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There has been much made of Sonia Sotomayor’s life, her Puerto Rican background, her modest, if not poor, childhood, her mother, what her Latina-ness means to her, her involvement in civil rights organizations, etc.  It’s both a big part of why Obama picked her to serve on the Supreme Court and will form the basis of the attacks launched against her – it already has.  Rush Limbaugh has likened Sonia Sotomayor to David Duke, a leader of the Ku Klux Klan.

Much can be said about how these attacks/critiques are disingenuous, mean, racist, sexist and offensive.   Of course each of us is informed by our past, our experiences, the advantages and disadvantages that we have experienced.  It’s just that you notice how the disadvantages more than the advantages shape who you are.

But for the moment I’ll leave to others such as my colleague Patricia Williams to address this aspect of the opposition to Sotomayor’s nomination.  Instead I want to focus on what her life history – including but not reduced to her nomination to the Supreme Court – has meant for Latina law students.

One of the things I enjoy most about teaching at Columbia Law School is the diversity of students we have.  Our JD students come from everywhere, and have every possible background.  Many of them see themselves mirrored in the faculty and on the federal judiciary, but a good number of them don’t.   Those who don’t know they don’t, and it often takes a leap of faith or just dogged perseverence for them to feel like they belong at a place like Columbia and that they might one day be in the front of the room teaching or up on the bench judging.   Sonia Sotomayor is fully aware of the burden she carries as a role model for female students, Latina/o students, and students who didn’t come from privileged backgrounds.  We’ve talked about this over dinner.

In this regard, what follows is a letter written by a former Columbia Law Student (with her permission) to Judge Sotomayor after her nomination to the Supreme Court was announced.  Judge Sotomayor has taught a course at Columbia on Federal Court advocacy for a number of years, which students have loved, and she was the speaker at the Columbia Law School graduation in 2004.  This student copied us on the letter she sent to Judge Sotomayor:

Dear Hon. Sonia Sotomayor:

Here I sit watching you stand proudly next to President Obama as he announces your nomination to the Supreme Court and I am so incredibly proud and happy for you and your family (especially your mom!).  God bless you and keep you always.

I was one of your externs back in 2003 and was so humbled to have been chosen to work with you.  Thank you so much for the opportunity you gave me.  You impressed me so much with your integrity, wisdom and humility.  Your heart was always true.  Back then I was also co-chair of Columbia Law School’s graduating class of 2004 and when we discussed who would be our commencement speaker, I could not fathom anyone but you speaking and inspiring our class to reach their God-given potential.  If anyone could make them believe in their dreams, it would be you.  And only you deserved that honor (or so I thought).  After nominating you, the decision to invite you to be our commencement speaker was unanimous and it was one of the proudest moments of my law school career.  Thank you.

Since graduating, I have been working for the Office of the Comptroller of the Currency under the U.S. Department of the Treasury in New York.  I recently became a Senior Attorney here and am grateful to dedicate my career to federal public service.  So much has happened in the last five to six years.  I got married and have a one-year old son, Isaac.

Undoubtedly, you will change the course of American history.  That goes without saying.  But there are also so many individuals out there, including me, whose lives will be forever molded by today’s events.  While I externed for you, I lived in a public housing project in Rockaway Park, Queens — I had lived there since the age of 13 with my mother and younger brother.  My family and I were poor and constantly struggling to survive.  I never let anyone keep me down or hold me back from what I believed my path to be, but I hope you don’t mind that I will “use” you as my personal inspiration to move forward and fulfill my life’s purpose (whatever that may be).  Thank you again.

Lastly, I know that you may not remember me.  I don’t consider myself a very memorable person, which was one of the reasons I hesitated to write to you.  I also felt that you had other, more important things to do and wouldn’t have time for me.  But if I don’t write to you now, I would probably never get the chance to thank you.  You will always be in my prayers and I am looking forward to hearing people call you Justice Sotomayor.

Sincerely,

Ancris Munoz Ramdhanie
Columbia Law School Class of 2004

This is why Sonia Sotomayor’s background is important.

	Columbia Law students Mollie Kornreich, Abram Seaman, and Keren Zwick have taken up Bruce Wilborn’s case out of their belief he was denied parole in the killing of a gay man because he too is gay.

At first blush, Bruce Wilborn is not the ideal client for a lawyer. The 46-year-old gay man has been incarcerated in Massachusetts since 1985, after being given a life sentence with the possibility of parole.

Wilborn and his partner in 1983, Robert Gonzalez, conspired to kill Stanley Weinstock, a 54-year-old gay man, to collect the proceeds from his will that named Wilborn as the beneficiary.

This was not an impulsive murder. Wilborn and Gonzalez, who were 20 and 24 in 1985, made a pact to kill Weinstock on October 11, 1983. They put a great deal of thought into a plan that they hoped would hide their involvement, and they executed that plan 11 days later.

“It was a predetermined act of both of these people that [Weinstock] should die for their love and for money,” said Matthew J. Ryan, Jr., the district attorney who handled the 1985 trial, in a published report from that year. “Either or both of them expected to benefit from Stanley Weinstock when he died, either by way of a will or by an insurance policy.”

What drew the attention of a leading gay rights lawyer and a group of law students at Columbia University was how Wilborn was treated when he applied for parole in 2006. Three parole board members made comments and asked questions that suggested that Wilborn was denied parole because he was gay, he charged in a later lawsuit.

“The judge did suggest that the kind of behavior the parole board engaged in would constitute discrimination had it gone to trial,” said Keren Zwick, one of six law students who worked on the case with a private attorney and Suzanne B. Goldberg, director of the university’s Sexuality and Gender Law Clinic.

At a second look, Wilborn might be the perfect client. He had one disciplinary infraction during his prison time, and that was in 1991. He published two books while incarcerated and is working on a third. His family in Illinois will aid him if he is released.

And then he was wronged by the parole board, his student lawyers assert.

“At the baseline level, there was no rational basis for their negative consideration of his sexual orientation,” said Mollie Kornreich, one of the students.

The students did what good lawyers do when they represent clients who have committed heinous and violent crimes — they fought back.

“Even if you believe your client is guilty, you represent him zealously,” said Abram Seaman, who is gay and one of the students.

When Wilborn was denied parole in 2006, he appealed. That appeal was denied in 2007. He sued in federal court that year, initially representing himself, and then was aided by the Columbia students.

While sexual orientation is not a protected class in federal anti-discrimination laws, that does not mean that government entities are free to discriminate on that basis at will. Wilborn’s advocates asserted that his equal protection and due process rights under the US Constitution were violated when the board denied him parole because he was gay.

“It’s not unprotected, it just gets less protection,” Kornreich said.

Wilborn and the Columbia students won. In 2008, the state settled without admitting to any wrongdoing and agreed to give Wilborn another parole hearing on May 28. Normally, an inmate such as Wilborn gets a hearing every five years, so this latest hearing will come more than two years early.

The students are helping Wilborn prepare for the hearing and they fully believe that he deserves to be paroled.

“The function of a parole system is to recognize that people can rehabilitate themselves,” Seaman said. Zwick added, “Our personal feeling is that he isn’t likely to re-offend.”

While the settlement is not a legal precedent for other courts, it can be cited by attorneys or inmates who find themselves in a similar situation. “It’s not binding, of course, but it is persuasive,” Zwick said.

Judges can sometimes be reluctant to be the first to rule favorably for a gay or lesbian person, Wilborn’s advocates argue. His case, in their view, solves that problem and it is one more step forward for the queer community.

“Cases like this are exciting because they establish incrementally this is not okay, this is not okay,” Kornreich said.

Ebonie Hazle is a 3rd year law student at Columbia, who offers these thoughts on her experience in law school:

As is so often the case with endings, during this last semester of law school, I’ve been thinking a lot about how it began. When I first started at Columbia, I was excited about the newness of arriving in a new city, moving to a new apartment, and meeting new people. Then classes started. And it was only my first week when I was startled by an unfamiliar phrase, “Ms. Hazle.” What could be more ominous for a student than being called by her last name? Typically, I am neither particularly anxious nor afraid of public speaking, but I felt a wave of dread and anxiety at the prospect of asking a few simple questions in front of my fellow classmates.

I felt that my answer was bound to expose me as not smart enough, not prepared enough. The students, who were strangers, were bound to judge me. They would surely turn to their neighbor and quietly whisper, “Oh, she must be in the wrong place.”

The Socratic method has long been vilified, often unfairly. I don’t deny that that the system can be effective to encourage preparation and full participation. In any event, professors could probably ask a third year student the questions in a foreign language without getting much of a rise out of her. But I think the Socratic method works best when it highlights difference between self and other. For example, the method might expose how a student’s particular experiences have informed their understanding of an issue and how the views of his classmates might contradict or rub up against it. Answering even the simplest of questions, like whether you agree or disagree with the holding of case, can involve revealing a position on an issue that can be quite personal. Sometimes being called on really means being called out–your personal view, once guarded, suddenly becomes the day’s lesson plan.

A class like Gender Justice, in which I am enrolled this semester, certainly involves disclosing one’s personal views on a variety of sensitive topics–from whether certain sex differences are culturally or biologically based to whether rape should be conceived as a crime of violence or of sex. Views on these topics can be particularly sensitive because they were probably formed long before we came to law school—they weren’t based on the reading of a case, but on our upbringings, our morals, faith and personal beliefs. Since we come from a variety of cultural, racial and religious backgrounds, the views on any particular topic tend to cover a wide spectrum.

But there is a certain ease with which the students in this class reveal what they really think about these subjects and how the reading might have annoyed them, insulted them, or absolutely captured their opinion on the subject. Despite our sometimes clashing views, there is a sense that you can breath a little easier, that you can speak freely.

I can’t help but think that this ease of expression exists because of a baseline commonality—the class is composed almost entirely of women, a fact that’s obvious because it’s so rare. Most classes (and the school as a whole) have a pretty consistent 50-50 split. For that reason, I usually don’t notice gender imbalance as much I notice racial imbalance.

But it’s difficult not to notice when there are only three men in the room. Of course, the very premise of classes like Gender Justice is that as women we are uniquely affected by certain areas of the law, from abortion law to divorce law, and that sometimes its helpful to view these topics from a feminist perspective.

Of course, the men in the class have valuable and significant contributions and I’m glad they decided to enroll. I laughed to myself one day in class when one of them spoke up, and I realized how refreshing it was to get a male view.

If I do feel anxiety in Gender Justice, it is probably the quiet and forward looking anxiety of knowing that soon I will be thrust into the working world, with all of the disadvantages that women there face.. Maybe I’m just getting older, but I think being surrounded by women who are about to embark on their careers makes me really focus on issues that I never seriously considered before– such as how to ideally balance family and work life and whether its best to have children early or late in one’s career. Even if the only thing I remember after the final exam is the realization that it’s crucial to think about and plan for these issues that will uniquely affect me as a woman, it will have been worth it.

- Ebonie Hazle, 3L, Columbia Law School

In 1995 Lani Guinier, Michelle Fine, Jane Balin, Ann Bartow & Deborah Lee Batchel published a study of the gender-based bias and stratification of the law school experience at Penn Law School.  Becoming Gentlemen: Women’s Experience at One Ivy League Law School, 143 U. Pa. L. Rev. 1 (1995).    I often mention this article in my teaching, urging students to reflect on the role of gender not only in the law but in their legal education.  When I referred this spring in my 1L class to the findings of Becoming Gentlemen, one of the students pushed back, saying that the insights of Guinier et al.’s work may no longer hold true, or at least doesn’t hold true at Columbia.  I asked her if she’d be willing to write something about why, and here it is – Katherine Franke

Unlike the accounts described in Becoming Gentlemen, my own experience as a woman in Law School has been positive, in the sense that I have never felt prejudice or experienced a barrier because of my gender. I have never been called a “lesbian” or “feminazi dyke” because I expressed my opinion in class. Nor  have I ever been berated by a professor. I have also never thought my chances for academic or workplace success were limited because of my gender (In fact, women at Columbia have earned some of the highest markers of academic excellence, such as Editor in Chief of the Law Review and finalists in the Stone Moot Court competition).

Gender is so far in the background, such a “non-issue,” that questions of gender are not really discussed or thought of amongst my peers. As one friend remarked, “When I discuss gender stereotypes, domestic violence, or rape, I feel like alot of people don’t get it and don’t really care to.” I am one of those people. Without the efforts of friends such as the one above, I would likely forget that my life could have a gendered dimension because it is not part of my daily experience.

While I had a hard time relating to the experiences of the surveyed women, what most confused me was the way minorities were simply “lumped in” with their respective gender and the nuances of their individual experiences were ignored. The piece initially left the impression that minority women were most readily singled out because of their gender. Meanwhile, it portrayed minority men as heavy participants in gender discrimination and equal beneficiaries of the “good old boy” network.

In my own experience, the opposite is true. There is far greater discrimination and informal barriers to success because of race than gender. For example, there are few (2, that I know of) Hispanic professors at Columbia and they do not teach 1Ls. There are no cases in Con Law which describe the significant contributions towards the development of Civil Rights law by Latinos. In Crim Law, Latino is the assumed race of drug dealers.

Latino 1Ls have informally agreed to support one another in the classroom. We have formed groups and blogs to educate ourselves about issues (such as Critical Race Theory, Immigration, famous Latino cases and important Latino legal organizations) which are mostly ignored by the curriculum and faculty. We acutely feel the pressure to “represent” our community in the classroom and (someday) in the courtroom. Most importantly, we all, male and female, have felt the need to come together as a support group in a (sometimes openly) hostile environment.

A close reading reveals, however, that minority men and women in the study expressed similar views and had similar experiences 20 years ago. In the footnotes, Black/Latino men and women both expressed similar desires to “help their community” and to “represent their people.”

There was not a single example given of a Latina or African-American woman who showed a strong identity with white women on the issue of gender in the school. Rather, their statements closely mirror those of the minority men. This correlation makes it difficult to say that the experience of law school was simply “gendered”. Rather, it appears that it was more of “white male” vs. everyone else.

What is disturbing to me, however, is that these problems of race were present 20 years ago and, unlike the issues facing white women, have not been sufficiently addressed. Surveys which exclusively focus on the “gendered” experience, at the expense of race, only add to this problem because they allow a false sense of “mission accomplished.” Under the rubric offered in Becoming Gentlemen, as long as white women’s experiences improve, then both minority men and women can be “left behind”; their needs and issues delegitmatized and unaddressed.

I understand that this may place a difficult standard on researchers who seek to focus only on one variable or who are most interested in the gendered experience. But the fact that things have changed so little for many minority students, including minority women, while they have changed so dramatically for white women is something that should not be accepted by researchers interested in gender. I hope these researches are aware of the way their observations on gender and race can influence policies and perceptions, and I challenge them to confront the nuances that race adds to the experience of gender.

Priscilla Orta

Grace Tabib is a third year student at Columbia Law School and offers these thoughts on the regulation of pornography – K. Franke

As in other areas of gender study, Catharine MacKinnon’s extreme view once again forecloses the possibility of women controlling their own sexual impulses. When MacKinnon argues that all pornography is abusive to women, she is taking an absolutist position akin to an unwavering pro-life position. The Model Anti-Pornography Law, of which MacKinnon was a principal drafter, bars women from consenting to participation in a pornographic performance. She essentially likens pornography to slavery and maintains that women do not have the ability to willingly participate in its production. Furthermore, in defending the Model Anti-Pornography Law from First Amendment objections, she asserts “if a woman is subjected why should it matter that the work has other value?” Catherine A. MacKinnon, Pornography, Civil Rights, and Speech, 20 Harv, Civ. Rts.-Civ. Lib. L. Rev. 1, 21 (1985). Her refusal to allow women’s consent coupled with her underlying contention that the viewing of pornography is an act of male superiority reflects a closed-mindedness that refuses to acknowledge the individuality of women to engage in sexually liberating activities not because of men’s desires, but because of their own. Sallie Tisdale captures the alternative view that women can and should be free to make free sexual thought when she writes: “What a misogynistic worldview this is, this claim that wome who make such choices cannot be making free choices at all … Feminists against pornography have done a sad and awful thing: They have made women into objects.”

Pornography is not one-sided, but it becomes so if women are not free to have their tastes and preferences reflected by it. Candida Royalle’s initiative in founding Femme Productions and catering to a women’s market allows women to explore their sexuality within their own comfort zones. In this way, viewers of Femme films can use pornography to liberate their sexual selves. Royalle argues that the key to her films is sensuality. She understands that women approach sex in a different way from men and moves the focus away from penetration and into a holistic experience. Many groups of women – whites, blacks, lesbians, transgendered – can embrace pornography to explore sexual experience without a simplified ejaculatory conclusion.

Lynn Chancer in her article Feminist Offensives: Defending Pornography and The Splitting of Sex from Sexism, reflects a more realistic view towards pornography and its potential to liberate women. She seeks to legitimate pornography while exploring other realms of society in which women are repressed. For me, pornography should not be a focal point for women’s empowerment. Other areas of media can be much more harmful to the portrayal of women and the conceptualization of women’s role in society.

Although I am embarrassed to admit it, I saw the film “He’s Just Not That Into You” last weekend with a friend. The movie portrays women as men-obsessed, naïve, weak, and pitiful. Leaving the movie, I could not understand how any of the actresses could have agreed to participate in such a project. Maybe an ordinance against He’s Just Not That Into You – like movies would be more effective towards combating female submission.

Grace Tabib

On Friday, February 13th we held a symposium honoring the important work of Martha Nussbaum to the scholarship of Gender, Sexuality and the Law.

The Symposium was a tremendous success, and the proceedings will be published in a special issue of the Columbia Journal of Gender and Law.

Videos of each of the panels and Professor Nussbaum’s Keynote are now available:

Feminism as Liberalism
• Carlos Ball, Professor of Law at Rutgers Law School
• Nancy Levit, Curators’ and Edward D. Ellison Professor of Law at UMKC School of Law
• Tracy Higgins, Professor of Law at Fordham Law School

History, Identity and Sexuality
• Mary Anne Case, Arnold I. Shure Professor of Law at University of Chicago Law School
• Alice Kessler-Harris, R. Gordon Hoxie Professor of American History at Columbia University
• Janet Jakobsen, Director, Barnard Center for Research on Women

Gender and Development
• Saskia Sassen, Robert S. Lynd Professor of Sociology at Columbia University
• Amrita Basu, Domenic J. Paino 1955 Professor of Political Science and Women’s & Gender Studies at Amherst College
• Aili Tripp, Professor of Political Science and Women’s Studies at University of Wisconsin-Madison

Keynote – Martha Nussbaum

As an update to my earlier post on possible gender bias in Notes selection process at the most elite law reviews, I was delighted to learn today that Devi Rao has been elected the next Editor in Chief of the Columbia Law Review!  She is hard at work on a very smart and important note titled: “Making Medical Assistance Available”:  Enforcing the Medicaid Act’s Availability Provision Through § 1983 Litigation, the idea for which she generated in my § 1983 class last fall.

Congratulations to Devi and to the law review for such a wonderful choice.

- Katherine Franke

Nancy Leong, a Visiting Scholar at Georgetown Law Center, has just cirulated a draft of a paper looking at the sex-based disparity in student notes that are accepted in Law Reviews.   The paper, A Noteworthy Absence, claims that relative to the percentage of women in law school and the percentage of Note submissions from women authors, Law Reviews publish Notes submitted by male authors almost twice as often as those submitted by female authors.

Columbia Law Review, thankfully, is among the more egalitarian law reviews when it comes to accepting notes in a way that does not disproportionately favor male authors.  See Leong’s data below:

What I might also note, from Columbia’s perspective, is that we have a student-run journal on Gender and the Law that surely draws submissions from some of our female students, as might other student run journals such as the Columbia Human Rights Law Review, Columbia Journal of Law and Social Problems, and the National Black Law Journal.

On Friday, the Gender and Sexuality Law Program held its inaugural symposium, this year honoring  the work of Professor Martha Nussbaum.  Nine scholars submitted papers providing insights on  Professor Nussbaum’s scholarship, points of departure for her theories, and novel applications of her  theories to many different contexts.  Dean Schizer introduced Professor Nussbaum before her keynote  speech at the end of the day, and Professor Nussbaum gave a summary of her scholarship and ideas, and thoughtfully responded to each paper.

The diversity and creativity of scholarship and thought that came out of the symposium was really remarkable.  We covered everything from Nussbaum’s capabilities approach as applied to women’s movements (Amrita Basu), the possibility of a collective capabilities approach to women’s empowerment in Africa (Aili Tripp), and the relationship of the state to the capabilities approach (Tracy Higgins), to the application of Nussbaum’s work to the same-sex marriage debate, the LGBT community, and its relationship with science (Nancy Levit), and whether the state should be in the business of regulating marriage in the first place (Janet Jakobsen).  Nussbaum’s capabilities approach was applied to global economic systems (Saskia Sassen) and stretched from its universality to its flexibility in encouraging people of opposite viewpoints to sympathize with one another (Carlos Ball).  We learned of a historian’s perspective on Nussbaum’s reliance on the history of relationships to support her arguments about same-sex marriage (Alice Kessler-Harris), and tough questions were asked of how far the law should go in the forcing of certain types of relationships, and what emotions, aside from disgust and shame – and anger for that matter – might be appropriate for opponents of same-sex marriage (Mary Anne Case).  I fully admit, that’s not nearly the half of it; you can read all the papers in the Columbia Journal of Gender and Law’s forthcoming publication of them.

On a personal note: law school does not all too often provide the opportunity to stop learning about the law per se and actually examine its parameters and characteristics.  That the emotions of shame and disgust might problematically inform how the law is shaped, or the notion that all human beings are entitled to a range of fundamental capabilities, are concepts that add a huge depth to legal study.  This conference was a great moment to pause and consider, and I hope everyone at the end of the day felt similarly enriched.

Jeannie Chung

Jeannie Chung is a second-year law student and research assistant for the Gender and Sexuality Law Program.