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Deafening Silence

June 19, 2009

It was all about oil back in 1953, when the CIA ousted the hugely popular democratically elected Prime Minister of Iran, Dr. Mossadegh. Just two years earlier, he nationalized Iran’s oil industry, and thought America would be a strong ally. Foolish Iranian’s, we think all the world’s oil belongs to us, and democracy – real democracy – isn’t too terribly important. So we re-installed the Shah, who was nearly universally hated in his own country, and proceeded down a path of meddling in the affairs of the Persian people that would last for decades.

When seething hatred for America’s puppet, one of the worst human rights violators in history, boiled into a revolution in 1979 , President Carter boldly stated, ” ‘I fully expect the Shah to maintain power in Iran and for the present problems in Iran to be resolved. The predictions of doom and disaster that came from some sources have certainly not been realized at all.” We all know what happened then…

Through the tumultuous Iran-Iraq war, America supported Saddam Hussein’s slaughter of hundreds of thousands of Iranians, while Reagan and Bush were secretly selling weapons to the Ayatollah. All the bluster in the world couldn’t hide the fact that America put a pretty low value on Muslim blood. Fact is, America’s track record, with presidents of both parties, is pretty horrible.

Fast-forward to the present. Iranians just had a farce of an election; the people’s voices were not heard, and there’s rioting in the streets once again. All indications are that casualties will sharply increase now that the Supreme Leader has given his final word on the election results. Oh, yeah, he also threatened to have anyone who disagreed with those results killed on the spot…

And for the first time in decades, the American President has been virtually silent. He’s commented on the human rights aspect of the situation, but not the politics therein. This has infuriated his detractors, both at home and abroad. Good. Sometimes the best thing you can do is just sit back and let a situation play itself out, not inject yourself into the mix. Right now, it’s clear the Iranian people are on our side, it’s the leaders of that “democracy” that are not. 

And no amount of political posturing can beat that.


Happy Birthday!

June 17, 2009

Today, June 17, 2009, two things occurred. The “Smartest Man in the Room”, Newt Gingrich, turned sixty six years old. I guess that would be the first thing, since the second happened on my way home from work. I discovered the “Smartest Man in the Room” isn’t the “Smartest Man in the Room” anymore.

See, right before Newt misquoted the Declaration of Independence, he stated in no-uncertain terms, that President Obama has already failed.

My trip home usually takes about ten minutes, but over the past week or so it’s been a little longer each day. It’s because I pass three different road crews, with their annoying American Recovery and Reinvestment Act signs, hard at work. I’m guessing I’ve seen maybe a hundred folks who are getting a paycheck that were unemployed not too long ago.

I don’t know the exact correlation, but I also pass a few mom and pop diners, and I’ve noticed their parking lots are full again. A few months back they were empty. One parking lot that was practically empty was the lot at the unemployment office. I don’t have any hard numbers, but it sure looks to me, at least, that things are beginning to look up. Which means the naysayers, like Newt the Genius, are gonna have to start looking for something new to blame President Obama for.

Republicans, don’t let me down!

Note: I wrote this before I saw Kantor and Boehner release their four-page health-care reform plan…

When Will It All End?

June 11, 2009

Our thoughts and prayers go out to the friends, family and loved ones of  Stephen T. Johns, the 39 year old security guard who was senselessly gunned down yesterday at the U.S. Holocaust Memorial Museum by 88 year old neo-Nazi James von Brunn. Just another case of right-wing terrorism fomented by the fever-pitch of hate speech vitriol Americans are being bombarded with on talk radio, cable news and the internet. When will it all end?

James von Brunn attacked the museum just days after President Obama gave a stirring speech at Buchenwald, where he was so emotionally moved at seeing the place where thousands of Jews, as well as thousands of political prisoners and Soviet prisoners of war; were detained, tortured and killed. The President caustically rebuked holocaust deniers, and von Brunn took exception.

This tragedy occurred on the heels of the assassination of Dr. George Tiller, who, among his many duties, provided “late term” abortions. Right-wing terrorist Scott Roeder, who shot the doctor in church, had become fanatically consumed with Fox News’ jihad against “Tiller the Baby-Killer”.

And let’s not forget that horrifying day in Pittsburgh back in April, when right-wing Second Amendment zealot and White-Supremacist Richard “Pop” Poplawski opened fire, and ended the lives of Officers Stephen Mayhle, Paul Sciullo and Eric Kelly amid thunderous warnings on talk radio that President Obama was going to strip away the Right to Bear Arms.

Well, I’m sorry, but it’s not just another news story to any of the human beings that mourn the passing of Stephen T. Johns, or Dr. George Tiller, or Officers Stephen Mayhle, Paul Sciullo and Eric Kelly. Please, PLEASE, if we can’t stop the hate, let’s at least dial it back a notch…

And Put On The Full Armor Of God While You’re At It

June 7, 2009

I don’t know why so many people are upset that the New Bethel Church of Louisville, Kentucky is planning to hold an Open-Carry church service on June 27th. It’s the opening salvo of their Fourth of July festivities. America is all about God and Guns, so what’s the big deal? It’s not like any abortion doctors are expected to attend…

Look, the church is the perfect place for families to come packin’ heat. The God of the Old Testament was always running around smiting folks and ordering His flock to kill every man, woman and child that refused to bow down before Him. And His Only Begotten was no slouch in the kill-or-be-killed world of high spiritualism. He came not to bring peace, but a sword, remember?

Now, Pastor Ken’s flock will be worshipping the Almighty with patriotic music and a gun raffle. If Jesus had thought of that, instead of just overturning the tables of the moneychangers in His Father’s House, the Pharisees might not have been so pissed at Him. And if Our Lord and Savior had turned the water into tea, instead of wine, he might have even gotten King Herod’s gig.

Let us pray…

Standing-O In Cairo

June 4, 2009

Those on the far-right have been criticizing President Obama’s speech for the past forty eight hours, now that he’s actually given it, the fireworks are really going into overdrive. If you want to get right down to specifics, there weren’t very many differences in actual policy from what Bush said before he was ducking flying shoes. But this wasn’t a policy speech. It was a new beginning. A chance to find common ground and work toward peace – which, after all, is what nearly everyone on the planet wants.

The President touched on everything from the genocide in Darfur, to the Israeli-Palestinian conflict, to the threat of a nuclear Iran to the innocent blood al-Qaeda has shed throughout the world. He held out an olive-branch to moderate Muslims everywhere. He quoted Presidents John Adams and Thomas Jefferson to remind Muslims that America has been a friend to them for many, many years. He quoted from the Koran, the Talmud and the Bible, all the while the audience of Muslim students cheered again and again and again.

So of course, bin Laden accused President Obama of antagonizing Muslims. Zawahiri, who likes to call our President names (house-negro), is now calling him a criminal. Others on the far-right back here in the States have dubbed this Obama’s apology tour, and have called the speech “Carteresque”.

Listen, President Obama gave a historic speech which was designed to do one thing, and one thing only. Extend an open hand to the Muslim world. The mere fact that he was given a standing ovation, as opposed to a pair of flying loafers, proved that it was a success.

A Moment In Time

June 2, 2009

Dick Cheney was right all along. Sure, he could have chanted, “Nah, nah, I told you so!”, but he’s too classy a guy for that. When Scott Roeder executed Dr. George Tiller on Sunday, as “Tiller the baby-killer” was worshipping at Wichita’s Reformation Lutheran Church, America suffered it’s first terrorist attack in nearly eight years.

Homeland Security Chief Janet Napolitano warned that an attack by a right-wing lone-wolf would happen, but that’s little solace to Tiller’s friends, family and loved ones. I have to wonder, what would Dick have done differently? In a situation where everyone that had any contact with Roeder knew he was a hairs-breath away from doing something terrible, America’s intelligence community failed us. And no, I don’t think waterboarding Randall Terry would have been the answer.

Now, Fox News did not put the gun in Roeder’s hand, but they’re not innocent babes, either. They ratcheted up the rhetoric, targeting Dr. Tiller on no less than twenty eight separate occasions, coming dangerously close to inciting murder. I have to say this: Bill O’Reilly needs to publicly apologize for his part in this tragedy.

Not long ago, President Obama made his plea for an honest, reasonable discussion on the hottest of all hot-button issues;  abortion. I pray this tragedy gives us a moment in time to have that discussion. Then maybe, just maybe, Dr. George Tiller’s death might not be in vain…

Back in the ’60s, poor young women were dying from botched back-alley abortions while girls of means were able to erase their indiscretions with relative ease. Liberals saw the injustice and tried to right the wrong, extremists on both sides have been at war ever since. Because Dr. Tiller was one of the few willing to perform “late term” abortions, he was a prime target for the Operation Rescue folks. Please remember, some of Tiller’s patients discovered late in pregnancy that their fetuses had severe or fatal birth defects; and he also aborted healthy late-term fetuses in cases where this would prevent “substantial and irreversible impairment of a major bodily function” for the mother. That’s the law.

So, as we mourn this tragedy, I have to ask, where do we go from here? Are conservatives willing to shell out tax dollars to pay for the health-care, welfare, housing and education subsidies poor girls desperately need if they’re even going to consider bringing a new life into the world? While home-schooled churchgoing teens are just as sexually active as inner-city kids, their future prospects are quite different.

Are we going to get serious about sex education? How about contraception? Would you allow a gay couple to rescue a fetus otherwise doomed to be aborted? Or do we just ignore the hard questions and rev up the vitriol while we wait for the next terrorist attack…

Why I Can’t Be A Christian

May 29, 2009

I remember, years ago, when I was just a dumb kid, believing in the Golden Rule, “turning the other cheek”, and all that sort of stuff. Everyone I knew understood that “taking the Lord’s name in vain” meant that you weren’t supposed to use God as an excuse to do something that was wrong. Faith, science, morality and compassion could all exist simultaneously.

What an idiot I was…

In Catholic School, I came to doubt the veracity of transubstantiation. In Bible College, I came to doubt the wisdom of translating every word in Scripture literally. And every time a national election was coming to a head, I came to doubt the message I heard time and time again in church after church: You must vote for the Republican, or you’ll burn in hell forever.

I am going to burn in hell forever – I finally broke down and voted for a Democrat.

Don’t get me wrong, my fundamental belief system is still intact. I think the Genesis accounts of Creation, the Garden of Eden and other stories are moral tales, and have a place of importance. The notion that God – whoever or whatever that Being might be – is more concerned with the condition of a person’s heart than if they ever violated some subsection of labyrinthine doctrine, still resonates with me.

But I can’t hate a person or group of people because they look, talk, act, or even think differently than I. I can’t judge another person, especially when – according to the Bible – I’m not even permitted to walk a mile in their shoes. I can’t pigeonhole my thought process to an interpretation of God’s Word solely based on a group of folks working in conjunction with Fox News. That group would be Zondervan – look it up.

It’s wrong of me to have hope that there is any goodness to be found in mankind, I know. It’s called “humanism”, and it’s a sin. But since I’m going to hell anyway, I’m going to cling to that thin thread of hope; as tightly as I can, for as long as I can.

Facts? We Don’t Need No Stinking Facts!

May 28, 2009

I just read a post that discussed the Ricci v. DeStefano case, and how the racism of Judge Sonia Sotomayor – as evidenced by her decision in that case, disqualifies her from being able to sit on the Supreme Court. Another post suggests she’s a terrible judge, because so many of her rulings have been overturned. Here we go…

Sonia Sotomayor was one of three Appeals Judges who unanimously agreed that the lower Court ruling on Ricci v. DeStefano should stand. As was noted, nothing – absolutely NOTHING – that the City of New Haven, (DeStefano) did, fit the constraints of unlawfulness. No one was hired, fired, promoted, or demoted. All they did was throw out a test that they used for the first (and last!) time which gave such disparate results from different tests that they had to question the test itself.

Anyway, the super genius that wrote the post questioned Judge Sotomayor that if it had been minorities that brought the suit instead of white guys, would she have ruled differently? Well, one of the plaintiffs was Hispanic, so I don’t even understand the question. Darn those facts!

Now, looking at Judge Sotomayor’s seventeen year long career and determining that her overturn rate is too high, it’s been shockingly revealed that Sotomayor has been reversed 60% of the time! Oh, my!

The league average for the Court is 75%, which makes sense; I mean, the only way a case gets to them is when someone pretty high up wants something overturned in the first place. Back to Judge Sotomayor; yes, out of a minimum of 380 cases, a total of five have made it to higher court. Three of those cases were overturned. 60%. Of course, anyone in their right mind would be able to grasp that three cases out of three hundred and eighty is a whopping .0078947. And that’s a batting average even Big Papi would be ashamed of…

“the melting pot and the salad bowl”

May 27, 2009

On December 8, 2000, the Supreme Court halted the Florida recount. In Judge Scalia’s words: “The counting of votes that are of questionable legality does in my view threaten irreparable harm to petitioner Bush, and to the country, by casting a cloud upon what he claims to be the legitimacy of his election. Count first, and rule upon legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires.”

Four days later, the Court decided in favor of Bush, because time had run out for Florida to meet it’s own self-appointed recount deadline. It was the most infamous end-around in judicial history.

Less than a year after the Constitution was rewritten, Judge Sonia Sotomayor was asked by the University of Berkeley School of Law to speak on the subject of what a Latina Judge could bring to the table. And this is what she said:

Judge Reynoso, thank you for that lovely introduction. I am humbled to be speaking behind a man who has contributed so much to the Hispanic community. I am also grateful to have such kind words said about me.

 I am delighted to be here. It is nice to escape my hometown for just a little bit. It is also nice to say hello to old friends who are in the audience, to rekindle contact with old acquaintances and to make new friends among those of you in the audience. It is particularly heart warming to me to be attending a conference to which I was invited by a Latina law school friend, Rachel Moran, who is now an accomplished and widely respected legal scholar. I warn Latinos in this room: Latinas are making a lot of progress in the old-boy network.

I am also deeply honored to have been asked to deliver the annual Judge Mario G. Olmos lecture. I am joining a remarkable group of prior speakers who have given this lecture. I hope what I speak about today continues to promote the legacy of that man whose commitment to public service and abiding dedication to promoting equality and justice for all people inspired this memorial lecture and the conference that will follow. I thank Judge Olmos’ widow Mary Louise’s family, her son and the judge’s many friends for hosting me. And for the privilege you have bestowed on me in honoring the memory of a very special person. If I and the many people of this conference can accomplish a fraction of what Judge Olmos did in his short but extraordinary life we and our respective communities will be infinitely better.

I intend tonight to touch upon the themes that this conference will be discussing this weekend and to talk to you about my Latina identity, where it came from, and the influence I perceive it has on my presence on the bench.

Who am I? I am a “Newyorkrican.” For those of you on the West Coast who do not know what that term means: I am a born and bred New Yorker of Puerto Rican-born parents who came to the states during World War II.

Like many other immigrants to this great land, my parents came because of poverty and to attempt to find and secure a better life for themselves and the family that they hoped to have. They largely succeeded. For that, my brother and I are very grateful. The story of that success is what made me and what makes me the Latina that I am. The Latina side of my identity was forged and closely nurtured by my family through our shared experiences and traditions.

For me, a very special part of my being Latina is the mucho platos de arroz, gandoles y pernir – rice, beans and pork – that I have eaten at countless family holidays and special events. My Latina identity also includes, because of my particularly adventurous taste buds, morcilla, — pig intestines, patitas de cerdo con garbanzo — pigs’ feet with beans, and la lengua y orejas de cuchifrito, pigs’ tongue and ears. I bet the Mexican-Americans in this room are thinking that Puerto Ricans have unusual food tastes. Some of us, like me, do. Part of my Latina identity is the sound of merengue at all our family parties and the heart wrenching Spanish love songs that we enjoy. It is the memory of Saturday afternoon at the movies with my aunt and cousins watching Cantinflas, who is not Puerto Rican, but who was an icon Spanish comedian on par with Abbot and Costello of my generation. My Latina soul was nourished as I visited and played at my grandmother’s house with my cousins and extended family. They were my friends as I grew up. Being a Latina child was watching the adults playing dominos on Saturday night and us kids playing lotería, bingo, with my grandmother calling out the numbers which we marked on our cards with chick peas.

Now, does any one of these things make me a Latina? Obviously not because each of our Caribbean and Latin American communities has their own unique food and different traditions at the holidays. I only learned about tacos in college from my Mexican-American roommate. Being a Latina in America also does not mean speaking Spanish. I happen to speak it fairly well. But my brother, only three years younger, like too many of us educated here, barely speaks it. Most of us born and bred here, speak it very poorly.

If I had pursued my career in my undergraduate history major, I would likely provide you with a very academic description of what being a Latino or Latina means. For example, I could define Latinos as those peoples and cultures populated or colonized by Spain who maintained or adopted Spanish or Spanish Creole as their language of communication. You can tell that I have been very well educated. That antiseptic description however, does not really explain the appeal of morcilla – pig’s intestine – to an American born child. It does not provide an adequate explanation of why individuals like us, many of whom are born in this completely different American culture, still identify so strongly with those communities in which our parents were born and raised.

America has a deeply confused image of itself that is in perpetual tension. We are a nation that takes pride in our ethnic diversity, recognizing its importance in shaping our society and in adding richness to its existence. Yet, we simultaneously insist that we can and must function and live in a race and color-blind way that ignore these very differences that in other contexts we laud. That tension between “the melting pot and the salad bowl” — a recently popular metaphor used to described New York’s diversity – is being hotly debated today in national discussions about affirmative action. Many of us struggle with this tension and attempt to maintain and promote our cultural and ethnic identities in a society that is often ambivalent about how to deal with its differences. In this time of great debate we must remember that it is not political struggles that create a Latino or Latina identity. I became a Latina by the way I love and the way I live my life. My family showed me by their example how wonderful and vibrant life is and how wonderful and magical it is to have a Latina soul. They taught me to love being a Puerto Riqueña and to love America and value its lesson that great things could be achieved if one works hard for it. But achieving success here is no easy accomplishment for Latinos or Latinas, and although that struggle did not and does not create a Latina identity, it does inspire how I live my life.

I was born in the year 1954. That year was the fateful year in which Brown v. Board of Educationwas decided. When I was eight, in 1961, the first Latino, the wonderful Judge Reynaldo Garza, was appointed to the federal bench, an event we are celebrating at this conference. When I finished law school in 1979, there were no women judges on the Supreme Court or on the highest court of my home state, New York. There was then only one Afro-American Supreme Court Justice and then and now no Latino or Latina justices on our highest court. Now in the last twenty plus years of my professional life, I have seen a quantum leap in the representation of women and Latinos in the legal profession and particularly in the judiciary. In addition to the appointment of the first female United States Attorney General, Janet Reno, we have seen the appointment of two female justices to the Supreme Court and two female justices to the New York Court of Appeals, the highest court of my home state. One of those judges is the Chief Judge and the other is a Puerto Riqueña, like I am. As of today, women sit on the highest courts of almost all of the states and of the territories, including Puerto Rico. One Supreme Court, that of Minnesota, had a majority of women justices for a period of time.

As of September 1, 2001, the federal judiciary consisting of Supreme, Circuit and District Court Judges was about 22% women. In 1992, nearly ten years ago, when I was first appointed a District Court Judge, the percentage of women in the total federal judiciary was only 13%. Now, the growth of Latino representation is somewhat less favorable. As of today we have, as I noted earlier, no Supreme Court justices, and we have only 10 out of 147 active Circuit Court judges and 30 out of 587 active district court judges. Those numbers are grossly below our proportion of the population. As recently as 1965, however, the federal bench had only three women serving and only one Latino judge. So changes are happening, although in some areas, very slowly. These figures and appointments are heartwarming. Nevertheless, much still remains to happen.

Let us not forget that between the appointments of Justice Sandra Day O’Connor in 1981 and Justice Ginsburg in 1992, eleven years passed. Similarly, between Justice Kaye’s initial appointment as an Associate Judge to the New York Court of Appeals in 1983, and Justice Ciparick’s appointment in 1993, ten years elapsed. Almost nine years later, we are waiting for a third appointment of a woman to both the Supreme Court and the New York Court of Appeals and of a second minority, male or female, preferably Hispanic, to the Supreme Court. In 1992 when I joined the bench, there were still two out of 13 circuit courts and about 53 out of 92 district courts in which no women sat. At the beginning of September of 2001, there are women sitting in all 13 circuit courts. The First, Fifth, Eighth and Federal Circuits each have only one female judge, however, out of a combined total number of 48 judges. There are still nearly 37 district courts with no women judges at all. For women of color the statistics are more sobering. As of September 20, 1998, of the then 195 circuit court judges only two were African-American women and two Hispanic women. Of the 641 district court judges only twelve were African-American women and eleven Hispanic women. African-American women comprise only 1.56% of the federal judiciary and Hispanic-American women comprise only 1%. No African-American, male or female, sits today on the Fourth or Federal circuits. And no Hispanics, male or female, sit on the Fourth, Sixth, Seventh, Eighth, District of Columbia or Federal Circuits.

Sort of shocking, isn’t it? This is the year 2002. We have a long way to go. Unfortunately, there are some very deep storm warnings we must keep in mind. In at least the last five years the majority of nominated judges the Senate delayed more than one year before confirming or never confirming were women or minorities. I need not remind this audience that Judge Paez of your home Circuit, the Ninth Circuit, has had the dubious distinction of having had his confirmation delayed the longest in Senate history. These figures demonstrate that there is a real and continuing need for Latino and Latina organizations and community groups throughout the country to exist and to continue their efforts of promoting women and men of all colors in their pursuit for equality in the judicial system.

This weekend’s conference, illustrated by its name, is bound to examine issues that I hope will identify the efforts and solutions that will assist our communities. The focus of my speech tonight, however, is not about the struggle to get us where we are and where we need to go but instead to discuss with you what it all will mean to have more women and people of color on the bench. The statistics I have been talking about provide a base from which to discuss a question which one of my former colleagues on the Southern District bench, Judge Miriam Cederbaum, raised when speaking about women on the federal bench. Her question was: What do the history and statistics mean? In her speech, Judge Cederbaum expressed her belief that the number of women and by direct inference people of color on the bench, was still statistically insignificant and that therefore we could not draw valid scientific conclusions from the acts of so few people over such a short period of time. Yet, we do have women and people of color in more significant numbers on the bench and no one can or should ignore pondering what that will mean or not mean in the development of the law. Now, I cannot and do not claim this issue as personally my own. In recent years there has been an explosion of research and writing in this area. On one of the panels tomorrow, you will hear the Latino perspective in this debate.

For those of you interested in the gender perspective on this issue, I commend to you a wonderful compilation of articles published on the subject in Vol. 77 of the Judicature, the Journal of the American Judicature Society of November-December 1993. It is on Westlaw/Lexis and I assume the students and academics in this room can find it.

Now Judge Cedarbaum expresses concern with any analysis of women and presumably again people of color on the bench, which begins and presumably ends with the conclusion that women or minorities are different from men generally. She sees danger in presuming that judging should be gender or anything else based. She rightly points out that the perception of the differences between men and women is what led to many paternalistic laws and to the denial to women of the right to vote because we were described then “as not capable of reasoning or thinking logically” but instead of “acting intuitively.” I am quoting adjectives that were bandied around famously during the suffragettes’ movement.

While recognizing the potential effect of individual experiences on perception, Judge Cedarbaum nevertheless believes that judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law. Although I agree with and attempt to work toward Judge Cedarbaum’s aspiration, I wonder whether achieving that goal is possible in all or even in most cases. And I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society. Whatever the reasons why we may have different perspectives, either as some theorists suggest because of our cultural experiences or as others postulate because we have basic differences in logic and reasoning, are in many respects a small part of a larger practical question we as women and minority judges in society in general must address. I accept the thesis of a law school classmate, Professor Steven Carter of Yale Law School, in his affirmative action book that in any group of human beings there is a diversity of opinion because there is both a diversity of experiences and of thought. Thus, as noted by another Yale Law School Professor — I did graduate from there and I am not really biased except that they seem to be doing a lot of writing in that area — Professor Judith Resnik says that there is not a single voice of feminism, not a feminist approach but many who are exploring the possible ways of being that are distinct from those structured in a world dominated by the power and words of men. Thus, feminist theories of judging are in the midst of creation and are not and perhaps will never aspire to be as solidified as the established legal doctrines of judging can sometimes appear to be.

That same point can be made with respect to people of color. No one person, judge or nominee will speak in a female or people of color voice. I need not remind you that Justice Clarence Thomas represents a part but not the whole of African-American thought on many subjects. Yet, because I accept the proposition that, as Judge Resnik describes it, “to judge is an exercise of power” and because as, another former law school classmate, Professor Martha Minnow of Harvard Law School, states “there is no objective stance but only a series of perspectives — no neutrality, no escape from choice in judging,” I further accept that our experiences as women and people of color affect our decisions. The aspiration to impartiality is just that — it’s an aspiration because it denies the fact that we are by our experiences making different choices than others. Not all women or people of color, in all or some circumstances or indeed in any particular case or circumstance but enough people of color in enough cases, will make a difference in the process of judging. The Minnesota Supreme Court has given an example of this. As reported by Judge Patricia Wald formerly of the D.C. Circuit Court, three women on the Minnesota Court with two men dissenting agreed to grant a protective order against a father’s visitation rights when the father abused his child. The Judicature Journal has at least two excellent studies on how women on the courts of appeal and state supreme courts have tended to vote more often than their male counterpart to uphold women’s claims in sex discrimination cases and criminal defendants’ claims in search and seizure cases. As recognized by legal scholars, whatever the reason, not one woman or person of color in any one position but as a group we will have an effect on the development of the law and on judging.

In our private conversations, Judge Cedarbaum has pointed out to me that seminal decisions in race and sex discrimination cases have come from Supreme Courts composed exclusively of white males. I agree that this is significant but I also choose to emphasize that the people who argued those cases before the Supreme Court which changed the legal landscape ultimately were largely people of color and women. I recall that Justice Thurgood Marshall, Judge Connie Baker Motley, the first black woman appointed to the federal bench, and others of the NAACP argued Brown v. Board of Education. Similarly, Justice Ginsburg, with other women attorneys, was instrumental in advocating and convincing the Court that equality of work required equality in terms and conditions of employment.

Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O’Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O’Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.

Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case. I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown.

However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Other simply do not care. Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.

I also hope that by raising the question today of what difference having more Latinos and Latinas on the bench will make will start your own evaluation. For people of color and women lawyers, what does and should being an ethnic minority mean in your lawyering? For men lawyers, what areas in your experiences and attitudes do you need to work on to make you capable of reaching those great moments of enlightenment which other men in different circumstances have been able to reach. For all of us, how do change the facts that in every task force study of gender and race bias in the courts, women and people of color, lawyers and judges alike, report in significantly higher percentages than white men that their gender and race has shaped their careers, from hiring, retention to promotion and that a statistically significant number of women and minority lawyers and judges, both alike, have experienced bias in the courtroom?

Each day on the bench I learn something new about the judicial process and about being a professional Latina woman in a world that sometimes looks at me with suspicion. I am reminded each day that I render decisions that affect people concretely and that I owe them constant and complete vigilance in checking my assumptions, presumptions and perspectives and ensuring that to the extent that my limited abilities and capabilities permit me, that I reevaluate them and change as circumstances and cases before me requires. I can and do aspire to be greater than the sum total of my experiences but I accept my limitations. I willingly accept that we who judge must not deny the differences resulting from experience and heritage but attempt, as the Supreme Court suggests, continuously to judge when those opinions, sympathies and prejudices are appropriate.

There is always a danger embedded in relative morality, but since judging is a series of choices that we must make, that I am forced to make, I hope that I can make them by informing myself on the questions I must not avoid asking and continuously pondering. We, I mean all of us in this room, must continue individually and in voices united in organizations that have supported this conference, to think about these questions and to figure out how we go about creating the opportunity for there to be more women and people of color on the bench so we can finally have statistically significant numbers to measure the differences we will and are making.

I am delighted to have been here tonight and extend once again my deepest gratitude to all of you for listening and letting me share my reflections on being a Latina voice on the bench. Thank you.

Republicans Rip Bush Pick

May 26, 2009

Although they overwhelmingly approved George H.W. Bush’s U.S. District Court nominee for the Southern District of New York way back in 1991, most folks in the GOP are now roundly condemning that same individual, moderate Judge Sonia Sotomayor, now that President Obama has made her his choice to replace George H. W. Bush’s moderate Supreme Court Justice David Souter. Confused? You’re not alone…

Even in 1998, most republicans eventually approved Judge Sotomayor to the position of Circuit Judge for the Second Circuit of the U.S. Court of Appeals, when she was nominated by Bill Clinton. So why the hyperbolic vitriol this time around? Can’t be her moderate decisions, some would say she’s been right-of-center on several high profile cases.

On abortion, she sided with Bush in Center for Reproductive Law and Policy v. Bush. Wanna talk First Amendment? She sided with Giuliani in Pappas v. Giuliani. How about discrimination, or, reverse discrimination? The big case here is Ricci v. DeStefano, and no one yet knows Judge Sotomayor’s role in that case; although the Court’s decision is up for review by the Supreme Court, it’s not expected to be overturned.

Well, if it’s not due to any of her rulings, why is the most qualified nominee in half a century unqualified? I sure as hell don’t know, but I’m sure the Party of No can’t wait to enlighten us all…