On CNN’s “Lou Dobbs Tonight”

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I’ll be on Lou Dobbs’s show on CNN this evening (some time around 7:25 ET, I think) discussing Judge Sotomayor and the New Haven firefighters case with Dobbs and with  Harvard law professor Alan Dershowitz.

Second Circuit Oral Argument in the New Haven Firefighters Case

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At the Weekly Standard blog, John McCormack has an interesting post on the oral argument in Ricci v. DeStefano (the audio of which is available here).  Here are excerpts from the argument by the counsel for plaintiff firefighters:

I think a fundamental failure is the application of these concepts to this job as if these men were garbage collectors. This is a command position of a First Responder agency. The books you see piled on my desk are fire science books. These men face life threatening circumstances every time they go out. … Please look at the examinations. … You need to know: this is not an aptitude test. This is a high-level command position in a post-9/11 era no less. They are tested for their knowledge of fire, behavior, combustion principles, building collapse, truss roofs, building construction, confined space rescue, dirty bomb response, anthrax, metallurgy, and I opened my district court brief with a plea to the court to not treat these men in this profession as if it were unskilled labor. We don’t do this to lawyers or doctors or nurses or captains or even real estate brokers. But somehow they treat firefighters as if it doesn’t require any knowledge to do the job.…

Firefighters die every week in this country. … [There was a case ] a few miles away where a young father and firefighter Eddie Ramos died after a truss roof collapsed in a warehouse fire because the person who commanded the scene decided to send men into an unoccupied house, with no people to save on Thanksgiving Day, with a truss roof known to collapse early in the fire because of the nature of the pins that hold the trusses together would have collapsed. And for 20 minutes he couldn’t find any air and he he suffocated to death. And the fire chief had to go tell a 6 year-old that her father wasn’t coming home.

Here’s a comment/question by Judge Sotomayor:

JUDGE SOTOMAYOR: Counsel … we’re not suggesting that unqualified people be hired. The city’s not suggesting that. All right? But there is a difference between where you score on the test and how many openings you have. And to the extent that there’s an adverse impact on one group over the other, so that the first seven who are going to be hired only because of the vagrancies [sic] of the vacancies at that moment, not because you’re unqualified–the pass rate is the pass rate–all right? But if your test is always going to put a certain group at the bottom of the pass rate so they’re never ever going to be promoted, and there is a fair test that could be devised that measures knowledge in a more substantive way, then why shouldn’t the city have an opportunity to try and look and see if it can develop that?

As McCormack writes:  “Sotomayor may have not wanted unqualified firefighters to be elevated to the position of captain and lieutenant–she simply wanted less qualified firefighters to be placed in charge of the lives of other men in the interests of racial diversity. I wonder what Eddie Ramos would say about that if he were alive today.”

In Other News . . . Bankruptcy!

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For readers who need a break from the Supreme Court nominations battle, I suggest the cheery interlude of bankruptcy law.  GM’s bankruptcy raises numerous legal and policy issues, particularly if the government seeks to displace creditors or to minimize the reorganizing cuts necessary for GM to reemerge as a profitable company.  For a detailed analysis, I recommend Andrew Grossman’s thoughtful testimony before the House Judiciary Committee assessing Chrysler’s bankruptcy, and looking ahead to GM’s bankruptcy.  He examines how the Obama administration’s attempts to circumvent bankruptcy law’s priority scheme in order to benefit cronies like the UAW undermines the rule of law, and makes clear that more, deeper cuts are necessary to make government motors a profitable company once again.

In other bankruptcy-related news, I wrote a piece for WLF last month examining the risk of increased forum shopping which could occur as bankruptcy filings increase.  Whether this will pose a serious threat to the rule of law may well turn on the Marshall v. Marshall, the Ninth Circuit’s remand of the infamous Anna Nicole bankruptcy case which was decided by the Supreme Court in 2006.  Like Bleak House, all of the original litigants in the case are now deceased, but the litigation lives on.  If the Ninth Circuit were to permit Anna Nicole Smith’s estate to use the bankruptcy courts to re-litigate claims she lost in state courts, and thereby to get millions of dollars from her late husband’s estate contrary to his estate plan, then look for an explosion of bankruptcy filings, made by those seeking to use bankruptcy courts to achieve ends other than relief from debts.

Challenging Racialist Rot

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There’s been considerable commentary about whether the statements of Rush Limbaugh and Newt Gingrich regarding Sotomayor are too strident, but I haven’t seen any commentary that seriously disputes the duo’s central contention: That had a white male nominee said “a wise white man with the richness of his experience would more often than not reach a better conclusion than a Latina woman who hasn’t lived that life” — that nominee would be finished. (The fact that this isn’t seriously disputed is a sad measure of society’s cynicism regarding racial politics).

For decades, one of the explications (heard in ethnic studies classes on campuses across the country) for this double standard was the claim that minorities could not be racist because minorities are not in positions of power;  i.e., functional racism presumes the power to oppress.

Regardless of whether that contention had any validity when first widely promulgated in the 60s and 70s, its foundation has all but evaporated in the years since. The most powerful man in the world is black, the last three secretaries of state were either black, female, or both, minorities head some of the largest corporations in the world, the most powerful media personality in the country is black, etc. Moreover, should she be confirmed, Sotomayor will herself be one of the most powerful individuals in the U.S. Her “prejudices and sympathies” could have a profound impact on millions of Americans.

Given her declaration that she is, at best, agnostic about whether she should restrain her “prejudices and sympathies” while on the bench, senators have a duty to examine whether and to what extent such prejudices and sympathies, unchecked by appellate review, may impact her jurisprudence.

A Word to the Wise Latina Woman

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As I read today’s Washington Post front-page story on Judge Sotomayor (“The Nominee As a Young Woman”), she led an effort at Princeton to impose hiring goals and timetables for Hispanic faculty members, but was insulted when a law firm interviewer asked her at Yale, “Would I have been admitted to the law school if I were not a Puerto Rican?”

Now, unfortunately, goals and timetables for minority hiring are not uncommon, and any law firm interviewer who asked such an honest question should have his head examined, but still: If you support goals and timetables, then you support racial and ethnic preferences (since the former are designed to create pressure to meet quotas, and that means the thumb of preference is going to be put on the scale); and if you support racial and ethnic preferences, then that means you support less qualified members of some groups being chosen over more qualified members of other groups. Those are just the undeniable facts.

And one of the many costs of this discrimination is that its so-called “beneficiaries” will have their credentials questioned — if not out loud, then silently and even unconsciously. So those like Judge Sotomayor who support goals, timetables, and the like really have no one to blame but themselves when others question the qualifications of those who belong to the groups receiving the preferential treatment.

This Day in Liberal Judicial Activism—June 1

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1992—In Davis v. Davis, the Tennessee Supreme Court decides a battle between a divorcing couple over rights to their frozen embryos stored in a fertility clinic.  Writing for the court, Justice Martha Craig Daughtrey undertakes a lengthy excursus that culminates in an ad hoc balancing test weighted strongly in favor of destruction of the human embryos:  “Ordinarily, the party wishing to avoid procreation should prevail.…”  Daughtrey extrapolates a state constitutional “right of procreational autonomy” from the provisions of the state constitution that protect freedom of worship, that prohibit unreasonable searches and seizures, that guarantee freedom of speech, and that regulate the quartering of soldiers in homes.  She then relies on skimpy psychotherapy articles to concoct a right of a voluntary “gamete-provider” to avoid unwanted genetic parenthood.

The obvious explanation for Daughtrey’s various frolics and detours is that Davis was decided weeks before the U.S. Supreme Court was expected—wrongly, as it turns out—to use its Planned Parenthood v. Casey decision to overturn Roe v. Wade and to restore abortion policy to the democratic processes.  By her opinion, Daughtrey contrives to establish a Tennessee version of Roe.  (In 1993, President Clinton appoints Daughtrey to the Sixth Circuit.)

The Road From Empathy, Through Identity Politics

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leads to the sort of thing we see in yesterday’s Washington Post by columnist Colbert King.  Styled a “Voting Rights Reminder for Clarence Thomas,” King’s column is an utterly appalling, disgraceful example of moral and racial blackmail, calling on the shade of Thomas’s grandfather Myers Anderson, invoking what King calls “African Americans’ hostility toward Thomas” and all but promising to exacerbate it, while trading on King’s allegedly good relations with Justice Thomas and hinting that he could tell tales out of school from their conversations but is above all that.

All this thuggery is employed in an attempt to persuade (!!) Thomas to vote the way King wants in the pending Voting Rights Act case of Northwest Austin Municipal Utility Dist. No. 1 v. Holder.  Almost as an afterthought in the latter part of the column, King trots out some perfunctory legal arguments.  But the heart of his argument is that Thomas should remember he is a black man and vote in the (presumptive) interests of his race.

There are important legal principles at stake in this case, though it is farfetched to suppose that the historic purposes of the Voting Rights Act would be deeply frustrated by a ruling that the municipal utility district is not bound by the pre-clearance provisions of the act when it wants to make some changes in the conduct of its elections.  At the most fundamental level, the powers of Congress and the judiciary are in competition here: when section 2 of the Fifteenth Amendment says ” [t]he Congress shall have power to enforce this article by appropriate legislation,” should our focus be on “Congress shall have power” or on a judicial authority to assess whether legislation is “appropriate”?

Such questions cannot be answered better (or worse) by black judges than by white ones.  Nor can they be answered more intelligently by evoking emotional responses, in judges of any color, to memories of Jim Crow.  And we would certainly think ill–and rightly so–of any judge who chose an outcome in the case according to his “empathy” or his own “identity” as a member of one race or another.

So Colbert King wants Clarence Thomas to sacrifice his judicial duty to racial identity politics.  King quotes Thomas’s grandfather and warns the justice not to “shame our race.”  Colbert King has already shamed himself, simply as a man.

This Day in Liberal Judicial Activism—May 31

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1990—In an otherwise insignificant case (Shriners Hospitals v. Zrillic), Florida chief justice Rosemary Barkett, completely botching case law governing the federal Equal Protection Clause, asserts that “underinclusive or overinclusive classifications fail to meet even the minimal standards of the rational basis test” and, on that misunderstanding, invalidates a six-month statutory time period.  There is, she says, “no rational distinction” between a period of “five months and twenty-eight days” and a period “a few days longer.”  Somehow that same insight escaped her in a separate case (LeCroy v. State) in which she concluded that the Constitution imposes a bright-line age minimum for offenses that can result in the death penalty. 

Barkett’s proposition would go far towards transforming supposedly deferential rational-basis review into strict scrutiny and thus invites judicial activism.  Indeed, because it is difficult to imagine that the review would be applied consistently (few laws would survive if it were), her approach would lead to arbitrary and selective application.  (In 1994, President Clinton appoints Barkett to the Eleventh Circuit.)

Reading On In That Law Journal

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In case you missed it on The Corner, go read this e-mail from a reader to Rich Lowry about the other contributors to that 2001 Berkeley forum where Judge Sotomayor made her now-notorious “wise Latina” remark.  Turns out some prominent speakers the next day, including California judge Valeriano Saucedo and Ninth Circuit judge Richard Paez, quite plainly disagreed with her and defended the historic norm of judicial impartiality.  Perhaps she’d like to discuss her reaction to their reactions?

Federalist Society, No! La Raza, Si?

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A commenter at the Weekly Standard Blog reminds us that the Democrats were very, very concerned about the association of John Roberts and Samuel Alito with that well-known extremist group, the Federalist Society.  So we know they’ll be equally interested in Judge Sotomayor’s past (and present?) association with La Raza, right?

Another Interesting Case in the Sotomayor Dossier

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Frank Beckwith, nosing about a bit in journalism archives, has come across a 1997 New Republic article by Ruth Shalit, discussing a district court ruling that year by Judge Sonia Sotomayor in the case of Bartlett v. New York State Board of Law Examiners.  The case involved a suit under the Americans With Disabilities Act by a woman with a claimed learning disability who wanted extraordinary accommodations when attempting the state bar exam.  Judge Sotomayor employed some, uh, creative reasoning to justify ruling in Bartlett’s favor.  Very empathetic, you might say.  But I’ll let Frank tell the rest of the story, and draw the pointed comparison to the Ricci case.  Read the whole thing!

Harold Koh on Seizing the Moment

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No, I haven’t forgotten about Harold Koh.

I’ve already explained how the position for which Koh has been nominated—State Department legal adviser—would provide him a cornucopia of opportunities to advance and implement his dangerous, and fervently held, transnationalist views.  In the essay he contributes to The Constitution in 2020 (a book that presents itself as a “powerful blueprint for implementing a more progressive vision of constitutional law”), Koh restates his commitment to transnationalism and asks (p. 314):

“What will the United States and the world look like if we just let constitutional change happen?  And what will they look like if we seize this moment to push our constitutionalism and our politics in better directions?”

Koh is determined to “seize this moment” to advance his transnationalist agenda.  It’s time for responsible senators to work to stop him.

(A collection of my posts on Koh is available at www.EPPC.org/koh.)  

SCOTUS Denies Cert in Chrysler v. Flax

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I expressed skepticism this summer that the Exxon Shipping v. Baker decision was a positive sign for the Court’s punitive damages jurisprudence. After the replay of Philip Morris v. Williams and, now, the Court’s denial of certiorari in DaimlerChrysler v. Flax this week, I can say I was right. As readers of Overlawyered know, the Tennessee Supreme Court reinstated $13.3 million of punitive damages over a good-faith dispute over a van’s seat back design (in an accident caused by a drunk driver), giving no credit to the fact that the design in question was safer than federal safety standards, or to Exxon Shipping’s suggestion that punitive damages greater than a 1:1 ratio were possibly constitutionally inappropriate where compensatory damages were substantial and the defendant’s actions were not intentional or done for profit. As I described the case back then:

In 2001, Louis Stockell, driving his pickup at 70 mph, twice the speed limit, rear-ended a Chrysler minivan. Physics being what they are, the front passenger seat in the van collapsed backwards and the passenger’s head struck and fatally injured 8-month old Joshua Flax. The rest of the family walked away from the horrific accident. Plaintiffs’ attorney Jim Butler argued that Chrysler, which already designed its seats above federal standards, should be punished for not making the seats stronger — never mind that a stronger and stiffer seat would result in more injuries from other kinds of crashes because it wouldn’t absorb any energy from the crash. (Rear-end collisions are responsible for only 3% of auto fatalities.) Apparently car companies are expected to anticipate which type of crash a particular vehicle will encounter, and design accordingly.

(h/t Cutting) (Cross-posted at Overlawyered.)

Frank v. Olson on Sotomayor

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My good friend and co-blogger Walter Olson is reaping the wages of apostasy with prominent placement in the New York Times and other papers for taking the position that Judge Sotomayor is not all that bad. Certainly, some conservative critics have been indiscriminate (wouldn’t we all be a lot happier if the much-criticized Diane Wood were the nominee right now?), and I do agree with Walter that conservatives need to do a better job distinguishing between the bad and the unacceptable. But I have less of a problem drawing the line and finding Sotomayor on the wrong side of it. Wally’s comment on Ricci (“Olson said the firefighter case is ‘a little bit tricky’ and, if anything, is an example of how Sotomayor ducked the chance of a lifetime to take an activist role on affirmative action.”) seems based on a misunderstanding of the posture of the case. The criticism of Sotomayor’s Ricci decision is one of judicial dishonesty: A summary affirmance throwing out a case without addressing the underlying constitutional issues is an (ultimately unsuccessful) attempt to prevent Supreme Court review by falsely making it seem that there was nothing to see here — even though Second Circuit rules forbid a summary affirmance in that sort of circumstance. I have no problem calling that sort of misuse of the judicial power “activism,” if a particularly Machiavellian type of activism. Isn’t it more likely that Sotomayor tried to avoid taking a position on a hot-button issue that could upset a nomination or confirmation hearing? And if so, can we not infer that her actual positions are so far outside the mainstream that she best not state them publicly before being confirmed to the Court?

Sotomayor on Campaign Finance Reform and the First Amendment

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Here’s an interesting Politico article by Kenneth P. Vogel on Judge Sotomayor’s support for limits on fundraising by political campaigns.

Would Judge Sotomayor Be Disqualified from Serving as a Juror?

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That’s a question that Judge Sotomayor’s indulgence of her Latina identity on the bench raises for Andy McCarthy and that he examines (on The Corner).  The broader question also arises, of course, whether President Obama should be using an “empathy” criterion that operates to select justices whose mode of decisionmaking would render them ineligible for jury service (not to mention violate their oath of office). 

The New Haven Firefighters Case and Judicial Activism vs. Judicial Restraint

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Washington Post columnist Eugene Robinson argues that Judge Sotomayor’s “action [in Ricci v. DeStefano] is more properly seen as an example of judicial restraint” than of judicial activism.  I think that he mistakes what’s at issue.  A few comments:

1.  My core complaint, and the complaint of Judge José Cabranes (a Clinton appointee), about the perfunctory per curiam opinion that Sotomayor and her panel colleagues is not that the result she reached was necessarily the wrong one.  I believe that I have been agnostic on that question (though I will point out that even President Obama’s Department of Justice has argued to the Supreme Court that Sotomayor did not “adequately consider whether, viewing the evidence in the light most favorable to [the plaintiff firefighters], a genuine issue of fact remained whether [the City’s] claimed purpose to comply with Title VII was a pretext for intentional racial discrimination in violation of Title VII or the Equal Protection Clause.”) 

My complaint is instead that Sotomayor engaged in shenanigans designed to bury the claims of the plaintiff firefighters, shenanigans that Judge Cabranes exposed in his blistering dissent from denial of rehearing en banc.  Simply put, she didn’t give the firefighters a fair shake, and she seemed to be trying to prevent further review of their claims.

2.  Whether you call Sotomayor’s malfeasance “judicial activism” or not depends on how you define that term.  If you use it to refer to a judge’s indulgence of her own policy preferences, then you might reasonably allege that Sotomayor engaged in judicial activism (though proving her subjective motivation is difficult or impossible).  In any event, there are plenty of categories of judicial wrongdoing beyond “judicial activism,” and the term “judicial restraint” certainly doesn’t capture the behavior that Judge Cabranes complained of.

3.  Repeating the White House spin, Robinson contends that there was “ample precedent” for the unsigned per curiam opinion that Sotomayor joined (and, I suspect, wrote).  As I’ve explained, the White House’s account is at war with both Judge Cabranes and the Obama Justice Department. 

The Sharp Tongue

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The NY Times headline is “Sotomayor’s Sharp Tongue Raises Issue of Temperament.” I hope conservatives resist the bait in using this to attack Sotomayor. Bogus allegations of temperament were used by Democrats in the Bush administration to sink the Miguel Estrada nomination and delay the John Bolton appointment. There would be no question that two of the leading conservative judges, Antonin Scalia and Frank Easterbrook, have sharp tongues from the bench, but no one sensible would suggest that this is somehow disqualifying. Let’s establish a precedent that there’s nothing wrong with the sharp tongue: Oral argument is overrated, and that an advocate is interrupted is hardly grounds to disapprove of the judge who interrupts.

Sotomayor and Punitive Damages

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In today’s American, I discuss the costs of the U.S. tort system, a summary of my congressional testimony on the subject, where I show that these run to the tune of hundreds of billions of dollars of wealth destruction a year.

One of the unfortunate downsides of Sotomayor replacing Souter is that it is quite likely that the fragile coalition on the Court for protecting defendants from runaway punitive damages awards will dissolve, adding uncertainty to our tort system, and raising its costs all the more. I certainly share with Justices Scalia and Thomas skepticism that “substantive due process” was the constitutional solution to this problem (I’d find such awards a violation of the dormant commerce clause myself), but at least those justices recognized the public policy consequences of arbitrarily huge awards.

Charles Krauthammer Channels Emily Litella

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I admire Charles Krauthammer greatly; he’s smart, witty, so very good at making an argument.  But (you could hear that “but” coming, right?) he disappoints me this morning.  Near the end of an otherwise fine column on the “teaching moment” that the Sotomayor nomination presents for illuminating our partisan divide between the rule of law and the rule of “empathy,” Dr. K writes this:

Make the case for individual vs. group rights, for justice vs. empathy. Then vote to confirm Sotomayor solely on the grounds — consistently violated by the Democrats, including Sen. Obama — that a president is entitled to deference on his Supreme Court nominees, particularly one who so thoroughly reflects the mainstream views of the winning party. Elections have consequences.

But there is no entitlement to such deference.  There is no such constitutional principle, no such tradition in the history of Supreme Court nominations, and no compelling reason politically or otherwise to elevate the “consequences” of a presidential election to such a level.  Every single senator is there because of an election too: do those elections not have consequences?  They owe their constituents, and their consciences, and their oaths of office, not only an argument for their understanding of the rule of law but a vote consistent with that argument.  Why throw away the argument with a vote that contradicts what you’ve just been saying?  Krauthammer’s view is that Republicans should “seize” the teaching moment, but if their intention is to vote to confirm Judge Sotomayor in the end anyway, then the whole exercise will be a bit of play-acting, understood by both sides to be a time-wasting fraud.

I’m as big an advocate of an energetic executive power under the Constitution as just about anyone I know.  (Maybe John Yoo outstrips me, but not by much.)  And if we were talking about a Cabinet or other executive-branch position, the argument for deference to the president deserves a hearing.  But for judicial nominations, especially those to the Supreme Court, I want both an energetic executive and an independent Senate reaching its own judgments.  That’s what the separation of powers is all about: each branch of government, at the apex of its potential strength, forcefully asserting its own prerogatives as a defender of the Constitution.  (The metastasization of judicial supremacy has occurred over the last half century because of a belief that really only the judges are charged with preserving the Constitution.)

Republicans may not have the votes to stop Judge Sotomayor.  And yes, I know there are some who worry that if she were stopped, the next nominee would be still worse–but I don’t buy that, for reasons I’ll go into another time.  But if they cannot stop her, it remains true that they cannot conscientiously vote for her without positive reasons to do so, independent of the president’s having chosen her.  Or else, like Dr. Krauthammer this morning, they will simply look as silly as Emily Litella on the day the confirmation vote is taken.

Time for Transparency?

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An article in today’s Washington Post reports that President Obama’s interview of Sonia Sotomayor left President Obama “sure she agrees with the constitutional underpinnings of Roe v. Wade”:

“In their discussions, they talked about the theory of constitutional interpretation, generally, including her views on unenumerated rights in the Constitution and the theory of settled law,” Gibbs said. “He [President Obama] left very comfortable with her interpretation of the Constitution being similar to that of his.”

Just wondering:  Was the interview taped?  And if so, would President Obama, consistent with his commitment to—or, rather, rhetoric about—transparency, make the tape publicly available so that the American people can know just what commitments and assurances he extracted or received?

[Cross-posted on The Corner]

This Day in Liberal Judicial Activism—May 29

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1992—According to Jan Crawford Greenburg’s Supreme Conflict, Justice Anthony Kennedy writes a note to Justice Harry Blackmun asking to meet him “about some developments in Planned Parenthood v. Casey … [that] should come as welcome news.”  The news is that Kennedy is retreating from his conference vote to apply a deferential standard of review to the abortion regulations under challenge.  One month later, Justices O’Connor, Kennedy, and Souter issue a joint opinion in Casey that is breathtaking in its grandiose misunderstanding of the Constitution and of the Supreme Court’s role.  (More on this in a month.)

2001—Does the Americans with Disabilities Act of 1990 require that the PGA Tour allow a disabled contestant to use a golf cart in its professional tournaments when all other contestants must walk?  Answering in the affirmative (in PGA Tour, Inc. v. Martin), Justice Stevens’s opinion for the Supreme Court determines that walking is not “fundamental” to tournament golf.  An excerpt from Justice Scalia’s classic dissent:

“If one assumes … that the PGA TOUR has some legal obligation to play classic, Platonic golf … then we Justices must confront what is indeed an awesome responsibility. It has been rendered the solemn duty of the Supreme Court of the United States … to decide What Is Golf. I am sure that the Framers of the Constitution, aware of the 1457 edict of King James II of Scotland prohibiting golf because it interfered with the practice of archery, fully expected that sooner or later the paths of golf and government, the law and the links, would once again cross, and that the judges of this august Court would some day have to wrestle with that age-old jurisprudential question, for which their years of study in the law have so well prepared them: Is someone riding around a golf course from shot to shot really a golfer? The answer, we learn, is yes. The Court ultimately concludes, and it will henceforth be the Law of the Land, that walking is not a ‘fundamental’ aspect of golf.  Either out of humility or out of self-respect (one or the other) the Court should decline to answer this incredibly difficult and incredibly silly question.”

The Real Sotomayor Issue

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The Sotomayor Supreme Court nomination got a quick start out of the gate, focusing debate about something very important:  How are judges supposed to decide cases?  Are they, as Judge Sotomayor says, supposed to rule based upon identity politics, using their own personal views and biases in making decisions?  Or is it to put aside all personal experiences and policy desires and apply the Constitution and laws as written?

Somehow, this important debate is turning into an argument about race and identity politics.

Many of us in the conservative movement believe that Judge Sotomayor is intelligent, and that, at least on paper, she has professional qualifications that are certainly sufficient for occupying a seat on the U.S. Supreme Court.

But what needs deeper examination, because it is very troubling, is her overarching judicial philosophy – one that, judging from her public remarks and law review articles, she has thought about seriously and embraced only after much reflection.  It’s the judicial philosophy shared by President Obama – a philosophy with which most Americans, who support judicial restraint, vehemently disagree.

It is only this – President Obama’s and Judge Sotomayor’s judicial philosophy – that drives us to raise serious concerns about Judge Sotomayor’s fitness to serve on the nation’s highest court.

At its core, the thrust of most conservatives’ concerns from the past several days centered around three items—all of which, by the way, the White House press operation has tried mightily to brush aside: First, a video clip of Judge Sotomayor from a 2005 appearance at Duke Law School, where she stated that appellate courts make policy.

Second, a 2002 law review article in which Judge Sotomayor says that race, gender, and ethnicity necessarily affect the way judges decide cases – and that’s a good thing.

Third, a 1996 law review article challenging the belief that law needs to be knowable and predictable, in which she borrowed from the philosophy of early 20th century Legal Realists who rejected the idea that judging involves the impartial application of neutral principles. This body of work is not the product of stupidity, or reverse racism, or a bad temper. Rather, it appears to be a view of the courts as engines of social and political change—in short, wrought out of a devotion to judicial activism.

We need to move forward with a confirmation process that focuses on what really matters:  Does Judge Sotomayor embrace a view of judging that is constrained by the text, history, and principles of the Constitution and our laws?  Or does she favor an interpretive enterprise in which a judge’s personal feelings, views, background, and politics drive the outcome of cases?

Sotomayor’s “Unscripted” Law-Review Article?

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According to Jen Rubin, Sotomayor defender Lanny Davis contends that Judge Sotomayor “misspoke” when she said, “I would hope that a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn’t lived that life.”  That reminds me of this excerpt from a Washington Post article today:

Meanwhile, conservatives have seized upon Sotomayor’s unscripted moments to make the case that she is outside the mainstream. The two most often quoted are a statement she made about how appellate judges make policy and her observation about how being a Latina affects her role as a judge: “I would hope that a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn’t lived that life.”

The trusting reader wouldn’t understand that Sotomayor’s “observation about how being a Latina affects her role as a judge,” far from being “unscripted,” was from the prepared text of a speech that Sotomayor then published as a law-review article.  (For more on Sotomayor’s comments in that speech, see my post “Sonia Sotomayor’s Selective Empathy,” which discusses and links to Stuart Taylor’s critique.)  It’s entirely fair to hold Sotomayor to what she said.

Of course, unscripted comments like Sotomayor’s quip about how the courts of appeals are where “policy is made” can themselves be especially revealing precisely because they’re unscripted.

And They Said Karl Rove Was Smart

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“Rumblings on the left” — it’s more evidence of the political brilliance and crassness that is Obama.

Sotomayor and La Raza

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Via Drudge, one finds one’s way to this ABA profile of Sonia Sotomayor during “National Hispanic Heritage Month 2000,” in which one learns that the judge was then a member of the National Council of La Raza.  Is she still, and how much of La Raza’s politics does she make her own?

Rove

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stands firm on Cardozo.

Sotomayor’s “Prejudices” and “Relative Morality”

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Many of us have seen, and quoted, Judge Sonia Sotomayor’s remarks in a 2001 lecture about the virtues of a “wise Latina” as compared with a “white male.”  This morning, on Bill Bennett’s radio show, I read a bit more of that lecture, which was published as “A Latina Judge’s Voice,” 13 Berkeley La Raza Law Journal 87 (2002).  These lines are from the last of its seven pages:

I can and do aspire to be greater than the sum total of my experiences but I accept my limitations.  I willingly accept that we who judge must not deny the differences resulting from experience and heritage but attempt, as the Supreme Court suggests, continuously to judge when those opinions, sympathies and prejudices are appropriate.

    There is always a danger embedded in relative morality, but since judging is a series of choices that we must make, that I am forced to make, I hope that I can make them by informing myself on the questions I must not avoid asking and continuously pondering. . . .

These remarks prompt some questions, such as: What exactly do you think are those occasions when your “sympathies and prejudices are appropriate” in reaching a decision?  And when did the Supreme Court “suggest” that there would be such occasions in the exercise of the judicial function?  Why do you think that judging is a “series of choices” that you “must make” rather than a series of discernments of those choices that the law has already made?  What have you learned in your study or practice of law and judging that makes you believe that judging is an exercise in “morality”?  Is there a role for moral discretion for the judge interpreting the Constitution or a statute–the principal business of federal appellate judging?  What would that role be?  And while it’s refreshing that you recognize the “danger embedded in relative morality,” yet you appear to embrace it nonetheless as inevitable for a judge; so what do you mean by “relative morality”?  It sounds like “relativism,” or the notion that morality is inherently subjective, to be guided by the passions rather than reason.  It’s a dubious business to assign to judges the role of moralizers or moral philosophers in the first place; isn’t it infinitely worse to suppose they are to be, not moral reasoners, but moral emotionalists?

Just asking.

Her Majesty Sonia Sotomayor vs. the Rule of Law

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In 1996, Judge Sonia Sotomayor delivered a speech to law students that she then turned into a law-review article (which she co-authored with Nicole A. Gordon), “Returning Majesty to the Law and Politics:  A Modern Approach” (30 Suffolk U.L. Rev. 35 (1996)).  The article is muddled and mediocre—it’s certainly not something that those struggling to portray Sotomayor as brilliant would want to highlight—but I will focus less on its overall quality than on some of Sotomayor’s arguments:

1.  Sotomayor argues, “It is our responsibility”—the responsibility of lawyers and judges—“to explain to the public how an often unpredictable system of justice is one that serves a productive, civilized, but always evolving, society.”  She identifies—and treats as equally legitimate—four “reasons for the law’s unpredictability”:  (a) “laws are written generally and then applied to different factual situations”; (b) “many laws as written give rise to more than one interpretation”; (c) “a given judge (or judges) may develop a novel approach to a specific set of facts or legal framework that pushes the law in a new direction”; and (d) the purpose of a trial is not simply to search for the truth but to do so in a way that protects constitutional rights.

 

Somehow Sotomayor doesn’t see fit even to question whether, and under what circumstances, it’s proper or desirable for a judge to “develop a novel approach” that “pushes the law in a new direction.”  Instead, she complains about “recurring public criticism about the judicial process,” and she laments that lawyers “have also unfortunately joined the public outcry over excessive verdicts and seemingly ridiculous results reached in some cases” (as though lawyers have some special responsibility to indulge judicial excess).  The fact that Sotomayor cites as her lead example of unwelcome “public criticism” an article “describing Senator Dole’s criticism of liberal ideology of Clinton judicial appointments and American Bar Association” lends credence to the suspicion that Sotomayor is less interested in the majesty of the law than in the majesty of liberal activist judges. 

 

2.  Sotomayor discusses “the law” without distinguishing meaningfully between the legislature’s role in making law and the judiciary’s role in applying it.  For example, she asserts:

The public expects the law to be static and predictable. The law, however, is uncertain and responds to changing circumstances.

What the public is entitled to expect is that judges will apply the law neutrally, according to established principles.  That’s a large part of what the “rule of law” means.  It’s the province of legislatures to change the law (prospectively, of course) to “respond[] to changing circumstances.” 

3.  Sotomayor complains that “the public fails to appreciate the importance of indefiniteness in the law.”  But beyond pointing out the uncontroversial fact that some indefiniteness is inevitable (for reasons (a), (b), and (d) in point 1), she nowhere makes the case that indefiniteness is somehow a positive good.  She relies heavily on Jerome Frank’s legal realist views about the development of law, but nowhere explains why legislatures aren’t the proper forum for (to use Frank’s phrase) “adapting [law] to the realities of ever-changing social, industrial, and political conditions.” 

4.  As if Sotomayor’s unwarranted celebration of “indefiniteness” weren’t enough to alarm anyone who cares about the rule of law, anyone interested in civil-justice reform ought to take note of Sotomayor’s criticism that “legislators have introduced bills that place arbitrary limits on jury verdicts in personal injury cases.  But to do this is inconsistent with the premise of the jury system.”  Oh, really?  How can it be that legislation can determine when juries should rule for plaintiffs but not limit the amounts they can award?

White House and Schumer: Deceptions on Sotomayor

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White House officials and Sen. Chuck Schumer are deliberately misleading the public, both with their absurd statement, as Ed Whelan has shown, that Judge Sotomayor was following Second Circuit precedent in throwing out the claims of the New Haven firefighters without even analyzing them. As Al Gore would say, there was “no controlling legal authority” and the cases cited were invoked by the district court, not Sotomayor. Judge Jose Cabranes correctly said the case raised “issues of first impression.”

This is particularly rich, given the second deception underway by Schumer and the White House.

Comments yesterday by the White House Press Secretary Robert Gibbs, and today by Sen. Chuck Schumer, that statements made at Duke University by Judge Sotomayor in which she said appellate courts should “make policy” were taken out of context are purposely misleading and outright misinformation designed to walk back an obvious vetting problem this White House has become known for. They say her Duke comments really meant that district courts “deal with individual cases” and appellate courts “deal with complex legal issues and constitutional theory.” But that’s just what she did NOT do — and the district court tried to do — in the firefighters case. 

Moreover, if Mr. Gibbs or Senator Schumer were to read other law review articles written by Judge Sotomayor, as well as reviewed her other speeches, it is clear and unequivocal that Judge Sotomayor has a long track record of advocating for using courts to make policy and laws. It is obvious that the reason the White House has churned up its spin machine on this is because countless polls consistently show that the American people to do not support judges making policy or law from the bench. The American people have spoken loudly and often on this subject, they want judges who interpret law as made through the people and their elected representatives, not through judges imposing their personal political views from the bench as Judge Sotomayor has consistently advocated.

We will be linking to some more of these resources on Judge Sotomayor at www.judicialnetwork.com and at www.aboutsoniasotomayor.com

Another Troubling Vote by Sotomayor

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Here’s the Center for Equal Opportunity’s press release, opposing the Sotomayor nomination. In addition to the New Haven firefighters case, we also mention Sotomayor’s dissenting opinion in Hayden v. Pataki, 449 F.3d 305 (2d Cir. 2006). That litigation involved a number of prison inmates — including, in particular, a convicted double cop killer — asserting a right to vote. The Second Circuit rejected the claim that the Voting Rights Act addressed felon disenfranchisement; Judge Sotomayor dissented. I wrote about the case, and the issue, in the Wall Street Journal.

Is Sotomayor Slow?

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When President Bush nominated Priscilla Owen to the U.S. Court of Appeals for the Fifth Circuit, one of the arguments made against her was that she took to long to issue opinions.  Could the same argument be made against Judge Sotomayor?  In at least one case, Connecticut v. American Electric Power, Judge Sotomayor is on a Second Circuit panel that has taken an unconscionably long time to issue an opinion.  As Jonathan Zasloff notes, it’s been almost three years since the Court heard oral argument in the case, and nothing’s happened.  In the case, several states are suing several large utilities alleging that their emission of greenhouse gases contribute to the “public nuisance” of global warming.  Because of the subject matter, and recent developments in climate change policy, the court could require supplemental briefing or rehearing, but they have yet to do so.  This may be an isolated case, but it is disturbing nonetheless.

White House’s Misleading Spin on New Haven Firefighters Case

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In a press conference yesterday, White House press secretary Robert Gibbs tried to defend Judge Sonia Sotomayor’s outrageous shenanigans in the New Haven firefighters case (Ricci v. DeStefano):

You can’t criticize somebody for ruling based on adhering strictly and strongly to the precedent of Second Circuit, in the case of — in this case, of Hayden v. The County of Nassau, and Bushey v. The New York State Civil Service Commission.

Gibbs’s brazen defense (which I’m told that White House lawyers are providing in an even bolder form on background) is quite a stretch and is at war with both highly respected Clinton appointee José Cabranes and Obama’s own Justice Department.

In his dissent from denial of rehearing en banc in Ricci, Judge Cabranes (joined by five other judges) states that the case “raises important questions of first impression in our Circuit—and indeed, in the nation—regarding the application of the Fourteenth Amendment’s Equal Protection Clause and Title VII’s prohibition on discriminatory employment practices.”  He calls the district court’s opinion (which Sotomayor and her panel colleagues adopted wholesale) “path-breaking” and the questions on appeal “indisputably complex and far from well-settled.”  He declares that the “core issue presented by this case—the scope of a municipal employer’s authority to disregard examination results based solely on the race of the successful applicants—is not addressed by any precedent of the Supreme Court or our Circuit.”

Further, in its brief in the pending Supreme Court case, President Obama’s Department of Justice argues that the unsigned per curiam opinion that Sotomayor joined—and, given her aggressive lead role at oral argument, probably authored—did not “adequately consider whether, viewing the evidence in the light most favorable to [the plaintiff firefighters], a genuine issue of fact remained whether [the City’s] claimed purpose to comply with Title VII was a pretext for intentional racial discrimination in violation of Title VII or the Equal Protection Clause.”  On that ground, the Department of Justice argues that the Supreme Court “should vacate the judgment below and remand for further consideration.”

It’s true that the unpublished district-court opinion that Sotomayor and her panel colleagues adopted relies heavily on Hayden and Bushey and rejects plaintiffs’ various grounds for distinguishing those cases.  It’s also true that Sotomayor and several of her colleagues, in an opinion concurring in the denial of rehearing en banc, maintain (contrary to Judge Cabranes and the five judges who joined his opinion) that Hayden and Bushey were “controlling authority.”  But apart from the fact that neither Hayden and Bushey involved a government entity’s discarding the results of promotional exams, the position of Sotomayor and her colleagues depends on their assertion that “there was no evidence of a discriminatory purpose” in the City of New Haven’s discarding the results—the very assertion that the Obama Justice Department disputes.

(The en banc opinions and the district court’s opinion are available together here.)

She “made her reputation” on “environmental regulation”?

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The Boston Globe editorial to which Kathryn links below says Sotomayor has made her reputation not on hot-button social issues but on matters ranging from environmental regulation to the baseball business.”  I get the baseball reference, as she handled litigation related to the baseball strike as a trial judge, but not the reference to “environmental regulation.”  At least since she’s been on the Second Circuit, her only significant environmental opinion was in Entergy v. Riverkeeper, in which she held the EPA could not consider cost-benefit analysis when setting a standard under the Clean Water Act and was reversed by the Supreme Court 6-3.  Is this what the Globe means?

What Does Sotomayor Mean for Business?

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I have a longish post on whether the Sotomayor nomination should concern the business community on Volokh here.  My bottom line: There are certainly some things in her record that should grab the business community’s attention.

Kelley on GOP Questioning

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My colleague, William Kelley – who served as Deputy White House Counsel during the Roberts and Alito confirmations – has this op-ed in the Boston Globe, contending that “it is essential for Republicans to assert themselves” and to “insist on the time necessary to vet Sotomayor.”  Here is his conclusion:

As we hear calls in the coming weeks for deference to the president’s choice, and for the Republicans not to bother to make the case against the nomination, we should remember how the Democrats lined up against Bush’s nominees. Indeed, calls for deference should ring particularly hollow coming from this administration, since Obama and Vice President Joe Biden disregarded that factor when they both voted against Roberts and Alito, and when both went so far as to join the extraordinary attempted filibuster of Alito’s nomination.

What the Editorial Pages Are Saying About Sotomayor

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New York Times: “In her rulings, Judge Sotomayor has repeatedly displayed the empathy Mr. Obama has said he is looking for in a justice.”

Wall Street Journal: “This isn’t a jurisprudence that the Founders would recognize, but it is the creative view that has dominated the law schools since the 1970s and from which both the President and Judge Sotomayor emerged.” 

Washington Post

Senators could ask her, then, how, when deciding a case, she balances the quest for objectivity with her personal experiences. They might also ask her views on judicial activism. In a panel discussion in 2005, she said that a “court of appeals is where policy is made.” Conservative critics have seized on this statement to argue that she is a judicial activist who believes judges should make, rather than interpret, the law. Yet her statement could just as easily be understood to be explaining correctly that the courts of appeals — and not the Supreme Court — are the venues where the vast majority of cases and policies are ultimately decided.

Washington Times: “With his nomination of Judge Sonia Sotomayor for the U.S. Supreme Court, President Obama has abandoned all pretense of being a post-partisan president.”

Boston Globe

Some liberal activists hoped that Obama would seek a firebrand to counter Antonin Scalia, the darling of the right. Yet Sotomayor has made her reputation not on hot-button social issues but on matters ranging from environmental regulation to the baseball business. While she presumably shares Obama’s support for abortion rights, she upheld Bush-administration restrictions on family-planning activities by US-funded nonprofits overseas.

Despite a strong Democratic majority in the Senate, Obama’s nominee should be ready for probing confirmation hearings. In a crucial affirmative-action case, she voted to uphold New Haven’s ability to throw out a promotion exam in which minority firefighters fared poorly, but the judges did not explain their reasoning. Senators should press for her analysis of the issue. Sotomayor also has little record on the limits of executive power – which has emerged as a vital issue in the years since Sept. 11.

Even so, conservative groups have seized upon an offhand remark in 2005 – her description of federal appeals courts as the place “where policy is made” – as evidence that Sotomayor would legislate from the bench. The attack is disingenuous; appellate judges by necessity guide lower courts among competing interpretations of often ambiguous laws. Sotomayor’s critics would fault her for even acknowledging the power that appellate judges wield.

New York Post: “Once confirmed, she will join Ruth Bader Ginsburg as the High Court’s sec ond reflexively liberal, Ivy League-educated, female, former appellate jurist from the Big Apple.”

ALSO:

Economist: “Barack Obama’s first pick for the Supreme Court infuriates conservatives.”

New York Daily News [reading is believing this one]: “The Senate owes Sotomayor an expeditious and respectful confirmation hearing, paying deference to Obama’s discretion in selecting a quality judge who suits his outlook.”

“Is Sonia Sotomayor the crassest of political picks”

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Ramesh leads a washingtonpost.com discussion.

Would Judge Sotomayor Agree With This?

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“Judicial power, as contradistinguished from the power of the laws, has no existence.  Courts are the mere instrument of the laws, and can will nothing.  When they are said to exercise a discretion, it is a mere legal discretion, a discretion to be exercised in discerning the course prescribed by the law; and when that is discerned, it is the duty of the Court to follow it.  Judicial power is never exercised for the purpose of giving effect to the will of the Judge; always for the purpose of giving effect to the will of the Legislature [or, this author would add in another context, the makers of a constitution]; or in other words, to the will of the law.”

–Chief Justice John Marshall, Osborn v. Bank of the United States, 22 U.S. 738, 866 (1824).

How the Pick Happened

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ABC’s Jan Crawford Greenburg has an interesting behind-the-scenes post on how President Obama settled on Sonia Sotomayor as his first Supreme Court pick.  This bit is particularly interesting:

With the president hoping to achieve a crowning accomplishment in his first year with health care reform, advisers pointedly warned against another big fight elsewhere, sources said.

As the first Hispanic nominee, with a compelling life story and rich judicial experience, Sotomayor would be hardest for Republicans to oppose, they argued, and therefore easiest for Obama to get confirmed. . . .

Obama’s advisers also were aware of a political reality on the Left, sources said. Sotomayor has the added bonus of placating his base, which has grown increasingly angry over some of Obama’s recent positions on terrorism.