Cheer for Your Rapist: The case for empathy on the courts

In one of the most horrific stories of the justice system that I have ever encountered, a Texas teeneage who was kicked of the cheerleading team after refusing to chant the name of her rapist was ordered to pay $45,000 in legal fees to the school as punishment for the "frivolity" of her suit to have this decision overturned.

This week, the Supreme Court announced that they would not hear the case, so the judgement will stand.

Let's all pause a moment to say: WTF?!

Here are the fuller details:

According to court documents, H.S. was 16 when she was raped at a house party by one of her school’s star athletes, Rakheem Bolton. Bolton was arrested, but by pleading guilty to misdemeanor assault, he received a reduced sentence of probation and community service. Bolton was allowed to return to school and resume his place on the basketball team. Four months later, H.S. was cheering with her squad at a game when Bolton lined up to take a free throw. The squad wanted to do a cheer that included his name, but H.S. refused, choosing instead to stand silently with her arms folded.

“I didn’t want to have to say his name and I didn’t want to cheer for him,” she later told reporters. “I just didn’t want to encourage anything he was doing.”

Several school officials of the “sports obsessed” small town took issue with H.S.’s silence, and ordered her to cheer for Bolton. When H.S. refused again, she was expelled from the cheerleading squad. Her family decided to sue school officials and the district. Their lawyer argued that H.S.’s right to exercise free expression had been violated and that students shouldn’t be punished for not complying with “insensitive and unreasonable directions.”

Now there a bunch of things that I want to say about this - including why on earth the school district chose to pursue this throught he courts rather than just letting her back on the team. My preferred solution would have been that the rapist himself be expelled or at least forced to transfer schools or at VERY least kicked off the basketball team. Because, um, hello, he RAPED A CHEERLEADER. Maybe he doesn't so much deserved to get cheered for by... anyone at all?

But I'd actually like to take a step back and use this incident to revisit the conversation about the role of empahty in the Court system. If you remember way back in August of 2009, when the Senate was preparing to vote on the nomination of now-Supreme Court Justice Sonia Sotomayor, there was something of a mini-kerfuffle in which the right stirred up a storm of protest over President Obama's declared preference for a Justice who would have empathy and life experience to round out the Court. Commentators chose to huff and puff about  this as if it were somehow a bizarre notion that judges are influenced by their experience. In point of fact, I anyone who pauses for a moment to reflect should realise that there is always a role for discreition in the application of the law - and even more so in the application of justice.

And this case is a classic example of what this means. Any application of the law has to take into account what is reasonable, proportional and fair. The freedom of speech that this student is asking for is so incredibly small - remember, she doesn't want the right to refuse to cheer for the team, or to boo her assailant as he struts up to the free throw line, just to stand silently and not chant his name while he shoots.

And her reasons for wanting that are so manifestly fair and reasonable, so big in relation to the smallness of her personal response - just to not cheer for a few seconds - that the application of the law in this way seems to most of us gratuitiously cruel.
But is the Appeals court wrong, on a hard reading of the law. Well, probably not in fact. If you extrapolate from this case - imagine a student landing the lead in the school play but refusing to speak any of her lines because she's offended by the play. Well, the school would have the right to replace her. It is true that sometimes when a student speaks in a school setting, as when an employee speaks in a work setting she is representing the school not herself.

But the law shouldn't be applied like a blunt instrument. Judges should have some ability to understand that there are many sides to every case that comes before them, and unless they can put themselves in the shoes of both parties to a dispute their judgements, however technically accurate will always be wrong in any meaningful sense. There will always be a disappointed party in any dispute, and often the disappointed party will have good reasoning on their side and will have been hard done by themselves. Only through leavening our justice with some sensitivity do we stand any hope of being fair to everyone concerned. My personal belief is that in free speech cases, we should err on the side of upholding the rights of the individual to speak wherever reasonable as preferred over the right of an institution (such as a school) to... ummm... force students to publicly celebrate violent sexual criminals. (Sorry, still having trouble getting my head around this one... Failure of empathy on my part for the rapist duly noted - I'll work on that. Well, not much, really. But I'm not a judge to it's OK.)

In this case, I think the Court's decision to uphold the school's decision was wrong on it's face - though arguable under the law. But calling her suite frivolous and demanding her family pay $45,000 in legal costs is a spectacular failure of judgement.

When I first started writing this post, I didn't know the gender breakdown of the 5th circuit court, which made this ruling. Having looked it up now, the 3 judges in question were Emilio Garza, Edith Clement and Priscilla Owen. Two women and one man. The first two were shortlisted by George W. Bush for Supreme Court seats.

Appalling from start to finish.

And finally, can I just say that I would never allow a daughter of mine to attend that Texas High School. Shouldn't other parents express some outrage here?

Sotomayor Confirmed!

By a vote of 61-38.

"When she places her hand on the Bible and takes the oath of office, the new portrait of the justices of the Supreme Court will clearly reflect who we are as a nation," said Sen. Robert Menendez, the Senate's lone Hispanic Democrat.

"Judge Sotomayor should not be chosen to serve on the court because of her Hispanic heritage, but those who oppose her for fear of her unique life experience do no justice to her or our nation. Their names will be listed in our nation's annals of elected officials one step behind America's historic march forward," said Democratic Sen. Dick Durbin of Illinois ahead of of the historic vote.

Welcome Sonia! I'm especially glad for Justice Ginsburg, who clearly has not been enjoying her tenure as the Court's only woman.

JUSTICE GINSBURG: It’s almost like being back in law school in 1956, when there were 9 of us in a class of over 500, so that meant most sections had just 2 women, and you felt that every eye was on you. Every time you went to answer a question, you were answering for your entire sex. It may not have been true, but certainly you felt that way. You were different and the object of curiosity.

I hear ya, Ruth. It's worth remembering that Sonia Sotomayor entered Princeton only a few years after women were first admitted to that University. (They were first admitted as undergraduates in 1969, Sotomayor entered in 1976 - at which point women were still scarce.)

As far as women have come, it's worth remembering that the women at the top of power today - Hillary Clinton and Sonia Sotomayor being telling examples - are really the first generation of women for whom it was even possible to enter elite institutions.

Just think how far the rest of us should be able to go, now that we have so much less to hold us back.

Plus, it's fun to say SotoMAYOR. Rolls off the tongue, don't you think?

Not So Dumb

On the one hand, you have a group of people who are arguing in favor of supporting a candidate for the Supreme Court. They point out that this candidate graduated Summa Cum Laude from Princeton University (accompanied by an undergraduate award for outstanding academic merit). They mention that the candidate went on to Yale Law School where she became editor of the Yale Law Journal and earned a Juris Doctorate degree. Further, they add, after graduation the candidate worked for five years as a Prosecutor, taking on challenging cases including many murders. Her advocates remind you that after leaving the prosecutors' office the candidate took a partnership in a lucrative private practice, specialising in intellectual property law. The candidate has been an appeals court judge for 12 years, where her notable cases included a dramatic intervention to end an ongoing baseball strike, and was a federal judge for 6 years before that.

She was also, as her supporters have not yet gotten around to mentioning, an adjunct professor of law for both New York University and Columbia Law Schools. She is a trustee of Princeton University. Her supporters point out that in addition to all of these CLEARLY relevant displays of intellect and experience, the candidate also happens to be the child of a widowed mother raised in modest circumstances whose achievements are all the more impressive for not having been backed by familial wealth or priviledge. In summary, her supporters conclude, the candidate has met or surpassed every conceivable qualification for the Supreme Court posting for which she is being nominated - in terms of proven academic merit, in terms of depth and breadth of legal experience, in terms of applied legal reasoning, and finally in terms of her ability to provide a valuable new perspective based on her unusual-for-the-Court but not unusual-for-America background.

On the other hand, those who oppose her suggest that might be kind of dumb.

I'm working REALLY hard to find any way of thinking about that particular argument that doesn't rely upon Sotomayor's opponents being blatantly sexist and/or racist. The only thing I can come up with so far is that maybe they were just totally misinformed about her actual credentials. But that seems unlikely since she's been talked about as a likely pick for quite some time.

And so, I am at a loss. I have no desire to "play the race card" still less "the gender card" (although I would gently suggest that there's something unseemly about talking of females as if they represent a small minority before whom the Democrats quaver when in fact we're a slight statistical MAJORITY...) since someone somewhere decided that even raising the possibility of sexism or racism automatically invalidates any other arguments you may make... So I'm not sure where to go here.

Perhaps I could just politely suggest that those who suggest she is somehow an intellectual lightweight could point to specific opinions or writings that they consider in some way deficient?

Morgenthau on Sotomayor

Legendary Manhattan DA Bob Morgenthau weighed in to the discussion of (now) Supreme Court Nominee Sonia Sotomayor a few weeks ago with a strikingly strong letter in the Wall Street Journal:

Some have suggested that the judge is "liberal," and that allegation makes me smile. Judge Sotomayor was a fearless and effective prosecutor while she was here, and I am sure that none of the defendants in her cases thought of her as a "liberal." To be sure, she is in favor of civil rights, in the sense that she believes there should be no discrimination against minorities. And she understands poverty, and does seem to favor government action that will provide a safety net to the poor. Those are, however, not exactly radical positions.

As is very evident from the opinions she has written, Judge Sotomayor believes in the rule of law. Some notice that she is Hispanic and female, and would typecast her as an "activist." But I look at her record, and see an able champion of the law serving with great distinction on the second most important appellate court in the world. Judge Sotomayor is highly qualified for any position in which wisdom, intelligence, collegiality and good character would be assets.

Robert M. Morgenthau New York Mr. Morgenthau is district attorney of the County of New York.

Sotomayor was a prosecutor under Morgenthau for five years, early in her career. Indeed, one of the striking things about her is how very much she is a New York success story - hailing from the Bronx, working for the DA's office, serving on New York's Federal bench. And, of course, endearing herself to Yankees fans in the 90's by saving baseball from a crippling strike...

More on Sotomayor (Loving SCOTUS Blog...)

SCOTUS Blog has an excellent post summing up likely Conservative attacks against the nominee and why, ultimately, they do not expect these attacks to be successful.

Republicans cannot afford to find themselves in the position of implicitly opposing Judge Sotomayor. To Hispanics, the nomination would be an absolutely historic landmark. It really is impossible to overstate its significance. The achievement of a lifetime appointment at the absolute highest levels of the government is a profound event for that community, which in turn is a vital electoral group now and in the future.

Equally significant for not only Hispanics but all Americans, Sotomayor has an extraordinarily compelling personal narrative. She is a first generation American, born of immigrant parents. She grew up in a housing project, losing her father as
an adolescent, raised (with her brother) by her mother, who worked as a nurse. She got herself to Princeton, graduating as one of the top two people in her class, then went to Yale Law. Almost all of her career has been in public service–as a prosecutor, trial judge, and now appellate judge. She has almost no money to her name.

(...)

Objectively, her qualifications are overwhelming from the perspective of ordinary Americans. She has been a prosecutor, private litigator, trial judge, and appellate judge. No one currently on the Court has that complete package of experience.

Read the whole thing - it's fascinating.

Sotomayor: Her (Legal) Opinions

There will no doubt be a hurricane's worth of hot air blown about Sonia Sotomayor as Republicans attempt to position her as a liberal extremist who hates puppies, and Democrats as utterly mainstream, so conventional in her views as to be practically tedious (for this appears to be how Supreme Court nominations go...). But in the midst of wading through this shout fest you might find it useful to get some facts.

The invaluable SCOTUS Blog has a long series taking a detailed look at Sotomayor's actual rulings on matters before the Federal and Appeals courts on which she has served.

Here's a rundown of her opinions in civil cases.

Since joining the Second Circuit in 1998, Sotomayor has authored over 150 opinions, addressing a wide range of issues, in civil cases. To date, two of these decisions have been overturned by the Supreme Court; a third is under review and likely to be reversed. In those two cases (and likely the third), Sotomayor’s opinion was rejected by the Supreme Court’s more conservative majority and adopted by its more liberal dissenters (including Justice Souter). Those outcomes suggest that Sotomayor’s views would in many respects be similar to those of Justice Souter.

Here's lots more on a wide range of cases.

Supreme Court Pick to Be Announced Today: Expected to be Sonia Sotomayor

Today at 10:15 AM Eastern Time, President Obama will make a live address from the White House in which he is expected to announce his appointment to the US Supreme Court.

Both the New York Times and CBS News are reporting that the nominee will be Sonia Sotomayor, appeals court judge on the 2nd Circuit Court of Appeals. Born in the Bronx to Puerto Rican parents under very humble circumstances, Sotomayor certainly appears to meet Obama's expectation for a Justice who can empathise with the struggles of ordinary citizens. She would be the first Hispanic ever to be appointed to the Court, and only the third woman (the second on the current Court, joining Ruth Bader Ginsburg).

Confirmed to the Appeals court by President Clinton in 1997, she has also in her career gained support from major Republicans as well - her first Federal court appointment was made by President George H. W. Bush in 1991.

Empathy and the Court

In reflecting upon his forthcoming choice of a Supreme Court justice to replace the retiring Justice David Souter, President Obama recently described how he would approach what he called the "among my most serious responsibilities as President."

"I will seek somebody with a sharp and independent mind, and a record of excellence and integrity," he said. "I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a case book, it is also about how our laws affect the daily realities of people’s lives, whether they can make a living, and care for their families, whether they feel safe in their homes, and welcome in their own nation. I view that quality of empathy, of understanding and identifying with peoples hopes and struggles as an essential ingredient for arriving at just decisions and outcomes."

Reflecting several centuries worth of considered legal philosophy, Republican National Committee Chair responded to this with a considered restatement of that Party's core judicial argument:

"I don't need some justice up there feeling bad for my opponent and short changing me and my opportunity to get fair treatment under the law. Crazy nonsense empathetic. I'll give you empathy. Empathise right on your behind. Crazy!"

Now, I realise that Steele's position may contain more legal jargon and philosophical concepts than are easily understood by the lay reader, so let me make and effort to clarify his meaning for you.

Steele's argument essentially boils down to this: The law exists in a clear and knowable form, and the job of a justice is merely to apply this law to the individual case that comes before her (or him). It would not be desirable for a justice to experience empathy or understanding of the litigants appearing before him, as this would prevent them from applying the law in an impartial manner.

This is not a ridiculous argument. It's just incorrect.

In fact, what Steele is talking about here is a pretty good description of the work of judges in the lower courts - in most cases that come before a lower court judge, or even an appeals court judge, all that's required is to look at the facts, look at the law (including precendent) and determine how the one is applied to the other.

However, in some appeals court cases and in most cases before the Supreme Court, this simply isn't the job description. The function of the Supreme Court is to handle cases of interpretation - instances where it is not clear how the law can best be applied. More often than not, at the Supreme Court level you have to make choices about RELATIVE applications of the law - deciding priorities. For instance, does that State's right to ensure a safe and orderly environment supersede the individual's right to protest to such an extent that it is reasonable to impose limits on speech?

Does a property owner's right to freedom in their own possesions take precedence over the state's interest in regulating construction on that property?

When one parent wants a terminally ill child to be put on a do not recusitate order, and the other parent strongly opposes this - how to you break that deadlock?

When a small business owner wants to do drug testing on his or her staff, does that owner's concern for the health and safety of his customers and employees take precedence over the employees right to avoid unwarranted search and seizure?

What's the fair thing to do when the law is ambiguous, contradictory or simply silent on an important issue?

What Michael Steele appears to miss in his diatribe above, interestingly, is that empathy works BOTH WAYS. It's not just a question of a justice pitying your adversary and punishing you for it. Ideally constructed, the justice should be able to think through the motivations of both parties before making her judgement. It would be easy, for instance, in the case of the small busines owner conducting drug testing, to apply a strict interpretation of the constitution that declares unwarranted searches without probable cause to be banned - but before she does that, I would hope she would think through the concerns of the business owner worrying that an employee on drugs could harm his customers or make damaging mistakes. I hope she'll consider that the employee has a choice to work there or not, and that this action may be a reasonable and proportionate way for the owner to protect himself and the public. I hope she'll give that fair consideration, understanding both people's point of view.

That's empathy.

What Steele was talking about - seeing only one person's side to the detriment of the other side - isn't empathy at all. It's prejudice.

And in my view, when a court is capable of ruling that a woman can't sue for discrimination even though she's been paid less than male colleagues for years, because the company was successful at hiding that information from her until it was too late - in my view, that's prejudice too.

What Steele objects too isn't that Obama wants to encourage empathy, it's that he wants to end the prejudice on the court that for years now has always favoured the wealthy and the comfortable in its decisions. That kind of consistent record of ruling doesn't betray a strict application of the law, it betrays a skewed interpretation.

Obama Interrupts Gibbs' Briefing to Talk Souter

Hopes to have an appointment in place by October, when the next judicial session starts. Check out the video:

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

Obama's First Supreme Court Appointment? Souter May be Retiring

Supreme Court justice David Souter is rumored to be planning his retirement starting in the next judicial session (which kicks off in October). That means Obama will have the chance to make his first Supreme Court appointment.

Souter, though appointed by a Republican President - George HW Bush - has evolved into one of the more reliably liberal voices on the bench. Therefore his retirement is unlikely to tip the balance of the judiciary, since Obama will presumably appoint a fellow liberal to replace him. But it does give the President an opportunity to shape the bench - a task which, as a former Consititutional Law professor, he should be well qualified for.

Vice President Joe Biden is said to be drawing up a list of prospective names. Fabulous. I love Joe to bits, but I think this week has proven that heh is stupendously effective when doing that type of hard work behind the scenes, but not so much maybe with the going on television.

McCain Win Would Mean Shift the Supreme Court Sharply Conservative

Among a whole raft of issues vitally at stake in this election (the environment, the economy, the war - oh my) it is also worth considering the role that the next President will play in shaping the nature of the Supreme Court for a generation to come. Right now the Court is finely balanced, with a narrow Conservative majority that has succeeded in rolling back constitutional protections in dozens of key areas. Take, for just one egregious example, the dreadful example of the Lily Ledbetter case. Ms Ledbetter was a longtime employee of the Goodyear tire company who was routinely paid significantly less than any male colleague in the same role. Ledbetter won a discrimination case based on the clear presentation of facts and was awarded damages by a jury. The Supreme Court, however, led by Bush appointees Roberts and Alito, ruled that she had waited too long to file her discrimination suit and set a short deadline for such claims to be raised - despite the fact that employees often find it difficult or impossible to uncover evidence of pay discrimination until it is too late. (Question, do you know how much your colleagues earn compared to you?)

With a McCain victory, this new conservative bent of the Supreme Court would almost certainly be even stronger - especially considering that the judges likely to retire are all in the liberal minority.

The next appointment to the court will almost surely fill the seat now held by one of the court's liberals, whose average age at the beginning of next October's term will be 75. For Obama, any initial appointment would likely replace one liberal with another, albeit with a younger and perhaps more outgoing advocate for his views of the court's role.

But a McCain victory could give the conservative bloc a clear-cut majority for years to come. President Bush has provided the model with his nominations of Roberts, to continue the conservative legacy of former chief justice William H. Rehnquist, and Samuel A. Alito Jr., to replace the former justice found most frequently in the middle, Sandra Day O'Connor.

On the other hand, with an Obama victory we would be chosing a President with an exceptionally strong understanding of our Constitutional rights and values (remember, he was a civil rights lawyer and constitutional law professor for many years in Chicago) and has a consistent track record on civil liberties.

I don't know about you, but if I weren't already excited about his personal qualities and his sound policy proposals, that alone would be enough to make me excited about voting for him.