The Supreme Court and Sotomayor Roundup

The U.S. Supreme Court released it's decision today in Ricci v. DeStefano, the case brought by white firefighters in New Haven who claimed they were wrongfully denied promotions after a promotion examination found no firefighters of color were eligible for advancement. Although controversial in its own right, the case is also garnering a lot of media attention because the Court ruled in favor of the firefighters--overturning an unpublished decision by a 2nd circuit panel that included Sotomayor.

We may have to wait for a few days for a truly indepth, comprehensive look as what this means in terms of how this will impact Sotomayor's confirmation hearings. Right now, the "talking heads" seem to be doing most of the talking.

The Atlantic: Examples of Sotomayor's critics seizing the day

New York Times: Not unexpectedly, Senatorial reaction to the decision is divided by party line

Slate has an interesting article, however, that shines a little perspective, and mystery, on the situation. The article doesn't dwell on the decision that was made, but how the 2nd circuit sort of "punted" the issue, which is part of the reason the issue was taken up before the Supreme Court. We'll see if the 2nd Circuit's decision has a resounding effect on more than just the employment laws of the country.

David Brooks on Sotomayor

David Brooks, Op-Ed columnist for the New York Times (generally a more conservative thinker), gives some of articulate thoughts on Sotomayor, and the U.S. Supreme Court in general in his piece titled "The Empathy Issue."

The crucial question in evaluating a potential Supreme Court justice, therefore, is not whether she relies on empathy or emotion, but how she does so. First, can she process multiple streams of emotion? Reason is weak and emotions are strong, but emotions can be balanced off each other. Sonia Sotomayor will be a good justice if she can empathize with the many types of people and actions involved in a case, but a bad justice if she can only empathize with one type, one ethnic group or one social class.

And a little more food for thought: Another piece of early speculation has focused on how often Sotomayor has been reversed by the Supreme Court. Several news organizations have noted that her reversal record is no worse than the justice she is set to replace, or other justices currently on the court.

Pamela Karlan: Reflections on the "Short list"

In a coincidental turn of events, Stanford Professor Pamela Karlan directly spoke to her feelings on one of the questions posed in last Thursday's post: are the choices women make to get to the top also going to stand in the way of a nomination?

Karlan, one of the names widely circulated as being on the "short list" for a Supreme Court nomination, spoke at Stanford law school's graduation for the Class of 2009.

Would I like to be on the Supreme Court? You bet I would. But not enough to have trimmed my sails for half a lifetime. Sure, I’ve done lots of things I regret over the years. But the things I regret aren’t the things that keep someone from being nominated or getting confirmed. I regret being unkind to people I love and respect and admire. I regret getting frustrated by little things. I regret never taking a summer off. I regret not being able to stick to a diet. But I don’t regret taking sides on questions involving the Voting Rights Act. I don’t regret helping to defend the constitutional rights of criminal defendants. I don’t regret litigating cases on behalf of gay people. I don’t even regret being sort of snarky.

After reading Karlan's speech, the only thing I regret is the low probability that I'll ever get to meet her.

USSC oks ongoing pregnancy discrimination in "Hulteen"

Today the U.S. Supreme Court released A.T. & T. v. Hulteen, which says that the company may calculate current pension payments using a length of service calculation that omitted pregnancy leaves taken prior to the 1979 Pregnancy Discrimination Act. In a 7-2 ruling the court overturned the Ninth Circuit. Justice Ruth Bader Ginsberg dissented, and was joined by Justice Stephen Breyer.

Ginsberg wrote: “ I would hold that AT&T committed a current violation of Title VII when, post-PDA,it did not totally discontinue reliance upon a pension calculation premised on the notion that pregnancy-based classifications display no gender bias. … Congress did not provide a remedy for pregnancy based discrimination already experienced before the PDA became effective. I am persuaded by the Act’s text and legislative history, however, that Congress intended no continuing reduction of women’s compensation, pension benefits included, attributable to their placement on pregnancy leave. ...

It is at least reasonable to read the PDA to say, from and after the effective date of the Act, no woman’s pension payments are to be diminished by the pretense that pregnancy-based discrimination displays no gender bias.

I would construe the Act to embrace plaintiffs’ complaint…”

The only good thing about this case is that only women who are receiving pensions now that include pre-1979 pregnancy leave can be subjected to ongoing gender-based discrimination. The bad news is that there must be a lot of women who were pregnant 30 or more years ago who are heading into retirement.

Perhaps the Lily Ledbetter act should be amended to cover this situation. Given how hard it was to pass that law, that may not be a likely outcome.

Supreme Court Pick Round-Up

Speculation about who President Obama will suggest as the next Supreme Court Justice continues to ramp up (of course). Here are a few articles and some questions to ponder as we get nearer to the news:

Changing the Whole System
Yale Law Professor Jack Balkin recently wrote an editorial piece about how Supreme Court justices have it too good. Balkin praises Justice Souter not only for his work on the Court, but also for his voluntary retirement at the age of 69. Balkin contends that increasing life expectancy and the increasing prestige of the job has changed the institution so that most justices now serve as long as they possibly can. Balkin argues that more regular rotation would better reflect viewpoints of a changing world; he then describes how we could implement such a rotation system.

A question I had after reading it was this: for people looking for greater diversity on the Court, gender or otherwise, should efforts be focused on changing the whole system? Instead of focusing on how to get a specific spot filled, should people be looking for more regular rotation so that more opportunities exist for greater diversity?

Secret Lives
Several people have clued me into an article from Slate titled "An Unnatural Woman: The secret life of a Supreme Court short-lister." As pointed out in an earlier post, several of Obama's rumored picks are single women. A few openly gay, and a few not. The article questions several consequences of these facts, including the speculation surrounding these women, whether it does matter, and whether it should matter.

One perceptive observation comes at the end of the article--it speculates that often for women to achieve great success in the legal world, they have to make more personal sacrifices. Being on the short-list was probably achieved at a cost, but one that might not pay off. "And so the list is a Catch-22: The choices a woman may make to achieve stunning legal success are the same ones that may also someday preclude her from a Supreme Court confirmation."

Who's in the Running?
Yesterday the media was abuzz with the fact that some source revealed that President Obama has narrowed down the potential nominees to about half a dozen, and a decision could be out by the end of the month.

The list includes: federal appeals court judges Sonia Sotomayor and Diane Wood, and Solicitor General Elena Kagan, Homeland Security Secretary Janet Napolitano, Michigan Gov. Jennifer Granholm, and California Supreme Court Justice Carlos Moreno.

Will "outing" be a Supreme Court confirmation strategy?

A posting on both Feminist Law Professors and Gender & Sexuality Law blogs by Professor Katherine Franke reminisces how, when unmarried David Souter was nominated to the Supreme Court, at least one of the so-called progressive organizations opposing his nomination considered outing him, although of course no one knew if he was gay. Franke warns some more of that could be coming our way. Two of the women being touted , Elena Kagan and Janet Napolitano, are unmarried (gasp! remember Janet Reno, compelled, in her mind at least, to disclose her attraction to men?) and Kathleen Sullivan is an out lesbian, reports Franke. “You can be sure that the Republican members of Congress and the advocacy groups lining up to oppose any Obama appointee are strategizing how to raise the 'gay' issue with Kagen, Napolitano and Sullivan (the conservative blogosphere is already well down that road). 2009 isn’t 1990 - and the mere suggestion of homosexuality doesn’t have the same unseemly undermining effect that it did back then. But it ain’t nothing - like not paying your taxes seems to be now. (Remember Zoe Baird?),” writes Franke. If this happens, let’s not keep silent about it.

Let's not take a woman appointment to the Supreme Court for granted.

My first reaction early in the morning hearing that Justice David Souter is going to retire was, Oh no! Then I remembered who the president is and I relaxed a little. It’s gratifying to see that Above the Law, SCOTUS blog and others are saying it is something like a virtual certainty that the president will appoint a woman. Obviously that would be preferable to me. But we shouldn’t take that for granted and should be prepared to lobby, if necessary.

According to the Washington Post, most often mentioned as possibilities are two appeals judges, Sonia Sotomayor of New York (the Second Circuit) and Diane P. Wood of Chicago (the Seventh Circuit), along with Obama's new solicitor general, Elena Kagan (former dean of Harvard Law School and the first woman SG). Vice President Joe Biden has been charged with drawing up a list of possible nominees, according to the source close to the court.

Souter said he will retire at the end of the court's term in June. When a successor is chosen, will Minnesota have two senators to vote on this important appointment?

Transcripts of Souter's letter and other communications are available at the SCOTUS blog.