Tuesday, May 26, 2009
Sotomayor linkage and excerptification
I've been otherwise engaged and am therefore behind on the nomination of Sonia Sotomayor to the United States Supreme Court, but while on the train to Hartford I've been surveying the rightosphere. Herewith, the stuff I have read thus far...
Roger Kimball
There were also some reservations. Jeffrey Rosen, writing on May 4 in The New Republic, for example, noted that “despite the praise from some of her former clerks, and warm words from some of her Second Circuit colleagues, there are also many reservations about Sotomayor.” Rosen mentioned Sotomayor’s temperament (hot) and her intelligence and legal competence (questionable). In short, in the words of one observer, Sonia Sotomayor, the first Hispanic nominee to the Supreme Court, is “not that smart and kind of a bully on the bench.”I don’t doubt it. But a lack of brains has never been an obstacle to legal preferment, and I see no reason to change our policy on that now. And as for being a bully: well, Sonia Sotomayor, the first Hispanic nominee to the Supreme Court, won’t be the first bully to don the black robes. Granted, it’s not pretty. It’s not desirable. But I don’t see that it is disqualifying.
No, I think we have to give her a pass on matters of temperament and general competence. Matters of basic judicial philosophy, on the other hand, are another question. Sonia Sotomayor, the first Hispanic nominee to the Supreme Court, believes that the job of judges is to make the law, not uphold it.
Don’t believe me? Look at this clip from a 2005 symposium at Duke University. The Court of Appeals, said Sonia Sotomayor, the first Hispanic nominee to the Supreme Court, “is where policy is made.” She went on to note that she shouldn’t say that publicly — after all, cameras were rolling — but that, she said, was the truth of the matter. I hope that video clip is played early and played often. [UPDATE: I hope her 2002 comments at Berkeley about how it is appropriate for judges to draw upon their “experiences as women and people of color" in their judicial decision making are aired often as well. The more one looks into Sotomayor's record, the clearer it is that, as a friend of mine put it, identity politics is her judicial philosophy.]
To my mind, what Sonia Sotomayor, the first Hispanic nominee to the Supreme Court, said there disqualifies her from her position on the Court of Appeals. It should render her beyond the pale for a position on the Supreme Court of the United States.
Richard Epstein
Here is one straw in the wind that does not bode well for a Sotomayor appointment. Justice Stevens of the current court came in for a fair share of criticism (all justified in my view) for his expansive reading in Kelo v. City of New London (2005) of the "public use language." Of course, the takings clause of the Fifth Amendment is as complex as it is short: "Nor shall private property be taken for public use, without just compensation." But he was surely done one better in the Summary Order in Didden v. Village of Port Chester issued by the Second Circuit in 2006. Judge Sotomayor was on the panel that issued the unsigned opinion--one that makes Justice Stevens look like a paradigmatic defender of strong property rights.
I have written about Didden in Forbes. The case involved about as naked an abuse of government power as could be imagined. Bart Didden came up with an idea to build a pharmacy on land he owned in a redevelopment district in Port Chester over which the town of Port Chester had given Greg Wasser control. Wasser told Didden that he would approve the project only if Didden paid him $800,000 or gave him a partnership interest. The "or else" was that the land would be promptly condemned by the village, and Wasser would put up a pharmacy himself. Just that came to pass. But the Second Circuit panel on which Sotomayor sat did not raise an eyebrow. Its entire analysis reads as follows: "We agree with the district court that [Wasser's] voluntary attempt to resolve appellants' demands was neither an unconstitutional exaction in the form of extortion nor an equal protection violation."
Maybe I am missing something, but American business should shudder in its boots if Judge Sotomayor takes this attitude to the Supreme Court. Justice Stevens wrote that the public deliberations over a comprehensive land use plan is what saved the condemnation of Ms. Kelo's home from constitutional attack. Just that element was missing in the Village of Port Chester fiasco. Indeed, the threats that Wasser made look all too much like the "or else" diplomacy of the Obama administration in business matters. (bold emphasis added)
Arrgh.
Walter Olsen
Some conservatives keep publicizing a YouTube clip where she confides to a panel-discussion audience that appeals courts are "where policy is made." Sorry, but that's a standard observation among legal commentators these days--by no means limited to liberals--and, by my subjective measure, she actually comes off pretty well on that tape....
Grumbling about "affirmative action picks" will likewise fall flat, if only because everyone knows most Republicans would have stampeded to back a Hispanic female nominee with similar credentials had George W. Bush picked one. Likely to develop more traction is criticism of Sotomayor's actual approach toward affirmative action issues, starting with the now-famous line from her speech to a diversity conference in 2001--"I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion [as a judge] than a white male who hasn't lived that life"--and continuing through the pending New Haven case where some fellow judges thought she gave short shrift to firefighters' complaints of reverse discrimination.
Prediction: She'll explain away the 2001 line as not reflecting her current thinking, and won't have to discuss the firefighters case since it might land back in her court on remand....
Issues of business law don't come across as Sotomayor's great passion one way or the other, so it's hard to know what all this portends for the high court's direction on business issues should she be confirmed. As Home Depot's ( HD - news - people ) Bernard Marcus and others have pointed out, for all of David Souter's predictable role on the court's liberal side in most high-profile cases, he in fact steered to middle-of-the-road, hard-to-characterize views on many issues of litigation, liability and procedure, either as a swing vote or as the author of opinions. (Two key issues to watch: what sort of constitutional restraints, if any, there are on punitive damages, and how much scrutiny judges should give to initial pleadings to determine whether a federal lawsuit ought to go forward.)
Some of her backers say they expect that Sotomayor will emerge as a liberal in the less than fiery, relatively "legalistic" Ginsburg/Breyer mold. Even assuming that happens, some outcomes will soon change in a direction most businesses will find adverse. And in coming weeks, both friends and foes will be going over her published opinions--some with hope, others with dread--for clues to whether she might form the nucleus of some future new and more seriously left-wing faction on the court.
And, from his own corner of the left, Chris Chambers
Trivia question, 100 Nat Turner Bonus points: Sonia was apppointed to the federal bench by a REPUBLICAN president. Can you name him, and thus answer why this is a minefield destined to split the wingnuts even further from moderate GOPers?
More links here, here, and here.
13 Comments:
By 
, at
Tue May 26, 08:03:00 PM:
Answer to Trivia question: George H. W. Bush, 41st President of the United States.
By , at
Tue May 26, 08:24:00 PM:
Grumbling about "affirmative action picks" will likewise fall flat......
Affirmative action?? Good grief. She graduated as valedictorian of her class at Cardinal Spellman High School in New York. She graduated Phi Beta Kappa and SECOND in her class at Princeton. She was editor of the Yale Law Review, which is a blind selection process (essays are submitted without name, race or gender appellation), and *you* guys wanna claim she's a product of affirmative action? Pick on her because off her decisions, but please don't throw around embarrassing Limbaughesque arguments that serve only to back the Republicans further- and sooner- into the small, dark corner of incredubly shrinking "big tent."
By 
TigerHawk, at
Tue May 26, 08:41:00 PM:
I don't think she is an "affirmative action" pick, by the way, in the sense of her own qualifications. I agree with Olson. But notwithstanding her own achievements, she seems to be a big proponent of affirmative action.
By , at
Tue May 26, 08:43:00 PM:
From Link: I wrote #1 and #2 this morning:
#1)
How about a shout out for Bronx girl -- Cardinal Spellman grad -- Sonia Sontomayor ... our next Supreme Court justice. I hear she went to some nearby college too -- the College of New Jersey, was it?
- My sister went to Cardinal Spellman. Sonia seems to be playing down her Catholic roots -- as it's politically incorrect -- but she's been back to Spellman as an inspiring graduate ... so props on that. When she went to Spellman they ran it as two separate schools -- boys and girls -- all classes segregated ... they shared the gym and cafeteria.
2) Expect weeks of chattering heads debating the merits of diversity and affirmative action. Sonia is on record as saying that a Latina makes a better judge than a white male. She didn't know to hold her tongue ... the way that Justice Roberts did for 25 years.
Adding fuel to the fire ... the New Haven fire fighters case. The Supreme Court is poised to rule on whether an Italian was the victim of reverse discrimination because New Haven threw out the lieutenants test -- and promoted no one -- because no black and only two Hispanics passed. The test had been vetted by an outside consulting firm as being job-related and non-biased. The Italian was dyslexic -- he quit his second job to study and paid to have the study materials put on tape.
The Supreme Court got this appeal from the Second Circuit -- who ruled for New Haven and against the Italian. Sotomayor was one of the three judges on this -- they were criticized for ruling without issuing a written opinion, which some say was done on purpose to make it harder to appeal to a larger Second Circuit panel or to the Supreme Court. They knew a compelling test case when they saw one.
I doubt there's much in Sonia's private life to dredge up ... I suspect she has several cats, is all. A generation ago Sonia would have been a nun ... a very angry one too ... My palms and knuckles cringe at the thought ...
3) New stuff: We knew we were getting a nominee like this -- so I'm glad we got a Bronx girl. Score a few points on principle during her hearings and move on .... there's no sense in attacking her. The New Republic piece has to be a hatchet job -- unless you can graduate summa from Princeton and have only half a brain -- you Tigers tell me.
Link, over
By , at
Tue May 26, 09:23:00 PM:
In Bradwell v Illinois, 83, U.S. 130, (1873), ruled that women could NOT apply for a license to practice law.
The US. Supreme Court, backing the Illinois Supreme Court said this:
"On the contrary, the civil law, as WELL AS NATURE HERSELF, has always recognized a wide difference in the respective spheres and destinies of man and woman....which is founded in the divine ordinance, as well as in the nature of things."
It goes on to say "This is the law of the Creator. And rules of civil society must be adapted to the general constitution of things and cannot be based upon exceptional cases".
The Court once ruled that Women can not be lawyers.
That is Conservatism!
What in blazes name are women becoming lawyers? And George Walker Bush appoints her? The Republican party is no more conservative, has never been. The Bushies have never espoused true conservatism.
This appointment is a travesty and any woman in a law school is a travesty and unrighteousness. Women don't belong as lawyers and even more so as judges. Americans sooner or later adopt the Marxist position.
What Nature and God intended must be adhered to. Otherwise it is nihilism and unrighteousness.
By , at
Tue May 26, 09:32:00 PM:
The Catholic Church and Western Christianity is in serious trouble! Sonia is a Catholic went to Catholic school and there is no training on what it means to be a woman? That in her years of Catholic education that no one told her, and her bishop didn't teach her, that women do not belong as lawyers?
That the Catholic Church itself is practicing and teaching nihilism to its flock! That across this land Catholic institutions accept women into their law schools. Catholics don't know anymore what it means to be Catholic. A true Catholic does not teach, uphold or support Nihilism in any of its forms.
Does anybody out there know what Truth is? What traditionalism is? What the heck "conservatism" is about?
If the Supreme Court already ruled that women can't be lawyers---why are we accepting it now?
The criterion of Truth is CONSISTENCY (for those who are intellectually challenged). Truth doesn't change. Cicero said, "Truth is not one thing in Athens and another in Rome. It is not one thing yesterday and another thing tomorrow." WTF is going on today? Truth changes?
I don't think so. This act needs to be routinely condemned and outright dismissed. And if you Men don't start standing up for the Truth----Then start wearing dresses!
By Escort81, at
Tue May 26, 09:53:00 PM:
I don't think that Judge Sotomayor is "an affirmative action" nominee, but I think the fact of her class ranking at Princeton that is getting passed around -- being #2 -- may not be verifiable, if memory serves.
She certainly was right up there, since she graduated summa cum laude, putting her rougly in the top 1%, or top 10 students in a class of about 1000. She graduated 5 years ahead of me, and I seem to recall that Princeton did not disclose absolute class rank. The exceptions to that are the Valedictorian, who is generally known to have the top rank in terms of GPA, and the Salutatorian, who is a top ranked student who has also demonstrated proficiency in Latin (and gives a graduation speech in Latin -- the students have the text on their seats, with footnootes prompting them to cheer or boo at certain times, much to the amazement of the spectators, who have no such notes). The Salutatorian of the Class of 1976, Susan Lynne Hurley, unfortunately passed away about two years ago.
This is really a distinction without a difference, since it matters very little whether you are #2 or #9 -- if you graduate summa cum laude, you are doing OK. As a mid-pack student, I was not in the same county as summa, so I am not casting stones here, just questioning the reporting of a number.
By TigerHawk, at
Tue May 26, 11:14:00 PM:
Escort81, a couple of additional points. First, honors (you will recall) are based on departmental grades. I was magna cum laude in Politics, notwithstanding some poor showings in other subjects. Second (and more importantly), Sotomayor won the Pyne Prize, which is the top purely academic honor. So while Princeton does not calculate a numerical class rank and the commencement speakers are chosen based on other considerations, the Pyne Prize winner has the best claim to be the #1 student in the class.
By Escort81, at
Wed May 27, 12:28:00 AM:
TigerHawk - one can only imagine what your weaker subjects were. I probably should have majored in Religion, since I received good grades in the one or two courses I took in that subject area, and I might even be better anchored in the spiritual sense now, in middle age. Maybe I could even have gone to Divinity School...nah, too much celibacy.
I hadn't read and wasn't aware that Sotomayor won the Pyne Prize, which does probably make her #1 and not #2. Two years behind her was Eric Lander '78, who I believe also won that prize; I knew him when I was a freshman, and he was off the charts brilliant.
By , at
Wed May 27, 10:39:00 AM:
Alas, one can reliably count on Mr. Chambers to make an ill-informed point. Ms. Sotomayor was Sen. Moynihan's pick in a deal between Sen. Moynihan and Sen. D'Amato pursuant to which the former effectively got to pick every fourth district court nominee to the federal bench in New York. The Bush 41 folks weren't crazy about her, but didn't have the stomach to try to upset the deal between Sen. Moynihan and Sen. D'Amato.
That said, she's wonderfully well qualified and should be confirmed easily. (The Pyne Prize! Wow!!!) And I say this as someone who probably agrees with very few of her views concerning the Constitution.
By , at
Wed May 27, 11:23:00 AM:
My view is that Sotomayor is an outstanding example of "why elections matter".
Her intelligence will never be at issue in her confirmation hearings, and if it were she'd obviously be well perceived. Her judicial temperament will be discussed, but absent some series of examples of outright bullying that in some obvious way can be demonstrated to have intruded into the decision process, that will also never be a real issue. Her opinions will ultimately matter most, and not her personal opinions as expressed at the La Raza conference or at Duke. Instead it'll be her legal philosophy, and in that area she will also pass muster. After all, she can hardly be more radical than the president and he just won a national election! Hence, I see absolutely no way she will be defeated, unless there is some not-yet-seen dirt like tax problems or criminal activity. Get used to Justice Sotomayor.
By , at
Wed May 27, 11:27:00 AM:
By the way, I'm bitter at Sen. McCain, for the moment toward the end of the campaign when he tried to lecture the audience in Ohio, by saying "You have nothing to fear from Sen. Obama. He's a fine man!" (my paraphrase from sad memory). McCain is a loser, and boy was he ever wrong about Obama.
By , at
Thu May 28, 09:59:00 AM:
Affirmative action is institutionalized discrimination, and if Sotomayor is for it, I am against her. I was passed up for a promotion by a women with less than 20% of my experience on the job. She went on to lose the Disney account, I went on to being named "top 5 in the world". At the time discrimination I was trying to recover from the Post Cold War recession and losing that promotion to a less qualified women hurt my family a lot.
