Unreported

Digby makes a super logical observation while discussing today’s SCOTUS decision to overturn a decades old handgun ban, which is that this ruling is obviously the work of pro-gun zealots.

Of course, this plainly obvious truth is obscured by a media that refuses to call right-wing legislating “activism,” but consistently labels center-to-left-wing judges and nominees as radical extremists, who should be feared and condemned.

I missed the Kagan hearings this morning, but from what I’m gathering it was pretty much a high tech lynching of Justice Thurgood Marshall. Seriously. Evidently, he was one of those “activist” judges (and a community organizer too, I’m sure)and I think we all know what he was agitating for, don’t we?

Meanwhile, she is an “out of the mainstream” elitist, weirdo (lesbian, NY Jew) who worked for a you-know-what and liked it. Ever since Beauregard Sessions ascended to the ranking Republican position on the Judiciary Committee whatever uhm … subtlety the Republican strategy once had has evaporated into crude dogwhistling.

Right. See, Marshall was a lunatic leftist extremist, but Scalia and Thomas are ideologically consistent.

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Jesus, take the wheel. SCOTUS recently handed down a decision — reenforcing an Obama administration policy — that is so dumb it rivals John Roberts’s “what is this ‘email’ you speak of?” moment of shame.

The court, and Obama, broadly defined “material support” of so-called terrorist organizations.

While the relevant statute defines “material support” to include a long list of items that are clearly connected to the violent activities of terrorists, it also includes more ambiguous terms such as “any…service,…training, expert advice or assistance.”

Basically, this decision means peacekeepers like Jimmy Carter could be accused of offering “material support,” meaning any service, which could include counsel or mediation, to groups like the democratically elected Hamas.

Also, notice the term “terrorist group” is a completely arbitrary label. Hamas, though they came to power in a democratic election, is a terrorist group, while Israel, which receives billions of dollars in aid from the US, and uses illegal weapons like white phosphorous against a civilian population, and continues to exercise collective punishment unabated by western bystanders, is an “important ally.”

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(Image from Wikipedia)

To: Members of the Democratic Party*
From: DNC Communications
Date: 1/22/10
RE: A New 50 State Strategy: Ditch the poor, social programs, the unions, and consumer protections

When the Supreme Court decided Thursday to allow unlimited political campaign spending by corporations, the highest court in the land not only forever changed the way politics works in America, but they also sent a clear message to Democrats: the time has come to ditch poor people.

Now, “hear” me out, Russ Feingold. Dennis Kucinich, I hope you’ll keep reading this memo after you’ve stopped screaming. For decades, the Democratic Party has been the party of the poor, minorities, and labor unions i.e. the losing side of history. I don’t know if any of you have seriously scrutinized your base lately, but those people don’t have any money.

Sure, you’ll get the occasional donation from a blue-collar worker here, perhaps an ActBlue donation there, but let’s be honest — these paltry pennies pale in comparison to a single donation from Goldman Sachs.

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Image via Wikipedia

The Supreme Court has refused to hear a suit seeking accountability for Guantanamo torture. (h/t Digby) SCOTUS received an assist from the Obama White House, which had asked the court not to hear the case.

Today, the United States Supreme Court refused to review a lower court’s dismissal of a case brought by four British former detainees against Donald Rumsfeld and senior military officers for ordering torture and religious abuse at Guantánamo. The British detainees spent more than two years in Guantanamo and were repatriated to the U.K. in 2004.

The Obama administration had asked the court not to hear the case. By refusing to hear the case, the Court let stand an earlier opinion by the D.C. Circuit Court which found that the Religious Freedom Restoration Act, a statute that applies by its terms to all “persons” did not apply to detainees at Guantanamo, effectively ruling that the detainees are not persons at all for purposes of U.S. law. The lower court also dismissed the detainees’ claims under the Alien Tort Statute and the Geneva Conventions, finding defendants immune on the basis that “torture is a foreseeable consequence of the military’s detention of suspected enemy combatants.” Finally, the circuit court found that, even if torture and religious abuse were illegal, defendants were immune under the Constitution because they could not have reasonably known that detainees at Guantanamo had any Constitutional rights.

Obama’s DoJ concurs, using an old strategy employed by the Bush administration.

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Image from upi.com

Last week, Justice Sonia Sotomayor made a “provocative comment” that probed the foundations of corporate law. The case, Citizens United v. Federal Election Commission, involves whether federal campaign finance laws apply to a critical film about Hillary Clinton intended to be shown in theaters and on-demand to cable subscribers.

The court’s majority conservatives agreed that corporations have broad First Amendment rights and that “recent precedents upholding limits on corporate political spending should be overruled.” However, Sotomayor disagreed, and said the court should reconsider the 19th century rulings that first afforded corporations the same rights as real, live people.

Judges “created corporations as persons, gave birth to corporations as persons,” she said. “There could be an argument made that that was the court’s error to start with…[imbuing] a creature of state law with human characteristics.”

Corporations have been claiming personhood in order to protect their profits from undue strain under regulations or fair taxation ever since Santa Clara County v. Southern Pacific Railroad Company in 1886, a United States Supreme Court case dealing with taxation of railroad properties.

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Jeffrey along with Innocent Project attorneys Nina Morrison & Barry Scheck (co-founder of the Innocence Project) Image from jeffreydeskovicspeaks.org.

Update: the audio of my interview with Jeffrey Deskovic can be heard on my show, Citizen Radio, here.

Jeffrey Deskovic served 16 years in prison for a murder and rape he did not commit. At the age of 16, he was arrested based upon a coerced false confession obtained from a police interrogation that lasted for over seven hours. Despite the presence of strong DNA evidence that proved his innocence, a coerced confession, and proof of prosecutorial misconduct, Deskovic could not get his sentence overturned, even when he had the supposed “empathetic” ear of Sonia Sotomayor.

His case highlights some startling flaws in the US court and prison system, and a potential weakness in Sotomayor’s judicial style: her history of preferring procedure over innocence. Deskovic’s failed attempts to offer his testimony at Sotomayor’s confirmation hearing also illustrate the politicization of the process in which Democratic Senators may be suppressing his testimony in order to provide smooth transition for Sotomayor to ascend to the Supreme Court.

It all started when the police took a 16-year-old Deskovic out of school and drove him out of county in order to interrogate him about his supposed involvement in the murder/rape, Deskovic explained to me during our phone interview. His parents had no idea he was in police custody. Deskovic was kept in a small room for over seven hours where he was hooked up to a polygraph machine and repeatedly threatened by the police. 

I wasn’t given anything to eat the entire time I was there… The police played good cop-bad cop. They used all kinds of scare tactics: they raised their voices at me, they invaded my personal space. As each hour passed by, my fear increased in proportion to the time I was there. Towards the end, the polygrapher said to me, “What do you mean you didn’t do it? You just told us in the test that you did. We just want you to verbally confirm it.”

The polygrapher was lying, but Deskovic had no way of knowing that.

At that point, the officer who was pretending to be my friend entered the room, and he told me the other officers were going to harm me, and that he was holding them off, but that he couldn’t do so indefinitely. He said I had to help myself, and he added that if I did as they wanted, not only would they stop what they were doing, but that I could go home afterwards. I was being young – naïve – you know, 16-years-old, not thinking about the long-term implications, but instead being concerned with my own personal safety – I took the out that was being offered, and I made up a story based upon the information they fed me during the course of the investigation. 

He was convicted despite a negative DNA test that showed that semen found in the victim did not match Deskovic’s sample. On the day of his sentencing, Deskovic referred to the DNA test. The judge responded (on record): “Maybe you are innocent,” before sentencing him instead of overturning the verdict. 

Deskovic tried to appeal this decision several times. First, he appealed to the Appellate Division where his request was denied. He then went to the Court of Appeals, New York State’s highest court, which also refused to hear his case. Deskovic then filed a Habeas Corpus petition in the federal court, arguing that DNA evidence proved his innocence and his confession was coerced, which violated his Fifth Amendment rights. Some confusion emerged due to new guidelines stated by the 1996 Antiterrorism and Effective Death Penalty Act that changed the deadline for petitions. Deskovic’s attorney asked a court clerk if the petition had to be filed by the cut-off date, or if it could be postmarked. The clerk said it could be postmarked, which was false. Deskovic’s petition arrived four days too late.

The D.A. at the time argued that those four days were somehow prejudicial to the people of New York, and therefore, the court should rule that Deskovic was late in filing his petition, and not review his case. That’s when Deskovic appealed to the Federal Court of Appeals where Sonia Sotomayor served. His lawyer advanced three arguments: the DNA evidence proved Deskovic was innocent, reversing the ruling would open the door to more sophisticated DNA testing (which in turn could prove the innocence of many more prisoners,) and the error in filing the petition was a clerical error, and not the fault of Deskovic or his attorney.

Sotomayor said she was unpersuaded that the fact that Deskovic was four days late filing his petition should be overlooked by any of those factors.

She therefore denied my appeal. My lawyer then moved to reargue the case in front of her, he requested that the entire panel hear the case, and that too was denied by Judge Sotomayor and her colleague. I then appealed to the US Supreme Court, but they agree to hear very few cases, so they didn’t agree to hear mine. So at that point, which was 2001, I no longer had any appeals left, and I no longer had any legal representation. It was not until 2006 that I finally was able to obtain legal representation. 

Ultimately, Deskovic was cleared sixteen years later thanks to help from the Innocence Project, a nonprofit organization that was able to obtain further DNA testing that identified the real perpetrator. Investigators took the crime scene DNA, and ran it through a databank, and matched the real perpetrator, who was already in prison for killing another person three years later after he killed the victim in the case where Deskovic served a 16-year sentence. 

Now, Deskovic wants a chance for his story to be included in the direct questioning of Sonia Sotomayor during her confirmation hearing. Unfortunately, Democrats don’t want to include any testimonies that might harm Sotomayor’s chances of being affirmed.

It’s not too late for me to be added to the witness list at the [Sotomayor] confirmation hearing. I’ve been in a lot of contact with the Republican Senate Judiciary Committee, the Democratic Senate Judiciary Committee, I sent them the decisions in my case that the judge made. I expressed to them – a lot of times – that I want to testify at the hearing about the human impact of putting procedure over innocence, and the role Judge Sotomayor played in perpetuating my wrongful conviction, which from her ruling, I ended up serving an additional six years. They omitted me from that, and then when I called Senator Session’s office, I got the runaround there. I got a similar runaround from Senator Leahy’s staff. 

The Senators and their office staffs seem either hesitant to include any negative testimony of Sotomayor, or apathetic to the plights of wrongfully convicted citizens, a calculation Deskovic calls putting “politics over justice.” 

If this was a nominee from a Republican President, the Democrats, who traditionally have spoken about the issue of wrongful convictions (Senator Leahy is known for his positions on that), they would be all over this issue. I would have been there at the hearing. But because the political party of the President happens to be of the same party, they’re worried about going against him. And on the Republican side, wrongful convictions has never been an issue which they have taken up, and in fact — in many instances – on the federal levels, and on the state level, they’re actually the obstacle to getting legislation passed. 

Through other advocates, we’ve reached out to Senator Feingold and we asked him to ask the questions about my case. The response we got from his staff was that they weren’t interested in doing that because they’re just interested in protecting [Sotomayor]. When I called the Democratic Judiciary Committee, and I asked to be added, they told me they’re only calling witnesses who are going to give testimony favorable to the judge.

Deskovic’s testimony raises a couple interesting questions. Does Sonia Sotomayor place procedure over innocence, even when the proof of a prisoner’s innocence is as clear as in Jeffrey Deskovic’s case? Secondly, are US Senators now playing a game of politics during the confirmation hearing of Sotomayor by willfully omitting negative testimony of the judge in order to smooth the way for her ascension to the Supreme Court?

Even if (as she probably will be) Judge Sotomayor is confirmed, this issue of “procedure over innocence” will not disappear overnight. Sotomayor will have a vote in the Supreme Court appeal of Troy Davis, another prisoner who claims he is innocent and wrongfully convicted, and who has drawn a slew of public support. Will Sotomayor again turn away from the overwhelming amount of evidence that proves Davis’s innocence, or will she at last show some of that empathy she’s been accused of possessing?

Cases like Deskovic and Davis’s prove the need for legislative reform that will lead to better DNA testing and videotaped interrogations. Measures to prevent wrongful convictions shouldn’t be involved in political games, says Deskovic. “It has nothing to do with being soft on crime, or hard on crime. It’s all measures which have to do with increasing the accuracy of the criminal justice system. Every time the wrong person is convicted, then that means a perpetrator remains free to strike again, which is what happened in my case.”

Sen. Jeff Sessions (Image from wikimedia.org)

Jeff Sessions, the Alabama Senator who led the charge against Sonia Sotomayor’s confirmation yesterday, continued his assault against Sotomayor today. It’s no secret that Sessions fears Sotomayor will inject “racial bias” into her court decisions, a baseless anxiety made all the more laughable coming from Sessions, a man accused by multiple witnesses of being a racist himself.

Sessions, the top Republican on the Judiciary Committee, said he assumes Sotomayor understood and supported the stance of a civil rights group she advised in the 1980s that brought several race discrimination lawsuits for minorities who challenged jobs or promotions given to white employees.

“It raises questions about, is that her philosophy, and is she going to carry that to the courts and apply it even if the law does not support it?” Sessions told Fox News.

The fact that Sessions is even allowed into the room (and permitted to hurl accusations of racism at Sotomayor) during this confirmation hearing baffles the mind. When he was a US attorney in Alabama, Sessions reportedly called the NAACP an “un-American” and “Communist” organization, called a black attorney “boy” and warned him to “be careful what you say to white folks.” Sessions now says none of these accusations are true, and he claims he was “caricatured,” even though at the time, multiple witnesses made the claims.

Sessions unsuccessfully prosecuted three civil rights workers (including Albert Turner, a former aide to Martin Luther King, Jr.), on a supposed case of election fraud for the 1984 election. A June 17, 1985 Chicago Tribune article quotes Maryland state Sen. Clarence Mitchell, chairman of the National Black Caucus of State Legislators: “This is a blatantly racist investigation, no question about it. … The Justice Department has vigorously pursued this action in Alabama counties where blacks have gained political control while ignoring calls for vote-fraud investigations in neighboring counties where whites hold political control.”

Sessions was nominated by President Reagan in 1986 to be a U.S. district judge. However, the Senate Judiciary Committee killed the nomination on a 9-9 vote, partly because some critics of Sessions testified that he had demonstrated “gross insensitivity” on racial issues. A U.S. attorney had testified that he had heard Sessions claim that he had once admired the Ku Klux Klan.

At the time, Sen. Edward M. Kennedy said the vote sends “a clear signal to the Reagan administration that their judicial nominees must meet at least a minimum standard of sensitivity” on civil rights.

And yet, this district judge reject, who has been accused of allowing his racist biases to influence his courtroom behavior multiple times, is now leading the charge against the nomination of Sonia Sotomayor, the woman who would be the Supreme Court’s first Hispanic justice. Today’s New York Times live blog of the confirmation reports (emphasis mine):

Senator Jeff Sessions, the ranking Republican, has started to cut off Judge Sotomayor’s answers as he tries to show that she’s now contradicting things she’s said in the past about how her experiences may influence her decisions.

Sessions Grills on Policy-Making | 10:14 a.m.: Toward the beginning, [Sessions] asked for an explanation about what she’d meant at a law conference when she said that appellate judges got to make policy. She said it would be clear — if people listened to her entire remarks rather than watching a snippet on YouTube — that she was not suggesting judges make policy as Congress does. She said that it was “very clear that I was talking about the policy ramifications of precedent, and never talking about appellate judges or courts making the policy that Congress makes.”Mr. Sessions: “I don’t think it’s that clear.”

Word Play | 10:21 a.m. Judge Sotomayor, confronted by Senator Sessions about how her take on a wise Latina’s decisions differed from that of Judge Miriam Cedarbaum, pointed out that Ms. Cedarbaum was her friend and was sitting in the audience. (In one of her speeches, Ms. Sotomayor had referred to Ms. Cedarbaum’s discussions about the number of women joining the bench and whether those numbers were having any impact.)

Mr. Sessions repeatedly said he was “troubled” and very concerned as to whether she could be impartial if she couldn’t put her experiences aside. Ms. Sotomayor replied that she believed she did apply the facts to each case, and applied the law.

But as far as the “wise Latina judge” remarks, Ms. Sotomayor relented a little bit, saying she had attempted a play on words that “fell flat. It was bad.”

How has no one (I’m looking at you, Al Franken) turned to Sessions and said, “Really, Jeff? Really? You’re afraid a judge is going to inject racial bias into her decision-making process? Really?? Aren’t you the guy who is BFFs with the clan and tried to take down Martin Luther King, Jr.’s assistant? Really??”

The hypocrisy is mind-boggling. Unsurprising, but mind-boggling.

(photo from e-rockford.com)

Instead of bowing out gracefully amid a delicate conversation about race and gender, the most vocal Conservatives have once again sprung from the shadows to hiss and claw at Sonia Sotomayor. While this should be a time of debate and reflection on Sotomayor’s court records, the public conversation has quickly devolved into the equivalent of a Whites Only boys’ club stag party. The whitest, most elite Conservatives are here to remind us why multiculturalism is actually racist, and vaginas secrete crazy juice.

The WTF staples wasted no time in screaming their opinions. Michael Steele’s hero, G. Gordon Liddy, said (outloud) “Let’s hope the key conferences aren’t when she’s menstruating.” Rush Limbaugh compared the nomination of Sotomayor to nominating white supremacist, former Republican Congressman, and founder of Louisiana’s KKK, David Duke. Newt Gingrich Twittered that Sotomayor is a racist, employing the extremely worn-out argument that she is a reverse racist.

It’s already been discussed ad nauseum that Sotomayor’s comments about her race have been lifted out of a much larger point (the speech is 8 pages long and can be read here). In the speech, Sotomayor discusses how her experience as a Latina has, of course, influenced her life, and how her background will inherently influence her opinions in the court. That’s common sense. We are all a product of our races, cultures, and  genders. That’s not something to shriek about, GoRushdoNewt. That’s something to celebrate and embrace. It’s called the benefits of multiculturalism, and it’s exactly the point your boy, Samuel Alito made during his own confirmation hearing. 

Sotomayor never said Latinas are smarter than white men. She was referring to the poor decisions made by specific white males, a point lost when the media initially failed to report on the rest of her speech:

Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society…Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case. I…believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown.

However, to understand takes time and effort, something that not all people are willing to give…For others, their experiences limit their ability to understand the experiences of others. Other simply do not care. Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.

“Personal experiences affect the facts that judges choose to see.” This point is identical to Alito’s own comments about the effects his own Italian-American heritage would have on his judicial decisions. Sotomayor is not a racist, and nothing in her public record suggests she is either a racist or sexist. The right has varied the attacks on Sotomayor, also suggesting she’s too empathetic, or she’ll be an activist judge (as though Thomas and Scalia aren’t activist judges, and in fact all judges harbor opinions and biases, also making them “activists” of those views), and that empathy is somehow a quality we really don’t want in our Justices. 

But there’s a more sinister current beneath this ridiculous debate. Once again, white elites are trying to employ the notion of “reverse racism,” a concept of herculean oxymoronic proportions. The concept of reverse racism grew from the conflation of two entirely separate entities: racism and discrimination.

Anyone can discriminate against anyone. For example, I could hate Welsh people, but that doesn’t make me racist because I don’t have the power to systematically repress and destroy the Welsh community. Now, the African-American, Native-American, Hispanic, and parts of the Asian community were systematically repressed and destroyed in the United States. Hence, they are the victims of institutional racism. There was a time when minorities couldn’t start their own businesses, own land, and in some cases, weren’t even considered human by the United States government. In the cases of Native Americans and African-Americans, their communities were the victims of genocide, historically a big disadvantage when it comes to the success rate of a race. As compensation, the United States government vowed to give their communities a “leg-up” in the future in hopes of repairing the damage done to their communities. Affirmative action is the most meager form of an apology. 

Obviously (and especially in the cases of the African-American, Native-American, and Hispanic communities,) we have a long way to go if you look at something as basic as prison statistics and the percentage of college grads in those communities. I totally agree with GoRushdoNewt that discrimination is wrong, but white men are not the victims of racism. Sometimes, they’re the victims of unfair discrimination, and that’s wrong, but they’ve never been systematically repressed. In the United States, there was never hundreds of years of white lynchings. White men were never kept as slaves. White men could always vote and represent themselves in the government. 

What people sometimes forget is that affirmative action actually benefits society as a whole. It wasn’t created to give anyone an unfair advantage. Rather, it was created to help those disadvantaged in our society in hopes of creating a more egalitarian place where the very best of the best are always given a chance to succeed. What Sotomayor was trying to explain is that multiculturalism isn’t something to fear, but something we should embrace because it makes our country a more diverse place where the best ideas and decisions can flourish.

A culture of drugs and violence harms everyone, not just minority communities. Affirmative action was created to give minorities a chance to escape circumstances created by institutionalized racism. Now, white elites have once again hijacked the term “racism,” to use against Sotomayor, herself a female Hispanic minority. The accusation is all kinds of ridiculous. Nothing in Sotomayor’s record suggests she is systematically keeping the white man down. Additionally, the suggestion that men like GoRushdoNewt have ever been the victims of anything except bad haircuts is laughable. 

This kind of clumsy approach to race and gender will cost the Republicans big. Politico reports that  in 2008, Hispanic voters “represented 7.4 percent of the electorate, up from 6 percent in 2004 and 5.4 percent in 2000. And growing Latino populations in the Midwest and the Carolinas stand to give Democrats an edge in a growing number of swing states.” A good way to permanently lose those votes is to whip accusations of reverse racism in the face of the first female Hispanic nominee to the Supreme Court. 

Sonia Sotomayor (image from pace.edu)

President Obama has selected Sonia Sotomayor as the nation’s first Hispanic Supreme Court judge. As Salon’s Glenn Greenwald wrote this morning, Sotomayor’s appointment is encouraging news. She’s a smart, capable judge. 

Of course, the right is already ripping out their hair in hysterics. Glenn Beck Twitter-wondered if Obama, the “messiah,” has healed Sotomayor’s diabetes yet. Michelle Malkin proved that Twitter’s 140 character cap isn’t too strict to include both a vague sexist and racist remark. 

It’s typical that Conservatives would be annoyed by any appointment of a liberal to the Supreme Court, let alone (perish the thought) a woman and Hispanic. However, Sotomayor is hardly some liberal radical. In many respects, her voting record is similar to Justice Souter’s. 

I’m sure there are valid criticisms of Sotomayor out there somewhere, but aside from Jeffrey Rosen’s petty gossip, all I have seen thus far are poorly disguised racist and sexist remarks about her being the newest token addition to the Supreme Court. As though graduating top of one’s class at Princeton and serving honorably on the appellate court doesn’t qualify Sotomayor as a serious intellectual. 

Sotomayor is a capable addition to the high court. Let’s hope the Republicans don’t embarrass themselves too badly trying to block her appointment. Any personal attacks against her character will inevitably look racist, sexist, and elitist.