hunter of justice

Sotomayor unleashed

The current issue of Latina magazine contains a feature on the personal side of Justice Sotomayor, written by a good friend, Sandra Guzman. The magazine has posted excerpts on its web page, including the following:

One evening this past spring, as we prepared dinner for a group of friends, I asked her for some advice. She listened closely as I relayed my marital problems. I still recall her words, which I carry in my heart to this day. She told me that we have been wrongfully taught the Cinderella fairy tale as a paradigm of what happy relationships are supposed to be. And when we fall short of that, we suffer for it. To find happiness in love, she said, we have to make up our own rules. It’s not easy, but it’s doable. The process may involve unlearning what we have been taught and then figuring out what makes us happy. There are all types of relationships and arrangements to choose from. Of course, the trick is finding a companion who shares those values.

Love is not the only area where Justice Sotomayor has faced her fears and worked her way through them. Even as recently as April, she had doubts about her potential rise to the Supreme Court. She had been on President Clinton’s Supreme Court short list, but no seats became vacant. When Obama won the White House, the legal world hedged their bets on the brilliant judge with the impeccable résumé. But weeks before Obama made public his pick to replace Souter, Sotomayor called her confidante and good friend [NY attorney Lee] Llambelis, telling her that she wanted to pull her name from consideration.

“You have to understand that Sonia is a very private person,” Llambelis explains. “She didn’t want to go through another public vetting process and a potential public dressing-down by those on the Republican right who opposed her nomination. Sonia was happy being a Federal Appeals judge, loved her life in New York and felt fulfilled. She worried about having less time to spend with her mother, family and friends, particularly given her mom’s age and potential health complications.” Llambelis recalls listening to her friend, whose “I can” mantra was being drowned out by last-minute uncertainty. She told her to think beyond herself. “At this point, this is not about you,” Llambelis said to her. “It’s about little girls and boys, brown and black, who live in the projects and in poor communities around our nation, who can dream bigger if you are in the Supreme Court. You cannot back down now.” Sotomayor promised to think about it overnight. And in the morning, she woke up with a lighter heart and a bigger purpose.

In her short tenure so far on the court, the justice we have witnessed is no shrinking violet. She asks tough questions and is not intimidated by her rookie status. Sotomayor’s charm and confidence surprise very few people who know her, including the man who nominated her. While President Obama’s staff was preparing Sotomayor for the confirmation hearings in a White House office called the War Room, the team covered all the potentially explosive questions and briefed her on every minute detail, including how to dress for the cameras. They even advised her to keep her nails a neutral shade, which she did. But on the day of the White House reception celebrating her appointment, Sotomayor asked the president to look at her freshly manicured nails, holding up her hands to show off her favorite fire engine–red hue. The president chuckled, saying that she had been warned against that color.

She sure had, but Sotomayor was not finished. She then pulled her hair back behind her ears, exposing her red and black semi-hoop earrings, a beloved accessory among Latinas across America—from the South Bronx to Houston to East Los Angeles.

Obama joked that she had been briefed on the size of the earrings as well. Without skipping a beat, Sotomayor replied: “Mr. President, you have no idea what you’ve unleashed.” He responded, “Justice: I know and remember it’s a lifetime appointment. And I and no one can take it back.” And that, as they say, is the final verdict.

Congrats to pathbreaking judges and law school deans

New York Governor David Paterson has named the first openly gay lawyers to serve on the state's intermediate appellate court. Judge Roz Richter, now on the supreme court (what the trial level court is called in New York), will join the bench for the 1st Appellate Department, which includes Manhattan.  Roz has been a trial court or administrative judge for more than 20 years. In the early 1980s, she was the first executive director of Lambda Legal.

Governor Paterson's other openly gay appointment is Elizabeth Garry, a supreme court judge upstate. She will serve on the court for the 3d Appellate Department, which includes Albany.

On the law school deaning front, Bill Adams will become (insofar as I know) the only (and the first?) openly gay male law school dean in the U.S. when he takes the helm at Western State University Law School. He will join openly lesbian deans Joan Howarth (Michigan State), Toni Massaro (Arizona) and Kellye Testy (Seattle). (In our neighbor to the north, former University of Houston professor Mary Ann Bobinski is now dean of the law school at the University of British Columbia.)

Bravo to all!

Starr drops hints on Prop 8 argument, forecasts filibuster for Supreme Court nominees

At the annual conference of the J Reuben Clark Society, an association of Mormon attorneys, Pepperdine Law Dean and former inquisitor Kenneth Starr dropped a few hints about his upcoming oral argument in defense of Prop 8, and also forecast rough sailing for any Obama nominees to the Supreme Court. According to the Mormon Times,

Starr told the audience he would not speak in depth publicly about his scheduled March 5 appearance before the California Supreme Court, where he will argue in favor of upholding a ban on same-sex marriage approved by voters under Proposition 8.

"I'm not going to be talking about that," he said. "One of my precepts is never argue outside the courtroom, on the courthouse steps, so to speak, your case. At the same time, I recognize how important the issue is, so a compromise that occurred to me is simply to share with you several sentences, briefly, from two sources of law."

Starr then read from prior opinions of the California Supreme Court on the limits of public officials' ability to execute their public duties as well as a passage from the California state constitution stating that only marriage between a man and a woman is legally valid.

That was pretty opaque, but Starr apparently spared few words on the prospect of Republican payback over confirmations:

Starr said Obama may have occasion to appoint two or more justices to the high court, and because he actively opposed nominees from former President George W. Bush while Obama was the junior senator from Illinois, Senate Republicans just might return the favor. Starr reminded attendees of the J. Reuben Clark Law Society conference that Obama supported a filibuster against Justice Samuel Alito and voted against John Roberts, now Supreme Court chief justice.

"It is the era of President Obama; it is also the era of the Roberts court, two very able lawyers," said Starr. However, Starr pointed out, "the salience of this very enviable position, politically, for our president is brought home by the president's own approach to the high court during his years of service as a United States senator." He continued, "There is one historical factoid of note: He is the first president of the United States ever in our history to have participated in a Senate filibuster of a judicial nominee. Never before has that happened."

Starr cited a November article in The Washington Times about the problems Obama faces, quoting, "Senate Republicans say the president-elect's voting record and long simmering resentments over Democrats' treatment of President Bush's nominees will leave Mr. Obama hard-pressed to call for bipartisan help confirming judges or even an up-or-down vote."

Of course, if the good folks of Minnesota ever stop counting and recounting and recounting their votes from November (can we airlift in some calculators?) and finally send Al Franken to the Senate, the Dems will be only one short of a party-line vote getting to 60. So at least for the next two years, my hunch is that Obama judicial nominees will be pretty safe, assuming that they don't have any employees or tax liens that have slipped their minds.

Gay dissenter retires from Australian high court

Openly gay Justice Michael Kirby retired Monday from the High Court of Australia after 13 years of servie, often in dissent, and five weeks short of his 70th birthday when retirement from Australia's highest court is mandatory.

From Australia's Herald Sun with HT to UK Gay News:

It's unlikely the court will see another quite like him - a judge who is a public intellectual and publicist for the law, a judicial activist and defender of human rights, a gay man with a 40-year relationship, an Anglican monarchist.
Almost all his life he's been a boundlessly energetic reader, writer, speaker and all round engager in public issues - starting with Sydney University where, on his way to four degrees, he was president of the Student Representative Council and the university union.
His biographer, A J Brown of Griffith University, says he was heavily influenced at university by Julius Stone, who believed the law should be put into its social and economic contexts. By the late 1960s he was active in the NSW Council of Civil Liberties.
In 1975 Kirby was appointed a deputy president of the Conciliation and Arbitration Commission and first chair of the new Australian Law Reform Commission. Brown says he could have made the new body a technical forum where lawyers talked about lawyers' problems.Instead, with his flair for publicity, he gave it a high profile as an agency engaged in the intersection of the law with the issues of the day. An example was its work on privacy, which became the basis of the public sector's privacy regime and was later expanded to private companies.
After a brief stint on the federal Court, he became president of the NSW Court of Appeal in 1984. Kirby nailed his colours to the mast early by finding, in the Osmond case, that citizens have a common law right to be given reasons for government decisions affecting them. It was a classic piece of judicial activism that was overturned by the High Court. He also made the court more collegial with innovations like breakfasts where he plied his fellow judges with raisin toast.
He never found such congeniality on the High Court, to which the Keating government, shortly before its defeat, appointed him in February 1996. Over the following years he became the court's best known figure, mainly because of his dissents and his innumerable speeches - over his career more than 2,000 published and no-one knows how many others.
Director of the Gilbert+Tobin Centre for Public Law at the University of NSW Andrew Lynch says Kirby's overall dissent rate was about 33 per cent, and up to 50 per cent in some years. Lynch says Kirby's defining methodology was that of an internationalist who refused to see Australian law in isolation from overseas ideas, particularly in relation to human rights. Brown says Kirby is regarded as much less radical in Europe than Australia.
Kirby himself has said he's inspired by a love of fellow human beings and a duty to do, within the law, what he can to prevent the pain and misery that injustice can cause.
In 2004 alone, his dissents included attempts to limit: - The power of federal authorities to detain indefinitely a stateless person who couldn't return to his own country; -  the power of federal officials potentially to expel many British subjects as aliens;-  the power of state parliaments to engage judges in the indefinite detention of prisoners who have completed their jail sentences; and - the expansion of the powers of military tribunals over civilian-type offences.
Kirby's sexuality - though he only made his long partnership with Johan van Vloten public in 1999 - was one of the wellsprings of his human rights concerns. One of his worst moments came when Liberal senator Bill Heffernan used parliamentary privilege to accuse Kirby of misusing his commonwealth car entitlements and of kerb crawling for under-age male prostitutes. Heffernan's evidence was forged and he had to apologise. Kirby accepted it gracefully. As ever, whatever the provocation or dispute, he was courteous.
Kirby's extra-judicial activities were legion. They included president of the International Commission of Jurists, UN Special Representative in Cambodia, member of the ethics committee of the Human Genome Organisation, and a member of expert international panels on AIDS, privacy and data security.

Stunning ruling by Colombia's highest court

Colombia's Constitutional Court has held that government benefits must be equalized between heterosexual and same-sex couples.  (Caveat: the opinion is in Spanish, so this post is based entirely on news reports.)  The court upheld a lower court opinion that ruled that same-sex couples must be accorded the same benefits as heterosexual couples in common-law marriages. This ruling, together with one in 2007, means that same-sex couples will have equal pension, survivor, immigration and property rights. The court reportedly relied on equality and autonomy grounds, and cited both the national constitution and international law.

Following is the statement issued by Colombia Diversa, the nation's largest lgbt rights organization (translation from Blabbeando, where there is more commentary on the decision):

Today, January 27, 2009, the Constitutional Court brought the country one step forward - a fundamental one - in matters of human rights. The High Tribunal acknowledged that a number of civil, political, social, economic, criminal and immigration rights, among others - previously reserved for heterosexual couples, also apply to same-sex couples.

In this way, Colombia has made progress in fulfilling its international commitment to incorporate Equality into its domestic legal norms, on behalf of a population that has historically been vulnerable due to their sexual orientation. Eighteen years after the enactment of the 1991 Constitution, [promoting] equality between all people, this principle has effectively been by lifting a series of limitations in Colombia that weighed down on rights, depending to the sexual orientation of individuals.

It was confirmed that equal rights cannot allow qualifications, nor exceptions nor mitigating circumstances that depend on sexual orientation.

Plaintiffs

The path that led to the Court's recent ruling began with a lawsuit. On April 28, 2008, Colombia Diversa, The Law, Justice and Society Study Center (Dejusticia), and The Public Interest Rights Group of the University of Los Andes, filed a lawsuit seeking equal rights between permanent partners, heterosexual and homosexual, and thus eliminate all forms of discrimination.

The lawsuit was actively supported by a diverse group of 32 human rights organizations, most of which do not represent an exclusive advocacy for LGBT rights. Such was the case with Human Rights Watch, the Colombian Commission of Jurists and Sisma Woman among many others (see list). Their primary interest was to bring domestic legislation in Colombia closer to a genuine concept of Equality.

Rights and responsibilities recognized

Specifically, it was a claim of unconstitutionality en masse against a series of laws that guarantee these rights and responsibilities to unmarried heterosexual couples, so that same-sex couples could be included as beneficiaries.

The plaintiffs asked the Court to extend the protections inherent in all rights afforded to heterosexual partners in a common-law union, to same sex-couples. At the same time, there was a request for the same order of duties and responsibilities for both types of couples.

In short, the rights and responsibilities that were demanded and recognized by the Court are related to:

• Civil rights norms which establish limitations to the access and exercise of civil service and the establishment of contracts with the State.
• Civil and political rights, such as housing protections, so that the so-called 'family patrimony' cannot be seized and [establishes] joint family housing rights [la afectación de vivienda familiar].
• Access to a Colombian nationality, and residence in the department of San Andres and Providencia.
• The right to benefits, allowances and compensation measures of a social nature in favor of same-sex couples.
• This is the case with the special social security norms that apply to public law enforcement, family allowance, family allowance for housing, subsidies for rural access to property, and indemnity coverage for death in a traffic accident of a permanent partner.
• Crime punishment and prevention norms, misconduct and the guarantee not to incriminate a partner.
• Rights for permanent partners of victims of heinous crimes.

This new decision makes me even more excited about the upcoming Global Arc of Justice Conference at UCLA (March 11-14), where the primary focus will be on Latin America. One of the speakers will be Colombia human rights lawyer German Rincon Perfetti, who has been involved with relationship recognition issues there for many years.

Openly gay British judge describes inquisitorial vetting process

From The Times of London:

Britain's first openly gay judge has spoken out for the first time about his "bizarre and depressing" experience of applying for judicial appointment. Sir Adrian Fulford, a High Court judge who handles terrorism cases, said that his first application to be an assistant recorder (part-time judge) in 1994 "caused real consternation".

He told a meeting on diversity hosted by the Bar's south-eastern circuit that he believed his application to be the "first time the Lord Chancellor's Department had had to deal with someone who was applying for a judicial position as an openly gay man or a lesbian, someone who made no secret of the fact".

Sir Adrian said that the normal interviewing process in the early 1990s was completely "set aside" and a "special tribunal of men in grey suits whose names I think I never knew was convened". 

"What followed was somewhat bizarre and depressing. The underlying theme was that I should simply withdraw my application. This was presented by questions to the effect of: Do you really have to pursue this?"

When he insisted that "I would not be putting myself through this rather unpleasant process unless I really wanted to be a judge, they then directed their focus, in a somewhat dramatic way, on what may or may not happen behind my closed bedroom door".

Sir Adrian was asked whether his role as junior counsel to Ann Mallalieu, QC, in the House of Lords' "sado-masochists" appeal [the Spanner case], meant that he was a "sado-masochist or had some kind of unspeakable sexual interest".

"I protested that the briefs barristers accept have nothing to do with who they are (think of all those murder trials) and that in any event, I was conventional to the point of innocence under the duvet, but it seems extraordinary that such a question could be put without any possible foundation."

Profile of newly-appointed Justice Cameron

The NY Times today (finally) reported the selection of openly gay judge Edwin Cameron as a justice of South Africa's highest court, in a feature story that highlights his history as a fighter for the rights of other people with AIDS to gain the access he has had to life-saving drugs. (My eariler post on his work is here.)

Not to belabor the point, but ... one thing that the new administration must step up to the plate on, soon, is remedlying the total absence of openly lgbt appellate judges in the federal system. They haven't shown much concern yet with lgbt representation in other appointments, so I hope someone in the judicial nominations process is heeding Lambda's letter about the importance of judicial selection.

Openly gay man appointed to South Africa's highest court

In a genuinely pathbreaking act, South African President Mothlanthe has appointed Edwin Cameron, a justice on the Supreme Court of Appeal, as a judge of the Constitutional Court, the highest court in South Africa. Judge Cameron becomes the first openly gay man or woman ever appointed to a nation's highest court.  HT to Robert Wintemute, who noted in an e/mail that Justice Michael Kirby of Australia has served as an openly gay member of that country's highest court, but was not out when he was appointed.

A former Rhodes Scholar who became a human rights lawyer, Judge Cameron is the co-author of several books, including Witness to AIDS, a memoir about his experiences as a person living with AIDS, and Defiant Desire: Gay and Lesbian Lives in South Africa.  During his time on the Court of Appeal, he has been a leader in developing that nation's civil rights and liberties jurisprudence.

Last summer, Judge Cameron addressed the International AIDS Conference in Mexico, arguing that homosexual sexual conduct should be decriminalized throughout the world, as a necessary step in fighting AIDS. (video here) He is the co-author (with Scott Burris - Temple Law) of a scholarly paper elaborating that argument.

This is an extraordinary moment, one of those historic firsts that actually matter. By contrast, the U.S. has only one openly lesbian federal judge - the wonderful Debbie Batts in the Southern District of New York.  But - There are no openly gay or lesbian federal judges at the appellate level anywhere in the U.S.

Four years from now, I hope that number will be much higher.