The Inquiring Manatee

Sotomayor Vote: A Great Day for Americans

          

Within a couple of hours, the U.S. Senate undoubtedly will have voted to confirm Judge Sonia Sotomayor of the 2nd Circuit U.S. Court of Appeals to the Supreme Court.
     Despite her ill-advised and easily mischaracterized "wise Latina" quotes, Judge Sotomayor is extremely well-qualified for the Court. Her 17-year record on the bench was difficult for ideological opponents to attack, even though her opinions have been more workmanlike than truly intellectually distinguished in the vein of Learned Hand or Benjamin Cardozo, great predecessors on the New York City-based 2nd Circuit appeals court.
      More than a deserved personal triumph, the confirmation is a win for President Barack Obama and, even more importantly, a signal to women, to all American minorities and, yes, to disaffected and angry white males that change truly has come to this country. Any meritorious person of any minority can now work and hope for any public honor and office, including the presidency.
      Today, the first Hispanic on the high court. Tomorrow, if not Sotomayor than somebody else, the first Hispanic president. The first woman president. The first gay president. The first Asian-American president. The first Native American president.
       The promise of America is being realized before our eyes and the eyes of history. Let us celebrate. And let us hope that in her new robes, Associate Justice Sonia Sotomayor rules as a wise Latina -- and always, as well, as a wise American.
   
    Martin Kasindorf is a graduate of the Harvard Law School and a member of the California legal bar on inactive status.

Sotomayor Hearings: The Court is Now in Sessions

    

     WILMINGTON, Vermont -- It is unfortunate that, in Sen. Jeff Sessions, R-Alabama., Republicans on the Senate Judiciary Committee do not have a ranking member matching the stature and intellect of committee chairman Patrick Leahy, Democrat of Vermont.
     TV viewers of this week's Sonia Sotomayor confirmation hearings are getting a lurid peek at Sessions and seeing him for what he is: a crabbed, right-wing Snopes who embodies what is wrong with today's rump, Southern-based Republican Party.
      I first saw Sessions during the 1992 presidential campaign when I was traveling with President George H. W. Bush's re-election campaign. He was making a speech -- in Birmingham, I think it was -- and I was impressed only with his ambition.
      Sessions lacks grace. He has that mean little Faulkner Yoknapatawpha County mouth, with an accompanying world outlook.
      In lecturing Sotomayor constantly this week about the need for judges (he used to be one) to hew strictly to existing law, not letting their life experiences influence their decisions, Sessions typifies the desperate fear of conservatives that judges will carve out new rights for the poor and powerless, upsetting the status quo.
      One of the many factors Sessions forgets or ignores is that the Supreme Court of the United States frequently is called upon to act in unsettled, gray areas of the law. It is at those times that the mettle and reasoning of a justice are tested. In situations without clear precedent, it is of course prudent to rule as narrowly as possible, shying from finding and grappling with cosmic constitutional questions that may not be fairly and maturely presented.
      Even in narrow rulings, however, abstract reasoning alone may not yield a satisfactory answer in the case at hand. It is then that a lifetime of broad experience that has produced, yes, the empathy of a wise Latina -- or a wise white male, or a wise black woman -- should be called into play to help produce a result that directs the law toward equity.
       Sadly, such a concept of well-rounded jurisprudence is anathema to the rigid Sessions. He is trying to nail Sotomayor into his own Procrustean bed of dead-brained, passive judicial decisionmaking. Let the world watch, and see an illustration of the kind of thinking that in apartheid South Africa was called verkrampte -- cramped, as opposed to verligte, enlightened.

Bush v. Gore Rivals Team Up Against Proposition 8

      I never thought I'd see Ted Olson and David Boies, who opposed each other in arguing Bush v. Gore to the U.S. Supreme Court in those tense Florida-recount weeks of 2000, join legal forces.

      The conservative, Republican Olson and the liberal Boies -- two of the finest appeals lawyers in America -- went at it tooth and nail on behalf of their parties' competing presidential candidates. I was observing them from Tallahassee, where I spent five post-election weeks covering the high-quality legal maneuvering in the state courts of Florida for USA TODAY.

       Boies had a hard time of it before the nine U.S. Supreme Court justices. He was brought in after my old Harvard Law School friend and classmate, Laurence Tribe, had lost a first round before the court. Neither Tribe nor Boies ever had a chance. Clearly, the partisan and ideological fix was in. As the ultimate Bush v. Gore 5-4 opinion showed, there was no way the Republican majority was going to let Al Gore get his recount continued. The various opinions adding up to a bare majority were all over the lot. In its poorly reasoned, result-oriented writings, the majority opinion reflects a low in Supreme Court jurisprudence that hadn't been seen since Dred Scott v. Sandford in 1857.

       Before Boies went north from Florida to argue in Washington, I met him outside the Florida Supreme Court and elsewhere in Tallahassee. He was extremely impressive -- one of the busiest people in the U.S. at that time, but still always taking the time to answer news media inquiries and explain his legal strategy. I was floored by his combination of intellect and sheer niceness. 

       Also outside the state Supreme Court, I met Olson at a time before he became officially involved in the case. Introducing myself to him and to his wife, Barbara Olson, I noted that I formerly worked for his law firm, Gibson, Dunn & Crutcher, as an associate attorney in Los Angeles and New York. Olson was distant, less outgoing than Boies but pleasant enough.

       Ten months later, on Sept. 11, 2001, Barbara Olson was killed when the al-Qaeda skyjackers slammed American Airlines Flight 175, on which she was a passenger riding from Dulles Airport to Los Angeles, into the Pentagon. I was saddened. 

 

       The Boies-Olson agreement to work together against the mean-spirited Proposition 8 shows once again that lawyers can be professional adversaries one day but can be personally friendly and can work together on another case the next day. The best lawyers learn to not take their courthouse animus home. 

       I don't think that the federal lawsuit that Boies and Olson filed in San Francisco U.S. District Court has much of a chance, certainly not if it ever gets to the Roberts-Alito-Scalia Supreme Court. But it's heartening that both lawyers, especially Olson with all he has to lose in goodwill within the conservative camp, are on the same side in perceiving the deep injustice of a majority voting to strip a minority of the fundamental civil right of marriage. They are not likely to prevail, but you can count on them to make the most cogent arguments possible.  As a lawyer, I'm proud of them. For Ted Olson, after all he's done for the right-wing Federalist Society, the Prop 8 case may prove to be his finest hour in the law.

      

Looks Good for Judge Sotomayor

   

It ain't Pin Point, Ga., but the tough and teeming South Bronx makes an inspiring setting for the rags-to-riches tale of an underprivileged minority kid fated to become an associate justice of the United States Supreme Court.
     Clarence Thomas was a poor black child in Georgia. Sonia Sotomayor, President Barack Obama's choice to succeed the estimable David Souter on the high court, has an equally inspiring personal story. Her Puerto Rico-born father died when she was 9. Her mother worked two jobs to provide for Sonia and her brother Juan. Sonia was diagnosed with juvenile diabetes.
     She overcame her many obstacles to graduate summa cum laude from Princeton, to edit the Yale Law Review and to go on to a sterling career as a prosecutor, federal district judge and judge on the Second Circuit U.S. Court of Appeals in New York.
     A few right-wing voices may carp, but there is little doubt that Sotomayor will be confirmed as the first Hispanic justice on the Supreme Court. (Oh, there are some who say that the great Benjamin Cardozo, who was of distant Portuguese-Spanish Jewish, or Sephardic, ancestry, would count as a Hispanic, but not by modern reasoning and common sense.)
     Obama, showing himself every day to be essentially a centrist and far from a liberal (but that's OK with me), has followed the Bill Clinton route of choosing a court nominee who will not rouse a bitter confirmation battle with the far right -- even though, in this case, Obama probably could have gotten away with someone quite a bit more liberal than Sotomayor. The right may still be loud and mouthy, but its clout in the Senate is far diminished.
      The slavering dogs will bark to raise money for their interest groups, but the Sotomayor caravan will pass on. And that's a good thing for America, its system of justice and its ability to show the world once more that a scholarly and ambitious person of color can achieve any dream.
    

A Modest Proposal on Guantanamo

    

As Republicans run wild on the issue of closing the Guantanamo Bay military prison and moving the 240 inmates to facilities on U.S. soil, even Senate Democrats can't be blamed for shying from President Obama's plan to remove this symbol of Bush administration high-handedness and torture.
      The NIMBY fears so easily stirred up by the entirely emotional issue, even though the detainees would be secured in Supermax federal lockups from which no one has ever escaped, have potentially vulnerable politicians running scared of a future opponent's simplistic 30-second commercials.
      But before Congress prevents the administration from moving anyone to the U.S. mainland from Guantanamo -- thereby making it virtually impossible to convince any other country to accept a detainee -- policymakers should consider an alternative that could be a win-win choice for everybody, except perhaps for the terror suspects.
      Want to gratify the rest of the world and frustrate jihadist propagandists by closing Guantanamo? Fine, go right ahead. Want to keep any Guantanamo prisoner out of any U.S. states? You can do that, too.
      The strategy: Relocate the prisoners to a high-security facility that would be newly built and opened in Guam, American Samoa or -- just a short flight from Guantanamo -- the U.S. Virgin Islands. (Quiet St. Croix, somewhat off the tourist track, has the most land. Just don't put the Muslims in Christiansted, the island's chief city.)
      All these potential prison sites have these advantages:
      -- They're on U.S. soil, so Obama won't have to back down on that point.
      -- Residents there have no votes in Congress, only nonvoting delegates.
      -- Building and operating the new prison would create local jobs, a prospect that could mute opposition from NIMPT (Not in My Palm Tree) forces. Some of those giant Samoans would make great prison guards after their careers as NFL linemen end.
      -- The locations are in tropical settings that beat the bleakness of tropical but barren and ugly Guantanamo. How could jihadists or European moralists object to housing prisoners in the balmy South Pacific, the North Pacific paradise of Guam or especially the lovely Virgin Islands? (There, the alleged terrorists would be getting a symbolic downpayment on the 78 virgins, or whatever the number is, that jihadi "martyrs" are promised in heaven.) Or the inmates could learn the Argentine tago in Pago Pago.* 
      The president's executive order to close Guantanamo by the end of 2010 would not be blocked. The detainees, whether tried by Obama's tweaked military commissions or detained Cheney-style without charges, at least would have more pleasant quarters under the American flag.
       So how about it, Mr. President and members of Congress? Try the American Territorial Solution to the Guantanamo dilemma.
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* That's a rhyme. Pago Pago, capital of American Samoa, is pronounced "Pango Pango."      
      

Welcoming Gay Marriage in Maine

                

When my wife Irma and I travel to our Vermont summer home this year, we will feel even more at home in New England than we always do.
     Following the example of Vermont's progressive legislature, the legislature of Maine on Wednesday enacted a law allowing gay marriage. Gov. John Baldacci signed the bill. Now, just about all of New England, including Massachusetts and Connecticut, provides for same-sex marriage. Rhode Island probably will not be far behind. And in the Midwestern heartland, there is Iowa.
     My wife and I support same-sex marriage. Everybody of any sexual orientation has the right to pursue happiness. The federal and state constitutions guarantee equal protection of the laws.
     We vigorously opposed Proposition 8, California's ill-considered move last November to abolish the briefly court-sanctioned gay marriage. The marriage of one of my cousins -- a happy event -- is now in legal limbo as the California Supreme Court weighs a constitutional challenge to Prop 8 and also must decide the validity of marriages contracted before Prop 8 lowered the boom.
      As California becomes a surprisingly unpleasant place for human rights advocates, we retreat in relief to enlightened New England.
      Thank you, Vermont. Thank you, Maine, Connecticut and Massachusetts.

The David Souter I Knew (But Didn't)

    

David Souter would sit quietly in a far corner of the classes we took together at Harvard Law School. He seldom asked questions or volunteered information. He wasn't what anyone would call a leader of the Class of 1966, which included only 25 women among the 515 students. Few would have picked him as the one member of the class to make it to the Supreme Court of the United States.
     I would have picked Laurence Tribe -- Larry, my old study-group mate -- who was blindingly brilliant, speedily became a law professor at Harvard and went on to a sterling career as an appeals advocate before the Supreme Court, even arguing one of the Bush v. Gore cases. But Tribe was long considered too liberal to get past a Republican filibuster in the Senate. Now that the Democrats have much more Senate power and Tribe could be confirmed, it's probably too late for anybody in his 60s, as Tribe is, to be nominated by President Barack Obama.
     As for Souter, when called upon by a professor he always exhibited an intelligence and depth that were the equal of anyone at the school. He wasn't well-known, but he was respected.
     Souter, we knew, was going to return to his native New Hampshire and start a legal career. Years later, we learned how he had reached the Supreme Court. As state attorney general and then as a state judge, he attracted the political patronage of the powerful Republican governor, John Sununu. When Sununu became President George H. W. Bush's White House chief of staff, he boomed Souter for the federal bench, first spearheading a seat for him on the First Circuit U.S. Court of Appeals, then a nomination for the Supreme Court.
     The rest is history. Everybody knows how disappointed Sununu and other conservatives were in Souter after he took the high bench in 1990 and proceeded to support Roe v. Wade in 1992, making a mark for himself as a moderate liberal and a mainstay of the court's perennial 4-justice minority.
     The disappointment led Bush in 1991 to vow never to make the same mistake again when another vacancy opened up. He cynically appointed the deeply conservative and marginally qualified Clarence Thomas, daring Democrats to oppose an African-American. Thomas proved to be everything conservatives could wish for -- a bitter, silent acolyte of the much more articulate Antonin Scalia.
     Souter's questions to lawyers arguing before the court were always thoughtful and cogent. Thomas almost never asks anything at all.
      President Obama's first criterion for replacing Souter, I think, should be to find someone who is at least verbal, unlike Thomas. We should expect nothing less from a Supreme Court associate justice. Beyond that, I'd be satisfied with another moderate liberal like Souter. There are those on the left who insist that Obama should find a "liberal Scalia," every bit as far-out on one wing as Scalia is on the other. I don't expect Obama to pick someone like that, even if such a person could be found. It's a bit too early to be cocky about a supposed filibuster-proof Democratic majority in the Senate. And a moderate liberal would have a much easier time getting confirmed.
      As the speculating goes on, David Souter gets ready to return to his beloved New Hampshire. He'll leave Washington in great relief. He tells friends he's had "the best job in the worst city." Having worked there for six years myself as a White House correspondent, I can see his point in some respects. The city is humid and sweaty in spring and summer, icy in winter (though balmy compared to New England). If the bachelor Souter sought female companionship, Washington was a bad place to find it. In my experience, the women there are all-out careerists with romance far from their minds. But Souter is a runner, and the running isn't bad at all in D.C.
      David Souter has earned the thanks of a grateful nation as he retires with a full pension and goes home to Weare, N.H. I hope he finds everything he's seeking.

Mixed Feelings on Ted Stevens

  When Ray Donovan, the Reagan Labor secretary who lost his job over corruption charges, was eventually acquitted, he said: "Where do I go to get my reputation back?"

   Ted Stevens, 85, must be thinking the same thing today -- a day he's probably interpreting as a triumphant vindication -- after Attorney General Eric Holder moved to drop the federal corruption charges that had resulted in a conviction and the loss of his senator-for-life seat in Alaska last November.

    Holder said he acted because of Stevens' age, the fact he's no longer in the Senate and the need to send federal prosecutors a message that he won't tolerate misconduct of the type alleged in the Stevens case: a gross failure to turn over to the defense material that the Republican senator's lawyers could have used in cross-examination to impeach government witnesses. Holder said he acted in the interests of justice.

   This is undoubtedly true. It was looking as if an appeal by Stevens would have been successful, resulting in a new trial. But to add a political dimension, it's also apparent that Holder was throwing another Obama lifeline of bipartisanship to Capitol Hill Republicans. In this case, Holder was the good cop and George W. Bush -- under whose administration the prosecutorial misconduct occurred -- was the bad cop. How could Republicans fail to reciprocate such a neatly conciliatory gesture? Well, the answer is: "easily." They won't reciprocate. They wouldn't acknowledge bipartisanship if it bit them on the butt. Nevertheless, Holder and the president deserve credit for this gracious gesture, ruling out a new trial for the aged Stevens.

    If I were Stevens, however, I wouldn't overdo the triumphalism.  There was ample evidence for conviction. He never should have accepted the thousands of dollars in construction freebies on his backwoods vacation home that were provided by a big-time oilman doing business with the U.S. and Alaskan governments. Stevens, egotistical enough to have enjoyed it when sycophants slapped his name on Anchorage's airport, was at last exposed as arrogant, out of touch, too long in power. His defeat, even via a flawed criminal justice process, was timely and good for democracy.

   Now go enjoy your sunset years, Uncle Ted.

 

Swiss Cheesiness: Secret Bank Accounts Under Threat

   

On a day of riding Switzerland's crack trains around that small country in 1989, I stopped off to tour a little-known city called Zug, which means "train." I was astounded to see a skyline of modern office towers, an unknown New York in the Alps. What was going on?
    The buildings were there because Swiss banks were overflowing with money in secret bank accounts set up under Swiss laws for tax-evading Americans, kleptomanic African strongmen and Mexican drug bosses. The banks, paying little or no interest on this ill-gotten money or even charging the depositors for the convenience of keeping their stashes hidden, had to do something with the inflows. So they lent it out for the benefit of the prospering Swiss economy, building those towers to house all the lawyers dealing with the rich and secretive.
     What brings all this back to mind is a lawsuit announced by the U.S. Internal Revenue Service seeking to force the United Bank of Switzerland (UBS), Switzerland's biggest bank, to disgorge the names of 300,000 Americans allegedly dodging American taxes by maintaining those famous, numbered accounts.
     UBS had offered some concessions, paying a multimillion-dollar fine and yielding 300 names of big tax cheats to the feds, but doing even that much has enraged Swiss politicians and in turn much of the yodeling citizenry. All the Swiss are nationalistically up in arms over this attack on the foundations of their prosperity: their chosen profession as money-launderers for the world. And in other offshore tax havens such as the Cayman Islands, there's a lot of trembling these days. If the IRS gets its way, bank secrecy will be a thing of the past. To me and to other U.S. taxpayers, that would be a good thing.
     Public radio's "The World" program on Wednesday ran a voice-doctored interview with an anonymous American millionaire who acknowledged having placed $900,000 in a Swiss account (later moving the money among several other countries) to escape U.S. taxes. The guy didn't say so, but his nest egg might well have been amassed in an illegal way -- in pimping or illegal bookmaking or even kidnapping.
     Without regard to how such a sum was amassed in the first place, earnings on the money wouldn't necessarily be taxed in the U.S. Americans can avoid federal and state taxes on the earnings on their money simply by investing in state and municipal bonds, particularly those issued in their own states. So there would be no reason to hide money abroad, particularly at no interest or low interest, unless the money originally had been piled up by evading due taxes on it as it was being earned. These are bad guys who have been cheating their government for years. Now the government is coming after them, and hard, needing its revenue more than ever.
     If the Swiss lose the cachet of the term "Swiss banker," supposedly standing for probity and canniness, I won't mourn. On a 1964 trip around Switzerland on a Vespa motorscooter, I found the Swiss to be cold, money-grasping and inhospitable. After a hard morning on the scooter I stopped off for lunch at an outdoor cafe in Lucerne, overlooking the beautiful Lake Lucerne. I guess that as a road-grimy American student tourist I didn't meet the place's dress code, because the waiters resolutely refused to approach my table for 45 minutes until I got the message and left. I've never forgotten the snobbish snub. So don't ask me to feel sorry for the Swiss if their corrupt economic foundation crumbles.
     Taking some of the jobs from people in those bizarre Zug edifices would mean more jobs in the office buildings of America. We need that these days. Sorry, Zug.
     
     

    

How Not to Sell Your 14-Year-Old Daughter

   

There's a sad-sack picture of Greenfield, Calif., migrant field laborer Marcelino de Jesus Martinez, 36, in today's Los Angeles Times. He looks woebegone because he's in the Monterey County jail, charged with making a deal to give his 14-year-old daughter in marriage to 18-year-old Margarito de Jesus Galindo in return for a dowry of $16,000 cash, 100 cases of beer and -- how apt in this case -- a certain quantity of meat.
    The strange case spotlights the presence in this country of a group of several thousand Indian immigrants from rural Oaxaca, Mexico, called the Triqui. Migrant workers, they don't speak English. They don't even speak Spanish. They don't read in any language. And this hombre Martinez is no Einstein, either.
    Authorities never would have known about this allegedly criminal deal if would-be groom Galindo had kept his promise to his putative in-law and paid up for the intended early-puberty esposa. Instead, he kept the chiquita and the dinero -- and Martinez was misguided enough to complain to the policia about the unpaid debts. Hey, he might as well have said, that pendejo has my little girl, so now get me my money. Let's have some justice here! And don't forget the meat!
    Greenfield Police Chief Joe Grebmeier, who works smack in the middle of John Steinbeck's Salinas Valley farm milieu, is quoted as showing something of an understanding attitude toward the Father of the Year. "What we're dealing with now is a difference in cultures," he told the Times' Steve Chawkins (with whom I covered the Michael Jackson child-molestation trial in 2005). "All of this would have been perfectly legal where they came from."
    Well, maybe so. The Triqui are Mexico's version of hillbillies, though who knew the Appalachians extended as far south as Oaxaca? But this is America. When you come here, you should ask a few questions about what the local laws are -- and then obey them. An unasked question in this case is: Who let these backwoods illiterates into the U.S. in the first place, assuming they are here legally? Imagine how they're at the mercy of the farmers who imported and employ them. We all endorse Emma Lazarus' poem welcoming "your tired, your poor, your huddled masses," but let's have some standards of literacy and not admit the most backward of the huddled, who are bound to be easily exploited patsies.
     Oh, and as for the 18-year-old Galindo, who has been living with his child girlfriend without tying the knot: Officials are considering charging him with statutory rape. Considering! In my opinion, they should book the guy -- unless, again, we're making cultural allowances for 16th Century ignorance instead of enforcing the laws.