By Sharon Johnson (WOMENSENEWS)--
Supreme Court nominee Judge Sonia Sotomayor got a bit of a boost July 1 when the Minnesota Supreme Court declared Al Franken, a Democrat who is a former comedian, the winner of a hotly contested Senate seat.
The Democrats now have 60 votes, enough to overcome any possibility of filibuster by Republicans.
That leaves us with the strong prospect of having a third female justice since President Ronald Reagan nominated Sandra Day O'Connor in 1981.
(President George W. Bush tapped White House Counsel Harriet Miers to replace O'Connor when she retired, but Miers withdrew and Samuel Alioto Jr. won confirmation in 2006.)
It also leaves Judge Ruth Bader Ginsburg the chance of gaining a female colleague.
Having a second woman on the court is important to Ginsburg. In a rare interview with USA Today on May 5, Ginsburg said that having one woman on the Supreme Court sends a "disheartening message to young women about whether they can aspire to the post."
But will the two women always see eye-to-eye or occasionally disagree?
Some Differences
My hunch, when it comes to cases of gender discrimination, is some occasional disagreement.
Those areas of difference may become important to the overall balance of the court, since 76-year-old Ginsburg is battling cancer and may be the next judge to resign.
That would leave 55-year-old Sotomayor--who would be the second youngest justice on the court--to do the heavy lifting on equal pay, pregnancy discrimination and other issues for the next 30 years. (Chief Justice John Roberts Jr. is six months younger than Sotomayor.)
In her confirmation hearings, which start July 13, Sotomayor is likely to continue to draw fire from some senators for a comment she made in 2005 that appellate courts make policy.
Here, she might take some pointers from Ginsburg, who deflected similar suggestions at her confirmation hearing when she replied: "From my viewpoint (these gender equality cases) were reflections of social change and putting the imprimatur of the law on the direction of change that was ongoing in society."
Ginsburg, a married mother of two children, left no doubt, however, about her position on Roe v. Wade, the landmark 1973 decision that established a woman's right to choice in abortion.
At her confirmation Ginsburg said: "This is something central to a woman's life, to her dignity. It is a decision that she must make for herself. And when government controls that decision for her, she is being treated as less than a fully adult human responsible for her own choices."
I'll be surprised if Sotomayor says anything so definite next week.
Blank Slate on Abortion
In her nearly 11 years as a federal appeals judge, Sotomayor has never directly addressed whether the Constitution protects a woman's right to choose. The public assumes that Sotomayor is pro-choice because President Obama said on January 22--the 36th anniversary of Roe v. Wade--that he is committed to protect a woman's right to choose.
But Sotomayor's decisions in three cases that touched tangentially on abortion suggest she is far less pro-choice than Ginsburg and Judge David Souter, who she is nominated to replace.
Appointed by President George Bush in 1990, Souter, a former Republican attorney general in New Hampshire, has been a consistent supporter of a woman's privacy rights. He was a co-author of the decisive three-vote "joint opinion" in the 1992 case in which the court reaffirmed the essential holding of Roe v. Wade.
He also was in the 5-4 majority in a 2000 ruling striking down a law that made some abortions illegal without ensuring that women's health would be protected. When the Court struck down the law in an almost identical case in 2007, Souter joined Ginsburg in a dissent.
In 2002, Sotomayor upheld a Bush Administration policy of withholding aid from international groups that provide or promote abortion services overseas. "The Supreme Court has made clear that the government is free to favor the anti-choice position over the pro-choice positions and can do so with public funds," she wrote.
Two years later, Sotomayor supported abortion protesters who had claimed that West Hartford, Conn., had used excessive force to break up the demonstration at an abortion clinic. "The protestors deserve their day in court," she said.
She also ruled in favor of several immigrants who opposed being sent back to China because of China's policies on forcible abortion and birth control.
Workplace Discrimination
In 1978, Sotomayor filed a discrimination complaint against a Washington, D. C., law firm for asking a question about the qualifications of Puerto Ricans and other minorities at a recruitment dinner. A student-faculty panel investigated and ordered the firm to write Sotomayor a letter of apology.
That kind of workplace discrimination has been an important issue for the Supreme Court this term.
Ginsburg, a consistent supporter of litigants who have suffered gender discrimination over the years, wrote the dissent in a 7-2 decision on May 18 that employers can pay lower retirement benefits to women who took pregnancy leave before Congress passed the Pregnancy Discrimination Act in 1979 than they pay co-workers who received disability leaves after the law became effective.
Few of Sotomayor's 380 opinions on the federal court of appeals for the second district have dealt with workplace discrimination.
In 2006, Sotomayor, a divorced woman who has no children, wrote that the federal Age Discrimination in Employment Act did not protect a 70-year-old-male Methodist minister from the church's mandatory retirement policy because it would entail undue intrusion into religious matters.
The opinion worries advocates for working women because 76 million baby boomers are entering their sixties, and many of them--especially women who work for religious organizations and have limited savings and no pensions--want to work as long as possible.
Sotomayor's most controversial decision, however, involves the lawsuit by 18 white firefighters, including one Hispanic, that claimed that their rights had been violated when New Haven, Conn., threw out the results of a promotion examination on which few African Americans had scored well because the city feared that it would be subject to lawsuits by minority firefighters.
Two colleagues and Sotomayor on the appeals court had ruled the city did the right thing in throwing out the test. Their decision included only one paragraph of substantive text, which upset their fellow Second Circuit judges. Following a 7-6 decision by the full appeals court against rehearing, the litigants appealed to the Supreme Court alleging reverse discrimination.
On June 29, in a 5-4 decision written by Justice Anthony Kennedy, the Supreme Court ruled that New Haven's action amounted to discrimination based on race against the white firefighters who were likely to be promoted.
Like Sotomayor, Ginsburg supported the city's decision, arguing in her dissent that the court should have assessed the "starkly disparate results of the exams against the backdrop of historical and ongoing inequality of the New Haven fire department." In 2003, when the case was filed, only one of the city's 21 fire captains was African American.
Sharon Johnson is a New York freelance writer.
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We’ll admit it: We’re keenly interested in watching how the new law school at UC Irvine fares once it finally starts teaching students next month. A few of the reasons are personal: we grew up next door to Irvine and have long followed the low-key school and its equally low-key athletic teams (Zot!). Furthermore, we still remember rather fondly dean Erwin Chemerinsky’s federal courts hornbook, 
The University of California's Board of Regents, responding to the state's impending funding cuts, approved the cuts on July 16. The unprecedented emergency plan would require faculty and staff to take between 11 and 26 furlough days during the coming school year. The furloughs are designed to partly offset an anticipated $813 million reduction in the system's share of the state's general fund for fiscal years 2008-09 and the fiscal year that began on July 1. That would represent a 20 percent decline from fiscal year 2007-08.
"For all kinds of reasons, it's not a morale booster," said Kevin Johnson, dean of the University of California, Davis School of Law. "But at the same time, it's not altogether a surprise. We knew something was coming down."
The furloughs and pay cut percentages are gradual and tied to the salaries of the faculty members and staff, which range from $40,000 to $240,000 per year. For instance, a faculty member who makes between $180,001 to $240,000 in annual compensation would be subject to 24 furlough days, or a 9 percent cut in pay.
More than 108,000 employees of the UC system will be affected. Faculty members were expected to continue working, notwithstanding the pay cuts, said several deans of UC law schools.
"When you're an academic, for the most part, and for staff for some, it's part of your life to do the work, and so you would do it if you're being paid or not being paid," said Michael Schill, dean of the University of California at Los Angeles School of Law. "So, basically, that's what's going to happen."
UCLA has more than 60 law faculty members who will be affected by the furloughs, he said. He doubted the retrenchments would affect faculty recruiting.
"We have the resources to hire," he said. "By the time the faculty come, hopefully it'll be over."
Another 100 law school staff members will be affected, including library workers, administrators and assistant deans, he said. He predicted that most of the furlough days would be taken during the week between Christmas and New Year's Day -- when the campus normally shuts down -- and perhaps the week before the holidays.
The University of California, Berkeley School of Law already has a hiring freeze in place for staff members, but school officials do not expect layoffs or a reduction in faculty hiring. Sixty-nine law faculty members will be affected.
"I wanted to do everything possible to avoid, or at the least minimize, repercussions for our [law] community once details would eventually materialize," said Berkeley Dean Christopher Edley Jr. in a memo on July 24 to faculty and staff. Edley serves on the newly formed Commission on the Future of UC, which is recommending changes to the university system in light of the budget reductions. "With the support and creative thinking of managers and staff from every quarter of the law school, I believe we have been pretty successful in this effort," he said.
The 17 faculty members at the University of California, Irvine School of Law, which will open next month, will come to work and maintain their teaching schedules, said the school's dean, Erwin Chemerinsky. Administrators will coordinate staff furloughs to minimize the hit to the fledgling school. Funding for new positions during the coming year remains intact, he said.
"Thankfully, the chancellor and provost of the university have recognized that we're a new school and very fragile, and they have provided us the funds that we need to achieve the goal of being a top law school," he said. "While we, too, will feel the pain, none of the cuts will interfere with our ability to have the funds to achieve our objective."
At UC Davis, Johnson said that 35 faculty members and 75 staff members would be affected by the pay cuts. He did not anticipate layoffs or hiring freezes for faculty members, although the law school could grow more cautious in its recruiting.
"The faculty have been very good in terms of trying to understand the situation that the university and the state is currently in," he said. "I hope we don't have to continue this indefinitely, obviously. I hope in the near future furloughs will be eliminated, but at this point we'll be hanging in there."