Confirmation hearings start for Sotomayor

I just finished watching the the start of the confirmation of Sonia Sotomayor as a Justice of the U.S. Supreme Court.

Started out with numerous senators having their preliminary
remarks, including a point where Sen Patrick Leahy (D-VT)
had to caution the audience that respect would be afforded to all persons, whether they were present at the hearings or not, in response to an outburst when Sen Ted Kennedy's name was mentioned.

There were even a few hecklers removed from the room.

From what we heard, some of the Republicans are dead set against her nomination, including some that are complaining that she is overly sensitive to minority and gender concerns, Sen. Kyle (R-TX) even going so far as rather openly saying that she would color her decisions based on the skin color and gender of the litigants.

Of course, the republicans are rather coyly ignoring the records and behavior of the more conservative members of the current court and its' record of "activism" and protection of the embedded privilege of the racial and economic status quo at the expense of civil rights, consumer protection and access to the courts of those who may be of more meager economic means.

The model of a truly impartial judge? (updated)

During his confirmation hearings in 1991, I recall saying that Clarence Thomas, who was nominated in 1991 by President Bush (senior) to replace outgoing Supreme Court Justice Thurgood Marshall, would, by his own words, not be an impartial member of the U.S. Supreme Court. I suppose that I should feel lucky, in that Thomas at least never complained pettily that it was unfair for his fellow justices on the appellate court to criticize him for refusing to recuse himself from sitting in judgment over matters that directly affected his family, as another sitting U.S.S.C. Justice has done.

Part of the controversy over the confirmation hearings concerned the allegations of sexual harassment leveled against him by Anita Hill, the the absurdly low competency rating from the lawyers guild, and his allegations that the hearings were a "high-tech lynching."

The Thomas nomination was the first in recent history that showed just how unconcerned with acumen a proposed justice could be and how much ideology was the requirement, and the administration would twist arms to get the ideology rather than the competency (the Bork nomination hearings were a different matter -- Bork is extremely intelligent, but a nutcase on Constitutional matters).

Also of concern to me were simple matters of honesty -- as when Thomas declared he hadn't thought about the matter of abortion in a Constitutional setting, or when he was following the conservative line about affirmative action and set-asides when he never would have been admitted to law school except for minority set-asides.

Well, Thomas has a new memoir that has just been published ("My Grandfather's Son" - Harpers), and according to reports about the book he's still railing about how he was "lynched" and about how Hill was just "traitorous" to him. (one of the most telling facets for me that had me give credibility to Hill rather than Thomas was that Hill had nothing to gain by her testimony, and the certain knowledge that her testimony would be a cause of trouble for her in her future career.)

I didn't think he was qualified when he was confirmed, and I think it's even less complimentary for him to be bruiting about these sentiments when he's still a sitting Justice.

As an aside, I see that the right-wing noise tactics are not changing any -- if you look at the comments on Amazon, the description of one commentator who call Thomas a "liar" has just been painted as a "racist" based on that evidence alone. Just as Thomas himself is making the oblique charge of racism when he continues to call the confirmation hearings a "lynching."

I'll wait until I have a chance to see this from the library before I make a final determination about the worth of the book. I very much doubt that it will change my opinion of Thomas a a Supreme Court Justice however -- which feeling has been confirmed by his voting record and written opinions from the bench since his confirmation.
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UPDATE: Anita Hill has responded to the smears in Thomas's book (OK, OK, I believe Hill, I don't believe Thomas. And that will affect my choice of phrase). In a piece in the NY Times Hill addresses some of Thomas's accusations against her. Among the comments she made in the Times article is:

Regrettably, since 1991, I have repeatedly seen this kind of character attack on women and men who complain of harassment and discrimination in the workplace. In efforts to assail their accusers’ credibility, detractors routinely diminish people’s professional contributions. Often the accused is a supervisor, in a position to describe the complaining employee’s work as “mediocre” or the employee as incompetent. Those accused of inappropriate behavior also often portray the individuals who complain as bizarre caricatures of themselves — oversensitive, even fanatical, and often immoral — even though they enjoy good and productive working relationships with their colleagues.

Finally, when attacks on the accusers’ credibility fail, those accused of workplace improprieties downgrade the level of harm that may have occurred. When sensing that others will believe their accusers’ versions of events, individuals confronted with their own bad behavior try to reduce legitimate concerns to the level of mere words or “slights” that should be dismissed without discussion.

Unfortunately, Hill thinks those tactics as a defense against sexual harassment are going away, when they really are still being used extensively. And they will continue to be used as long as that kind of deception is allowed, and that will continue as long as sexual harassment is viewed as a minor matter in the workplace.

Student's Free-Speech rights vs Orderly School

The Supreme Court heard arguments this week on a case that balances a student's free-speech rights with the rights of a school to control the atmosphere, through limits on student speech, of the school itself. In January of 2002 Joseph Frederick, then a senior at a high school in Juneau, Alaska, unfurled a 14-foot banner near Juneau-Douglas High School proclaiming "Bong Hits 4 Jesus."

Frederick's display of the banner occurred during the relay of the ceremonial torch for the 2002 Winter Olympics.

Fredericks, now studying and teaching in China, claims that the banner was a publicity stunt, with nonsensical wording, just to gather attention and make a point about free speech. Deborah Morse, then the principal of the high school, saw, instead, a pro-drug message, and suspended Frederick for 10 days. (originally 5 days, but Frederick refused to name his fellow-travelers in crime, and the principal upped the sentence on, umm, principle, when he quoted Thomas Jefferson to her)

Frederick appealed the suspension to both the school Superintendent and the district's school board, both of whom upheld the suspension but reduced it to "time-served" of eight days (the days from the incident to the appeal to the Superintendent).

In April of that year Frederick filed suit in the United States District Court for Alaska, stating that his federal and state rights to free speech had been unnecessarily curtailed.

The District Court held for Morse and the school board, but the 9th Circuit court, on appeal, reversed with a unanimous decision and held that Frederick's rights of free speech had been violated.

The School Board, and Morse, asked the U.S. Supreme Court to hear the case.

There is a peculiar cast of supporting characters, as well -- Kenneth Starr (yes, *that* Ken Starr) is representing Morse (now a Juneau schools' administrator) and the School Board. The U.S. D.O.J.'s Solicitor General, Paul Clement has filed an amicus curiae brief in support of the school authorities. The brief calls for near unlimited control of speech in the schools, based on the thought that "it may be banned if it is inconsistent with a school’s basic educational mission ." This kind of control is just ripe for abuse, considering that, like the "war on terror," the definition of a school's "basic educational mission" can be pretty slippery.

The ACLU is representing Frederick, along with Juneau lawyer Doug Mertz. The briefs filed show that the ACLU is framing the case as a "simple" free-speech case, and not necessarily one of "student's rights," noting that the banner exhibition did not cause disruption (some thought "it was dumb."), the display occurred on public property, and it was not an official school-sanctioned "event."

'Though the school did release students to watch the relay parade, Fredericks did not make it to school that morning, arriving at the parade after the school had let the students out, so Frederick had never been under the school's control up to that point.

Along with the ACLU and Mertz, support for Frederick's actions is coming from the American Center for Law and Justice , who have filed an amicus brief in the case. The ACLJ is a right-wing group that must be feeling somewhat nervous being on the same side of a case as the ACLU (indeed, one of their lead items on their web site's home page is attacking the ACLU).

Along with the ACLJ the Rutherford Institute has filed an amicus brief. At least the Rutherford seems a little more comfortable working with the ACLU -- the two organizations have cooperated in several cases in the past.

Others that have filed amicus curiae briefs in support of Frederick:
- Drug Policy Alliance - amicus brief
- Alliance Defense Fund - amicus brief
- Center for Individual Rights - amicus brief
- Christian Legal Society - amicus brief
- Lamda Legal Defense Fund - amicus brief
- The Liberty Counsel - amicus brief
- Liberty Legal Institute - amicus brief
- National Coalition Against Censorship - amicus brief
- Student Press Law Center - amicus brief
- Students For Sensible Drug Policy - amicus brief

Of course, this mix-master of organizations all have their own agenda -- but the one that is most to look after is the right-wing one, as groups like Liberty Legal (these were the people who represented the two women who were fired after they "prayed over" and "anointed" the desk, chair and cubicle of an absent co-worker) and Christian Legal want to try to find a wedge so they can go back to forced prayer and proselytizing in the public schools.

The transcript of the oral arguments before, though the Supreme Court can be found
here.

It's always a chance if you presume that what questions are asked will be probable indicators of where the decision may go. If that were the case, the decision may hinge on the fact that the then-student was on public property and that his "speech" was not disruptive.

On the one side is the student claiming free-speech utterances of a nonsense phrase, and the school board claiming that a "reasonable person" would view "Bong Hits 4 Jesus" as an endorsement of drug use.

The arguments that the lawyers for Morse and the school board were putting forth to support the "drug endorsement" message really seem a stretch.

The court is expecting to issue a ruling before the summer.

A few background notes: the student was harassed by police several times, and he won a lawsuit against the city, and his father was fired from his job with the city's liability coverage, at least partly because he did not intervene to shut his son up. When the elder Frederick sued for wrongful termination, he got a $200,000 from his lawsuit.