Friday, 4/6/12, Public Square

The Ultimate Punishment.

“Well your honor I do believe I’d be better off dead
So if you can take a man’s life for the thoughts that’s in his head
Then sit back in that chair and think it over judge one more time
And let `em shave off my hair and put me on that killin’ line”

Bruce Springsteen – “Johnny 99” – 1982 – from the album “Nebraska”

The death penalty, the ultimate punishment for a crime. To many, it is a thoroughly fitting punishment for murder. Many more are clamoring for new laws to shorten or eliminate some of the appeal process. There are some that want capital punishment to be extended to other crimes, beyond murder.

Vengeance. Deterrence. The cost of housing prisoners. Prison isn’t bad enough. Parole. Escape possibilities. Many, many more.

There are numerous reasons for capital punishment.

There are 138 + 8 reasons against it.

Since 1973 there have been 138 people released from Death Row after their innocence was proven. There have been eight men executed despite strong evidence that they were innocent. There have been many executed for crimes that did not fit the punishment.

I do not doubt the guilt of the Carr Brothers, Kleypus and Thurber, and I believe their crimes to be heinous, beyond human understanding. That having been said, I still can’t get past – 138 + 8.

My solution is not unique – life without the possibility of parole in a  super-maximum security prison.

In a super-maximum security facility, prisoners are confined to their cells 23 hours a day, with only a single hour for solitary exercise. They receive their meals in their cells. They take two showers per week, alone. They have a radio and a television, but the programming is limited to recreational, educational and religious, and the inmate can’t reach the electronics. Their reading materials and mail are censored and they have no contact with anyone except the guards. No one has ever escaped from a super-maximum security facility in the United States.

Super-max detention has been described by prisoners and prison officials as a “cleaner version of Hell.”

To me, I would opt for death before living like that.

These are my thoughts. What are yours?

William Stephenson Clark

Talking about whether we should be talking about Kagan’s sexual orientation

The suggestion that someone is gay is usually taken as a direct accusation of homosexuality. Only being gay is not automatically a disqualification for office anymore. Indeed, many places have laws prohibiting discrimination based on sexual orientation, and there are an increasing number of gay and lesbian officeholders at all levels of elected government. So why do we still think it’s bad to call someone a lesbian?  Linda Hirshman, who admits to knowing nothing about the sexual orientation of Kagan, wraps up her interesting op-ed piece by saying:

Finally, and here’s a real dirty little secret, President Obama appointing an openly gay candidate for the Supreme Court would be political genius. Think about the prospect of watching the married Senator Ensign—who is under investigation for allegedly seeking lobbying work for the husband of his mistress—arguing that the high court nominee is “sinful” or “lacking in personal morality,” as the Focus on the Family suggests. The polls are clear: Regardless of their views on same sex marriage, most Americans do not think gays and lesbians should be discriminated against, and the numbers for gays on all issues are sky high among young voters. The Republicans don’t want to be caught in a Pat Buchanan-style culture war just as the mid-term elections loom, just like enough of them wanted to avoid the anti-Hispanic trap to confirm Justice Sotomayor. It’s a no-lose nomination.

There is nothing wrong with being gay (or lesbian). What hurts is the assumption that it hurts.

Is this the law that might change Roe v. Wade dramatically?

Nebraska Law Sets Limits on Abortion

Gov. Dave Heineman of Nebraska signed a law on Tuesday banning most abortions 20 weeks after conception or later on the theory that a fetus, by that stage in pregnancy, has the capacity to feel pain. The law, which appears nearly certain to set off legal and scientific debates, is the first in the nation to restrict abortions on the basis of fetal pain.

The question of fetal pain, experts said, is one of intense, unresolved debate among researchers and among advocates on both sides of the abortion question.

Mary Spaulding Balch, director of state legislation at National Right to Life, said that scientific evidence related to the capacity for pain had not been heard by the Supreme Court, and that it opened a new legal question.

“You need five votes,” Ms. Balch said. “I think there are five on the current Supreme Court who would give serious consideration to Nebraska’s claim.”

Constitutional Convention

Government has become very corrupt, with our politicians owing their souls (and their reelection hopes) to monied special interests.  Even SCOTUS seems to now be affected as the Court decision in Citizens United v. F.E.C.—which permits unlimited independent corporate campaign expenditures illustrates.

The framers left open a path to amendment that doesn’t require the approval of Congress: a convention. Article V of the Constitution requires Congress to call a convention to propose amendments if 34 state legislatures demand it. Any proposed amendment would then have to be ratified by both houses of 38 state legislatures (three-fourths of the states). This entails 76 separate votes in the affirmative by two houses of 38 state legislatures. (Nebraska, with its unicameral legislature, would be an exception.)

Is this where we’re headed?  Odds are against it, but it is certainly possible.

Even if 34 states don’t call for a convention, history teaches that a real threat is often enough to get Congress to act. The only amendment in our history that changed the structure of Congress (the 17th, making the Senate an elected body) was proposed by Congress because the states were close (just one state short) to calling for a convention.

Read more here.

Justice Clinton?

Last week, ABC News reported: “Lawyers for President Obama have been working behind the scenes to prepare for the possibility of one, and maybe two Supreme Court vacancies this spring. Court watchers believe two of the more liberal members of the court, Justices John Paul Stevens and Ruth Bader Ginsburg, could decide to step aside for reasons of age and health. That would give the president his second and third chance to shape his legacy on the Supreme Court.”

Read more here.

If this became a reality, I would accept that President Obama had been a successful president even if he didn’t get heath care reformed!  Of course, with his other nomination I would prefer seeing someone younger.

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Justices of the U. S. Supreme Court

John Paul Stevens, 88
Ruth Bader Ginsburg, 75
Antonin Scalia, 72
Anthony Kennedy, 72
Stephen Breyer, 70
Clarence Thomas, 60
Samuel Alito, 58
Sonia Sotomayor, 56
John Roberts (the chief justice), 53

Because of his age and length of service, Stevens is widely considered the most likely to step down, followed by Ginsburg. Both happen to be judicial liberals on a Court that has four liberals (Breyer and Sotomayor being the other two) and four judicial conservatives (Scalia, Thomas, Alito, and Roberts). The fickle Kennedy tends to provide the fifth vote in close cases, particularly those involving abortion, race, and religion.

The election of Obama over McCain last fall prevented a Republican goal (dating from the 1968 presidential campaign) of an unambiguously conservative majority on the Court. In this liberal nightmare, the relatively youthful majority would be busy whittling away at Roe v. Wade, eliminating race-based preferences in the public sector, strengthening the government’s hand in fighting terrorism, and facilitating a larger role for religion in public life–among many other bad, bad things.

I know most of you have these players, their stats and which team they play for memorized, but I don’t and always have to go looking for them.

This morning’s New York Times has an op-ed piece titled, “Discrimination on Trial, but Not on TV.” In a 5-4 decision that split the top judges along their political leanings, the Supreme Court barred the live broadcast of audio and video from a California court where rights activists are challenging a state ban on gay marriage.

I would like to know what you think of this decision made yesterday, and your thoughts of our nation’s high court in general.

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Ruth Bader Ginsburg

In an interview with the New York Times, 76-year-old Ruth Bader Ginsburg reiterates the need for a stronger female presence on the Supreme Court and says the pro-life movement is fighting a “losing battle.” Ginsburg, the sole woman serving on the Supreme Court, eagerly awaits the confirmation of Sonia Sotomayor and says that throughout her career, she has noticed the stereotypes that affect how her actions are perceived. In the interview, she recalls how an unintended interruption of former Justice Sandra Day O’Connor became a news story about rising tensions between the two, despite the fact that the male justices interrupt one another constantly. Lastly, Ginsburg says that the anti-abortion movement is “fighting a losing battle” by trying to make a woman’s right to choose a decision for each state, adding, “Time is on the side of change.”

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SOTOMAYOR: A TRAP FOR REPUBLICANS – by Donald Kaul

Donald Kaul has, over the years, become one of my favorites at minituemanmedia.org. And I love his ‘credentials line’ that is always at the bottom. Today I’m moving it to the top; Don Kaul is a two-time Pulitzer Prize-losing Washington correspondent who, by his own account, is right more than he’s wrong. ~sekanblogger

We’re about to see just how dumb the Republican Party in general, and conservatives in particular, really are. I’m betting pretty dumb. 

In one of his characteristically shrewd political moves, President Barack Obama last week nominated Sonia Sotomayor to replace David Souter on the U.S. Supreme Court. Judge Sotomayor, for those of you who may not be up to speed on your Appeals Court Judges, is as close to bulletproof as you can get when it comes to Supreme Court nominees. First of all, she is Hispanic and a woman, both politically good things to be, given that there have been only two women on the court before her and no Hispanics. 

Second, she has a resume out of Horatio Alger. Grew up in public housing in the South Bronx. Lost her father at the age of 9. Won a scholarship to Princeton, that toffee-nosed bastion of the Establishment. Finished at the top of her class. Went on to Yale Law, where she was editor of the law review. 

Became a federal prosecutor in New York City. Later went into private practice, then on to the federal bench, first at circuit court level, then appellate. 

Academic credentials, practical experience, compelling personal narrative; she’s got it all. 

And Republicans are making noises as though they’ll oppose her nomination—indeed, perhaps block it—on grounds that she is a judicial activist. 

Sotomayor represents a changed nation and changing diversity

An excellent piece at THE NEW YORKER says presidents have always tried to keep diversity on the highest Court, but what counts as diversity has changed with time.

Presidents used to preserve a New England seat, a Virginia seat, a Pennsylvania and a New York seat on the Court because regional disputes were the the most often kinds of cases heard.  Later when European immigrants transformed American society, religious differences needed to be kept balanced.  For more than a century the Catholic seat was respected and kept filled.

“As with earlier breakthrough nominations, Obama’s selection of Sotomayor has stirred some old-fashioned ugliness, and in that alone it serves as a reminder of the value of a diverse bench and society. Some anonymous portrayals of the Judge offered the kind of patronizing critiques (“not that smart”) that often greet outsiders at white-male preserves. Women who have integrated such bastions will be familiar, too, with the descriptions of her temperament (“domineering”), which are of a variety that tend to reveal more about the insecurity of male holdovers than about the comportment of female pioneers. The pernicious implication of such views is that white males, who constitute a hundred and six of the hundred and ten individuals who have served on the Court, made it on merit, and that Sotomayor is somehow less deserving.

And now with American diversity changing this president need not be reluctant to acknowledge that Hispanics, the nation’s fastest-growing ethnic group, who by 2050 will represent a third of the American people, deserve a place at this most exclusive table for nine.  As Barack Obama knows better than most, it is a sign of a mature and healthy society when the best of formerly excluded groups have the opportunity to earn their way to the top.”

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SOTOMAYOR SPEECH FROM 2001

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 describe 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 Education was 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.

Sotomayor v. Right Wing Idiocy

 

My goodness, those right wing folk do not know when to stick a rag in it, do they?

Randall Terry (Operation Rescue founder; former ICT visitor):  “Do GOP leaders have the courage and integrity to filibuster an activist, pro-Roe[v. Wade] judge?”

Pat Robertson, founder of the Christian Coalition: “The Republicans have got to take a stand on this one.  If they don’t, they can kiss their chances of ever getting back into power away.”

Thanks, GOP, please trot out as many of these nut-jobs as you can find.

Read more at politico.

Conservatives Map Strategies on Court Fight

If President Obama nominates Judge Diane P. Wood to the Supreme Court, conservatives plan to attack her as an “outspoken” supporter of “abortion, including partial-birth abortion.”

If he nominates Judge Sonia Sotomayor, they plan to accuse her of trying to “expand constitutional rights beyond the text of the Constitution.”

And if he nominates Kathleen M. Sullivan, a law professor at Stanford, they plan to decry her as a “prominent supporter of homosexual marriage.”

Preparing to oppose the confirmation of Mr. Obama’s eventual choice to succeed Justice David H. Souter, who is retiring, conservative groups are working together to stockpile ammunition. Ten memorandums summarizing their research, obtained by The New York Times, provide a window onto how they hope to frame the coming debate.

The memorandums dissect possible nominees’ records, noting statements they find objectionable on issues like abortion, same-sex marriage, the separation of church and state and the propriety of citing foreign law in interpreting the Constitution.

While conservatives say they know they have little chance of defeating Mr. Obama’s choice because Democrats control the Senate, they say they hope to mount a fight that could help refill depleted coffers and galvanize a movement demoralized by Republican electoral defeats.

The movement is much diminished from four years ago under President George W. Bush, when Supreme Court vacancies last arose and conservatives marshaled their forces to champion his nominee. (Judge Richard Posner, a prominent Reagan appointee, wrote recently that the conservative movement suffers from “intellectual deterioration.”) Republicans have lost control of the White House and Congress, have no clear party leader and have received low approval ratings.

So they will fight, they will hope to raise lots of money no matter what!  Aren’t we impressed!?  Do they have any ideas or plans yet?  Are they still just The Party of No?

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Some Non-Clues as to Whom He Might Pick

A summary of Obama’s thoughts from his teaching, and other experience, as to whom he thinks would be a good Supreme Court Justice.  Pretty refreshing stuff, actually.

The NYTimes report here.

Before I saw this photo, I was not aware that Obama was left handed.  Hmmm…

iggy donnelly

Justice Clarence Thomas: In His Own Words

According to this New York Times article, Justice Clarence Thomas spoke to a group of winners of a high school essay contest.  He talked about his job and more about himself, than I have ever heard before.  What follows is Justice Thomas in his own words.

“I tend to be morose sometimes.”

“I am rounding the last turn for my 18th term on the court, this endeavor, or, for some, an ordeal.”

“That’s one thing about this job, you get a little tired.”

“Sometimes, when I get a little down. [he goes online] “I look up wonderful speeches, like speeches by Douglas MacArthur, to hear him give without a note that speech at West Point — ‘duty, honor, country.’ How can you not hear those words and not feel strongly about what we have?”

“Today there is much focus on our rights, indeed, I think there is a proliferation of rights.”

“I am often surprised by the virtual nobility that seems to be accorded those with grievances, shouldn’t there at least be equal time for our Bill of Obligations and our Bill of Responsibilities?”

“It seems that many have come to think that each of us is owed prosperity and a certain standard of living. They’re owed air-conditioning, cars, telephones, televisions.”

“This job is easy for people who’ve never done it.  What I have found in this job is they know more about it than I do, especially if they have the title ‘law professor.’ ”

Anyone else think Clarence might be a secret blogger on that place-that- shall-not-be-named?

This is MoJo’s take on Thomas’s words:

http://www.motherjones.com/mojo/2009/04/clarence-thomas

Iggy Donnelly…