Will Kagan Pursue a “Liberal” Agenda?

The attempts to frame Elena Kagan pre-emptively as a wild-eyed, party-line liberal, socialist even, and quite possibly a lesbian who “looks like she belongs in a Kosher deli” (wink, wink, you vestigial anti-Semites), started long before President Obama uttered her name as his second pick for the Supreme Court.

On day three of the confirmation hearings, in which Judiciary committee Chair Patrick Leahy (D-VT) plans to conclude the ritual grilling of the fourth woman ever nominated to the U.S. Supreme Court, no one on either side of the aisle seems to imagine a scenario in which she won’t be confirmed.

The right did add creative new disparaging talking points, including a bobbleheaded attempt by Senators John Cornyn (R-TX), Jon Kyl (R-TX), Jeff Sessions (R-AL), and Charles Grassley (R-IA) to disparage the late Supreme Court Justice Thurgood Marshall, (for whom Kagan clerked). Evidently the faint hope that racism will rise again—not that it ever went away—is enough for some like to impugn the Court’s expansion of civil rights to Americans who don’t all look like these gentlemen.

For the Democrats, even the Brooklyn liberal Senator Chuck Schumer hewed to the Obama administration’s well-trod middle ground path, assuring one and all that Kagan is a mild-mannered, “modest” moderate who wouldn’t dream of pushing the Constitutional envelope.

Unfortunately, Schumer’s talking points appear to be way too close to the truth, and that’s not so good for the country.

Obama Opportunity Missed
While the progressive Netroots might have hoped President Obama would appoint truly liberal judges, or at least solid civil libertarians, they have been swiftly disappointed. One thing Obama has in common with George W. Bush is a wide streak of political luck. How many presidents get to appoint two Supreme Court justices at all, let alone during the first half of their first term? Even Bush’s vaunted luck didn’t carry him that far.

But whereas Bush used his initial years in office aggressively to reshape the entire Federal judiciary to his ultraconservative specifications going as far to the right as possible without falling off the end of the flat earth, (absent a Supreme Court opening until his second term began in 2005, Bush made hay moving to fill the 100+ lower court vacancies Bill Clinton gifted him), Obama blazed a timid trail even before his filibuster-proof Senate margin evaporated in a poof of Brown smoke. Bush, on the other hand, didn’t give a fig who opposed him because he knew the president held the keys to power even during the years that he had fewer than Senate 60 Republicans.

And then of course, he appointed Chief Justice John Roberts and Justice Samuel Alito who have already pulled the court far to the right with such rulings as Gonzales v Cahart and Citizens United v Federal Election Commission giving corporations personhood rights while truncating those of women.

Court Desperately Needs Rebalancing
The court needs to be rebalanced by new liberal justices to bring it back to the center. Obama’s first pick, Justice Sonia Sotomayor meets the center-left test but leaves many questions about basic civil liberties unanswered because she has declared (and shown) herself to be such a stare decisis judge. And since today’s stare decisis has been decided by a generation of increasingly conservative-activist judges, the balance that has kept our constitution functional through centuries of sweeping social, technological, and political change is tilting dangerously to the right.

In the New York Times Magazine article, “Imagining a Liberal Court,” Noah Feldman, Harvard Law School Professor and author of the forthcoming Scorpions: The Battles and Triumphs of F.D.R.’s Great Supreme Court Justices opined “After decades of stagnation, progressive constitutional thought is reaching a crisis point. And when it comes to issues of women, reproductive rights, diversity, affirmative action, and gender, Kagan has been dubbed “gender lite.”

Her record on and “modest” or perhaps more properly mealy-mouthed reply to Sen. Lindsay Graham (R-SC) (see video) concerning reproductive rights jurisprudence certainly gave me no cause for celebration.

On Day Three of Kagan’s confirmation hearings, the Republicans will again pepper her with the kind of questions designed rhetorically to paint her as a justice who will pursue a liberal agenda.

We should be so lucky.

Gloria Feldt is the author of No Excuses: 9 Ways Women Can Change How We Think About Power. Buy the book here. Engage Gloria for a Speech or Workshop. Tweet @GloriaFeldt and connect on Facebook, LinkedIn, and Google+ Gloria is the co-founder (with Amy Litzenberger) of Take the Lead, a new initiative to prepare and propel women to leadership parity by 2025. Find them @takeleadwomen and on Facebook.

Sotomayor’s Confirmation—What Her Victory May Cost the Republicans

Conservatives tried to convince the Senate, and the nation, that an impressive judge with an impeccable record was simply a product of affirmative action. It didn’t work.
By Peggy Simpson for the Women’s Media Center, reprinted with permission.

The confirmation of Sonia Sotomayor as the third woman and first Latina to sit on the Supreme Court never was a done-deal.

It might look like it from the 68 to 31 vote of approval in the Senate Thursday.
But there were bumps along the way, potential derailments that were dealt with and some bizarre resurrections by conservatives of Reagan-era complaints that white males were victims of affirmative action policies that benefit women and minorities.

Here’s what helped Sotomayor clinch the job:

  • impressive coalitions by liberal advocacy groups, including the Leadership Conference on Civil Rights, with feminist and reproductive rights groups stifling initial qualms about their uncertainties about her views on abortion;
  • unwavering support from Team Obama, especially in the midst of early accusations by conservative activists that she was a racist or worse, when even some supporters were nervous about remarks she made in 2001 about the virtues of being a “wise Latina.” She never apologized or took back those thoughts but did acknowledge a “poor choice” of words;
  • most of all, her own steady performance before the cameras in hearings that had been expected to feature fireworks but instead bordered on boring. Boring was good, in this context. Behind the scenes, Sotomayor visited with an unprecedented number of senators and by all accounts was a charmer. She carried that civility and personal touch into the Senate hearings with gestures, smiles and mini-conversations with GOP senators she knew would oppose her.

It didn’t hurt that firebrand commentators such as Rush Limbaugh but also former House Speaker Newt Gingrich came out swinging, accusing her of racism. But Gingrich had second thoughts, remembering his national ambitions.

GOP former Representative Tom Tancredo of Colorado escalated the rhetoric and accused her of links to a “KKK” type of advocacy group—the National Council of La Raza, which has more than 300 nonprofit affiliates in 41 states and is recognized as a bipartisan force in national politics. Tancredo’s attack backfired but it brought the NCLR new donors and prompted 5,000 people to sign a petition urging Republican leaders to tamp down the incendiary words. (They didn’t step up to the plate and all Republicans invited to speak to the NCLR national convention this summer turned them down.)

The biggest bonus for Democrats was the spectacular flame out by two key conservative Republican leaders and defenders of family values who were silenced in the debate. They were enmeshed in their own sex scandals, including lying to their wives as well as the public about consorting with sweeties (in Argentina, in the case of the governor of South Carolina).

The Sotomayor-nomination era had many notable moments.

One of the more bizarre came when MSNBC’s new hotshot host Rachel Maddow invited her colleague, conservative columnist, Pat Buchanan, to elaborate on why he was pushing Republicans to work harder to mobilize white conservatives against Sotomayor. Republicans, he had written, “must expose Sotomayor as a political activist whose career bespeaks a lifelong resolve to discriminate against white males.”

After Buchanan insisted Sotomayor wasn’t qualified to be on the high court but was “an affirmative action appointment” by Obama, Maddow asked what he thought affirmative action was for. Buchanan said its goal was “to increase diversity by discriminating against white males.”

And how is it, Maddow asked, that 108 of the 110 Supreme Court justices in the history of this country have been white?

And then came this remarkable Buchanan answer:

“Well, I think white men were 100 percent of the people that wrote the Constitution, 100 percent of the people that signed the Declaration of Independence, 100 percent of people who died at Gettysburg and Vicksburg. Probably close to 100 percent of the people who died at Normandy….This has been a country built basically by white folks.”

Maddow disagreed, saying that affirmative action was recognition that “people were discriminated against for hundreds of years in this country….that you sort of gamed the system, unless you give other people a leg up.”

Buchanan went back to his argument that Sotomayor got ahead only because of affirmative action. When Maddow asked if her very high grades at Princeton also were due to affirmative action, Buchanan then took a swipe at the Ivy League schools, saying that “half the class graduates cum laude these days.”

For a brief time, Republicans thought they had found pay dirt in discovering that Sotomayor belonged to an all-woman private club in California. About 100 professional women belong to the Belizean Grove, a takeoff on the controversial Bohemian Grove male-only club. That didn’t really take off. And no one mentioned the all-male Augusta Country Club, either, which continues to sponsor national golf tournaments. Sotomayor resigned her membership anyway.

In the end, all Democrats (except for the ailing Senator Ted Kennedy) and nine of the 40 Republicans voted for Sotomayor. The GOP opponents included 12 who face re-election next year. Of the seven Republicans likely to retire, four voted to confirm her.

But the Republicans weren’t much swayed by the Hispanic vote: the five GOP senators in states where Latinos are 20 percent or more of the population all opposed Sotomayor, including Kay Bailey Hutchinson of Texas.

This dramatizes the Republican dilemma of a party where core conservatives control the party— and the primaries—and nearly all of them are white Anglos. President George W. Bush took 44 percent of the Hispanic vote in his first term, but by 2008, that had plummeted to 30 percent.
Even worse, recent polls say Hispanics “disfavor” the Republican Party by a 55 to 8 margin, according to Pew pollster Andrew Kohut.

So will a vote against Sotomayor matter? The Republican analysts said, mostly, not to worry. Voters have a short attention span, and a Supreme Court vote won’t be as important as the shape of the economy by the next election.

Don’t count on it, says Lisa Navarrete, vice president of the National Council of La Raza.

“Folks saying they don’t see the impact of this nomination on our community don’t see the unity this has brought,” she said. “There are a lot of differences between Puerto Ricans in New York and Cubans in Florida and other Hispanic groups. Everybody came together on this. It did matter. People understood the milestone that had been reached.”

Sotomayor Confirmation: ‘Splaining Bias and Other Tidbits of Gender and Ethnicity

Are You Biased?

Yesterday, Sonia Sotomayor faced down predictably pointed questions from white male Republican senators who seemed to be worried their hegemony might be on the wane. She was asked repeatedly about what biases she might bring to judging in light of her comment that a “wise Latina” might just make better decisions because of her gender and ethnicity. I wasn’t especially impressed by her answers that apologized for her words, because frankly, I agree with her original contention that we all benefit from our experiences, and I think that the experience of discrimination often makes one especially committed to liberty and justice for all.

Peter Winn, now a professor of history at Tufts University who taught Sonia Sotomayor at Princeton, had this to say in a Washington Post commentary about the pervasiveness of bias in general and Sotomayor’s biases  specifically:

I must take responsibility for her mention of a “bias.” I taught Sonia that people often have strong opinions on issues that they care enough about to research, but what is critical is that they recognize those biases and set them aside. That is what Sonia did in her senior thesis. I still think it is a best practice for a student — or a judge.

What’s the Power of Perspective?

Do you suppose those, largely male, largely white, people who have for many years held most power positions in American society never had any biases? If that’s what you think, it is probably because their biases have so infused the culture that they are called “the norm.” Barbara Cohn Schlachet, a psychologist/psychoanalyst, wrote about the influence of gender and ethnicity in how we perceive the world around us in her Women’s Media Center analysis:

When I was in psychoanalytic training, a colleague mentioned to me a female patient who, he said, frequently saw men exposing themselves to her on the subway. I commented that “flashers” were not uncommon on the subway, to which he scoffed, “I’ve never seen a flasher on the subway!” My curiosity was piqued. I asked male and female friends and colleagues whether they’d seen subway flashers; not surprisingly, none of the men and all of the women had.

I bring this anecdote up to illustrate the fact that what we see is determined by who we are; that the world is perceived differently, though not necessarily incorrectly, by our own experience of it. This is particularly relevant right now, when questions about whether Supreme Court Justice nominee Sonia Sotomayor will let her gender and ethnicity inform her thinking on the bench. According to much scientific and philosophical thought and theory, it would be impossible for her, or, for that matter, anyone else, not to.

In The Structure of Scientific Revolutions (1962), Thomas Kuhn posits that every society has an underlying paradigm that pervades every aspect of a culture—its science, aesthetics, politics, social structure, literature, even its forms of aberrancy. Scientists try to fit nature or data into the boxes that the paradigm supplies. Even in the hard sciences, which almost define our notion of objectivity, what we study and discover is determined by what we see, and what we see is dependent on our paradigm. Our paradigm prepares us for what we are going to see, what areas are to be investigated and how we will interpret what we find upon investigation.

Judge Sotomayor must, by virtue of her experience as a woman and as a Latina, bring a different, though not necessarily a more “empathic” or “emotional” perspective to her judicial work. This is no more the case than it would be for, say, Justice Alito, who comes from the experience of a white, Catholic male of Italian background. Judge Sotomayor is the product of a different paradigm, and would be expected to see aspects of an issue that the majority of the court might not see. This does not mean that she would necessarily be voting in favor of women or minorities; simply that she might add another voice to be considered, in the same way that I did in discussion with my male colleague, who didn’t “see” flashers on the subway, not because he was sexist, but because being “flashed” was not part of his experience.

There has been much speculation about whether or how Sotomayor’s gender, ethnicity, and religion might affect her position on reproductive rights. Though shorthand is usually “abortion” and “Roe v Wade”, really we are talking about the right to make childbearing choices, including birth control, abortion, childbirth, adoption, and overall moral agency over one’s own body and life. That’s why I was concerned enough about her less than forthcoming answers on this topic to tweet this question earlier today”

@heartfeldt So if #sotomayor wasn’t asked about abortion, didn’t Obama break his campaign promise to appoint only judges who affirm repro rts?

Here’s the resulting exchange from my Facebook page:

  • oh the scuttle on this is so disheartening. we’re being urged not to worry. there is supposed to be some sort of “knowing without saying” that we’re supposed to swallow, instead of an outright position statement.
  • does that make YOU feel comfortable? …and statements that roe is “settled law” don’t really mean anything, because it’s settled until it’s reinterpreted or further limited, etc etc.
  • Once she gets confirmed…roe vs wade will not be touched…
  • Roe is necessary, but no longer sufficient. If she merely upholds precedent, then she will be upholding many restrictions on reproductive rights that previous courts have let stand while upholding Roe’s underlying principle of a right to privacy.
  • I am not comfortable at all. Especially since the Obama administration has coached her comments. Rather than taking the issue head on, they are trying to avoid it. Red flag to me.
  • well, Obama has just appointed a surgeon general who got a commendation from pope benedict for her work. catholic websites celebrate her appointment… there’s a pattern developing there, hot on the heels of Collins (of creationist fame) appointment as head of the NIH.
  • Which this administration is doing with gay rights too. Maybe I was expecting too much but I had such (clearly unrealistic) hopes with this administration. It makes me feel foolish. I not only voted for him but I did it excitedly and while staunchly defending him. Sotomayer better be playing to her audience and end up being pro choice!

McClatchy’s recap of this exchange between Sotomayor and Senator Cornyn (R-TX) is an example of what we were talking about–cause for concern or just political theater?

The first exchange over abortion came as Cornyn noted that the White House reportedly was offering vague assurances to abortion rights groups in May that Sotomayor would be sympathetic to their views.

How would they know that? Cornyn wondered.

Sotomayor said she didn’t know.

“I was asked no question by anyone, including the president, about my views on any specific legal issue,” she said.

Cornyn said he wondered what the basis was for such White House whispers.

“You just have to look at my record to know that in the cases that I addressed on all issues, I follow the law,” Sotomayor said.

Cornyn had other evidence, citing statements from George Pavia, a former Sotomayor law colleague, that he could “guarantee” she’d be for abortion rights. On what basis could he say that? Cornyn asked.

“I have no idea,” Sotomayor said, “since I know for a fact I never spoke to him about my views on abortion or, frankly, my views on any social issue. . . . I have no idea why he’s drawing that conclusion.”

In her 17 years as a federal district and appellate judge, Sotomayor rarely got involved in abortion cases. She did rule on President George W. Bush’s “Mexico City policy,” which barred public funds to organizations that promote abortion in other countries. President Barack Obama reversed the policy in January.

Sotomayor sided with Bush, ruling against the abortion rights groups, in her 2002 decision. Her ruling relied largely on legal precedent, however, and didn’t deal with the abortion issue.

Sen. Tom Coburn, R-Okla., tried to pin down Sotomayor, but she wouldn’t bite.

Asked to described “settled law” on abortion, she said she abided by current law, and she recited recent court rulings.

What about late-term abortion, Coburn asked, if a 38-week-old fetus has a terrible disease?

“I can’t answer that question in the abstract,” Sotomayor said.

How about the impact of technology on current precedent? Technology, Coburn said, has made it easier to detect life since the landmark 1973 Roe v. Wade ruling, which opened the way for legal abortion in many cases.

“All I can say to you is what the court’s done and the standard the court has applied,” she said. As Coburn pressed, Sotomayor wouldn’t offer any personal views. “We don’t make policy choices in the court. We look at the case before us,” she said.

Gnash teeth. Wondering whether she remembers how we got George W. Bush as president, ended school segregation, and enabled women to vote–not to mention attend the law school of their choice. Stay tuned…questioning is about to begin again.

Gloria Feldt is the author of No Excuses: 9 Ways Women Can Change How We Think About Power. Buy the book here. Engage Gloria for a Speech or Workshop. Tweet @GloriaFeldt and connect on Facebook, LinkedIn, and Google+ Gloria is the co-founder (with Amy Litzenberger) of Take the Lead, a new initiative to prepare and propel women to leadership parity by 2025. Find them @takeleadwomen and on Facebook.

Sotomayor–People and Places to Watch for Real Confirmation News

You might be a C-Span or CNN junkie, but if you are looking for some up close and personal takes on the Senate Judiciary Committee’s confirmation hearings on Sonia Sotomayor’s nomination to the Supreme Court, here are a couple of other ideas for you:

Please post your favorite sources for this news in the comments section below. Watch MSNBC’s livestream:

Visit msnbc.com for Breaking News, World News, and News about the Economy

Gloria Feldt is the author of No Excuses: 9 Ways Women Can Change How We Think About Power. Buy the book here. Engage Gloria for a Speech or Workshop. Tweet @GloriaFeldt and connect on Facebook, LinkedIn, and Google+ Gloria is the co-founder (with Amy Litzenberger) of Take the Lead, a new initiative to prepare and propel women to leadership parity by 2025. Find them @takeleadwomen and on Facebook.

Penetrating Sotomayor’s Judicial Philosophy: My Interview With Diane Walsh

The Glass Wall: The People vs. Obama’s Supreme Court nomination
by Diane Walsh
Penetrating Sotomayor’s judicial philosophy is proving no easy task. Will we get the information we need to properly evaluate the merits of the US President’s ambiguous choice for the high court – before it’s too late? The media is in a frenzied state over this nominee – Judge Sonia Sotomayor. One would expect this, given the stakes that her nomination holds for the fate of abortion rights – which are currently hanging in the balance.

What is Sotomayor’s view about a woman’s right to make childbearing decisions? Oddly, there is nothing concrete that we know about her actual judicial philosophy. No one seems to know exactly – because there is no clear answer being laid bare.

This is creating much unease on both sides of the political spectrum. There is a fundamental lack of information flowing. This is unacceptable. I decided to seek out Gloria Feldt, former president of US Planned Parenthood, to get her take on the Sotomayor nomination. She’s the quintessential trailblazer of the pro-choice lobby.

Gloria initiated the Prevention First Act and reintroduction of a new, improved, Freedom of Choice Act. Her “fight forward” mission is further exemplified on her blogs and through her speeches and writings, all accessible through her website: www.gloriafeldt.com, including 30 years on the frontline. So, needless to say, she’s in a position to evaluate the ‘threats’ that Sotomayor presents, if any, should Sotomayor be confirmed as a Supreme Court Justice.

Diane Walsh: Have you managed to find out whether Judge Sotomayor believes that Roe vs. Wade is “settled law” (under the precept of stare decisis)?

Gloria Feldt: Based on her previous rulings and past approach to judging, it is reasonable to assume that she will say Roe is settled law, but then so did John Roberts and Samuel Alito and we have already seen how meaningless that was in the Gonzales v Carhart ruling. The Court has and can continue to make abortion less and less accessible while maintaining Roe as “settled law”. So even if Sotomayor issued a notarized statement that she believes Roe is settled law, it would be cold comfort to women. The question I want answered is: what is her judicial perspective on who has the right to make childbearing decisions? Roe is almost useless now as a basis for reproductive rights, though privacy remains an important principle and I wouldn’t want to see Roe overturned–as I wrote here, though, we must get beyond Roe and on to human rights for women.

DW: What have you found out that could make us confident that she could be counted on as someone that would ‘definitively and always’ rule essentially pro-choice?

GF: I am not confident at all for two reasons. First, Obama’s spokespersons say he didn’t ask her the questions. That raises a big red flag. Why didn’t he ask, since he said during the campaign that he wouldn’t appoint a judge who would not support a woman’s right to choose? Second, both of her rulings related to reproductive rights have come down on the side of those who will stop at nothing to strip women of the human and civil right to make their own childbearing decisions. Doesn’t [the] murder of Dr. George Tiller [on May 31st, 2009] chillingly remind us of why we must not appease them?

DW: Ditto. Here’s a snapshot of Sotomayor’s climb up the ladder: As an assistant District Attorney (in NYC), early on in her career, she happily threw the book at, as it were, thieves and prostitutes and other so-called ‘undesirables’ of the times; but, later, she is seen to get involved with social housing issues dealing with the poor. Then, later again, she becomes involved with corporatist-leaning projects suggesting that overall she doesn’t necessarily sit on the left side of the political spectrum. You can say if you agree with the characterization, of course. But keeping her ‘history’ in mind, and, also, tracking back to the time of Robert Bork’s nomination, and the grandstanding that he, at that time, was allowed to do – when it was ‘right’ for Republicans to hear about ‘their’ Justices beliefs – I ask you this [following] question, in the context of today’s political climate: Do you not think it is reasonable to hear the political philosophies of Supreme Court nominees?

GF: If we could only get straight answers about judicial philosophies – that would be a giant step forward!

DW: Have we seen a pattern of ‘deciding Justices in secret’, culminating in the present state of affairs? Let me frame this question in more detail: As a public, we don’t even truly know where Sotomayor stands on abortion, strictly speaking. For instance, the last info release NARAL put out to its list members is to encourage us to push to get a fair hearing to be able to ask Sotomayor questions! That is to say we are practically begging to even be able to ask questions of her. How does this work? Is there not something wrong with this picture, that we feel we are in a state of not-knowing?

GF: It’s been said that the role of advocacy is to make it impossible for those in power not to do the right thing. I am more deeply concerned that most of the pro-choice groups aren’t asking their questions pointedly enough and vigorously enough to get meaningful answers. This does not augur well for how much our concerns will be addressed in future appointments, for we all know the squeaky wheel get the attention.

DW: Apparently, President Obama personally knew four other possible nominees – but not the vetted Sotomayor – and she is the one chosen. Does this strike you as a little odd? Janet Napolitano, of the Department of Homeland Security, when questioned, showed extreme ignorance about US-Canada border issues. Yet she was put forth.
What does this say about President Obama’s judgement?

GF: I asked myself this question too as a former CEO. Often I’ve seen a tough decision get made like this: there are many competing recommendations each with good supporting arguments, but none is perfect. The leader is stuck. Then late in the game, someone comes in with a completely new idea, and it is chosen with minimal vetting but great relief. I am not saying this is what happened—I wasn’t in the room. But from the scenario described in the press, I wouldn’t be surprised.

DW: Who would you, Gloria, have liked to see nominated?

GF: I am thrilled at the idea of the first Latina justice. And I think it was essential that he nominate a woman. Fortunately, we now have a deep bench of highly qualified women on the progressive side. I would have preferred to see one of the women whose deep scholarly roots in liberal judicial philosophy might have served to pull the court back toward the center. Someone like Kathleen Sullivan or Pamela Karlan. Both, I believe are Stanford professors. We seriously need someone on the left who can balance Scalia on the right both intellectually and with the same strength of conviction. I am enthusiastic about a Latina and another woman on the court. We’re all best served when our legislatures and courts look like America. But I have expressed concerns about Sotomayor’s judicial philosophy on reproductive rights.

DW: There is a brewing conversation about Sotomayor’s 2002 decision, a case involving the Centre for Reproductive Law v. Bush whereby she upheld the then Bush Administration’s implementation of the Mexico City Policy, that says that “the United States will no longer contribute to separate nongovernmental organizations which perform or actively promote abortion as a method of family planning in other nations.” – and thought by many, on the left, to be quite ghastly. In brief; apparently Sotomayor contended that the policy did not constitute a violation because, she argued, “the government is free to favor the anti-abortion position over the pro-choice position, and can do so with public funds. Clearly this is fraught with difficulties. What is your view about this? What are your feelings about this decision? Does it take away from Sotomayor’s credibility as far as her being someone the Pro-choice lobby can rely upon to defend the rights of women when it comes to reproductive choice?

GF: To refer back to your fist question, she will claim this was stare decisis, that she stood on precedent, and that is likely to be viewed positively by both Senate Republicans and many Democrats. But several aspects of this decision concern me:

First, she wrote it. So it must illustrate how she approaches such cases. Given that most of the significant cases interpreting Roe since 1973 have been steps backward for women, stare decisis these days means trouble for reproductive rights—not just abortion but also contraception and pregnancy rights.

Second, the ruling rejects CRR’s claim for standing, which would have perhaps allowed them to raise new questions about the gag rule that had not been considered in previous cases, and thus might have allowed even a stare decisis court to relook at some of the issues involved.

Third, often if a judge feels compelled by precedent to uphold a law she feels is unjust, she will write the ruling in a way that suggests to the appellant how to ask the question differently in the future to have a better chance for the court to reconsider the issue. Sotomayor not only didn’t do that; the ruling’s language is clear and simple, offering no wiggle room or invitation to further challenge the gag rule which violates both medical ethics and the first amendment.

DW: What can we do to make things more certain?

GF: We can’t. You never really know what a justice will do until he or she has been on the bench for 5, 10, 20 years. Who would have thought the rather conservative Republican Harry Blackmun would have become the architect of Roe v Wade? But please see my answers to questions 5 and 13 for additional comment on this question.

DW: The Judiciary Committee will of course screen her. Wouldn’t it be ironic if Democrats rejected her and Republicans were seen to support her? Shouldn’t that make progressive Democrats suspicious? Wouldn’t that speak volumes but by then be too late? What would the consequence of this slap to President Obama?

GF: Oh the irony of politics. But this is too speculative to answer right now. In any case, I predict she will sail through, for good or ill, barring the release of some damaging personal information.

DW: Should Obama’s remarks about the need to look for “common ground” not make us all into skeptics given what is frankly, an all-out warring terrain governing pro-life versus pro-choice? Especially since he has said outright that he personally doesn’t like abortion but of course understands that it needs to be available – as if he’s doing us all (on the pro-choice side) – a favor! Because he personally opposes abortion – theoretically, that is – as far as he, himself, is concerned; he cleverly manages to remove any kind of ownership over the issue when advocating the need to make some abortion service available – qualified by programs and abstinence and what ever else he can say to deflect the spotlight. More over, what’s even more shocking is he apparently never asked Sotomayor what her position was on abortion before choosing her. So what he’s asking of us is to trust him. It’s not good enough.

GF: It is infuriating that Obama demonstrates so much leadership and courage on other issues, but when it comes to these most fundamental of women’s rights he demurs, deflects, looks for “common ground”, when on reproductive rights, health, and justice issues, the prochoice position clearly is the common ground. He should just declare it so and move on with a positive agenda such as the Freedom of Choice Act.

DW: What do you know about Sotomayor that could make the rest of us more comfortable with her?

GF: We should not be comfortable. We must continue to ask the questions and persist until we get the answers. And even if we get the answers we want, we must continue to demonstrate grassroots political strength at the ballot box and in legislative policy if we want our views on equality and justice for women to prevail in the courtroom

Gloria Feldt is the author of No Excuses: 9 Ways Women Can Change How We Think About Power. Buy the book here. Engage Gloria for a Speech or Workshop. Tweet @GloriaFeldt and connect on Facebook, LinkedIn, and Google+ Gloria is the co-founder (with Amy Litzenberger) of Take the Lead, a new initiative to prepare and propel women to leadership parity by 2025. Find them @takeleadwomen and on Facebook.

For the President’s Suggestion Box: Nominate a Woman

Justice Ruth Bader Ginsburg says she’s lonesome being the Court’s only woman. The New York Times pointed out that President Obama will have no lack of highly qualified women to consider when filinghis first vacancy because of the stunning advances women have made in the legal field during the past generation. This Guest Post is thanks to a woman who has been a leader in that effort, a groundbreaking legal activist, and one of the smartest people in Washington: Marcia D. Greenberger, Co-President, National Women’s Law Center.

As President Obama begins his next hundred days in office, we now know for sure that he has another major item on his must-do list.  A few days ago, it was reported that Justice David Souter is expected to retire at the end of June. That means that in addition to fixing the economy, rehabilitating a broken financial system, dealing with a potential pandemic of H1N1 flu, and taking steps towards ending an impending energy crisis, to say nothing of the war in Iraq and Afghanistan, President Obama has the responsibility of appointing an individual for a lifetime job of determining the constitutional rights and protections that underlie our democracy.

Since the President has so much on his plate, we’ll take the liberty of making a suggestion that will help make his job easier: nominate a woman. Since Justice O’Connor retired in 2005, Justice Ginsburg has been the sole woman on the Court. We have clearly moved past the days when one woman on the highest court in the land is enough. Over the past three decades, an increasing number of women have joined the legal profession. In recent years, law schools have seen the number of female students increase, so that they now make up nearly half of all law students. In 2008, one-third of lawyers were women. As Justice Ginsburg recently observed, when visitors come to the Court and see her there “all alone … it doesn’t look right.”

Having another woman on the Supreme Court is important. Justice Ginsburg said in a speech earlier this month that “Even though a wise old man and a wise old woman will reach the same decision, there are life experiences a woman has that come from growing up in a woman’s body that men don’t have. This was nowhere clearer than in an oral argument last week, in Safford Unified School District v. Redding. In that case, a girl and her mother sued her school district because when the girl was 13, school officials strip-searched her because they suspected that she was hiding ibuprofen. Among the Justices, only Justice Ginsburg appeared to comprehend the humiliation and indignity a teenaged girl would have suffered by being forced to strip and even shake out her bra and underwear in front of school officials.

When there is only one woman on the Supreme Court, it’s not just that it doesn’t look right, it’s that the Court can’t decide right.

Setting the World Aright for Reproductive Rights

My new post in On the Issues is up today. They call it “A Do Over for Reproductive Rights”. I had named it “Turning the World Upside Down to See Reproductive Justice”. I liked their alliteration, so I came up with “Turning the World Aright for for Reproductive Rights.” Anyway, I don’t believe in do overs. Here’s the commentary:

Lars Larson is a conservative radio talk show host with a following of four million listeners. His producer assured me, when asking me to appear for Roe v Wade’s 36th anniversary, that Lars is respectful, though he would take views opposite to mine. No problem, I said, as long as I can speak my piece.

My “piece” led me to talk about where I think the debate should be: squarely on women’s human rights to make their own childbearing decisions, access to preventive family planning services, and economic justice, as well as abortion. It flipped Lars out. When he couldn’t keep the conversation on pitting the innocent baby against the murderous woman who stupidly didn’t use birth control, he started spinning. He lectured me during the commercial break—in stern-father tones—that I was speaking my piece a little too much for his comfort. Perhaps I wasn’t being the desired foil.
Though he began by challenging me with the focus on the fetus, within seconds he shifted to peppering me with denigrating statements about women. What clearer example could there be of the sexism that puts all responsibility and blame for unintended pregnancy on women?

Lars is entitled to his view. But what so vexed him, I realized, was that we were looking at the world from diametrically different vantage points. Everything I said disturbed his very sense of who he was and where he fit into the universe. He was used to a world, for his entire life, where people who look like him have been in charge. What seems like simple justice to me was cognitive dissonance to him.

So I wondered: what if the world were turned upside down? What if women held the majority of power and leadership positions?

Would peacemaking be the primary subject of the evening news rather than wars? Would, as Florynce Kennedy said, abortion become a sacrament if men could get pregnant?

I wouldn’t go that far. But as Roe hangs on by a thread and with the political world turned upside down by Barack Obama’s election to the presidency, it is clearly time to examine the underpinnings of American laws and cultural norms concerning women’s rights, health care access and justice related to childbearing decisions from a different vantage point than the Supreme Court did in 1973.

And it is way past time for pro-choice political leaders to elevate the debate to a higher, human rights and justice-based value set. We could start with the anti-choice usurping of the term “pro-life,” a complete misnomer.

Jeffrey Toobin, author of The Nine, says that in 1965 when the Supreme Court decided the case of Griswold v Connecticut (which legalized birth control), the justices had no gender-based civil rights precedents on which to base their ruling. So they used the analysis that there is an unwritten but implied right of privacy in the Constitution. The concept of marital privacy does not effectively challenge the intellectual framework of those whose mission is to advance the patriarchal regulation of motherhood by stripping women of the right to make childbearing decisions.

That right of privacy then logically formed the basis of the Roe v Wade decision. The 14th Amendment’s clause on equal protection, which forms the framework for other civil rights decisions, was given a nod, but it wasn’t the central rationale. Justice Ruth Ginsburg has long held that was a big mistake, and she has been proven correct. Roe has been repeatedly subjected to successful attacks since the moment it was decided. At this point, it is a mere shell, de facto overturned. Any restriction that doesn’t cause an “undue burden” is upheld by the court, which finds almost no burdens undue.

I believe we need to start over. In thinking Beyond Roe, I argued that we have to create a new movement for women’s human and civil rights to make their own childbearing decisions.

Roe was a meaningful and necessary advance, but its grounding in privacy rights portended that it could not stand forever. There must be something more than privacy. And there is. A woman’s right to her own life and body has to be elevated to the moral position that supports a human rights framework.

This framework must be translatable into civil rights-based legislation that gives access to relevant healthcare, education, supportive counseling and economic justice. It must be articulated in policies that will be upheld by courts, and those courts must be reshaped by presidents to speak without apology about the legitimacy of women’s reproductive self-determination.

That’s my challenge to the next generation of feminists.

President Obama said in his inaugural address: “The world has changed, and we must change with it.” Nowhere is this more true than in the arena of women’s rights, including reproductive justice.

Some, like Lars Larson, will think we’re turning the world upside down. What we’re really doing is setting the world aright.

Gloria Feldt is the author of No Excuses: 9 Ways Women Can Change How We Think About Power. Buy the book here. Engage Gloria for a Speech or Workshop. Tweet @GloriaFeldt and connect on Facebook, LinkedIn, and Google+ Gloria is the co-founder (with Amy Litzenberger) of Take the Lead, a new initiative to prepare and propel women to leadership parity by 2025. Find them @takeleadwomen and on Facebook.

Obama in St. Louis: Metaphor for America (Guest Post by Mark Salo)

Of all things during this last pre-election week, I’m in the utter chaos of moving into a new apartment, unpacking boxes filled with material elements of life while watching the increasingly frenzied campaign coverage on CNN. As though we’d picked up conversations from decades of working together, an e-mail from Mark Salo popped up on my Blackberry. Mark retired a few years ago after 35 years with Planned Parenthood, most as CEO of one of its largest affiliates. A former marine, wise leader, and tough political fighter, Mark sent me (in addition to the photo of himself with his new granddaughter—see below) his take on the meaning of Obama’s quest for the presidency, melding historical context with current political events. I was so moved by it that I asked his permission to guest post it here at Heartfeldt. This is a longer than usual post, but so beautifully written that I didn’t want to cut a word. Read on, and let us know what you think.

It is October 18, 2008. With his back to the Mississippi River, United States Senator Barack Obama of Illinois stands beneath the great St Louis Arch and speaks to one hundred thousand people who come to hear his vision for change in America.

Much was written on that day about the fact that this was the largest crowd that a candidate for President has ever addressed during a presidential campaign. The very fact that a black man of mixed race was the presidential nominee of a major political party was historic. It was also written that the gathering was biggest of its kind in the history of this middle state.

I use the phrase “middle state” because Missouri has been the state where the tectonic plates of American politics have, more than any other place, pushed against each other.

While not in the exact geographic center of the United States, Missouri is surely the place where the country has collided with, and blended itself into, uneasy consensus.

St Louis was the place where east met west…the great water highways of the Missouri and the Mississippi Rivers meet here. In 1800 the areas east of St Louis were the United States and its territories. To the west was uncharted wilderness. It was here where the Lewis and Clark expedition embarked upon the endeavor that would ultimately create a bi-coastal nation. St Louis has never been completely east or west. It is both and it is neither.

Missouri too stands between north and south and was the place where a divided nation squabbled most bitterly with itself over slavery. Missouri squabbled because she, like the nation, was divided against herself. The metaphor for this division was certainly the Missouri Compromise. The very title of that agreement speaks of the dualities of the place. She was neither north nor south and she was both.

Even after the sullen peace that fell on the nation after Appomattox, some Missourians remained restless. Quantrill’s raiders spawned the James Brothers and other men who refused to make peace after the war and turned their guerrilla fighting skills to robbery. Missouri’s history makes her the perennial battleground state. She is the conflicted center of us…

Just a few weeks ago, Missouri was considered a safe Republican state. The Republican candidate, John McCain, held a comfortable lead there. For many months, the Obama campaign quietly and competently registered voters and built a formidable political campaign there…a campaign that astonished everyone who thought that the effort was futile. A tangible result of that campaign was the hundred thousand people who gathered at the Arch. Obama now leads in the polls in Missouri.

The Obama presidential campaign has been a phenomenon that has baffled and amazed the country. Missouri is no exception. The conservative columnist, David Brooks, noted that while other political leaders woo the crowds, the crowds woo Obama. I think it is because he has a calm grace and a diffidence about him that hesitates to overstate or over emote. The result is a political figure that has strengthened his hold on the affections of the country through a reticence…holding something back.

Barack Obama has managed this in a nation where the legacy of racism has afflicted the fulfillment of the promise of its Bill of Rights. This has been made troublingly worse by the wedges of resentment and difference articulated by the John McCain/Sarah Palin campaign. The ensuing public discourse has, as a result, become more nakedly racist. I have watched with thoughtful respect as the candidate Obama has revealed no hint of malice or resentment as he calls Americans to unity.

Obama has observed that he is a “Blank slate” on to which people project themselves.

Unlike most political figures who write biographies as a prerequisite for running for office, Obama has written his books himself. It is rare for a public office holder to be literate and an excellent writer. Obama is both and writes with an honestly and self-knowledge that is rare in any discipline. In his book, “Dreams Of My Father” he navigates us though his own journey of identity as a man whose father was African, his mother, a white woman from Kansas. He identifies with sisters and brothers who run the racial gamut. Obama’s writing does not show the subliminal anger that one would expect, and often sees, from those who live between different racial worlds. It seems that he has absorbed them and integrated them into his character.

Perhaps this explains Obama’s “Blank slate” nature.

There was another historic dimension worth noting of Obama’s speech on that day. It was hiding in plain sight. None of the news articles I read reporting on the event mentioned it. I saw it because my private passion has been history…most particularly, the history of the American Civil War.

The first thing I noticed in the photograph of the multitudes gathered before the Arch was the building in the background. I recognized the structure immediately because I spent hours inside of it reading what is to me was the most infamous ruling in the history of the United States Supreme Court. A decision that some historians believe made the Civil War inevitable.

That bright white courthouse in the background of the photograph of the Obama event is the place where the Missouri Supreme Court deliberated the “Dred Scott” case in 1850. It was in that case where, seven years later, Chief Justice of the United States Supreme Court, Roger B Taney, upheld the decision and further polarized the country on slavery.

It is the last sentence of his statement that became famous. A more careful reading shows a different context but combined with the ruling that sent Dred Scott back to slavery in Missouri, Taney’s words inflamed the passions of an already divided nation. The statement follows:

It is difficult at this day to realize the state of public opinion in regard to that unfortunate race which prevailed in the civilized and enlightened portions of the world at the time of the Declaration of Independence, and when the Constitution of the United States was framed and adopted; but the public history of every European nation displays it in a manner too plain to be mistaken. They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far unfit that they had no rights which the white man was bound to respect.

When he looked up from the podium and over the crowds in St Louis, Obama looked directly at that old courthouse. As a former professor of constitutional law, Obama certainly knows the history of that place. I wonder if in the rush of a frenetic campaign schedule he had the time to think about the significance of a hundred thousand people of all races roaring his name? People who were bridging a 159-year historical gap between this man in front of them who might be president and the courthouse behind them where a black man “had no rights which the white man was bound to respect”.

Obama has confounded many supporters by not being dependably liberal in all of his views. He has shown support for funding faith-based programs provided they keep religion separate from funded programs. He has sought some middle ground on abortion and, while opposing the Iraq war, has shown a willingness to use military force where diplomacy fails.

It is my observation that Obama, despite the scurrilous accusations of radicalism by his political opponents, is temperamentally and politically a centrist.

He is neither black nor white. He is neither liberal nor conservative. He is none of those things…and he is all of them…kind of like Missouri.

Of course, there are differences between countries, states and individuals. Still, all of this has got me to thinking about Mohandas Gandhi and what is perhaps his most famous quote; “We must become the change we want to see in the world”.

I look at Barack Obama who appears to have taken all of the disparate pieces of his history/heritage and integrated them into a man who is confident, kind, well balanced, tough, competent, intelligent and effective.

I believe that the attraction of Barack Obama to the country and to those one hundred thousand people converged in St Louis; Missouri is the promise that as a people, we might possibly do the same.

E-mail Mark Salo here, where he’s busy enjoying his three-week-old granddaughter.

Palin Speech: Sneers Like Cheney–but if You Go Moose Hunting with Her, Hope She’s a Better Shot

John McCain’s vice presidential running mate, Alaska Governor Sarah Palin, delivered an engaging speech last night at the Republican National Convention. Her roaring crowd voraciously devoured every morsel of the copious red meat she served up with a fierceness that illustrates how she earned the nickname “Sarah Barracuda” in high school sports competition.

Jill Miller Zimon at Writes Like She Talks put together a wide compendium of opinion about McCain’s veep pick and concluded it will turn out to be a miscalculation on his part. Seems to me that Palin’s speech last night suggests otherwise.

It Takes Which Woman?

Early on I urged that both McCain and Obama should choose female running mates. Obama, leading in the polls, chose the safe route with Senator Joe Biden. McCain, who had both more to gain and more to lose, took the risk of choosing the clearly underqualified but attractive and ambitious Palin.

She’s one tough cookie and good for her. It makes my feminist heart sing to know that even the right-wing Republicans know women are going to decide the outcome of this election.

But in a twist of fate both cruel and predictable, Palin is to women’s rights what Clarence Thomas and Ward Connerly are to civil rights: the antithesis of the quest for social justice and equality.

Sarah Palin: Mother of Contradictions

She’s a mother of contradictons, a faux feminist who claims her right to run for the second highest office in the land while aligning with the masters of women’s subjugation. She demands her family’s privacy and that her pregnant 17-year-old daughter Bristol’s “choice” to continue her pregnancy be respected yet wants to take away all other women’s privacy and their right to make their own childbearing choices without government intervention.

I could write on, but Gloria Steinem summed it up eloquently in this Los Angeles Times op ed:

Palin’s value to those patriarchs is clear: She opposes just about every issue that women support by a majority or plurality. She believes that creationism should be taught in public schools but disbelieves global warming; she opposes gun control but supports government control of women’s wombs; she opposes stem cell research but approves “abstinence-only” programs, which increase unwanted births, sexually transmitted diseases and abortions; she tried to use taxpayers’ millions for a state program to shoot wolves from the air but didn’t spend enough money to fix a state school system with the lowest high-school graduation rate in the nation; she runs with a candidate who opposes the Fair Pay Act but supports $500 million in subsidies for a natural gas pipeline across Alaska; she supports drilling in the Arctic National Wildlife Reserve, though even McCain has opted for the lesser evil of offshore drilling. She is Phyllis Schlafly, only younger


Over at Blogher, there has been much back-and-forth, multipartisan banter about Palin’s speech, but one comment really caught my eye:

I am offended that while Palin’s family is supposed to be off limit to criticism, and I agree that they should, she gets to parade them before the public and score Mommy points and, by inference, anti-abortion candidate points as a mom with a special needs infant and a pregnant, unwed 17 year old daughter standing there with the Baby Daddy at her side. You don’t get to have it both ways Palin. I’m not saying Palin has to hide her family. Absolutely not. But there was something surreal about watching a Party whose strong conservative base believes that a woman can’t/shouldn’t pastor a church and that a wife should submit to her husband trot out a woman with a young brood of five as a candidate to run the country. Take off the gloves, ladies.

Did You Catch the Sneer?

By and large CNN’s pundits give Palin’s speech an “A” grade with caveats about what that means and whether it might or might not turn into votes in November. Stacy Beam at CafePolitico says Palin benefitted from low expectations going into the speech.

But did you notice how she curled her mouth into a Cheney-esque sneer while hurling epithets at the mild-mannered Sen Harry Reid and while sarcastically disparaging Barack Obama’s community organizing work? Never mind that we’d never have had an American Revolution were it not for community organizing. I predict that one  will come back to haunt her.

But Palin doesn’t just sneer like Cheney ); her environmental policy is like his too–drill, drill, drill.  In fact, she threw out all the buzz words her audience wanted to hear, as this wordle.net graphic shows:

Many times during the speech I had that “down-is-up and up-is-down” feeling I’ve experienced so many times during George W. Bush’s presidency, and for good reason: every economic, national security, war, and tax policy she mentioned predict four more years, or heaven help us, eight just like the same failed administration America is reeling from now. Yet she managed to spin it as though all these failures have been the fault of either the Democrats or the media.

Joe Biden’s tepid response today on the morning shows didn’t give me any sense of security that the Obama campaign has figured out how to deal with the bundle of contradictions that make up Sarah Palin. How will the terminally loose-lipped, grey haired Biden play in a debate against the spunky, charismatic Palin? How will these two men counter the energy she has brought to the evangelical Republican base?

Since we’re all agreed women are going to determine the outcome of this election, it’s clear Obama/Biden need the help of all the women who agree a McCain presidency would be a disaster. As the Blogher commenter advised, “Take off the gloves ladies.”


cross posted at Blogher

Gloria Feldt is the author of No Excuses: 9 Ways Women Can Change How We Think About Power. Buy the book here. Engage Gloria for a Speech or Workshop. Tweet @GloriaFeldt and connect on Facebook, LinkedIn, and Google+ Gloria is the co-founder (with Amy Litzenberger) of Take the Lead, a new initiative to prepare and propel women to leadership parity by 2025. Find them @takeleadwomen and on Facebook.

Partial Truth Decision

“[The] partial birth abortion ban is a political scam but a public relations goldmine…The major benefit is the debate that surrounds it.”

So said Randall Terry, founder of Operation Rescue, a militant anti-choice group that blockaded abortion providers, in 2003.

Today’s U.S. Supreme Court’s Gonzales v Carhart decision upholding the federal abortion ban is based that pubic relations goldmine. It is a travesty of language bought and repeated endlessly by journalists who were sometimes uninformed and sometimes just too lazy to get it right.

Indeed, the travesty of language around abortion is so pervasive that even Justice Anthony Kennedy, writing the decision for the Court’s majority, in addition to using the term “partial birth abortion”, also used the term “abortion doctor” repeatedly in the ruling. Why did he not simply refer to doctors as “doctors”, or if ob/gyns call them “ob/gyns”? If another surgical procedure were under scrutiny, would he have he referred to “tonsillectomy doctor” or “hysterectomy doctor”? Of course not. But those who want to take away a woman’s human right to make her own childbearing decisions entirely have for so long used the term “abortion doctor” as an epithet that they have succeeded in getting even the highest court in the land to use their language.  Continue reading “Partial Truth Decision”

Gloria Feldt is the author of No Excuses: 9 Ways Women Can Change How We Think About Power. Buy the book here. Engage Gloria for a Speech or Workshop. Tweet @GloriaFeldt and connect on Facebook, LinkedIn, and Google+ Gloria is the co-founder (with Amy Litzenberger) of Take the Lead, a new initiative to prepare and propel women to leadership parity by 2025. Find them @takeleadwomen and on Facebook.