Tuesday, June 9, 2009

A POSITIVE NOTE ON SONIA SOTOMAYOR AND CLARENCE THOMAS

Michelle Obama, Clarence Thomas, and Sonia Sotomayor all have something in common. All three have claimed feeling like from another planet when walking onto the Ivy League campus where they attended college and law school. We have no knowledge of Ms. Obama’s judicial temperament. But we do have knowledge of the judicial temperament of Associate Justice Thomas, and soon to be Associate Justice Sotomayor.

Both Thomas and Sotomayor, without apology, bring to the Court their personal experiences with bigotry. This by itself is a good thing. It informs the remainder of the Court what it is like to be the object of bigotry. Associate Justice Thomas, in his book, brought out an important experience of this generation of minority lawyers and judges. Upon graduation from law school, regardless of how hard they worked, law firms assumed they were the products of affirmative action, and not merit. We know more than enough about Michele Obama, Clarence Thomas, and Sonia Sotomayor to know each of them individually succeeded on merit.

But here is the problem, if experience informs us of our judgment, should not Clarence Thomas see affirmative action as something which held back accomplished minorities? He should and he brought this experience to the Court. Is it possible that Sonia Sotomayor might bring this experience to the Court? She sure will. This is a good thing because it will allow Associate Justice Thomas and Associate Justice Sotomayor to discuss the issue in conference in a way which could change the Court for the better. It could make Thomas feel more vindicated in his position and less in need to associate with the Right.

If you know Associate Justice Thomas’ history before graduating law school, all indicators pointed to someone who would be on the political Left. But that rejection after law school changed him. I am certain he began to change while in law school as Anglo students let it be known they believed he was there as part of affirmative action and not merit.

This entire mess became compounded when Anglo Democrats lynched him at his confirmation hearings. While there is no doubt in my mind Associate Justice Thomas committed perjury when he categorically denied all of Anita Hill’s claims, I understand why he did what he did. There is a bit of truth in every story. I do believe many of Anita Hill’s claims. But I also believe she encouraged the behavior when it was politically convenient. I do not care if you are a man or a woman, this type garbage should not come out unless you have clear evidence of wrongdoing.
Had there been a record of Anita Hill complaining at the time she was working for Thomas, then I say yes, we need to know the facts. But under the facts it was a political lynching of a black man based on bogus sexual charges by white men. Yea it was a lynching.

Again, this is a sensitive issue for black men. This experience is going to influence Associate Justice Thomas. Unfortunately it only served to push him further to the political Right. My hope is, Associate Justice Sotomayor, through shared experiences can pull him to the political Center. I do believe her presence on the Court will give Thomas a place to be heard from a common perspective. This I am certain will be cathartic for Associate Justice Thomas.

The issue as to whether judges should create policy is a difficult issue. When I hear alleged conservatives speak to the issue I laugh. They are either devoid of knowledge of the Court or liars. The most controversial area of the Supreme Court addresses the issue of Substantive Due Process. This is the personal rights area of the law. All the constitution says is due process. The Court created the separate doctrines of procedural and substantive due process.

No where in the constitution does it say we have a fundamental right to form and benefit from a familial relationship. The Court simply reasoned that this is inherent in freedom. Where does it end? It is all a matter of personal perspective. In the end it is policy making.

My view has always been, where in the constitution does it authorize the government to regulate personal behavior? If it were not for the benefits side of marriage no one would care one bit about gay marriage. The benefits side is the only difference between government recognized marriage and me simply declaring I am married.

The question now becomes, when Sonia Sotomayor claimed judges make policy, was she referring to this type policy wherein the Court looks to social norms and changes in society to define the limits of personal freedoms? Because if she was, she was referring to something which the Court has been doing since day one.

The Republicans in the up an coming Senate races will use Sotomayor’s comments as evidence the Republicans need to win Senate seats to deny confirmation to judicial activists. The reality is, with rare exception most judges, especially federal judges are judicial activists, and not in a good way. I predict the Republicans will pick up 3-5 Senate seats in 2010.

While there will be many benefits to Sotomayor’s arrival at he Supreme Court, it will nonetheless be costly to the Democrats. I certainly would not want to be a Senate Democrat in a conservative state seeking reelection in 2010.

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