Dahlia Lithwick Discusses Sotomayor Confirmation Hearings

Dahlia Lithwick's commentary at Slate:

Confirmation hearings are inevitably an invitation to behave badly. Something about the bright lights of the Senate judiciary committee brings out the worst in people. Legal thinkers who are otherwise reasonable and intelligent somehow become great big puddles of snarling, hateful id. I think Democrats made a mistake when they accused Chief Justice John Roberts and Justice Samuel Alito of being misogynists and racists at their confirmation hearings. And Republicans are poised to make the same mistake when they attack Obama's Supreme Court nominee, Sonia Sotomayor, as a "liberal judicial activist of the first order who thinks her own personal political agenda is more important that the law as written," as Wendy Long, of the Judicial Confirmation Network, did today. (Don't those phrases ever get old? Don't these people own a thesaurus?)

Undaunted by the hyperbole that festers beneath her hyperbole, Long then went on to condemn Sotomayor for somehow aiding and abetting the 9/11 attackers with her decision in the controversial New Haven, Conn., firefighters case: "On September 11, America saw firsthand the vital role of America's firefighters in protecting our citizens. They put their lives on the line for her and the other citizens of New York and the nation. But Judge Sotomayor would sacrifice their claims to fair treatment in employment promotions to racial preferences and quotas." So just to get this straight: Sotomayor isn't just a far-left activist, she's also out to destroy firefighting?

The case against Sotomayor—to the extent it's being made, is that her life is such a tumultuous blend of personal hardship and deep feeling that she cannot separate the law from her own agenda. In short, she feels too much.

Washington Post columnist Charles Krauthammer was also quick to condemn Sotomayor on Fox News today, warning that her "concern for certain ethnicities overrides justice." And even though Sotomayor has decided only a single abortion case (against the abortion-rights side), Charmaine Yoest, president of Americans United for Life, rushed to describe her as "a radical pick" who "believes the role of the court is to set policy which is exactly the philosophy that led to the Supreme Court turning into the National Abortion Control Board."

If the Republican attack on Sotomayor is really going to consist of scattershot claims that she is too female and ethnic to be truly fair or impartial, it will be a losing demographic battle. Recall that 67 percent of Hispanics and 58 percent of women voted for Obama in 2008, along with 96 percent of blacks. Folks across the political spectrum may wish that Obama hadn't opened the door to discussions of the complicated connection between experience and judicial "empathy." But now that we are there, it simply has to be a mistake for her opponents to attack Sotomayor as someone who is just too darn human to sit on a court.

For one thing, such outbursts tend to offend other humans.

Moreover, the case against Sotomayor on this front is so ideologically loaded, and selective, that it quickly starts to look hypocritical. Why did Republicans treat Samuel Alito's blue collar upbringing as a great humanizing factor in his confirmation hearings? Why did they deem Clarence Thomas' childhood poverty an advantage, whereas they now cast Sotomayor's as a handicap?

Instead of wading into a bruising identity politics war they cannot possibly win, conservatives—even the angriest conservatives—should wade into Sotomayor's vast legal writings. There are hundreds of cases for them to read and parse and quote out of context. Let's have this confirmation battle on the merits, rather than in the sinkhole of unfounded character attacks. The real problem for Sotomayor's opponents is that anyone who has closely read her opinions won't find much to build a case on. As the indefatigable team at SCOTUSblog has chronicled here and here, on the appeals court, Judge Sotomayor has taken a fairly moderate, text-based approach to the cases before her, placing her much closer to retiring Justice David Souter than to the late Justice William Brennan on the judicial activism spectrum.

She has been overturned three times at the Supreme Court, and may well be again soon. But she was also a state* prosecutor, a corporate lawyer, and a Bush I appointee to the federal bench. As the White House points out in its talking points today, "In cases where Sotomayor and at least one judge appointed by a Republican president were on the three-judge panel, Sotomayor and the Republican appointee(s) agreed on the outcome 95% of the time."

What evidence does anyone anywhere have that Sotomayor has spent her career departing from the letter of the law to impose her personal preferences? Her participation in the (poorly handled) decision in the New Haven firefighters case was anything but judicial activism, much as it will be spun as symbolic of her lifelong hatred of white men. On a conference call with reporters today, a senior administration official noted that in the New Haven case, Judge Sotomayor did nothing more than apply the case law: "You can't say she's a judicial activist and then criticize her for applying 2^nd Circuit precedent." Her judicial record reveals a lot more humility than hubris.

Sotomayor will also draw heat in the coming weeks for a speech she made in 2002 at the University of California at Berkeley. Talking about the effect of race and gender on judicial decision-making, Sotomayor said, "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." She also said that "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." That seems a particularly thoughtful observation, in the context of a long and thoughtful meditation on the role of personal experiences in judicial thinking. Sotomayor never pretends to know better than white men, and she doesn't purport to speak for all Latinos or all women. She merely believes that different judges make a difference in judging. And if you strip away all the rage of the identity politics wars, that point is irrefutable.

The angry screeching from the right that Judge Sotomayor is too emotional to fairly apply the law is already starting to sound, well, hysterical. And the fun is only just beginning.

Scott Interviews Dahlia Lithwick.

Immigrant Identity Theft

A unanimous Supreme Court said recently that undocumented workers who use phony IDs can't be considered identity thieves without proof they knew they were stealing real people's Social Security and other numbers. The court's decision limits federal authorities' use of a 2004 law, intended to get tough on identity thieves, against immigrants who are picked up in workplace raids and found to be using false Social Security and alien registration numbers.

Advocates for immigrants had complained that federal authorities used the threat of prosecution on the identity theft charge, which carries a two-year mandatory prison term, to win guilty pleas on lesser charges and acceptance of prompt deportation. Kristina Campbell is a staff attorney with The Mexican American Legal Defense and Educational Fund and joins us today to discuss the issue at hand more in depth.

Source: Associated Press

Supreme Court Rules For Immigrants

A unanimous Supreme Court said Monday that undocumented workers who use phony IDs can't be considered identity thieves without proof they knew they were stealing real people's Social Security and other numbers.

The court's decision limits federal authorities' use of a 2004 law, intended to get tough on identity thieves, against immigrants who are picked up in workplace raids and found to be using false Social Security and alien registration numbers. Advocates for immigrants had complained that federal authorities used the threat of prosecution on the identity theft charge, which carries a two-year mandatory prison term, to win guilty pleas on lesser charges and acceptance of prompt deportation.

Ignacio Carlos Flores-Figueroa, a Mexican immigrant employed at a steel plant in East Moline, Ill., traveled to Chicago and bought numbers from someone who trades in counterfeit IDs. Unlike earlier fictitious numbers Flores-Figueroa used, these numbers belonged to real people. Flores-Figueroa had worked at the plant under a false name for six years. His decision to use his real name and exchange one set of phony numbers for another aroused his employer's suspicions. He was arrested in 2006 and convicted on false document and identity theft charges. He appealed his conviction as an identity thief, but the 8th U.S. Circuit Court of Appeals in St. Louis upheld the conviction. With appeals courts divided on the issue, the Supreme Court stepped into the case.

After last year's raid on a kosher slaughterhouse in Postville, Iowa, authorities charged 270 undocumented workers with identity theft. They all accepted plea deals in which they also agreed not to contest deportation.

Scott talks with Louis Bartolomei from Heygood, Orr, Reyes, Pearson & Bartolomei in Dallas who hosts the Hispanic Law Channel "Justicia Para Todos."

"Mexico Unconquered" Author John Gibler

Mexico, one of America's closest neighbors, is plagued with corruption. "Mexico Unconquered: Chronicles of Power and Revolt" takes a look into the history of Mexico and how the country got to where it is today.

Mexico Unconquered is an evocative report on the powers of violence and corruption in Mexico and the rebel underdogs who put their lives on the line to build justice from the ground up. Mexico Unconquered probes the overwhelming divisions in contemporary Mexico, home to the world's richest man, Carlos Slim, and to destitute millions. John Gibler weaves narrative journalism with lyrical descriptions, combining the journalist's trade of walking the streets and the philosopher's task of drawing out the tremendous implications of the seemingly mundane.

John Gibler is a writer and Global Exchange human rights fellow in Mexico who has been covering social movements there since January 1st, 2006. He is also correspondent for Pacifica Radio's KPFA in Mexico. He has reported on the ground from the Zapatistas Other Campaign, the protests against electoral fraud in Mexico City, and the uprising in Oaxaca. (Source:Barnes and Noble)

Scott Drake talks with author John Gibler

Angel Reyes' Hispanic Heresy

Scott Drake Interviews Angel Reyes (Heygood, Orr, Reyes, Pearson and Bartolomei) about his book Hispanic Heresy.

Along with Texas Tech University professors Bradley T. Ewing, Ph.D., and James C. Wetherbe, Ph.D., Mr. Reyes wrote the book from a descriptive point of view in effort to examine the issues of the nation's Hispanic population without a specific political leaning or agenda. The book analyzes some of the most widely-discussed issues facing the Hispanic population in the United States: illegal immigration and its effects on education, the tax system, social welfare and medical care systems. The book balances the two basic views of these immigration issues, one being that of a "burden" and the other of an "opportunity."

Kurt Eichenwald, author of The Informant and Conspiracy of Fools, describes Hispanic Heresy as "a comprehensive and important examination of the fastest growing population in this country. Hispanic Heresy discusses the history, future challenges and significance of Hispanic-Americans, and lays out the meaning of their growing role -- something the book makes clear -- that will have an impact akin to the great immigration era from the late 19th and early 20th centuries. A fascinating book."

Mr. Reyes is a very active member of the Hispanic business community of Dallas, Texas and frequently writes and lectures on the topic of immigration, along with other legal and sociological issues facing the United States. Hispanic Heresy is a project Mr. Reyes had planned for several years and is the culmination of countless hours of research, analysis and discussion.

Hispanic Heresy: What is the Impact of America's Largest Population of Immigrants? can be purchased online directly from the publisher at http://meadpublishing.biz/home/hispanic-heresy.

In Hispanic Heresy: What is the Impact of America’s Largest Population of Immigrants? (Mead Publishing, $25), Angel L. Reyes, III, MBA, J.D., Bradley T. Ewing, Ph.D. and James C. Wetherbe, an attorney and two university professors respectively, address the impact of Latino immigration on the United States.