Sonia Maria Sotomayor — She’s No Clarence Thomas, But No Thurgood Marshall Either

By Bruce A. Dixon
Created 06/03/2009 – 10:36
by BAR managing editor Bruce A. Dixon

What is and what should be the story around the nomination of Judge Sonia Sotomayor to the high court? Is the main story a celebration of how humble origins and hard work won out? Should we spend all our time and energy refuting the racism of Republican talking heads, and none examining her record, and how she arrived at the door of the Supreme Court? Is this a good time to explore what a just and democratic society must demand from its courts — more nonwhite faces in high places? More rights for corporations? Or more justice for people? And if this isn’t a good time, is that time ever coming?

Sonia Sotomayor: She’s No Clarence Thomas, But No Thurgood Marshall Either
by BAR managing editor Bruce A. Dixon
The bubble of false reality corporate media blow around the nomination of Sonia Maria Sotomayor begins with the racist rants of Limbaugh, O’Reilly, and a host of Republican senators and talking heads. It encompasses a torrent of righteous air and ink denouncing the racists, along with an inspiring story of humble origins, hard work and determination to succeed. It feeds the ongoing narrative of America’s ultimate triumph over old fashioned racism by allowing highly qualified and carefully vetted minorities to join its ruling elite. And it includes the view of places like Business Week, which designate the nominee “centrist” and a “moderate, [1]” a view that corporate media revealingly agree is nonpolitical,” which means that the prerogatives of America’s business elite are not now and never will be up for discussion.
Absent from the conversation around the Sotomayor nomination are all but the most cursory review of her legal career before being appointed a federal judge by George Bush — a mere twelve years of legal experience, five as a prosecutor for the D.A.’s office in Manhattan, and another seven as partner at the international law firm of Pavia & Harcourt. Summaries [2] of her decisions are hard to find. Although much is made of the fact that she will be only the fifth judge not a white man to sit on the high court, few detailed comparisons are made between her legal career and those of Thurgood Marshall and Clarence Thomas. Finally there are no attempts to discuss the unique, and not always positive role that the US Supreme Court plays or ought to play in the life of the country.
All these concerns are outside the bubble, not only for corporate media, but for the blogs and commentators who allow corporate media to draw the limits of their universe.
Sotomayor’s first job out of law school was as a prosecutor in the Manhattan D.A.’s office. Her time as a prosecutor roughly coincides with the end of the first decade of New York’s infamous Rockerfeller drug laws [3], a time when our nation’s historically discriminatory law enforcement apparatus began locking up larger percentages of black and Latinos than anywhere else on the planet. From there she moved on to a spot as associate, then partner at the international law firm of Pavia & Harcourt [4], and international law firm offering “…a full range of legal services to companies, individuals, and Italian and French governmental organizations and agencies… who do business in the United States as well as American clients who do business in the U.S. and abroad.”
Among Pavia & Harcourt’s areas of special focus are the enforcement of intellectual property laws, and obtaining writs of confiscation and seizure of goods believed to be in violation of such laws. In this selection from Ed Shanahan’s IP Law & Business he assembles quotes from the Wall Street Journal, the National Journal and the New York Times that paint a picture of Sotomayor’s passionate involvement on behalf of her corporate clients:
“…as the Wall Street Journal Washington Wire blog further explains in this colorful post [5]
, the “peak” of her career at the firm “came in representing Fendi in trademark actions against makers and sellers of counterfeit handbags and other items, according to George Pavia, the firm’s managing partner.”
“Sotomayor, the WSJ reports, didn’t just fight for her clients in court.
“Firm founder George Pavia told the paper that when the firm would get a tip about suspect cargo, investigators “would trace where the shipment had gone—for example, to a warehouse or a store. Then, working with police, the firm would seek a warrant to view and attach the items. Often, the lawyers learned through experience, such visits would prompt angry responses from the merchants involved. But Sotomayor, who became a high-profile defender of the brand, seemed to enjoy going along. ‘On several occasions,’ Pavia said, ‘she went in wearing a Kevlar vest and seized the goods.’
“(In this profile [6]
of Sotomayor, The New York Times adds to the judge’s legend: “One incident that figures largely in firm lore was a seizure in Chinatown, where the counterfeiters ran away, and Ms. Sotomayor got on a motorcycle and gave chase.”)
“The Journal also reports that Sotomayor played an integral role in what might be termed an IP publicity stunt aimed at calling attention to the then-growing problem of high-fashion knockoffs:
“With Sotomayor in charge, the firm decided in 1986 to stage a bonfire —to be known as the ‘Fendi Burn’—in the parking lot of the Tavern on the Green restaurant. There was a catch, however: the New York Fire Department refused to permit it.
“So the firm decided on the next best thing, crushing the items in garbage trucks, in an event that came to be known as the ‘Fendi Crush.’
“‘In the presence of the press…we threw masses and masses of handbags, shoes, and other items into these garbage trucks,’ Pavia said. ‘It was the pinnacle of our achievement, and Sonia was the principal doer.’”
No place on earth has more lawyers than the U.S., and in the late 80s, early 90s, New York City had more lawyers than anywhere in the country. This is how a young former prosecutor gets noticed and considered for the federal bench. Maybe Democratic senators and the White House of George H.W. Bush took note of her on their own. Maybe lobbyists and campaign contributors affiliated with her clients recommended her as someone who would look out for their interests. Take your pick. Either way, Bush put her on the federal bench in 1992.
For the twelve years she was a prosecutor and in private practice, right up until her appointment to the U.S. District Court, Sotomayor spent evenings, weekends and personal time, as an active board member of the Puerto Rican Legal Defense and Education Committee. During those years PRLDEF publicly opposed police brutality, the death penalty, felony disenfranchisement, and discrimination in housing and employment. It filed lawsuits to protect the voting rights of minorities in New York and the human rights of migrant workers. PRLDEF even sued an official of the Reagan administration for defamation over his public statement that most Puerto Ricans were on food stamps. No reports we have seen say that she personally filed those suits or that she ever appeared in court on behalf of litigants in discrimination and other lawsuits. As a board member she was reportedly involved in the planning and overall supervision of these activities.
After his graduation from Yale Law School in 1974, Clarence Thomas attached himself directly to the Republican party as a black man squarely against equal rights under the law. He became assistant attorney general in Missouri in 1974, chief counsel for Senator Sam Brownback in 1978, and in 1982, chairman of the Office of Economic Opportunity under Ronald Reagan, where he publicly defied the Congress by sitting on thousands of age and race discrimination complaints till the statute of limitations ran out on them. After only fourteen years as an attorney, Thomas had earned his appointment to the federal bench in 1989, and shortly after that to the Supreme Court.
The only other nonwhite person to serve on the US Supreme Court in two centuries has been Thurgood Marshall. Marshall’ graduated Howard University law school in 1933, where he was mentored by Charles Hamilton Houston [7]. Houston was the architect of a decades-long crusade to use the courts to overthrow America’s Jim Crow segregation laws. After less than a year of private practice, Marshall joined Houston at the NAACP, where he spent the next quarter century crisscrossing the country, sometimes at the risk of his own life [8], defending African Americans in court who were falsely accused of murder and rape. Marshall took their cases, along with those of black people who directly challenged Jim Crow laws all the way to the Supreme Court where he won a phenomenal 29 out of 32 cases, including the 1954 Brown v. Board of Education, which ruled that separate school systems for blacks and whites were unconstitutional.
After 28 years of legal practice, far longer than either Thomas or Sotomayor, Marshall was named to the US Court of Appeals in 1961, US Solicitor General in 1965, and in 1967 was nominated to the Supreme Court by Lyndon Baines Johnson. Before donning the black robe Marshall had already fundamentally changed the American legal landscape. He had directly represented the poor and disenfranchised in the courts of dozens of states, raised money and public support for their legal defense. By the 1950s, Marshall was known around the country as “Mr. Civil Rights.” He is said to have taken a dim view of civil disobedience and many of the tactics of the Freedom Movement in the 1950s and 60s, but generally refrained from publicly voicing those sentiments, and defended some of them in court.
The comparative pre-judicial careers of these three seem to indicate that the speedy road to the federal bench is to be a useful right wing political operative like Thomas or a zealous advocate of multinational business, like Sotomayor. Defending the poor and changing history seems to be a longer and much less certain way to get a federal judgeship.
Sonia Sotomayor is no Clarence Thomas, to be sure. The PRLDEF did great work during the years she served on its board, but she can hardly claim sole credit for it. In any case, PRLDEF wasn’t her full time job, and certainly not what got her on the federal bench. She is no Thurgood Marshall either, not by a long shot. There are still lawyers who devote most of their practice to defending the poor and disenfranchised, and an even larger number who file suits against giant corporations on behalf of ordinary people. No matter their legal brilliance, those attorneys rarely get judicial appointments. Why? No Supreme Court Justice since Marshall has represented a defendant in a criminal case, let alone a death penalty case. Why? No Supreme Court Justices sued wealthy and powerful corporations on behalf of ordinary working and poor people either. Why?
Why should representing poor people as defendants in a court of law, or suing wealthy corporations on behalf of the ordinary people whose rights these powerful and immortal institutions trample upon every day rule a judgeship out of any lawyer’s future? Was that the founding fathers’ intent? More importantly, should it be ours?
A frank discussion of what a democratic society should expect from its court system is also long overdue. For the last generation, the courts have squatted squarely on the necks of working class Americans, relentlessly affirming the unearned privileges of a wealthy corporate elite over the rest of us, often in ways no governor, president or legislature would dare attempt. To name just a few instances, the courts have ruled that equal funding of public schools between wealthy and poor neighborhoods cannot be accomplished, even when state constitutions require it. Judges have affirmed that the First Amendment gives corporations the right to lie to and deceive the public for commercial gain, that patent laws allow US corporations to claim exclusive rights to crops grown by farmers for dozens of centuries in various parts of the world. The Supreme Court recently ruled that money, in the form of campaign contributions, is free speech, setting major roadblocks in the path of campaign finance reform.
We need to take note of the historic significance of the first Latina to be nominated to the Supreme Court. Like the embrace of a black president by most of the nation’s ruling elite, it does signify a departure from a kind of old fashioned nineteenth and twentieth century racism, at least insofar as the admittance of carefully vetted and well-qualified minorities to that elite goes. But the advancement of a few is not necessarily the advancement of democracy, or of the many.
The easy out for progressives around the Sotomayor nomination is to waste all their time and oxygen debating Republicans, ridiculing and refuting their racism. While this is important, it mustn’t be allowed to take all the air from the room. If we really want more than a change in the color of the faces at the top of American society, we’ll have to spend a lot more energy evaluating their corporate connections of our judges on every level, and determining who they and our courts really serve.