"In a spirit of openness, we explore how we are classified, stratified, ignored and singled out under the law because of our race, sex, gender, economic class, ability, sexual identity and the multitude of labels applied to us. . . . [W]e welcome all viewpoints and ideas that are expressed with respect and collegiality. . . . [W]e are a journal that promotes living discussion."

This blog is the brainchild of the Journal of Gender, Race & Justice at the University of Iowa College of Law. It is intended as a forum for people to discuss their personal views concerning topical issues. Posts reflect the opinions of the authors and not necessarily the Board or the Student Writers as a whole. We encourage well-rounded debates and discussions.

 

The Wisconsin Supreme Court Election: Too Close for Comfort?

Sophie Doroba, Student Writer, The Jouranl of Gender, Race & Justice

As I watch the Wisconsin Supreme Court election unfold, I’m immediately transported back to the November judicial retention vote in Iowa. Currently, favored incumbent Wisconsin Supreme Court Justice David Prosser is waiting to hear whether he has been unseated by challenger JoAnn Kloppenburg. Justice Prosser originally has a large lead in the polls, but it appears that democrats have converted their rage at Gov. Walker’s recent collective bargaining law into mass support for JoAnn Kloppenburg. The results of the election are still unknown and talk of a recount is abundant. This brings me to ask the question, “Is Wisconsin the next Iowa?”

 

I must concede that there are  differences between the Wisconsin election and the Iowa retention. The two judicial selection systems are different, with Iowa adhering to the appointment/retention system and Wisconsin to a general election. The two sides mobilizing against the sitting judge(s) are different, with Iowa receiving an in-pouring of money to oust three sitting judges for their decision in Varnum v. Brien to legalize same-sex marriage and Wisconsin seeing a union uprising in response to Gov. Walker’s attack on collective bargaining rights. However, the underlying issue that threatens our judicial system as we know it remains the same in both states, and unless the following questions are answered, judges around the country remain vulnerable. Should the public be allowed to take political revenge on judges? Is the judicial system just as political as the other branches of government? When has the public gone too far? Is there a system that eliminates politics from the judicial selection process?

 

I had always naively labored under the impression that the judicial branch is completely fair and balanced, free from outside political influences. Of course I realize that this isn’t exactly true. Most informed citizens know where our Supreme Court Justices fall on the liberal-to-conservative spectrum. I’m sure many of these citizens are also well aware of the ideologies of the justices sitting on their state supreme courts. If their state follows an appointment system, they ask which governor appointed the particular justice. If their state has a general election, they ask which political party backed the judge. But is this ok? At a moment when our country is so polarized that our government might be shutting down over a lack of compromise, it would be nice to know that we still have a check on our actions (ie. impartial justice). However, when judges are forced to participate in elections and campaign for their jobs, do we really benefit? The best person for the job becomes obsolete and instead the best campaigner runs our court.

 

Should the public be allowed to punish judges? I’m going to answer this question with a swift and deliberate NO. I was heartbroken when the three Iowa Supreme Court Justices were not retained in November. I simply couldn’t understand how there was a system in place that allowed judges to be removed for something other than misconduct, i.e. not performing their jobs. Instead, I saw a system that punished judges for making a legal decision that some people ideologically disagreed with. I kept thinking that even if Varnum has turned out differently, I still don’t think I would have voted to not retain if the justices had applied the law to the best of their ability.

 

Iowa went too far in November…and Wisconsin went too far this week. I realize that there isn’t a perfect system for judicial selection. Proponents of a general election argue that it is the most fair, allowing the public to control the system. This argument feeds into the inherent public distrust/dislike of lawyers and the judicial process. The appointment/retention system has the public grumbling about insider appointments and political game playing behind closed doors. However, I will argue that it is the public that is playing, or being played, the most in judicial selection. Ponder this example, if your company was hiring a new boss, would you let the public vote on who to hire or would you consult within your company? The clear answer is to trust your employee/employer’s expertise in selecting a proper boss. The same logic supports the appointment of judges by a committee of other lawyers and judges. Judges need to be able to do their job without the distraction of campaigning or worrying about keeping their jobs. Judging is about applying the law fairly, not popularly. The moral of the story: whatever side of the political spectrum you fall on, please stop retaliating against our judges.

Branstad’s Appointment Disappointment

Ghassan Harb, Student Writer, The Journal of Gender, Race & Justice

I find myself deeply disappointed with Iowa Governor Terry Branstad’s selection for the three open positions on the Iowa Supreme Court. This past Wednesday, Branstad announced that Edward Mansfield, Thomas Waterman and Bruce Zager would replace the Iowa Justices ousted from office this last November. Although I do not contest the experience and competence that these new Justices will bring to the Court, I cannot help but recognize that these candidates have quite the commonality: all three are white, male and registered republicans.

I vehemently opposed the outcome of the justice retention vote last November. I thought that this event was a misguided political attack on one of Iowa’s principal democratic foundations. This is why I was truly relieved when I heard that the Judicial Nominating Commission selected Professor Onwuachi-Willig, a fellow member of the College of Law community, as one of nine final candidates for Governor Branstad to choose from for the Iowa Supreme Court. Having been a student of Professor Onwuachi-Willig in the fall, I believe that Professor Onwuachi-Willig, a remarkably distinguished and experienced legal scholar – and a woman of color – would have been an ideal addition to the Iowa Supreme Court. I knew that Professor Onwuachi-Willig would bring a unique perspective to a position that demands unique perspective. Instead it seems that Governor Branstad concluded that a Supreme Court embodying diversity in race, gender and experience were not important attributes to assist in interpreting the Iowa Constitution.

I cannot help but think that Governor Branstad’s decision was guided solely on political grounds. After all, if the people are angry, it seems logical that you must give them what they want. What is the point of ousting three justices from the Supreme Court if the persons replacing them might have similar beliefs? It seems safe to assume that three white republican men would not interpret Iowa’s Constitution to provide the right of marriage to all of Iowa’s people, as this was the catalyst behind the judicial retention vote in the first place. Whatever his reasons were, Governor Branstad’s decision has its consequences. The Iowa Supreme Court is now represented solely by white men.

I believe that an all white male Supreme Court cannot adequately represent Iowa’s interests. A Supreme Court that lacks racial and gender diversity damages the abilities of the judicial system itself. As we all learned in Constitutional Law, judicial interpretation is by no means black letter law. Different people hold different viewpoints, often shaped by their background and life experiences. Even though all justices seek to interpret the Constitution as it truly stands, diversity shapes how judicial interpretation is approached. For this reason, the Supreme Court of the United States represents several aspects of our “melting pot” society. A homogeneous Iowa Supreme Court is deprived of variation in insight and experience, healthy characteristics necessary for the role of judicial interpretation.

Furthermore, I fear that Governor Branstad’s decision has other consequences. Despite our reputation, Iowa is a state which is rich in diversity and values it.  Looking around the coffee shop I am writing this post in, I see people of all colors, of all ages, and of all backgrounds. I appreciate the fact that The University of Iowa was the first public institution to admit men and women on an equal basis and was one of the first to award a law degree to a woman. The Iowa Supreme Court’s first decision in 1839, In Re the Matter of Ralph, prohibited slavery in Iowa decades before the Civil War was fought. Iowa is proud of its history of progressive tolerance and civility. Iowa consists of a highly educated populace that takes politics seriously. With Governor Branstad’s decision, Iowa’s Supreme Court fails to recognize and embrace its diversity and history of tolerance. This decision sends a negative message to the people of Iowa – that only white males are the ones who should hold such important positions of power in this state.

 

See: http://blogs.desmoinesregister.com/dmr/index.php/2011/02/23/branstad-taps-waterman-for-iowa-supreme-court-justice/

Ode to an Election Night Victory

Brad Biren, Student Writer, The Journal of Gender, Race & Justice

After last Tuesday, few people would consider Election Day a victory for gender equality.  Yet, unbeknownst to those glued to CNN or Fox News, over 106 (of 164) lesbian, gay, bisexual, and transgender candidates won last week.   How did so many out LGBT candidates win election, and yet we lost the House of Representatives?  As Lisa Neff, a columnist for 365gay.com, wrote in an October 25th article, LGBT Americans are realizing the importance of local elections.  Local elections include positions such as school board members, county supervisors, mayors, and state legislators.  These positions wield great power within the local community and often have equal or greater impact on the lives of their LGBT constituents. 

Here is a brief rundown of some of last week’s winners, (note that this has been copied and pasted directly from gaypolitics.com and  victoryfund.org, and in no way represents my work): 

–David Cicilline’s election to Congress.  The Providence, R.I. mayor will be the fourth openly gay member of the U.S. House of Representatives, joining Reps. Tammy Baldwin, Barney Frank and Jared Polis, who each won reelection.

–Jim Gray’s election as mayor of Lexington, Kentucky, the state’s second-largest city.

–Nickie Antonio’s election to the Ohio House.  Antonio will be the first openly LGBT person to serve in the state legislature.

–Marcus Brandon’s election to the North Carolina House.  Brandon will be the state’s only openly gay state legislator and one of just five out African Americans to serve as state lawmakers.

–Victoria Kolakowski’s election as a Superior Court judge in Alameda County.  Kolakowski becomes the first openly transgender judge in America.

–Kevin Lembo’s election as Connecticut State Comptroller.  Lembo joins just a handful of openly LGBT candidates to have been elected to statewide positions.

–Laurie Jinkins’ election to the Washington State House.  Jinkins is Washington’s first openly lesbian state legislator, and could help her gay colleagues pass a marriage equality bill in the next legislative session.

–Maryland’s and California’s expanded LGBT state legislative caucuses.  Each will include seven openly gay and lesbian lawmakers.  In Maryland, the caucus is poised to help pass marriage equality legislation, which the reelected Gov. Martin O’Malley has vowed to sign.

 

All this being said of course, many members of the Iowa community are still dumbfounded with the results of the judicial retention vote.  How could three qualified members of the judiciary be voted out of office for exemplifying what the U.S. Constitution protects—the guaranty of impartiality in judicial decisions?  Many of my colleagues at the College of Law have quoted and cited to Professor Todd Pettys, a constitutional scholar and beloved member of the faculty.  In a November 4th article in the Des Moines Register, Professor Pettys said what many of us felt:

"I think these three ousted justices are going to be regarded in judicial circles as heroes," Pettys said. “I think other justices are going to look at these three individuals and say, ‘Here are three individuals who took a very controversial stand, because it’s what they thought the law required. They stuck with what the law required, even when they knew they were going to be coming up for election.’”

But no professor can say something as poignant as a spouse.  One month before the publication of this blogpost, I married my husband in a beautiful ceremony at a local winery surrounded by dear friends and family.  The atmosphere was more than that of acceptance; it was of epiphany and understanding.  Growing up in Algona, Iowa, my husband was bullied and afraid.  Our wedding was the culmination of much progress both for ourselves and more importantly for our loved ones.  The day was so perfect, he and I forgot about the controversy surrounding our love. 

The night of the election, with his sullen face and Charlie Brown theme-song demeanor, he slumped into bed shell-shocked and dismayed.  He turned and said, “They didn’t just vote out the judges, they voted us out too.”  The retention vote was in many ways was the first public vote on our rights.  My husband was hurt by the results of the vote, not because he didn’t expect it in many ways, but because it came on the heels of an event celebrating our love.  He thought Iowa would rise to the occasion and do the right thing, as it has for so long. 

His family has made enormous progress.  They are a wonderful example of love and acceptance.  They are the best of what Algona, Iowa and Kossuth County have to offer.  They voted for us at our wedding and voted to retain the judges the day of the elections.  In many ways, Iowa did rise to the occasion and will continue to do so.  The judicial elections didn’t take away our right to vote and those judges will likely be replaced by judges who will decide the same way in the future. 

There is still a great deal of progress to be made though.  Last summer, on the way back home to Iowa City, we stopped in Britt, Iowa for gas and soda (not pop).  I saw a woman with a “support traditional marriage” bumper sticker.  I confronted the lady who was using her child as a human shield.  I am from New York, raised in a house full of loud, obstinate Jewish women. My childhood taught me to face ignorance head on in order to “enlighten” the masses. 

I laid my foundation—“is that your car with the bumper sticker?” I asked.  She nodded and I asked her why my (then) fiancé and I were not worthy of equal rights.  She replied because she “supports traditional marriage.”  Long story short, she’s a close minded bigot who wishes all the best for me but wants me not to love or marry my husband.  Hate the sin, but love, love, in fact,  adore the sinner. 

When I hear that basic argument, I think, as Justice Stevens recently put it, “tax the yarmulke, tax the Jew.”  How can you be against the exercise of my one definable characteristic as a minority and tell me you love me?  John Corvino, a professor at Wayne State University, asked this question in a recent editorial on 365gay.com (yes, go to it, it is a great source of logic).  In his piece, Corvino remarked on the horrifying trend of Christian people commenting on the rash of gay suicides by using the following remark, “That’s terrible, but…”

But what?  He pointed out that their response of denouncing violence and at the same time describing their contempt for the victims as the following: “They’re akin to saying that you are really concerned about feeding the starving, but first you want to make sure that they’re not going to burp at the dinner table.”

At this point, I should be livid and bristling with contempt, but that’s not the case at all.  I started this blogpost with the good news.  There were 106 reasons to celebrate last week.  One state has its first openly gay black state representative; Johnson County, Iowa once again voted for Janelle Rettig, a lesbian, for County Supervisor; the first transgender Judge was voted into office; and Lexington Kentucky voted for an openly gay mayor.  Kentucky voted for a gay.  I feel optimistic when I read about things like that.  As more and more openly gay candidates are voted into public office, it will be harder and harder for ignorance and bigotry to prevail. 

As my silver-lining-seeking husband has started to say with cadence and efficiency, “It gets better.”

I couldn’t agree more :-)

For a further discussion of reactions to the judicial retention vote, see Student Writer Matt Hulstein’s earlier post, Cruelty and Recklessness: The Implications of the Iowa Judicial Retention Vote

Cruelty and Recklessness: The Implications of the Iowa Judicial Retention Vote

Matt Hulstein, Student Writer, The Journal of Gender, Race & Justice

On November 2, 2010, Iowans voted to not retain its Supreme Court Justices Ternus, Baker, and Streit. By all accounts, these Justices were ousted in direct retaliation for their Varnum v. Brien[i] decision. That decision struck down Iowa Code § 595.2(1) which defined marriage as between a man and a woman[ii] as unconstitutional under the Iowa Equal Protection Clause, Article 1 § 6.[iii] The opinion, authored by Justice Cady who was not up for retention, explained in great detail that the statute could not withstand intermediate scrutiny because the government’s justifications for the same-sex requirement were either not existent or not sufficiently important.[iv] The decision was unanimous and can only be reversed by a constitutional amendment or by the court itself.

            Shortly after the decision was handed down, Bob Vander Plaats, a Sioux City businessman who was running for and eventually failed to secure the Republican nomination for governor, launched a group ironically called “Iowa for Freedom”[v] in an effort to oust the justices through their retention vote. The group, funded largely by outside money from groups such as Family Research Council, the National Organization for Marriage, and the American Family Association,[vi] saturated the airwaves with messages condemning the “activist judges.” Without ever referring to the court’s reasoning, Vander Plaats vowed that the Varnum decision not only threatened the institution of marriage but also private property rights, the right to educate children, and even the right to life.[vii] A counter group called Iowans for Fair and Impartial Courts stepped forward to defend the Justice and tout the impartiality of Iowa Courts. Among this group’s leaders was Attorney Dan Moore, a former Iowa Bar Association president who actually had worked as the treasurer and secretary for Vander Plaats during his run for governor. The justices decided to not directly campaign or raise funds, feeling that it would be inappropriate. Despite their best efforts, the counter-parts to Iowa for Freedom could not close the funding gap. On November 2, 2010, the justices were defeated, with approximately 55 percent of the vote against them.[viii]

            The legal community’s response has been somber. Some have expressed true concern for the integrity of the judicial system. Most notably, Erwin Chemerinksy said, “What is so disturbing about this is that it really might cause judges in the future to be less willing to protect minorities out of fear that they might be voted out of office….Something like this really does chill other judges.”[ix] Immediately after the vote, Iowa Law Prof. Whiston said, “The electorate just poured sugar down the gas tank of the judicial system, and it’s going to take a whole lot of work to keep there from being permanent damage.”[x] Other responses have not been as despairing. John Reed, a professor emeritus of law at the University of Michigan Law School, explained, “I think the frequency of this happening is, on the whole, relatively rare, and as tragic as it may be for the particular judges, it is something that is not the end of the judicial system, and we can move on.”[xi] Frank Carroll, the current Iowa State Bar Association President, agreed that the oust could be a blip given the case’s controversial subject matter but cautioned, “[I]f the next retention election has the same amount of political overtones and substantial campaign funds allocated to it, I would be very concerned about what that would do to the judicial system”[xii]

            Iowa Law Prof. Pettys summed up what seems apparent to all in the legal community: “I think if anything, these three justices will be regarded as examples of good judicial behavior. In other words, when they wrote this opinion, they knew it would be controversial, they knew they were coming up for election soon, they knew they could lose their jobs, and they did it anyway because they believe that is what the law required.”

            I will not editorialize to any great extent, because I feel the facts speak for themselves. Suffice it to say, I am deeply disappointed in Iowa. These justices had dedicated their professional lives to the service of Iowans, and we in turn ungratefully threw their years of service back in their face, declaring them “activist” and “immoral,” all because they were doing their jobs. Voting out a judge because you disagree with a legal decision is a misuse of the judicial retention system. This was a mistake, and although my faith in Iowans has diminished, I still hold hope that we are big enough to admit a mistake when we make one. This vote to oust the justices was a mistake. We owe them our respect for doing what was right, not only in the decision, but in its aftermath, and we owe them an apology. For what it is worth, as an Iowan I am sorry I did not do more in your support, but I don’t think we fully comprehended the viciousness of the campaign against you. In closing, when I think of Mr. Vander Plaats and his rampant misinformation campaign, I am reminded of Mr. Welch’s reproach of Sen. McCarthy: “Until this moment, I think I never really gauged your cruelty or your recklessness… You have done enough. Have you no sense of decency, Sir. At long last, have you left no sense of decency.”


[i] 763 N.W.2d 862 (Iowa 2009).

[ii][O]nly a marriage between a male and a female is valid.” (as cited from Varnum v. Brien).

[iii] This article reads: “All laws of a general nature shall have a uniform operation; the General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms shall not equally belong to all citizens.”

[iv] Varnum, 763 N.W.2d at 897- 905.

[v] www.iowaforfreedom.com.

[vi] Jason Hancock, Anti-retention groups have spent $700k in Iowa so far, The Iowa Independent, Oct. 25, 2010 (available at http://iowaindependent.com/46025/anti-retention-groups-have-spent-around-700k-in-iowa-so-far); A.G. Sulzenburger, Ouster of Iowan Judges Sends Signal to Bench, Nov. 3, 2010 (available at http://www.nytimes.com/2010/11/04/us/politics/04judges.html?_r=1).

[vii] Brett Heyworth, VanderPlaatz says activist court heading down a slippery slope will decide who lives, dies, Oct. 22, 2010 (available at http://www.siouxcityjournal.com/app/blogs/politically_speaking/?p=4655).

[viii] http://www.iowaelectionresults.gov/ (last visited Nov. 4, 2010).

[ix] A.G. Sulzenburger, Ouster of Iowan Judges Sends Signal to Bench, Nov. 3, 2010 (available at http://www.nytimes.com/2010/11/04/us/politics/04judges.html?_r=1).

[x] Hayley Bruce, Supreme Court justices involved in gay marriage ruling not retained, Daily Iowan, Nov. 3, 2010 (available at http://www.dailyiowan.com/2010/11/03/Metro/19821.html).

[xi] Hayley Bruce, Experts: ousting no threat to judicial independence, Daily Iowan, Nov. 4, 2010 (available at http://www.dailyiowan.com/2010/11/04/Metro/19858.html).

[xii] Id.

Perry v. Schwarzenegger

Justin Randall, Note & Comment Editor for the 2010-11 JGRJ Board

Same-sex marriage proponents celebrated a victory this week in California when United States District Court Judge Vaughn R. Walker of the Northern District of California held that that the voter approved Proposition 8 was unconstitutional under the Due Process and Equal Protection Clauses of the United States Constitution. Judge Walker held in the landmark case of Perry v. Schwarzenegger that the State of California had no rational basis for denying marriage equality to gays and lesbians. Judge Walker also noted that the voter approval of Proposition 8 stemmed from traditional religious opposition of homosexuality, rather than stemming from a rational or legal basis for this discriminatory action.

In this much-anticipated decision, Judge Walker characterized the right to marry as a historical right to choose a spouse and mutually form a household. Judge Walker demonstrated how the marriage has been reshaped in this country in light of the progression of civil rights citing Loving v. Virginia, which abolished the State of Virginia’s ban on interracial marriage as an example. Judge Walker also rejected the argument that California’s domestic partnership laws provided adequate protection under the law for gays and lesbians for two reasons. First, Judge Walker noted the specific social value of marriage. Secondly, Judge Walker held that California could not create a distinct and separate form of union, such as a domestic partnership, solely for gays and lesbians. 

Judge Walker held that Proposition 8 violated the Equal Protection Clause of the United States Constitution by applying legislative classifications on the basis of sexual orientation. Walker stated that discrimination based on sexual orientation falls under sex discrimination. Therefore, Walker is required to apply strict scrutiny to determine the government’s interest in these legislative classifications. Instead of applying strict scrutiny, Judge Walker held that this law failed to pass even the least restrictive test, the rational basis test. As such, the passage of Proposition 8 was not rationally related to the stated interest.

This decision could set the stage for the national debate over same-sex marriage. Both parties have stated their intent to appeal the ruling of the Ninth Circuit Court of Appeals to the Supreme Court. It appears likely that the Supreme Court would grant the writ of certiorari and hear oral arguments by the parties. While the Supreme Court is currently leaning to the right, it appears that the language used by Judge Walker in this case will be difficult to overturn in the judiciary. With the most diverse group of Justices on the Supreme Court in the history of the United States, this should prove to be an interesting case to watch in the years to come.

DOMA

Libby Skarin, Senior Note & Comment Editor, 2010-11 Editorial Board

On July 8, a federal district court judge in Boston ruled Section 3 of the Defense of Marriage Act (DOMA, codified at 1 U.S.C. § 7) unconstitutional. Section 3 says:

"In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word `marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”

Judge Joseph Tauro, a Reagan appointee, handed down his decisions in two companion cases. In the first, he declared Section 3 an unconstitutional violation of Tenth Amendment; in the second, he held that Section 3 violated equal protection guarantees in the Constitution.

While both of these rulings are important – and certainly interesting – I find myself particularly fascinated by the latter. In this case, Gill v. Office of Personnel Management, Judge Tauro held that Section 3 could not pass constitutional muster under a rational basis review. This is notable, as any student who has suffered through a semester or two of constitutional law knows, in that practically any law can be upheld when subjected to this lowest level of scrutiny.

My initial reaction to this rationale was very positive; no rational basis for DOMA’s Section 3?! OF COURSE there’s no rational basis! It’s clearly a blatantly discriminatory law. You go, Judge Tauro!

Then I got to thinking a bit more.

We apply strict scrutiny to clearly race-based classifications, right? And gender gets intermediate scrutiny (I have my own gripes about that, but we can save it for a later post). So why not sexual orientation? It’s an immutable characteristic, society has used it to discriminate, as many of the gay marriage state-wide initiatives prove the gays often lack political power, etc. etc. Seems to be a perfect candidate for a heightened standard of review.

So while I think it’s true that there really is no rational basis for a law like DOMA, I feel the district court missed a huge opportunity on this one. I think sexual orientation should – indeed, must – be subjected to a higher standard of review. If we apply rational basis to laws that clearly discriminate against members of the LGBT community, we’re setting dangerous precedent. We’re allowing the door to discrimination to stay open, because let’s face it: there have been, and will continue to be, many discriminatory laws that easily pass rational basis review.

Don’t get me wrong here. I think this court’s decision on DOMA was a step forward for equality, and I’m glad to see that the judiciary is starting to come around on this issue. But I want to be honest and say that I expect something more. Equality under the law would be good, for starters. Now that I think about it, they should really put that in the Constitution – it would solve all our problems! Oh…wait.   

State of the Union

-Kapri Saunders, JGRJ Student Writer 2009-10

Friday, February 05, 2010

Many things came out of the President’s State of the Union Address last week. Too much for a single blog post, here are some of my favorite stories since the speech. In a sentence : The President is non-black man who loves gay people, wants Americans to be able to work, and dissed the Supreme Court – right in front of them.

We’re definitely in a post racial society… right?
“I forgot he was black for an hour” – MSNBC Host Chris Matthews re: President Obama delivering the State of the Union
We’ll leave this comment alone, but I would like to point you to this ABC News article. It discusses several non-post racial comments about President Obama from politicians and other prominent individuals. It has the original comment coupled with the cover up comment or apology, if one was available. Wow!

Ask! Tell! You’ll just have to wait over a year.
Supporters of gay rights were ecstatic to hear the president promise the repeal of the Don’t Ask, Don’t Tell Policy. The policy, promulgated during the Clinton Administration, bans individuals from being openly gay in the military, but also bans inquiry into one’s sexuality. This is one blemish in recent American legislative history to which Bush can’t be linked. While it is time to rejoice, it is also a game of hurry up and wait as well.

A study about the impact of allowing homosexuals to openly serve in the military is underway, and the Department of Defense has 45 days to study the regulations used to implement the law and present solutions for a more humane enforcement of the law. However, the Secretary of Defense announced that it will take more than a year to lay the groundwork for a repeal of the policy. But in the meantime, the military will “start enforcing the policy in a ‘fairer manner’.” I am not sure what that means.

As a result of the policy, “more than 13,500 service members have been discharged.” One of those members is Lt. Dan Choi, who will be the keynote speaker at our 14th Annual Symposium Feb. 25-26th, Race, Gender, And Class At A Crossroad: A Survey of Their Intersection in Employment, Economics, and the Law. We’ll just have to wait and see if the promise is kept.

Jobs for the People in America … except the Mexicans on the West Coast
President Obama also focused on creating jobs … not everyone is too keen on the idea.

Growing up in Arizona, I am no stranger to seeing mostly Mexican, immigrant workers standing on the corner waiting for work. Every morning, you can visit certain street corners and find Mexican men waiting for someone, usually a white man in landscaping or construction, to offer them day labor. The exchange is simple: I’ll work for you, you pay me money. It’s a win-win for both parties (leaving out the comments about how there is a little bit of the hiring party taking advantage of the worker).

But yet another city in California doesn’t think so. Costa Mesa banned citizen from soliciting work on the street; since prostitution is already illegal, this is obviously targeted at the day laborers. A group of day laborers filed a suit against the city asserting that the ordinance violates their civil rights. The theory is that forbidding people from seeking employment (specifically, soliciting employment on street corners) violates their free speech rights. The ACLU and the Mexican American Legal Defense and Education Fund filed the lawsuit, the eighth in twelve years, most being settled or won by workers. Read the full story here.

So maybe it’s better to say jobs for Americans. Let’s hope this one works out too. There are far too many intelligent, educated, hard-working people without a job, some of them are in school and afraid to leave, and others are scrambling to find a way to support their children.

Dissing the Court
Of course, the President would not be happy with the Supreme Court decision in Citizens United v. Federal Election Commission. I appreciate his honesty in mentioning the issue (see Alito’s reaction here), I just feel bad for the Court. President Obama’s ability to get the American people to contribute money to his campaign was one of the many things that Obama’s campaign did right. Allowing corporate entities to contribute to political campaigns in an unlimited manner changes the rules of the game… hundred year old rules. Many scholars have predicted that this will lead to corporations buying elections. The candidate with the bigger stock portfolio and corporate baking may be the winner (we’ll be mad at more than the banks for inappropriate spending). Though what I am really interested in (because my law school brain has been trained to think about hypotheticals that will never materialize) is: if the Court granted a corporation the same First Amendment rights as an individual, what does the world look like if the Court grants all of the individuals’ rights to a corporation? I’ll save that for another entry.

The Debut of Supreme Court Justice Sonia Sotomayor

-Rachelle Paquin, JGRJ Student Writer 2009-10

Friday, October 09, 2009

Monday marked the beginning of a new term for the Supreme Court of the United States with the addition of Justice Sonia Sotomayor. There has been a great deal of commentary, both positive and negative, following President Obama’s nomination of Justice Sotomayor in May and her confirmation to the Court on August 6th. She is the first Hispanic, and only the third female, Supreme Court Justice. Unfortunately, I am disheartened that this event, which I believe Americans should celebrate as a landmark in social progress, has been disparaged by many through sexist and racist comments. Below are a few of the more shocking remarks:

“She’s an angry woman, she’s a bigot.” –Rush Limbaugh, The Rush Limbaugh Show

“She’s an affirmative action appointment … there were no males in the final four. How do you come down to four women? … What were the criteria? One of them is that it’s got to be a woman, and the other got down to be—hey, it’s a Hispanic.” –Pat Buchanan, appearing on MSNBC Live

I do not understand why it is so hard for so many to believe that a Hispanic woman is capable of serving as a Supreme Court Justice. The media has made much of Justice Sotomayor’s joining in the controversial opinion in the New Haven, Connecticut firefighter case, Ricci v. DeStefano, and her “wise Latina woman” comment in 2001. Relying primarily on these two events, some have even gone so far as to label Justice Sotomayor as a racist and unqualified. However, I believe her
resume and long history of public service strongly refute such allegations.

As a female law student, I would hope that considerations such as race and gender would not infiltrate discussions in which commentators should focus on individual merit. However, the past few months have demonstrated that although race and gender relations have made much progress, there is still ample room for improvement. Numerous predictions have been made about what Sonia Sotomayor will do as Justice Sotomayor. Only time will tell. I can only hope that, in the future, individuals will hold themselves to a higher standard and not let prejudice become the basis for their evaluations.

For more information on Justice Sotomayor’s record, please visit this link.

Child Pornographers Sigh in Relief: U.S. v. Booker is Decided Just in the Nick of Time

~ Laura Klever, 2006-2007 Student Writer

Friday, April 06, 2007

In 2005, the U.S. Supreme Court decided in United States v. Booker that the U.S. Sentencing Guidelines, which had previously dictated sentence length, were no longer mandatory, but merely advisory. That decision effectively restored to judges discretion to make sentencing decisions. The Booker decision could not have come at a better time, as the judiciary is in dire need of sentencing discretion to combat legislative zeal to increase child pornography sentences. This zeal is likely a result of social pressure, both from constituents and the media.

Social pressure on legislators by their constituents is the foundation for many of the laws that are passed in the United States. Indeed, legislators’ political livelihoods depend on bolstering their image and pleasing their constituents so they will be re-elected. In this vein, few issues draw such strong emotions as the sexual abuse of our nation’s children. In 2004, Dateline began airing To Catch a Predator, a series of undercover investigations into child sex predators on the internet. While Americans were likely surprised at the number of those willing to show up on a child’s doorstep for sex (in one location, 88 men were caught in a period of only nine days), they must have been aghast at the types of people who responded: rabbi, firefighter, emergency room doctor, military personnel, special education teacher, and federal agent, among others.

The Dateline investigations’ dramatic portrayals of “an epidemic of sexual predators in our country” sparked an outpouring of concern for the safety of America’s children, motivating legislators to push for the Adam Walsh Child Protection and Safety Act of 2006. This new law is to protect America’s children from sexual exploitation by “protect[ing] our children from violent crime and sexual exploitation, toughen[ing] criminal penalties for crimes against children, prevent[ing] child abuse and child pornography, and combat[ing] internet predators.” While protecting our children from harm is a noble goal, legislators may get so caught up in increasing punishments for these highly emotional and sensationalized crimes that they lose sight of the legal, though unpopular, need to protect the rights of offenders. In contrast, federal judges are not subject to the whims of society’s current “witch hunt.”

First, federal judges have lifelong tenure, which “shields judges from the political pressure that comes with periodic accountability to an electorate.” This means that judges are free to take unpopular stances and vindicate the rights of those criminals society most abhors without having to worry about keeping their jobs. It was Thomas Jefferson who declared that “nothing will contribute so much as [lifelong tenure] to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty.”

Second, federal judges are appointed rather than elected. So while legislators must consider how their actions on Capitol Hill will affect any attempts at re-election, judges are able to distance themselves from the pressure and hype to reflect on the rights and interests of criminals.

Lastly, the judiciary has long been criticized as isolated and “out of touch” with the real world. However, federal sentencing is an area where the legislature, not the judiciary, is “out of touch.” Representatives have recently recognized that “[j]udges engage in numerous cases regarding sexual abduction and have more experience and expertise in those cases than we do. Therefore, we should not second-guess their decisions on whether to impose a sentence that is more lenient. They see the defendant and victim, they hear the arguments and testimony, and hence, we should show deference to their rulings.”

In all, judicial discretion is essential to balance legislative zeal by holding firm in the face of social pressure and ensuring fairness in sentencing for criminal defendants, especially those charged with such unpopular and sensationalized crimes as child pornography.

Will Scalia refuse to recuse?

-Matt Swessinger, student writer

Thursday, April 13, 2006

Will Scalia refuse to recuse?

According to CNN.com, in a March 8th talk given at Freiburg University in Switzerland, Justice Antonin Scalia made the following comment regarding the right of the United States’ Guantanamo detainees: “War is war, and it has never been the case that when you captured a combatant you have to give them a jury trial in your civil courts … Give me a break.”

This statement would not necessarily pose a problem except for the fact that on March 28th, the Court heard oral arguments in Hamdan v. Rumsfeld. The question presented in Hamdan? Whether petitioner and others similarly situated can obtain judicial enforcement from an Article III court of rights protected under the 1949 Geneva Convention in an action for a writ of habeas corpus challenging the legality of their detention by the Executive branch?” Petition for Writ of Certiorari, 2005 WL 1876491.   

Thus, it appears that Justice Scalia had made up his mind in this case before counsel for Hamdan had the opportunity to argue the case before the Court. A Georgetown University Law Professor quoted in the story posted on CNN.com said, “[This] should logically be a reason for his recusal but I don’t think he’ll do it … he’s so stubborn.”

Many in the legal community have come to expect this type of behavior from Justice Scalia. I’m sure that he knows as well as anyone that a court cannot render an impartial decision if a judge or justice enters a case with preconceived notions and biases which harm the probability of success on the merits for one party or the other. The questions raised by this case—questions concerning basic procedural rights of a very unpopular group—are too important to be tainted by real or perceived judicial bias. Justice Scalia, please recuse yourself.