Court could use a “wise Latina woman”

Some social conservatives can’t stop complaining about how Judge Sonia Sotomayor is unsuitable for the U.S. Supreme Court because she had the audacity to point out that different perspectives, life experiences and identities can lead to different judicial opinions.

In 2001, Sotomayor gave a speech in which she said that the ethnicity and sex of a judge “may and will make a difference in our judging.” She compared the judicial opinions of a “wise Latina woman” to those of a white male judge.

And for that, the conservatives call her a racist, a bigot and someone who puts identity politics above the law.

Enough with the handwringing already. Of course, a different point of view can lead to a difference of legal opinion. That’s so much of a no-brainer that even those with no brain should be able to understand it. After all, how else do you explain judges coming to completely opposing conclusions regarding the same case?

Take the recent California Supreme Court decision regarding marriage equality for same-sex couples. Six of the seven judges ruled that gays and lesbians would still get “equal treatment under the law” even after the word “marriage” was taken away from them.

Most gay Americans, however, understand that this is completely wrong. You are not equal under the law unless you are treated equally by the law. Taking away the word marriage – and all that the word confers – results in a clear inequality under the law.

And creating a parallel system of civil unions or domestic partnerships – “separate but equal” arrangements – is not “equal treatment under the law,” either. Many African Americans – as well as other minorities who have suffered unfair discrimination – understand this.

But many straight white men – people like Newt Gingrich and Rush Limbaugh – don’t get it, because they haven’t had the life experiences that allow them to understand it.

This is one of the reasons why we need more diversity – and more “empathy,” as President Obama put it – on the bench.

But the Limbaughs and Gingriches of the world hold onto this idea that all judges have to do is apply the law, without any interpretation. Either they are arguing this because it sounds good and they score political points with the hard right, or they don’t see most of the interpretation that goes on because they agree with it. After all, the grand majority of the federal bench is made up of straight white men.

Only two women have served on the U.S. Supreme Court so far. Only two African Americans. No Latinos. None have been openly gay.

Does being a Latina woman alone qualify Sotomayor for the Supreme Court? Absolutely not. But if she is indeed qualified based on the requirements that count for such things, being a Latina woman can only help.

California high court got it wrong on marriage

Most know by now that the California Supreme Court this week upheld the state’s ban on same-sex marriage. And many are angry because the decision halts the issuance of marriage licenses to same-sex couples.

But if you want to be really angry, understand how six of the court’s seven justices were able to find a rationale to uphold the now-infamous Proposition 8 – and understand the anti-gay bias behind that decision.

One of the arguments made by the lawyers seeking to overturn Proposition 8 as unconstitutional was that the ban took away the right of same-sex couples to due process and equal protection under the law. But the majority opinion, written by Justice Ronald George, ruled that Proposition 8 does “not entirely repeal” or “abrogate” the aspect of a same-sex couple’s state constitutional due process – that is, the right to “choose one’s life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage.”

Instead, the court ruled, “the measure carves out a narrow and limited exception to these state constitutional rights” by reserving the official designation of the term “marriage” for the union of opposite-sex couples.

That is to say, since California has strong domestic partnership laws, same-sex couples can do whatever they want regardless of whether or not the state confers the word “marriage” upon them. In essence, according to the ruling, denying the word “marriage” does not diminish the right to equal protection under the law.

This is nothing but a legal tango to rationalize that separate-but-equal is not only equal, but also constitutional.

Haven’t we been through this before? Separate but equal is NOT equal. Even the U.S. Supreme Court has recognized this.

Thankfully, at least one of the justices on the court understands this.

The lone dissenter, Justice Carlos Moreno, wrote in his opinion that denying “the designation of marriage to same-sex couples cannot fairly be described as a ‘narrow’ or ‘limited’ exception to the requirement of equal protection. … Even a narrow and limited exception to the promise of full equality strikes at the core of, and thus fundamentally alters, the guarantee of equal treatment. … Promising equal treatment to some is fundamentally different from promising equal treatment for all. Promising treatment that is almost equal is fundamentally different from ensuring truly equal treatment. Granting a disfavored minority only some of the rights enjoyed by the majority is fundamentally different from recognizing, as a constitutional imperative, that they must be granted all of those rights.”

Despite the survival of Proposition 8, all is not lost.

The good thing is that this is far from the last word on the issue. The other good thing is that all seven justices ruled that their decision was not retroactive, so the 18,000 or so same-sex couples who married in California before Proposition 8 passed last November are still legally married.

The downside to that, of course, is that it creates an even crazier patchwork of laws. It used to be just that same-sex couples were only legally married based upon what state they were in. Now, same-sex couples in California are only legally married based upon the date on their marriage certificates.

This is untenable – and it’s just one of the reasons why eventually marriage equality will be the law of the land from sea to shining sea.

FREAK OF THE WEEK: U.S. Sen. Roland Burris

This week, the FredBlog shines the freaklight on U.S. Sen. Roland Burris, the Illinois Democrat who is now changing his story about his connections to disgraced former Illinois Gov. Rod Blagojevich.

Previously, I had defended then-Gov. Blagojevich’s ability to lawfully appoint Burris at a time when Blogo was under political fire for allegedly trying to sell the senate seat vacated by Barack Obama. By all accounts, Burris was an upstanding choice – and even those who hated Blagojevich did not have anything negative to say about Burris.

This past week, all that changed.

A large part of the reason why Burris was palatable to the naysayers was Burris’ assurances that he had nothing to do with Blogo’s alleged corruption and pay-for-play scandal. In fact, during Blogo’s impeachment trial, Burris specifically said he never had any contact with the governor or his associates regarding anything questionable.

But now Burris is changing his story. Last weekend, Burris released an affidavit in which he admits that Blogo’s brother Robert asked Burris to raise money for Blogo’s reelection campaign before Burris’ Senate appointment – three times!

Worse yet, Burris then told reporters, “There was no change of any of our testimony.”

So let me get this straight. Then, the line was: No contact with Blogo associates. Now, the line is: Contact with Blogo’s brother and other Blogo aides. Um, Roland, you better rethink that “no change of any of our testimony” bit.

The Chicago Tribune has called this Burris’ “evolving narrative.”

Burris is also trying to convince us that the content of the affidavit is irrelevant since he released it of his own accord, and not at the insistence of federal prosecutors. Nice try, but no one’s buying that, either. Illinois prosecutors have launched a perjury inquiry, the Senate Ethics Committee has opened an investigation, and more and more people are calling for his resignation.

Pierre Salinger, a California Democrat, is famous for passing away in office in 1964 after serving only 148 days as a U.S. senator. And Rebecca Latimer Felton served only one day as a senator from Georgia in 1922. So Burris could yet make history as having one of the shortest terms in the U.S. Senate.

Badly burying Burris

Senate Democrats should be ashamed of themselves, and Majority Leader Harry Reid of Nevada is the shamer-in-chief.

On the day of the Senate’s swearing-in ceremony – celebrating Senate wins in red states like Alaska and North Carolina – Reid and his cronies turned their backs on Roland Burris, the man legally appointed to sit in the seat held until recently by President-elect Barack Obama.

I have already laid out why Burris is a good choice, but right now, that’s irrelevant. What matters is that the appointment of Burris is 100 percent legal. As Burris himself stated, his only crime is being appointed by embattled Illinois Gov. Rod Blagojevich.

Reid’s excuse for not seating Burris is that Illinois Secretary of State Jesse White has not signed off on the appointment. While it is true that White has not certified the appointment, that’s a red herring. The Illinois secretary of state does not have the legal power to block a gubernatorial appointment.

As Burris told CBS News: “As I read the U.S. Constitution, [the] governor shall fill a vacancy, and as a former attorney general of my state, I have no knowledge of where a secretary of state has veto power over a governor carrying out his constitutional duties.”

Oddly enough, Democrats don’t have a problem with Blagojevich’s power to order a special election to fill the seat held by Chicago Congressman Rahm Emmanuel, soon to be Obama’s chief of staff. To argue that Blagojevich can legally carry out his gubernatorial responsibilities regarding Emmanuel’s seat, but not do the same for Obama’s seat, is inconsistent, disingenuous, and dishonest.

Even Sen. Dianne Feinstein, the powerful California Democrat, has reportedly said that Senate Democrats do not have a legal leg to stand on regarding Burris. "Does the governor have the power, under law, to make the appointment? And the answer is yes," Feinstein told Fox News. "If you don't seat Mr. Burris, it has ramifications for gubernatorial appointments all over America."

And after all, at the ceremony that turned its back on Burris, Joe Biden was sworn back into his Delaware senate seat that he will give up in two weeks time when he becomes vice president. If they can swear Biden in just so he can leave, certainly Reid and his buddies can welcome Burris to his rightful – and legal – place as the junior senator from Illinois.