By Arlane de Vogue
CNN
29 June 2016
(CNN)On the losing end of a 5-3 decision regarding police searches without a warrant, Sonia Sotomayor last week unleashed a withering dissent. With direct references to Ferguson, Missouri, and a reading list of black authors including Ta-Nehisi Coates and W.E.B Du Bois, Sotomayor took the majority to task for ignoring the realities on the ground.
"This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants -- even if you are doing nothing wrong," she told her audience. And then she took things a step further, rejecting the majority's contention that the stop at hand could be considered an isolated instance.
"We must not pretend that the countless people who are routinely targeted by police are 'isolated," she said. "They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere."
To some, she has become the liberals' answer to the late Justice Antonin Scalia, asking tough questions of lawyers and delivering fierce opinions with -- at times -- searing language.
"Like Justice Scalia, Justice Sotomayor has the ability to take on her colleagues on the court when she thinks they are wrong, while at the same time speaking to the public at large in colorful, evocative, often fiery language," said Elizabeth Wydra, president of the progressive Constitutional Accountability Center.
Sotomayor, who completed her seventh term on the bench Monday, is known for her personal journey from the housing projects to the highest court in the land, but her dissent reflects something else she brings to the table: Her years working in the trenches as an assistant district attorney and trial judge, experiences that shaped her view on the law.
Last term, according to the Supreme Court observer Scotusblog, she agreed with Scalia only 45% of the time -- they were ideological opposites. But they shared a trademark of sorts -- a broad appeal off the bench. Scalia became a hero to conservatives after 30 years on the high court for reviving and defending the judicial philosophy of "originalism" which stresses that the Constitution should be interpreted as it was written.
Sotomayor has emerged as a hero to an audience emboldened by her life story and the direct language of her opinions that sometimes focus on those she feels might be underrepresented.
She agreed with her liberal colleagues more than 80% of the time last term. She is on a similar course this term, but has written alone at times, with a more personal style than Justices Ruth Bader Ginsburg, Elena Kagan and Stephen Breyer.
She also is not shy to speak candidly in public.
In a stunning moment of candor in 2015, she admitted that she feels at times like an outsider on the bench.
"Do you feel like you belong?" she was asked at a 2015 talk at the University of Notre Dame.
Her simple answer: "No."
"I'm very different than my colleagues," she said. She noted that she is a part of the conversation as they all try to sort out cases, but many of them worked before at the federal level with jobs in government that she never had. To laughter, she added, "I'm louder than most of them, there's a little bit of that fiery Latina in me."
"Will I ever quite feel that I have their same background, their same understanding of the world that I operate in? Not really."
She refers to herself as "Sonia from the Bronx."
In her 2013 memoir -- "My Beloved World" -- she chronicled the unusual path that led her to become the first Latina on the high court. She wrote about how affirmative action changed her life.
"Much has changed," she wrote in the thinking about affirmative action, "since those early days when it opened doors in my life."
"But one thing has not changed: to doubt the worth of minority students' achievement when they succeed is really only to present another face of the prejudice that would deny them a chance even to try," she wrote.
Two years ago, she wrote a stirring dissent when the court upheld an amendment to Michigan's Constitution that prohibited state universities from considering race as a part of the admissions process.
"Race matters to a young woman's sense of self when she states her hometown, and then is pressed, 'No where are you really from?'" Sotomayor wrote in her dissent on Schuette v. Coalition to Defend Affirmative Action.
"Race matters to a young man's view of society when he spends his teenage years watching others tense up as he passes, no matter what neighborhood he grew up in," she added.
She also took Chief Justice John Roberts to task for something he'd written in an earlier case. "The way to stop discrimination on the basis of race is to stop discrimination on the basis of race," he wrote.
Sotomayor's response: "The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination."
When the court took up Fisher v. University of Texas, a challenge brought by a white woman who said she was denied admission based on her race in violation of the equal protection clause, Sotomayor was prepared.
She dominated the questions at oral argument concerning the school's admissions policy, which takes race into consideration as one factor.
Abigail Fisher's lawyer was not arguing that race could never be taken into consideration, only that the university's program was flawed. But Sotomayor pressed him on his motive, digging deep, asking him if, in his view, he thought any program that took race into consideration "could ever survive."
In a surprise, a 4-3 court last week upheld the school's affirmative action plan.
A different kind of diversity
Although most of her colleagues served only on appellate courts, Sotomayor's experience was in some ways closer to the law's impact. Her professional background brings a different kind of diversity to the bench.
"You can have more lofty views about the basic good in the system, if you come to it at the top," she told Linda Greenhouse, a senior fellow at Yale Law School in 2014. "If you're someone like me who worked in the trenches, what you have experienced gives you a wider breadth of expectations."
She referred to that experience in the Fourth Amendment case.
In 2006, Edward Strieff was stopped by an officer and asked for his identification. When the officer ran the name through a police database the officer found an outstanding warrant for a traffic violation. Pursuant to the warrant, he arrested Strieff, conducted a search and discovered drugs. Strieff argued the evidence was inadmissible.
Clarence Thomas, writing for the 5-3 majority ruled against Strieff and said that police could use the evidence that was obtained after an illegal stop. The officer, Thomas wrote, had made 'good-faith' mistakes.
Sotomayor wasn't having it. She said she was "drawing on her professional experiences" to conclude that "unlawful 'stops' have severe consequences much greater than the inconvenience suggested by the name."
There's a high number of outstanding warrants that could trigger similar searches, she said, choosing Ferguson, Missouri, to make her point. The town has population of 21,000 with 16,000 outstanding warrants, she said, citing a Justice Department report.
The defendant in the Utah case was white, Sotomayor noted. But she continued, "it is no secret that people of color are disproportionate victims of this type of scrutiny."
It's a theme of hers that has come up before. In the case -- concerning the 4th Amendment -- she spoke directly to her reader.
"For generations," Sotomayor wrote, "black and brown parents have given their children 'the talk' -- instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger -- all out of fear of how an officer with a gun will react to them. "
And in case the majority needed a reading list, she provided one. Du Bois for "The Souls of Black Folk," Michelle Alexander's "The New Jim Crow," James Baldwin's The Fire Next Time," and Coates' "Between the World and Me."
The case also illustrated how Sotomayor's approach sometimes differs from her liberal colleagues. Justice Ruth Bader Ginsburg did not join the most searing section of the opinion. But Ginsburg did choose to join a separate dissent written by Justice Elena Kagan in full.
Kagan -- one of the best writers on the Court -- who manages to brilliantly distill complicated legal issues -- made clear where the majority had gone wrong in the case. She said in part that the court was wrong to chalk up the officer's mistakes as innocent.
"Far from a Barney Fife-type mishap," Kagan wrote. The officer made a "calculated decision" with "little justification."
(Kagan pointed out that the court had established a framework to determine whether to exclude evidence obtained through a Fourth Amendment violation. She said "suppression is necessary when, but only when, its societal benefits outweighs its costs.")
But the language of Kagan's opinion lacked the fire coming from Sotomayor.
Sotomayor wrote alone again this term, when the Court granted a police officer qualified immunity against a civil rights suit. The case concerned a police chase of Israel Leija Jr., who had an outstanding warrant for his arrest and led police offices in Texas on an 18 mile high speed interstate chase in 2010.
Leija called a dispatcher and threatened to shoot police officers chasing him. As he approached an overpass, officers set up tire spikes hoping to disable his vehicle. Trooper Chadrin Mullenix had a different tactic. Armed with a service rifle, he fired from the overpass six shots and killed Leija before his car reached the spikes. Leija's estate sought to sue Mullenix, and a lower court ruled the officer was not entitled to qualified immunity. The Supreme Court reversed the opinion without holding hearings.
Sotomayor dissented, arguing the officer's conduct was rogue and he had acted "without any training" in that particular tactic and against the wait order from his superior officer.
"By sanctioning a 'shoot first, think later' approach to policing, the court renders the protections of the Fourth Amendment hollow," she said.
'Wise Latina'
At her confirmation hearing in July 2009, Sotomayor was criticized by Republican senators for comments she had made before her nomination. "I would hope that a wise Latina woman, with the richness of her experiences, would more often than not reach a better conclusion than a white male who hasn't lived that life," Sotomayor said in a 2001 speech delivered at the University of California, Berkeley, School of Law.
Sotomayor explained to the senators that she was trying to inspire students and young Latino lawyers to "believe that their life experiences would enrich the legal system" but she said that her words had created misunderstanding.
"I want to state up front, unequivocally and without doubt, I do not believe that any ethnic, racial or gender group has an advantage in sound judging," she said.
"Do you believe that it is ever appropriate for judges to allow their own identity politics to influence their judgment?" Sen. Chuck Grassley, now the chairman of the Senate Judiciary Committee, asked.
"No sir, absolutely not," she responded.
THE MORNING PLUM:
A new Washington Post/ABC News poll confirms it: Donald Trump is losing the argument over terrorism. That’s isn’t supposed to be possible, of course, since Trump is promising to be strong and tough and smash the enemy, and pundits assured us again and again that a terrorist attack would help him politically, because when people are frightened, they gravitate helplessly towards the authoritarian figure offering simplistic displays of strength and manly power.
Yet it’s true — in the wake of the Orlando attacks, Hillary Clinton’s advantage on the terrorism issue has grown substantially larger than it was last month, when Trump clinched the GOP nomination:
The crucial point here is that Clinton’s advantage on the issue has grown after the American public had a very close up look at the two candidates’ responses to an attack that claimed 49 lives. Back in March, Clinton held a wide 54-40 lead on the issue, but one could argue that the broader public hadn’t been fully exposed to Trump, who was still battling in the GOP primaries. As it became more obvious in early May that Trump was securing the nomination, he began getting more national media attention, and Americans only gave Clinton a three point edge (47-44) on the issue.
A Washington Post-ABC News poll shows Democratic presidential candidate Hillary Clinton taking a double-digit lead over Republican presidential candidate Donald Trump and a higher percentage of Americans saying she's qualified to serve as president. (Sarah Parnass/The Washington Post)
But then the Orlando shooting happened. Trump doubled down on his Muslim ban and gave what TV networks chose to describe as a “major speech” in which he blamed the massacre on the fact that we had let in the shooter’s family, andfor good measure added this: “We cannot continue to allow thousands upon thousands of people to pour into our country, many of whom have the same thought process as this savage killer.” In other words, the enemy is everywhere among us; we have to fundamentally rethink basic American values to deal with it; and if we don’t, we won’t have a country anymore (as Trump loves to say).
Clinton responded by denouncing Trump’s religious test, standing up for American pluralism, and claiming Trump’s relentless demagoguery against Muslims weakens our ability to fight terrorism, by alienating moderate Muslims and furthering a narrative that Islam and the west are at war, which “plays into ISIS’s hands.”
And guess what: Today’s WaPo poll finds that Americans prefer Clinton’s handling of the Orlando shooting in particular by 46-28, an edge of 18 points. And note this:
As this chart shows, the result of both candidates’ response to the Orlando attacks was also that Clinton holds a 34-point edge on which one showed the better temperament in response (it’s 59-25); a 19-point edge on which could handle the situation as president (it’s 53-34); and a nine-point edge on which has the best proposals to prevent future attacks (it’s 44-35).
As Emily Guskin and Scott Clement note, all this actually amounts to anunusual advantage on the terrorism issue for a Democrat. Some of that likely has to do with the fact that Clinton, as Secretary of State, has international experience. But much of it also probably has to with Trump. It isn’t just his frighteningly volatile temperament, though that is surely important. It’s also that Trump is calling on the public to scrap its commitment to American values, pluralism, and tolerance.
It’s true that Trump’s anti-Muslim xenophobia and demagoguery did cause his numbers to rise among Republican primary voters in the wake of the Paris attacks. But in the wake of the carnage in Orlando, and even in spite of the raw public emotion it produced, the broader public has been treated to a vivid look at his approach, and Americans have recoiled.
*************************************************************************************************
* CLINTON WIDENS LEAD OVER TRUMP: The new NBC News/Survey Monkey Tracking Poll finds Hillary Clinton leading Donald Trump by eight points among registered voters nationally, 49-41, up from six points last week. Note this:
Clinton…continues to make gains among white voters. Although Trump is still ahead among this group of voters, he dropped from a 12-point advantage last week to an 8-point advantage this week; 41 percent of white voters now support Clinton and 49 percent support Trump.
If accurate, this might complicate Trump’s hopes of winning the White House by unleashing the fearsome power of white backlash. The polling averagesshow Clinton up by 45-39.
* REPUBLICANS GIVE THUMBS DOWN TO ‘NEVER TRUMP': Thenew NBC/Survey Monkey poll also delivers some bad news to those who still hope to somehow snatch the nomination from Trump:
A majority of Republican and Republican leaners — 67 percent — said if it were up to them, they would have the delegates nominate Trump at the Republican convention. Three in 10 Republicans said they would open the convention and choose another candidate.
Republican voters are making things so damn inconvenient for the GOP this cycle, aren’t they.
* TRUMP IS SHIFTING HIS ‘TONE': CNN reports that Trump is about to soften two of his most controversial proposals, the ban on Muslims and the call for mass deportations:
His campaign is putting the finishing touches on a policy memo that would change his proposed ban on Muslim immigration to the United States. Instead of focusing the ban on Muslims, Trump would ban immigrants coming from countries with known terrorism links, training and equipment. Meanwhile, he’s eased off his hardline language calling for deporting all undocumented immigrants living in the U.S.
Wow, a policy memo explaining how his ban on immigration from countries with “known terrorism links” would work! I’m sure that will clarify a lot.
* TRUMP CAN’T ESCAPE HIS OWN POSITIONS: NBC News has a good piece that recaps a lot of Donald Trump’s own rhetoric on the Muslim ban and mass deportations, showing that Trump is repeatedly and unequivocally on record in favor of those things.
If Trump really thinks he’s going to “soften” his positions, he’ll have to contend with his own words on video. And, of course, even if he does soften them, he’ll likely backslide at some point at five in the morning on twitter.
* REPUBLICANS ATTACK CLINTON FOR PRAISING ‘FREE TRADE':The Republican National Committee and Trump are now attacking Clinton for previously praising the Trans-Pacific Partnership trade deal:
The Republican National Committee recently obtained video of Clinton, the presumptive Democratic presidential nominee, on an overseas trip in 2012 praising the TPP, a deal she said she could not support this past October. It appears that Donald Trump…will pounce on her reversal when he delivers a speech on trade policy Tuesday afternoon. “This TPP sets the gold standard in trade agreements to open free, transparent, fair trade, the kind of environment that has the rule of law and a level playing field,” Clinton said in 2012.
Of course, Clinton subsequently came out against the TPP once it was finalized, and many Republicans, including House Speaker Paul Ryan, now support it.
* VULNERABLE GOP SENATORS MAY CUT TRUMP LOOSE: Stuart Rothenberg reports that top GOP strategists are mulling a new approach to Trump:
Long-time Republican strategists and campaign consultants privately acknowledge they are so certain of Hillary Clinton’s victory – and so worried about its impact on Senate races and GOP control of the Senate – that they are already considering a controversial tactic that explicitly acknowledges Donald Trump’s defeat. The tactic…involves running television ads that urge voters to elect a Republican Congress so that Clinton won’t have “a blank check” as president.
Of course, the problem here is that if they do that, it could weaken Trump even further, translating into still more down-ticket damage.
