Not Your Father's Supreme Court

Without the Internet, this level of detail almost certainly wouldn't exist, but we can now paint a pretty full picture of Judge Sonia Sotomayor's decisions on the 2nd Circuit Court, a body of evidence that can be used to form an opinion about what kind of Supreme Court Justice she will make. And it's a mixed bag. There are some hopeful signs, like her ruling in Hayden v. Pataki, where she argued that felon disenfranchisement laws do fall under the purview of the Voting Rights Act, suggesting an inclusive treatment of the franchise for all citizens. She based this on the plain reading of the statutory text of the Voting Rights Act. She dissented in the case of Pappas v. Giuliani, arguing that an anti-Semitic rant sent by the plaintiff was not enough to have him fired by the NYPD, and that he deserved a jury trial to determine if his First Amendment rights were violated. This is a powerful endorsement of the First Amendment, even in a case where the speech is distasteful. Her dissent in a strip-search case shows her defense of civil rights and the unreasonable search and seizure clause of the Fourth Amendment.

At the same time, in Jocks v. Tavernier, she strongly upheld, and convinced her Republican colleagues, police power and broad grounds for arrest in a case where a man who needed help with his truck in an emergency ended up being arrested and losing his job. And her general temperament is of a judge who hews extremely close to the law, never mind the bleatings of the right. Far from being a conquistador or leading with her race, she actually favored the law over blanket claims of discrimination the majority of the time.

Other than Ricci, Judge Sotomayor has decided 96 race-related cases while on the court of appeals.

Of the 96 cases, Judge Sotomayor and the panel rejected the claim of discrimination roughly 78 times and agreed with the claim of discrimination 10 times; the remaining 8 involved other kinds of claims or dispositions. Of the 10 cases favoring claims of discrimination, 9 were unanimous. (Many, by the way, were procedural victories rather than judgments that discrimination had occurred.) Of those 9, in 7, the unanimous panel included at least one Republican-appointed judge. In the one divided panel opinion, the dissent’s point dealt only with the technical question of whether the criminal defendant in that case had forfeited his challenge to the jury selection in his case. So Judge Sotomayor rejected discrimination-related claims by a margin of roughly 8 to 1 [...]

In sum, in an eleven-year career on the Second Circuit, Judge Sotomayor has participated in roughly 100 panel decisions involving questions of race and has disagreed with her colleagues in those cases (a fair measure of whether she is an outlier) a total of 4 times. Only one case (Gant) in that entire eleven years actually involved the question whether race discrimination may have occurred. (In another case (Pappas) she dissented to favor a white bigot.) She participated in two other panels rejecting district court rulings agreeing with race-based jury-selection claims. Given that record, it seems absurd to say that Judge Sotomayor allows race to infect her decisionmaking.

I truly value this variety of treatment of the Sotomayor record, all of which came from blogs and not the traditional media. And I think you can get a full picture of Sotomayor from this treatment. What come sup for me is the overwhelming feeling that this is a highly qualified, competent, brilliant judge whose opinion sits pretty much in the middle of mainstream legal thought. Maybe in past years, that would be enough to put her as the swing vote on the Court. In the current makeup, it puts her on the far left - because this Court has moved sharply to the right over the past 30 years, particularly on corporate issues.

Here's a simple way to expose the Myth of Balance. In 1980, when I clerked at the Court, the justices were, roughly from left to right, Brennan, Thurgood Marshall, Harry Blackmun, Byron White, John Paul Stevens, Lewis Powell, Potter Stewart, Warren Burger, and William Rehnquist. Believe it or not, this Court was widely thought to be conservative. But think, just for a moment, about how much would have to change in order for the Court of 2007 to look like the supposedly conservative Court of 1980.

First we would have to chop off the Court's right wing, removing Scalia and Thomas and replacing them with Marshall and Brennan. Far to the left of anyone on the Court today, Marshall and Brennan believed that the Constitution banned the death penalty in all circumstances, created a right to education, and required the government not merely to protect the right to choose but actually to fund abortions for poor women.

Next we would have to replace Kennedy with Blackmun. Blackmun was also to the left of anyone on the current Court. Fiercely protective of the right to privacy and opposed to the death penalty on constitutional grounds, Blackmun believed that the social-services agencies were constitutionally obliged to protect vulnerable children from domestic violence and that affirmative-action requirements were broadly acceptable.

Then we would have to leave Breyer, Stevens, Souter, and Ginsburg essentially as they are. All of a sudden, the four would be perceived as the Court's moderates rather than its liberals, operating as a group much like White, Stevens, Powell, and Stewart. (The parallel between White-Stevens-Powell and Breyer-Stevens-Souter is very close; true, Ginsburg is somewhat to the left of Stewart in many domains, but their voting patterns and general approaches are pretty close.)

Finally we would have to assume that Roberts would vote more or less like Rehnquist (which is to say, definitely to the left of Scalia and Thomas) and that Alito would vote more or less like Burger (definitely to the left of Rehnquist).

To say the least, all this would represent a radical change in the Court's composition -- so radical that liberals cannot even fantasize about it. But this radically changed Court would be essentially identical to the supposedly conservative Court of 1980! [...]

The upshot of all these shifts is that what was once on the extreme right is now merely conservative. What was once conservative is now centrist. What was centrist is now left wing. What was once on the left no longer exists.

Cass Sunstein, who works in the Obama Administration, wrote that, and he's absolutely right. And Sotomayor does nothing to rebalance this debate. And I don't know that the President could have gone further than he did. She was generally a good pick. But that's a failure to stand up to conservative messaging. The end result for the country is that the Court shifts to the right, and nobody blinks an eye.

This Is Not America

As we move away from the RNC Convention, I hope that the brutal treatment by law enforcement of peaceful protesters doesn't get completely ignored. The major media hasn't raised much of a peep about it, but there are so many outrages - really police state outrages - that occurred last week that at least somebody should mention it. They used tear gas, concussion grenades, physical barriers, and nightsticks; snatched people off the streets, arrested hundreds and raided homes.

This is really the kind of thing you'd see in the Soviet Union or its satellite states. And our silence equals complicity. I don't know what to do about this. The media views protesters with scorn and ridicule, making it acceptable to deprive them of their civil liberties and brutalize them. They have few advocates anywhere in society. And yet each outrageous assault makes the next one more likely, and expands the police state. We haven't reached a breaking point because there is a systemic barrier to allow anyone to reach it.

Suppression, Police State Tactics, And The Innovation Of Uprisings

At my Labor Day barbecue, I was mentioning the police state tactics going on in Minneapolis right now, and one of my guests dismissed it as nothing compared to a country under authoritarian rule, like, say, China. Take a look at journalist Amy Goodman being detained for asking a question of the police and you may be disabused of that notion:



Goodman was aiming to help two of her producers get out of jail, after they were subjected to police brutality simply for filming in the middle of a protest. And she was one of nearly 300 people arrested yesterday amid a peaceful protest in St. Paul, where the police used rubber bullets, tear gas and water cannons to disperse the crowd. Those detained were held without charges for up to 36 hours. While there were scattered incidents of property damage from some protesters, the law enforcement response was simply disproportionate and deliberately intimidating, essentially creating a Green Zone around the RNC. There are Humvees in the streets and conspicuous National Guard officers. This is what our political conventions have become.

The FDL crew is doing a great job of raising awareness of these civil liberties and free speech crackdowns. And Jane Hamsher says that the police presence has forced activists to innovate in exciting ways:

What happened on the streets of St. Paul yesterday was something else altogether. Whereas Denver was the site of young people clutching their blackberries and hustling passes to more and better parties, in St. Paul they were creating a whole new model for communication, documentation and activism.

Members of the Coldsnap legal collective fanned out across the city and communicated with each other (and the world) openly on Twitter about what was happening during the protest, and were thus able to alert and steer journalists, observers and anyone else with an interest immediately to what was happening on the street throughout the day. Nothing that law enforcement did happened in secret, and ACLU lawyers and other observers were able to be quickly alerted to anything that was happening. When we first arrived we started following their bulletins in the wake of the weekend raids, and as more information came in verifying their reports it became clear that they were a highly trustworthy source of information.

Meanwhile, the Uptake provided an army of video journalists with Qik cameras that broadcast live on the internet. You could track their whereabouts on a Google map, and they provided on-the-spot coverage of what was happening in real time. Really, I can't recommend enough going to their main page and taking a look at what they managed to do yesterday. They also provided a lounge where visiting bloggers could have internet and video editing space, and that's where we were headquartered yesterday. We were able to not only hear about what was happening all across the city virtually instantaneously, but see their reporters quickly diverted to anything that was happening and watch as their cameras went into action.

It was like a million ants scurrying around the city, passing back bits of information that formed themselves into a whole in a completely decentralized manner. Its very nature defied efforts to control and spin and propagandize.

This is how 21st century politics and activism will be waged. Twitter is now in the toolkit of activists, and in a year or two there'll be something else even more amazing. Participatory engagement is back and it's completely different from the 1960s. The traditional media may not be televising it, but it's new and vital and means a lot for how we encourage movement politics going forward.

The Actual National Conversation on Race

I meant to write about the acquittal in the Sean Bell case, which is tragic. But this video does a better job of it, and reports on the numerous demonstrations in New York City over this, which got little to no play in the traditional media - probably because they weren't violent, and only violent demonstrations by black people get media coverage.



Sean Bell is a symbol but not isolated. And police brutality is not just an issue in New York City but nationwide. And this is also a racial issue, and the Obama comments are interesting, as well as how African-Americans react to his double-bind of how he is constrained by national political forces to remain less angry or militant.

It's a complex issue, but it needs to be addressed openly, and not just among black people but everyone.

LAPD: "Our Bad"

You don't see this kind of a report from a government agency every day.

In a scathing self-critique, the LAPD on Tuesday blamed the May 1 MacArthur Park melee involving officers, immigration protesters and journalists on a series of fateful decisions by police commanders that escalated hostilities and resulted in a widespread breakdown in discipline and behavior by officers.

The findings, contained in a long-awaited report by top police officials, come as Police Chief William J. Bratton announced that at least 26 officers participating in the incident are under internal investigation and could face discipline for using excessive force.

The report is the latest effort by Bratton and Mayor Antonio Villaraigosa to quell widespread outcry over the incident, in which TV news footage showed officers swinging batons and firing less-than-lethal rounds at journalists as well as immigration rights protesters gathered at the park for an afternoon rally.

The melee left 246 journalists and protesters as well as 18 officers with injuries, and more than 250 legal claims have been filed against the city. Los Angeles County prosecutors and the FBI are continuing to investigate the case.

The LAPD is far more given to whitewash than this. You actually have to hand it to both Bratton and Villaraigosa so far for talking this straight. Now comes the hard part. There has to be real disciplinary action taken against those who decided to take up arms against the protesters. Individual officers must be held accountable. Some of the higher-ups, like Deputy Chief Lee Carter, were demoted (he eventually resigned). And Bratton has accepted responsibility, saying "I, as chief of police, regret deeply that this occurred on my watch." But that statement has to have some force behind it.

LA May Day Rally Update

The FBI will investigate the LAPD's conduct in firing rubber bullets to disperse the crowd at the end of Tuesday's immigration rally, and everybody is doing their best to distance themselves from the incident and show that they're doing something about it.

Authorities have launched several investigations into the Police Department's actions at Tuesday's rally at MacArthur Park, where police fired 240 rubber bullets. Video images of the incident were broadcast worldwide.

"I was very disturbed by what I saw," (LA Mayor Antonio) Villaraigosa told reporters in Mexico City on Thursday.

The FBI said Thursday it would open an inquiry into whether the officers' conduct violated citizens' civil rights.

Prior to the FBI announcement, Police Chief William J. Bratton had said he would inquire whether an FBI probe was possible.

"I have no issues with the FBI coming in ... and taking a look at it," he said.

The FBI probe is the fourth official investigation of the incident. The Police Department opened two investigations almost immediately after the violence, one to create an "after-action report" that evaluates planning and operations, and another by internal affairs to probe complaints against officers.

The mayor even left Mexico early to deal with the public relations fallout. See, he means business!

The LAPD doesn't exactly have a sterling record with regard to police brutality, and the tensions inherent in that kind of scenario, with a few agitators on one side and an armed force on the other, with the addition of the emotional nature of the immigration debate, made this more possible. Investigations are nice, but this kind of thing happens because of training and rules of engagement. I guarantee you that the police officers didn't do anything wrong in the eyes of their superiors, and that's the problem.