominated than when an all-male Judiciary Committee barbecued Prof. Anita Hill in the ’90s during the confirmation hearings for Justice Thomas. (Hill claimed that Thomas had sexually harassed her 10 years previously when she worked for him. The majority of the senate chose to disbelieve her testimony, but numerous women have since come forward to corroborate with stories of their own about Justice Thomas’ despicable behavior.)  She might be a longshot, but Sanchez would thrill women,  Hispanics, and liberals in one shot.  She’d bring a much-needed working class background to the Court, most of whose members (Thomas the one exception) are children of privilege.  If she is not the nominee this time, I hope Obama chooses her in the future.
• Kathleen M. Sullivan, 54, currently Morrison Professor of Law, Stanford University Law School. Formerly Dean, Stanford University Law School.  Taught constitutional law at Harvard before Stanford.  The National Law Review named her as one of the top 100 most influential lawyers in the USA. Fellow of the American Academy of Arts and Sciences and of the American Philosophical Society.  B.A., Cornell University, 1976; B.A., Oxford University, 1978 (Marshall Scholar); J.D., Harvard University Law School, 1981.  Highly published. Has frequently argued cases successfully before various appeals courts and SCOTUS.   Openly lesbian, Professor Sullivan has argued gay rights causes in several courts.  She would be the strong liberal champion that I’d like to see and someone brilliant enough to keep taking on Scalia and is young enough to be a major voice on the SCOTUS for decades.  But her nomination might trigger one heck of a confirmation battle.
• Judge Kim McLane Wardlaw, 55, currently a federal judge in the U.S. Court of Appeals for the 9th Circuit.  Born to a Scottish-Irish father and a Mexican-American mother, she is the first Latina U.S. Court of Appeals judge.  (Although, since neither her name nor looks are Latina, I don’t know that Judge Wardlaw’s nomination will gather the support of the Hispanic community.) B.A., Communications, summa cum laude, Phi Beta Kappa, from the University of California at Los Angeles (UCLA), 1976.  J.D., UCLA Law School, where she was 5th in her class of 300 and inducted into the prestigious Order of the Coif.  After years of private law practice, Wardlaw volunteered for Bill Clinton’s 1992 presidential campaign and worked on the Clinton-Gore transition trend.  Nominated to the U.S. District Court for the Central District of California in 1995.  Then, Clinton nominated Wardlaw to the 9th Circuit in 1998 and she was unanimously confirmed.  She will be considered by the GOP to be a liberal, but she has a solid record of cases which have never been reversed and she has won numerous awards.  It will be hard to attack her credentials and hard for the Republicans who were in the Senate in ’95 or ’98 to explain that the voted for her then, but find her unacceptable, now.  Wardlaw might be one of Obama’s safest choices for confirmation.  There is one case, Card v. City of Everett, that troubles me as a church-state separationist. Judge Wardlaw, writing for the majority, held that a 10 Commandments display on city land did not constitute an establishment of religion and, thus, was not a violation of the First Amendment.  I disagree.

There may be others on the Obama list which have not made the rumor mill.  Were I a gambler, I’d put money on Gov. Granholm as the most likely.  None of these nominees would make me unhappy, but I’d probably most like to see a true liberal champion like Kagan, Karlan, Sullivan, or Sanchez.

Replacing Souter: Criteria for a Supreme Court Justice

The Constitution of the United States does not give any binding criteria of eligibility for Justices of the Supreme Court.  This contrasts strongly with the President and members of Congress in which age and citizenship requirements are spelled out (the President and VP may not be naturalized citizens).  Theoretically, anyone could be appointed to the Supreme Court–provided the Senate approves for the Constitution requires the “advice and consent” of the Senate. Usually, this has meant a simple majority unless an attempt at filibuster means that 60 senators must agree to “invoke cloture” and end debate and go to a vote.

In practice, however, Justices have always been appointed who were familiar with the law of the land.  They were expected to be lawyers who had passed the bar exam and were licensed to practice law in one or more of the respective states of the union.  After law schools became common (19th C.), all Justices were expected to have law degrees.  Sitting judges from lower courts, especially appellate courts, have formed the bulk of the Justices.  (All of the current members of the Supreme Court were appellate judges, for instance, though both Souter and Clarence Thomas had only served briefly before being nominated to the Supreme Court of the United States [SCOTUS].) But that has not always been the case.  Beginning with the first Chief Justice, John Jay (1745-1829), there have been numerous justices who spent part of their careers as working politicians.  (Jay had been President under the Articles of Confederation, prior  to the adoption of the current Constitution, as well as minister (ambassador) to France and Spain and later Secretary of Foreign Affairs (i.e., Secretary of State).  A signer of the Constitution, he was also a co-author of The Federalist Papers.   Later he was Governor of New York.) In the 20th C., such working politicians who became Supreme Court justices included William Howard Taft (previously U.S. President), Charles Evans Hughes (former governor of NY and Republican candidate for U.S. president), Earl Warren (former governor of California), and Hugo L. Black (Democratic Senator from Alabama).  There have also been numerous legal scholars at law schools and high-ranking members of the Department of Justice–especially Attorneys General and Solicitors General.  (The great Thurgood Marshall, first African-American justice, had been Pres. Lyndon Baines Johnson’s Solicitor General. The Solicitor General pleads the government’s cases before the SCOTUS.)

So, Pres. Obama has a wide array of choices before him.  The Senate favors confirming appellate judges, but Obama has said he is looking for someone with real world experience, not just academic brilliance.  So, he might incline to reviving the tradition of appointing a working politician, or someone working as legal counsel for a human rights organization or for labor or for children.  We also know he favors brilliance and he favors legal appointments whose legal degrees come from the Ivy League schools (Harvard, Yale, Columbia, Princeton, ) or sometimes Chicago or Stanford.  In my view, this is a welcome change from the Bush administration’s habit of appointing legal people with degrees from fundamentalist diploma mills like Pat Robertson’s Regent University, but that Obama should work to diversify.  There are plenty of excellent legal minds which went to good law schools attached to state universities (e.g., University of Michigan) and from a much broader range of the country.  The Ivy League is excellent, but is not everything.

If I were a gambler (which I am not), I would wager a large sum that his appointment will be a woman.  We only have one woman on the Supreme Court and this is far inferior to other nations.  Further, we know from studying appellate courts that the presence of more than one female judge influences the judgments of the male judges.  Since women are 51% of this country, this imbalance is long overdue correcting. And women are nearly 60% of the Democratic Party,  so Obama will feel major pressure to appoint a woman–to say nothing of the fact that Michelle Obama, his wife, is also a Harvard-trained lawyer. 

There will also be pressure from African-Americans to appoint another African-American and from Hispanics to appoint the first Hispanic justice. (Asians and Native Americans are too small a fraction of the population to put real pressure on Obama in this way, but they will doubtless lobby for a member of one of their ethnic groups, too.)  Yet, Obama has never been the “quota” type of Affirmative-Action believer.  He has a diverse cabinet, but looked to qualifications first and foremost. (Those on the right who predicted he would fill his cabinet with African-Americans have been shown wrong. If anything, they are slightly under-represented.)

I would love to see greater diversity on the court, but my priorities are excellence, defense of civil liberties, and a tilt toward seeing the law on the side of the poor, marginalized, and weak, rather than on the side of corporations.

If I were advising the president (yeah, right), I would want someone who:

• Believes strongly in religious liberty and church-state separation.  Membership in Americans United for Separation of Church and State or a similar group would be a huge plus.  If the nominee is a judge, I would look for opinions that represent the previous high separation standards, prior to the erosion of the wall late in the BurgerCourt and all through the Rhenquist Court and continuing so far in the Roberts Court. 
• Believes strongly in civil liberties more broadly, especially free speech, assembly, privacy, the press.  I would want a justice that defends the civil liberties of suspects,  too, and keeps high standards for police and government agencies in the collection of evidence.
• Is suspicious of the very idea of corporations as persons (Santa Clara County v. Southern Pacific Railroad, 1886) and generally favors the rights of individuals over corporations and the common good, including the ecological common good, over corporations.
• Believes in equal justice for all regardless of race, religion, ethnicity, sex, gender identity, sexual orientation, or physical or mental disability.
• Believes strongly in the separation of powers and checks and balances and rejects the “unitary executive” idea of Yoo and co. which makes the president an elected dictator, at least in time of war.  Strongly reserves the right to declare war to Congress as Article 1 prescribes.
• Is more inclined to see democracy threatened by state secrets than by too much information in the hands of the people.
• I would love a true opponent of the death penalty, no hedging, on SCOTUS, since we have not had one since Marshall’s retirement. (We never had a majority of those believing the death penalty was wrong.)  However, if this was well known, I am not sure such a person could get confirmed by the Senate.  Fortunately, abortion comes up at senate hearings far more often than the death penalty.
• I would love someone who believes  that Article 1 of the Constitution means what it says–that ratified treaties share with the Constitution the status of “highest law of the land.”  Thus, no executive can decide that the “Geneva Conventions are outmoded and quaint”  as some of the Bush administration did.

Would such a nominee be able to be confirmed?  Hard to say. Much would depend on the person’s ability to articulately defend her or his views before the Senate.  It’s not the Republicans so much that Obama’s nominee would need to watch (now that they have only 40 seats in the Senate!), but the centrist and conservative Democratic senators who meet with Evan Bayh of Indiana.  If Obama’s nominee seems to them to be too far from mainstream legal opinion, s/he would be in trouble.  So, for instance, I think we could get a strong torture opponent, but not someone who was as outspoken against torture during the Bush years as Dawn Johsen, Obama’s yet-to-be-confirmed nominee for Deputy Attorney General for the Office of Legal Counsel.  Obama wouldn’t want to see such a long hold up. 

What criteria would you suggest for such a nominee?

An Appreciation of Justice David Hackett Souter

On Friday, Associate Justice David Hackett Souter, 69, announced that he is retiring at the end of this term of the Supreme Court of the United States (SCOTUS–as the legal shorthand goes). That’s at the end of June.  Pres. Obama announced that he will seek to have a nominee for Justice Souter’s replacement soon so that the senate confirmation hearings can proceed and the replacement can be sworn in before the Court’s new session which begins on the 1st Monday in October (by law). 

This has led political and legal nerds (including yours truly) to play a new game:  Search federal judges, legal scholars,  politicians with law degrees, etc. for Obama’s likely list of potential nominees and weigh their chances of getting through the confirmation process.  The game has serious implications. Supreme Court justices are appointed for life and their legal judgments affect the law and politics of the land for decades after the president who appoints them is long gone.  E.g., the oldest member of the Supreme Court is Associate Justice John Paul Stevens, 89, who was appointed by the late Pres. Gerald Ford in 1975.  But my speculations will await another time.  I want to take a moment to express appreciation for the departing Justice Souter.

I didn’t expect to like Souter when he was appointed by Pres. George H.W. Bush (Bush I) in 1990.  I knew that Bush desired to appoint a very conservative justice to fill the vacancy left by William J. Brennan, a hero to liberals  and progressives like myself.  I remembered how we had barely escaped being saddled by Reagan with the far-right wackjob in Robert Bork.

[Note 1: That’s one vote I’ll always be grateful to Arlen Specter for.  He led the GOP moderates against the extremist Bork.  Note 2: The Religious Right interprets any criticism of Bork as due to his pro-life views. WRONG. I was thoroughly pro-life when he was nominated and still find his opinions on that issue to be among his most legally challenging. I still thought Bork was a wackjob. He thought Brown v. Board of Education (the unanimous 1954 decision which outlawed segregation) was wrongly decided! He believed Gideon v. Wainwright which demands a right to counsel for those who cannot afford lawyers to be wrongly decided! He thought Miranda v. Arizona which demands that the police read suspects their rights to remain silent, to have an attorney present before questioning, and to be warned that any statement they give can be used against them at trial to be wrongly decided, too! Bork would have been a dangerous addition to the Court.  Of course, after Bork was blocked, Reagan pushed through Scalia, whose extremism isn’t much different–except on free speech where Scalia has surprised liberals and enfuriated conservatives by consistently striking down restrictions on free speech, including a Texas law against flag burning.]   I suspected Souter to be another Bork without a sufficient paper trail to be caught.

I have been pleasantly surprised. He is no liberal–no matter what Republicans say whose battle cry has become “No more Souters!”  But he is a very thoughtful justice with an independent mind–exactly the kind of qualifications one needs in a Supreme Court justice.  He began as a swing vote on the Court, a moderate conservative who relies heavily on precedent and does not like to see courts make radical changes in settled law.  But as the SCOTUS grew ever more conservative, Souter sided more and more with the moderate dissenters. (After the departures of Brennan, Marshall, and Blackmun, there have been no real liberals on SCOTUS–the closest being Ruth Bader Ginsburg, who would have been considered a moderate in earlier decades.)

Here is a brief sketch:  Born in 1939 in Melrose, MA, he spent his childhood and adolescence in rural  New Hampshire. He fell in love with the New Hampshire farmlands and hills and still loves to climb and hike in that area to this day.  This respect for rural America has led to the one consistently liberal area of his jurisprudence: Souter’s strong commitment to environmentalism against the depradations of corporations.   This rural background also led Souter to a love of simple living that stays with him: He does not own a television or cell phone and does not use email. He writes out all his legal briefs in longhand using a fountain pen.  He has no answering machine or personal computer.  He lives a spartan existence in a small apartment.  He loves reading, plays and opera, and jogging, and avoids the Washington, D.C. nightlife like it is a plague.  He returns every year when the court is not in session to NH (by car, not using air travel except when absolutely necessary–and for this reason turning down many opportunities to lecture in Europe) to hike in the NH woods and mountains.  Although once engaged, he has never married, leading him to once be listed as among D.C.’s “most eligible bachelors.” (At 69, that is probably no longer the case!)

Some have used his persistant singleness to argue for Souter being closeted gay, and that’s possible, but there is no real evidence of this. Also, I bristle at the suggestion that all people who aren’t either married or obviously sexually active (even promiscuous) must be gay.  We used to understand that some people had low sex drives and, for whatever reasons, preferred single life.  David Souter seems to be among them. I think it has to do with his love of simplicity. Whatever the joys of married life and parenthood (they are many), they do not include “simplicity.” Marriage and children mean that one’s life is inevitably COMPLICATED–for better or worse. 🙂 Souter’s semi-monastic life has its attractions–even for those of us who have chosen another path.

His low-tech existence also has its attractions. I have succumbed to the personal computer and to blogging and email, but I often check my email only once a week and find the amount of it discouraging. I try to be selective in bowing to the high-tech age: I don’t own a cell phone and didn’t own a pager when they were the rage, either. I won’t go on My Space, Facebook, or Twitter because I believe I’d never get any real writing done. I have cable TV, but try to rotate: 1 month of watching followed by a month of not watching. My addiction to news, however, means that during my off months from TV, I am glued to National Public Radio and the BBC!  I love the way the internet really is an information highway–and hate its filth, commercialism, and meanspiritedness.  Souter’s decisions resonate with me even where I have not made the same ones.  Note: Souter’s low-tech lifestyle means that while he is a “nerd,” he is not a “geek.” I appreciate the difference since my techno-geek wife has to help me with all electronic equipment.  🙂

Souter earned a B.A. in philosophy at Harvard (magna cum laude, Phi Beta Kappa) with a thesis on the judicial activist philosophy of Oliver Wendell Holmes. (In confirmation hearings, Souter said that he rejected Holmes’ judicial activism, but envied his ability to  write and many of his substantive positions. This was a clue that neither liberals nor conservatives picked up on in 1990.)   Selected as a Rhodes Scholar, Souter earned an M.A. in political science from Magdalen College, Oxford University, in 1963.  He earned his law degree from Harvard University Law School in 1966.  He is a cradle Episcopalian and a lifelong Republican in the old-style New England version of Republicanism: fiscally and legally conservative but not radically right; libertarian in social views (i.e., if it doesn’t hurt the common good, allow it even if one finds it personally distasteful); cautious about state power, but also about corporate power; arguing for a strong military defense force, but VERY cognizant of the limits of military power and generally opposed to military adventurism.  It is a style of Republicanism that is now fading fast.

Souter worked in private practice for only two years, not liking that aspect of the law.  He became Asst. Attorney General of New Hampshire in 1968, beginning a long career in public service.  He was a strict law and order person as a prosecutor and that part of his judicial philosophy remains.  The Attorney General of NH in those days was Warren Rudman and Souter and Rudman became fast friends–and therein lies the tale of Souter’s later career.  Rudman made him Deputy AG in 1971.  When Rudman left to return to private practice in 1976, Souter succeeded him as AG of NH where he was known as a tough prosecutor. 

Again because of Rudman’s influence, Souter was named Associate Justice of the Superior Court of NH in 1978.  As a judge, he was known to sketch jurists and witnesses. He was known for treating everyone in court, including defendents, with great respect.  He was also known for tough sentencing.  From there, Souter was named Associate Justice  of the NH Supreme Court in 1983, and Associate Judge of the U.S. Court of Appeals of the First Circuit in 1990.

At this time, Rudman had become a Republican Senator from NH and former NH Gov. John Sununu (who had passed Souter over for Chief Justice of NH’s Supreme Court) had become White House Chief of Staff to Pres. George H. W. Bush (Bush I).  They were both instrumental in Bush’s nomination of Souter for the SCOTUS position vacated by the retirement of the liberal champion, William J. Brennan (STILL one of my heroes).  At that time, few outside NH knew who Souter was, although he had been on Reagan’s short list for the SCOTUS seat that eventually went to Justice Anthony Kennedy (the swing vote these days).  Bush I wanted to name Clarence Thomas to Brennan’s seat (as he eventually was to the seat of the other great liberal dissenter, Thurgood Marshall).  Rudman and Sununu convinced Bush I that Thomas did not have enough judicial experience and he nominated Souter, instead. 

The rest is history.  Liberal groups marshalled against Souter, convinced he would be another Bork or Scalia–and his confirmation was far from unanimous.  Conservatives had never heard of Souter, but the liberal opposition reassured them that they were getting a reliably conservative voice on SCOTUS. Both  groups were wrong.  Souter’s first two years on the bench were reliably conservative, but as the Court moved right, he moved center and then slightly left of (the new) center.  Conservatives were furious when Souter provided the vote to prevent overturning Roe v. Wade (the 1973 decision which struck down most laws against abortion) in Planned Parenthood v. Casey in 1992 (although Casey did allow more restrictions that Roe).  Civil libertarians like myself were pleasantly surprised when Souter ruled with the majority in another 1992 case, Lee v. Wiseman against a school-sponsored public prayer.

Souter’s departure while relatively young (by the standards of a court of lifetime appointees who often die in office!) and in good health is unusual.  But it should not be surprising. Since his appointment in 1990, he has let it be known that he does not like Washington, D.C.  He leaves immediately at the end of every Court year back  to NH and returns only a few days before the new session. As mentioned above, he does not participate in the Washington night life.  He has called his position, “the world’s best job  in the world’s worst city.”  I find it refreshing that he is not addicted to power and prestige and wants to retire in time to enjoy the NH hills and woods some more and to visit old friends and family.  There is many a career politician in both major parties who could take a lesson here.

But I think it likely that Souter’s departure also has to do with Bush v. Gore, the 2000 case which stopped the recount in FL and declared Gov. George W. Bush winner of the presidential election.  Souter sided with the 4 against the decision.  It wasn’t losing that disturbed him:  Every justice expects to lose as well as win controversial court cases.  What disturbed him was the blatant partisanship.  Souter believed that judges are to be above party loyalties–as they are.  Watching colleagues go against previously articulated judicial philosophies (especially the conservative allegiance to federalism–the belief that state decisions should be decided by states wherever possible) because those policies would likely work against the person they WANTED to win, greatly disturbed Souter.  He was especially distraught over the way Justice Sandra Day O’Conner, with whom he was very close, voted with the Renquist-Scalia majority.  So distraught was Souter that friends had to convince him not to resign SCOTUS in protest. 

[Note: When Bush v. Gore was decided, I thought my opposition might be simply be because I couldn’t stand Bush.  I wanted to see if the decision was really as bad as I believed. So, I began reading the legal reaction of conservative legal scholars from Yale’s Stephen Carter, to Duke’s H. Jefferson Powell, and others.  I was not wrong.  The vast majority of legal scholars were horrified by Bush v. Gore and conservative scholars considered it the biggest example of judicial activism (a bad word for conservatives) since Roe v. Wade (their previous benchmark).  So widespread was this reaction that the American Bar Association came very close in 2001 to doing something unprecedented in its history:  issuing a public denunciation of the decision!  Since the ABA is hardly dominated by liberals, this was an indication of how radical a departure from settled law, Bush v. Gore was and how worried most legal scholars are that it will set a precedent–even though the 5 justices in the majority tried to restrict the ruling to that case.  Former MN Sen. Norm Coleman’s lawyers, in his legal contest of Al Franken’s narrow victory, are hoping to appeal to Bush v. Gore before SCOTUS before its all over.  Two of the 5 justices who voted for that decision, O’Conner and Renquist are no longer on the bench. Renquist died and O’Conner retired. But their replacements, Alito and Roberts, are just as conservative if not more so. So, would they suddenly decide that Bush v. Gore IS legal precedent, no matter what the court said in ’00?? My guess, is that SCOTUS will refuse to hear the case. The Constitution clearly says that the Senate is the last word on its own membership. Of course, SCOTUS was the one organ of government that had no constitutional role in presidential elections, too. If the recount could not decide a clear winner, the presidential  election of 2000 should have been thrown to the House of Representatives, per Art. 2.  Since Republicans had the majority of  the House in ’00, B ush would likely still have been declared the winner, but at least the process would have been constitutional!]

I, for one, am glad Souter didn’t resign.  I think of several important cases during the Bush years (especially torture and detention and war powers cases like Hamdan v. Rumsfeld) that might have been decided differently without Souter.  I am among those who  believe that we came very close to losing our democracy altogether during the Bush years.  Without David Souter on the Supreme Court (as well as many other factors), we might well have lost it.

Thank–you, Justice Souter, for putting the law above party. For putting loyalty to law and to country ahead of your own personal desires.  Thank-you for waiting, years after it was no longer pleasant for you to work on SCOTUS.  Thank-you for the thoughtfulness you put into each opinion and dissent–even when I disagree with your conclusions.  Thank-you for your service.  All Americans, indeed the world, owes you thanks for keeping the nation from becoming a dictatorship.  You retired not when you wanted to retire, but when it was safe–when your successor was unlikely to be part of the Scalia/Thomas/Alito/Roberts and sometimes Kennedy cabal that has so distorted American jurisprudence.

Here’s praying that your replacement, no matter her or his general legal philosophy, shows your commitment to the rule of law, your refusal to put party first, and your independence of mind. If she or he showed your love for nature, that might also be a good thing, considering the many ecological questions that are likely to face the SCOTUS.