Someone leaked to Ed Whelan, NR’s legal issues blogger, a pre-SCOTUS-nomination “Dear Mr. President” letter from Larry Tribe at Harvard discussing appointment strategy containing some very candid and interesting observations on the “wise Latina.”
As Jon Adler observed over at Volokh, leftwing Larry Tribe has essentially the same point of view on Sotomayor that Jeffrey Rosen expressed in New Republic.
If you were to appoint someone like Sonia Sotomayor, whose personal history and demographic appeal you don’t need me to underscore, I am concerned that the impact within the Court would be negative in these respects. Bluntly put, she’s not nearly as smart as she seems to think she is, and her reputation for being something of a bully could well make her liberal impulses backfire and simply add to the fire power of the Roberts/Alito/Scalia/Thomas wing of the Court on issues like those involved in the voting rights case argued last week and the Title VII case of the New Haven firefighters argued earlier, issues on which Kennedy will probably vote with Roberts despite Souter’s influence but on which I don’t regard Kennedy as a lost cause for the decade or so that he is likely to remain on the Court.
Stuart Taylor Jr. thinks that Sonia Sotomayor and her liberal colleagues made a deliberate effort to spike the Ricci case. He’s probably right.
(B)ut for a chance discovery by a fourth member of the 2nd Circuit Court of Appeals, the now-triumphant 18 firefighters (17 white and one Hispanic) might well have seen their case, Ricci v. DeStefano, disappear into obscurity, with no triumph, no national publicity and no Supreme Court review.
The reason is that by electing on Feb. 15, 2008, to dispose of the case by a cursory, unsigned summary order, Judges Sotomayor, Rosemary Pooler and Robert Sack avoided circulating the decision in a way likely to bring it to the attention of other 2nd Circuit judges, including the six who later voted to rehear the case.
And if the Ricci case—which ended up producing one of the Supreme Court’s most important race decisions in many years—had not come to the attention of those six judges, it would have been an unlikely candidate for Supreme Court review. The justices almost never review summary orders, which represent the unanimous judgment of three appellate judges that the case in question presents no important issues.
The 2nd Circuit and other appeals courts hear cases in three-judge panels, which almost always write full opinions in all significant cases. Those opinions, which are binding precedents, are routinely circulated to all other judges on the circuit, in part so that they can decide whether to request what is called a rehearing en banc by the entire appeals court.
Not so summary orders. They do not become binding precedents, and in the 2nd Circuit they are not routinely circulated to the judges except in regular e-mails containing only case names and docket numbers. Those e-mails routinely go unread, on the assumption that all significant cases are disposed of by full opinions, according to people familiar with 2nd Circuit practice. ...
(A)ny 2nd Circuit judge who had chanced to find and read the panel’s summary order in Ricci would have found only the vaguest indication what the case was about.
Mess with the American left, its agenda, its candidate, or its appointees, and watch out! They will come after you. Well-funded organizations have the professional staff and all the resources needed to poke and pry into your life and background looking for ammunition, looking for anything negative that can be passed along to faithful and determined media allies to be used to discredit or destroy.
Sonia Sotomayor’s curt ruling in Ricci v. DeStefano (later overturned by the Supreme Court) is an obvious major vulnerability, so Norman Lear’s ultraliberal People for the American Way, as McClatchey reports, is painting a bright orange target on the middle of the back of the 35 year old fireman who brought the suit in the first place.
Supporters of Supreme Court nominee Sonia Sotomayor are quietly targeting the Connecticut firefighter who’s at the center of Sotomayor’s most controversial ruling.
On the eve of Sotomayor’s Senate confirmation hearing, her advocates have been urging journalists to scrutinize what one called the “troubled and litigious work history” of firefighter Frank Ricci.
This is opposition research: a constant shadow on Capitol Hill. ...
On Friday, citing in an e-mail “Frank Ricci’s troubled and litigious work history,” the liberal advocacy group People for the American Way drew reporters’ attention to Ricci’s past. Other advocates for Sotomayor have discreetly urged journalists to pursue similar story lines.
Specifically, the advocates have zeroed in on an earlier 1995 lawsuit Ricci filed claiming the city of New Haven discriminated against him because he’s dyslexic. The advocates cite other Hartford Courant stories from the same era recounting how Ricci was fired by a fire department in Middletown, Conn., allegedly, Ricci said at the time, because of safety concerns he raised.
The Middletown-area fire department was subsequently fined for safety violations, but the Connecticut Department of Labor dismissed Ricci’s retaliation complaint.
No People for the American Way officials could be reached Friday to speak on the record about the press campaign.
Sonia Sotomayor’s dismal record of Supreme Court reversals is worse by one more. It now stands 6 out of 7, with the Court, however, unanimously rejecting her argument in the single ruling that was upheld. Sotomayor’s reasoning in that case, however, was not merely rejected. It was scathingly described as “fl(ying) in the face of the statutory language.”
Stuart Taylor Jr. explains that on rejecting Sotomayor’s ruling this time the decision was not even close.
The Supreme Court’s predictable 5-4 vote to reverse the decision by Judge Sonia Sotomayor and two federal appeals court colleagues against 17 white (and one Hispanic) plaintiffs in the now-famous New Haven, Conn., firefighters decision does not by itself prove that the Sotomayor position was unreasonable.
After all, it was hardly to be expected that the five more conservative justices—who held that the city had violated the 1964 Civil Rights Act by refusing to promote the firefighters with the highest scores on a job-related promotional exam because none were black—would endorse an Obama nominee’s ruling to the contrary.
What’s more striking is that the court was unanimous in rejecting the Sotomayor panel’s specific holding. Her holding was that New Haven’s decision to spurn the test results must be upheld based solely on the fact that highly disproportionate numbers of blacks had done badly on the exam and might file a “disparate-impact” lawsuit—regardless of whether the exam was valid or the lawsuit could succeed.
This position is so hard to defend, in my view, that I hazarded a prediction in my June 13 column: “Whichever way the Supreme Court rules in the case later this month, I will be surprised if a single justice explicitly approves the specific, quota-friendly logic of the Sotomayor-endorsed… opinion” by U.S. District Judge Janet Arterton.
Unlike some of my predictions, this one proved out. In fact, even Justice Ruth Bader Ginsburg’s 39-page dissent for the four more liberal justices quietly but unmistakably rejected the Sotomayor-endorsed position that disparate racial results alone justified New Haven’s decision to dump the promotional exam without even inquiring into whether it was fair and job-related.
It really ought to be a serious factor in the evaluation of a nominee for the Supreme Court that the person has compiled so consistent a record of decisions requiring reversal.
A judge should not hold membership in any organization that practices invidious discrimination on the basis of race, sex, religion, or national origin.
I am a member of the Belizean Grove, a private organization of female professionals from the profit, nonprofit and social sectors,” Judge Sotomayor wrote. “The organization does not invidiously discriminate on the basis of sex. Men are involved in its activities — they participate in trips, host events and speak at functions — but to the best of my knowledge, a man has never asked to be considered for membership.”
She added: “It is also my understanding that all interested individuals are duly considered by the membership committee. For these reasons, I do not believe that my membership in the Belizean Grove violates the Code of Judicial Conduct.
Personally, I disagree with Canon 2, and think judges and everyone else should enjoy freedom of voluntary association, but Judge Sotomayor I expect would be one of the first to insist on strict enforcement of that politically correct standard on everyone but herself.
Is she right in maintaining that the Belizean Grove, a club with 115 female members, is non-discriminatory on the basis of sex?
Here is the club’s own description, you decide.
The Belizean Grove is a constellation of influential women who are key decision makers in the profit, non-profit and social sectors; who build long term mutually beneficial relationships in order to both take charge of their own destinies and help others to do the same.”
Having observed the power of the Bohemian Grove, a 130-year-old, elite old boys’ network of former Presidents, businessmen, military, musicians, academics, and non-profit leaders, and realizing that women didn’t have a similar organization, Susan Stautberg and 26 other founding members created the Belizean Grove, a constellation of influential women who are key decision makers in the profit, non-profit and social sectors; who build long term mutually beneficial relationships in order to both take charge of their own destinies and help others to do the same.
Members are highly accomplished leaders in a wide venue of fields, are dedicated to giving back to their communities, have a sense of humor and excitement about life and are willing to mentor and share connections. With this vision in mind, members are invited not only for their professional accomplishments but also for their generosity and compatibility.
The Grove is an international nurturing network that helps women pursue more significant dreams, ambitions, purposes, transcendence, and spiritual fulfillment, while also opening up more leadership opportunities to these women of diverse backgrounds, talents, ages, and skills. The Grovers are leaders from 5 continents, from profit, non-profit and social sectors. They are heads of major government agencies, businesswomen, military officers, academics, non-profit leaders, musicians, authors, diplomats, design gurus.
——————————————— UPDATE 6/20:
Sotomayor resigned from the Belizean Grove yesterday, stating that she did not want her membership in the exclusuve female-only club to “distract anyone from my qualifications and record.”
Shelby Steele, in the Wall Street Journal, finds further differences between the dream and the reality of Barack Obama.
Obama first Supreme Court appointment is not post-racial in the least.
What is most notable about the Sotomayor nomination is its almost perfect predictability. Somehow we all simply know—like it or not—that Hispanics are now overdue for the gravitas of high office. And our new post-racialist president is especially attuned to this chance to have a “first” under his belt, not to mention the chance to further secure the Hispanic vote. And yet it was precisely the American longing for post-racialism—relief from this sort of racial calculating—that lifted Mr. Obama into office.
The Sotomayor nomination commits the cardinal sin of identity politics: It seeks to elevate people more for the political currency of their gender and ethnicity than for their individual merit. (Here, too, is the ugly faithlessness in minority merit that always underlies such maneuverings.) Mr. Obama is promising one thing and practicing another, using his interracial background to suggest an America delivered from racial corruption even as he practices a crude form of racial patronage. From America’s first black president, and a man promising the “new,” we get a Supreme Court nomination that is both unoriginal and hackneyed.
This contradiction has always been at the heart of the Obama story. On the one hand there was the 2004 Democratic Convention speech proclaiming “only one America.” And on the other hand there was the race-baiting of Rev. Jeremiah Wright. ...
(O)f course “post-racialism” is not a real idea. It is an impression, a chimera that grows out of a very specific racial manipulation that I have called “bargaining.” Here the minority makes a bargain with white society: I will not “guilt” you with America’s centuries of racism if you will not hold my minority status against me. Whites love this bargain because it allows them to feel above America’s racist past and, therefore, immune to charges of racism. By embracing the bargainer they embrace the impression of a world beyond racial division, a world in which whites are innocent and minorities carry no anger. This is the impression that animates bargainers like Mr. Obama or Oprah Winfrey with an irresistible charisma. Even if post-racialism is an obvious illusion—a bargainer’s trick as it were—whites are flattered by believing in it.
But the Sotomayor nomination shows that Mr. Obama has no idea what a post-racial society would look like. In selling himself as a candidate to the American public he is a gifted bargainer beautifully turned out in post-racial impressionism. But in the real world of Supreme Court nominations, where there is a chance to actually bring some of that idealism down to earth, he chooses a hardened, divisive and race-focused veteran of the culture wars he claims to transcend.
The problem with liberal group identity politics is that only certain groups get special consideration. It’s a glorious day when a black gets this position or a Hispanic gets that, but quieter American groups who don’t make organized complaints are not only overlooked, but are incorporated wholesale into the category of guilty oppressors of the former.
Descendants of working class 1900-era Catholic immigrants, like myself and University of Texas Law Professor Lino Graglia, find all this more than a little ironic. Professor Graglia questioned Sonia Sottomayor’s view of Hispanic group entitlement in a letter to the Wall Street Journal yesterday.
Judge Sonia Sotomayor’s speech at a La Raza function in Berkeley, Calif. in 2001 has become famous for the candid statement of her belief that “a wise Latina woman” is likely to be a better judge than a white male. But there is much more that is questionable in the speech. She led up to her conclusion by arguing that America is “deeply confused” yet we “insist that we can and must function and live in a race and color-blind way.” It is fine that she has, as she says, a “wonderful and magical . . . Latina soul,” but that is not the basis for an assumption of superiority. Incredibly, she criticizes another judge who “sees danger in presuming that judging should be gender or anything else biased.” She apparently sees no danger in at least some kinds of bias.
She also noted, “. . . no Hispanics, male or female, sit on the Fourth, Sixth, Seventh, Eighth, District of Columbia or Federal Circuits. Sort of shocking, isn’t it? This is the year 2002. We have a long way to go.” Is it also shocking that there are no Italians, Swedes, Greeks or Poles on several of those courts, or is it only a problem in regard to Hispanics? What racial and ethnic composition of the courts would be unobjectionable in her opinion?
Kenneth Vogel, at the Politico, notes that Sonia Sotomayor is burdened by a prominent record of hostility toward First Amendment campaign speech rights.
Sonia Sotomayor may not have a long paper trail on hot button social issues, but in one area of the law—campaign finance—she has staked a position that could have far-reaching political consequences.
The clarity of her support for limits on campaign fundraising and her background as a pioneering campaign regulator is raising eyebrows among election law experts who say her record is more substantial and explicit than that of any Supreme Court nominee since the dawn of the modern, post-Watergate campaign finance regime.
“There hasn’t been one with as vigorously expressed policy views on campaign finance as this one that I am aware of, and I’ve been pretty aware for a number of years,” said James Bopp, a leading conservative attorney who has won four Supreme Court cases challenging campaign finance regulations.
“I can’t think of anybody who has had such a track record,” said Bob Stern, president of the Center for Governmental Studies and a follower of battles on the issue since the early 1970s. “There are clearly going to be cases coming before the court that will be challenges to the law, and there will be some very important cases.”
Sotomayor brings hands-on experience to the issue from her four years of experience on the New York City Campaign Finance Board, an independent, nonpartisan city agency created in 1988. One of the first members appointed to the board by then-Mayor Ed Koch, Sotomayor helped implement—enthusiastically, according to her cohorts—one of the most comprehensive campaign finance laws in the country.
In a rare and little-noticed law review article, she forcefully defended the policy motivations behind such restrictions, questioning the line between campaign contributions and “bribes,” calling on Congress to overhaul campaign finance laws – including suggesting public financing of its own elections – and blasting the Federal Election Commission for not enforcing existing laws.
“The continued failure to do this has greatly damaged public trust in officials and exacerbated the public’s sense that no higher morality is in place by which public officials measure their conduct,” she wrote in a law review article based on a speech she gave to Suffolk University Law School in 1996, when she was a federal district court judge.
On the only occasion when she was confronted with the issue as a jurist, Sotomayor joined a decision that effectively gave a pass to a Vermont law that severely limited campaign contributions and capped campaign spending – a law that the Supreme Court later overturned as a First Amendment violation.
The same James Bopp, Jr. mentioned in passing in Politico, who practices law in Terre Haute, Indiana with the firm of Bopp, Coleson & Bostrom, yesterday in the Election-Law listserv, discussed Sotomayor’s 1996 law review article and found her philosophy disturbing.
In 1996, the Suffolk University Law Review published Returning Majesty to the Law and Politics: A Modern Approach, by Supreme Court nominee Sonia Sotomayor. This article touches on her legal philosophy in general, as well as her understanding of the First Amendment in particular. The views expressed in this article are troubling, and should give all Americans pause.
Judge Sotomayor writes, “The law … is uncertain and responds to changing circumstances.” It is true that some development in the law takes place as new circumstances arise. For instance, courts today are working out the contours of ‘cyber-law’—a concept that was unheard of a mere thirty years ago. With the proliferation of personal computers and the Internet, however, cyber-law is now a rapidly developing body of law. Some of the old rules regarding the formation of contracts have had to be re-considered to take into account e-transactions. And laws regulating what can, and cannot, be posted on the Internet have had to be evaluated in light of First Amendment protections.
To say that the law develops as new situations arise, however, is far different than what Sotomayor is saying. She calls it a “public myth” that law can be stable, or provide predictable results. Instead, she suggests that the law is in such a constant state of flux that one can never be sure what the law is, or what one’s rights or obligations under it are. What we have, she writes, is an “unpredictable system of justice.” And she believes this “continually evolving legal structure” which leads to what she calls “the uncertainty of law” is a good thing for society.
This is a wrong understanding of the role and function of law in our society. Law is not to be uncertain and arbitrary. Rather, it is to provide rules that all must live by, and guidance whereby we can structure our lives. Sotomayor’s position, though, is that such certainty is a bad thing, and uncertainty in the law is the desired result.
This philosophy opens the door for Sotomayor, and judges who believe similarly, to avoid following what the law actually says. It allows them to place “empathy” above impartiality. After all, if the law is uncertain and constantly changing, why shouldn’t a judge rule in favor of the party that she likes best or agrees with most? Sotomayor’s philosophy facilitates the type of judicial activism and legislation from the bench that decides cases according to what the judges personally believe should be the correct result, instead of what the law actually says should be the correct result. It also destroys any confidence Americans might have in the law’s fairness, if judges are free to make rulings which go against what the law says in order to benefit parties they like or agree with.
Perhaps nowhere is Judge Sotomayor’s problematic philosophy better illustrated than in her approach to campaign finance law. In Returning Majesty to Law and Politics, she compares restrictions on the fundamental First Amendment right of citizens to engage in political speech and association by making contributions to candidates, with restrictions on gift-giving to politicians. Because gift-giving can be restricted, she seems to say, contributions should be restricted, too. She suggests that both gifts and contributions can function as bribes, and seems to be open to the elimination of what she terms “private money” from politics.
The problem with that reasoning, of course, is that there is a difference of constitutional magnitude between buying lunch for a bureaucrat and making of a political contribution to a candidate. The Founders thought that the right of Americans to engage in political speech and association was so important that they enshrined it in the First Amendment to the Constitution and the First Amendment protect campaign contributions.
Our Constitution, including the First Amendment, should not be regarded as evolving. Rather, it should be understood as a constant guarantee: It is a contract between the previous generation of Americans and this one, and between this generation of Americans and the next one. It assures us, and each succeeding generation of Americans, of the nature of the Republic and our rights within it. And so, our freedom to engage in political speech and association guaranteed by the First Amendment—including our right to make contributions to the candidates whose message we agree with—should be absolute. It should not be subject to the whim of a judge who believes that the law is uncertain and constantly evolving.
Judge Sotomayor, however, appears to disagree. While her thoughts regarding campaign contributions are difficult to discern from her law review article, they are more clear in a decision she signed onto in 2005. This case, known as Randall v. Sorrell when it was before the Second Circuit Court of Appeals, involved a challenge to Vermont’s contribution and expenditure limits. A three-judge panel of the Second Circuit upheld the district court’s decision that the contribution limits were constitutional, but determined that the case should be remanded to the district court for reconsideration of the expenditure limits. The plaintiffs in that case asked for the full Second Circuit to rehear the case, and the Second Circuit denied that rehearing. (The plaintiffs would eventually win in 2006 at the Supreme Court when, in Randall v. Sorrell, the Court held that both the contribution and expenditure limits were unconstitutional).
Judge Sotomayor signed onto an opinion written by two other judges which concurred in the decision to deny rehearing. This opinion which she signed began by noting that the question before the Court involving whether the plaintiffs’ First Amendment rights were being trampled was not important enough to justify rehearing the case. Instead, the judges noted that disputes which are highly political or partisan should not be addressed by the courts.
There’s just one little problem with that: If the Court will not vindicate our First Amendment rights, who will? Judge Sotomayor is correct when she observes that campaign finance is partisan and politicized. Incumbents frequently enact campaign finance laws in order to protect themselves, and if they can do so in a way that benefits their political party, so much the better. Far from providing that the courts be reluctant to involve themselves in such matters, the Founders envisioned a vigorous role for the courts in upholding First Amendment freedoms.
A judge who sees the law as constantly changing and evolving, however, feels more free to refuse to vindicate Americans’ rights when she personally does not think that Americans should have them. So, since Sotomayor is of the opinion that severe restrictions (or, even the elimination) on private money in politics is acceptable, she did not feel the need to consider the plaintiffs’ First Amendment rights in Randall.
Such a judicial philosophy is troubling. It places all Americans’ rights at risk. Judge Sotomayor should be questioned on this extensively, and should not be confirmed if this is really her view.
Justice is conventionally depicted in countless engraved, painted, or sculpted representations displayed at courthouses and in judicial chambers at every administrative level around the European world in the form of the goddess known to the Greeks as Themis, to the Romans as Iustitia. Justice carries a sword and a balance, and is blindfolded.
Themis’ blindfold signifies not her lack of access to reality or to the facts of the cases she is adjudicating, but her indifference to persons or affiliations, her impartiality and objectivity. Themis was not the goddess of justice as an expression of human whim or desire, but of justice in accordance with the divine order.
Judge Sonia Sotomayor, in delivering the Judge Mario G. Olmos Memorial Lecture in 2001 at the University of California, Berkeley, School of Law, expressed a very different, more contemporary view of justice.
Judge (Miriam) Cedarbaum expresses concern with any analysis of women and presumably again people of color on the bench, which begins and presumably ends with the conclusion that women or minorities are different from men generally. She sees danger in presuming that judging should be gender or anything else based. She rightly points out that the perception of the differences between men and women is what led to many paternalistic laws and to the denial to women of the right to vote because we were described then “as not capable of reasoning or thinking logically” but instead of “acting intuitively.” ...
While recognizing the potential effect of individual experiences on perception, Judge Cedarbaum nevertheless believes that judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law. Although I agree with and attempt to work toward Judge Cedarbaum’s aspiration, I wonder whether achieving that goal is possible in all or even in most cases. And I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society. ....
Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O’Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O’Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life. ...
[O]ne must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage. ...
Each day on the bench I learn something new about the judicial process and about being a professional Latina woman in a world that sometimes looks at me with suspicion. I am reminded each day that I render decisions that affect people concretely and that I owe them constant and complete vigilance in checking my assumptions, presumptions and perspectives and ensuring that to the extent that my limited abilities and capabilities permit me, that I reevaluate them and change as circumstances and cases before me requires. 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.
In her lecture, Judge Sotomayor acknowledges the existence of an ideal of impartiality, but implicitly rejects the concept of an objective legal or moral order. She additionally denies that human beings are really capable of impartiality and objectivity.
In the place of the Natural Law, which guided the Greeks and Romans and the framers of the United States, Sonia Sotomayer enshrines the left’s identity politics, its narrative of the victimhood of certain groups, its indifference or hostility to others. As a judge, Sotomayor denies the possibility of transcending human partiality and prejudice. Her openly expressed relativism denies that any real distinction between justice and injustice exists in any case.
In place of justice, “as circumstances and cases require,” Sotomayor proposes to substitute personal emotion.
Her cherished personal emotions, of course, amount really to ethnic and gender-based chauvinism combined with carefully cultivated group and class grievances. Instead of believing that judges should strive to emulate the divine, modern liberalism encourages its representatives in the judiciary to sink and become “all too human,” to be their worst, their most self-infatuated and partisan selves rather than to transcend their own prejudices and animosities. The liberal judge does not aspire to be a disinterested servant of the law. The liberal judge proposes to pursue the interests of groups or persons he or she feels to be specially deserving of advocacy and assistance.
Thomas Sowell describes how Judge Sotomayor’s jurisprudence actually works when applied in reality.
Empathy” for particular groups can be reconciled with “equal justice under law” — the motto over the entrance to the Supreme Court — only with smooth words. But not in reality. Obama used those smooth words in introducing Judge Sotomayor but words do not change realities.
Nothing demonstrates the fatal dangers from judicial “empathy” more than Sotomayor’s decision in a 2008 case involving firemen who took an exam for promotion. After the racial mix of those who passed that test turned out to be predominantly white, with only a few blacks and Hispanics, the results were thrown out.
When this action by the local civil service authorities was taken to court and eventually reached the 2nd Circuit Court of Appeals, Sotomayor did not give the case even the courtesy of a spelling out of the issues. She backed those who threw out the test results. Apparently she didn’t have “empathy” with those predominantly white males who had been cheated out of promotions they had earned.
The US Supreme Court has reviewed six cases decided by Sonia Sotomayor. Her decisions were reversed five times, and in the only case in which her decision was upheld, her reasoning was unanimously rejected by the Court because it “flies in the face of the statutory language.”
Meanwhile she has a pretty decent chance of receiving a further reversal in Ricci v. DeStefano, an affirmative action case from New Haven, Connecticut involving white firemen being denied promotion because no minority applicants scored satisfactorily on the promotion exam. Sotomayor was part of a three judge panel which supported the city against the firemen, and voted against the full appeals court reviewing the case.
The New Republic’s Legal Affairs editor Jeffrey Rosen is today urging Sonia Sotomayor’s confirmation, and claims that “conservatives are misreading” him on Sotomayor, but back on May 4 Rosen wrote the following paragraphs as part of an article titled “The Case Against Sotomayor.”
[D]espite 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. Over the past few weeks, I’ve been talking to a range of people who have worked with her, nearly all of them former law clerks for other judges on the Second Circuit or former federal prosecutors in New York. Most are Democrats and all of them want President Obama to appoint a judicial star of the highest intellectual caliber who has the potential to change the direction of the court. Nearly all of them acknowledged that Sotomayor is a presumptive front-runner, but nearly none of them raved about her. They expressed questions about her temperament, her judicial craftsmanship, and most of all, her ability to provide an intellectual counterweight to the conservative justices, as well as a clear liberal alternative.
The most consistent concern was that Sotomayor, although an able lawyer, was “not that smart and kind of a bully on the bench,” as one former Second Circuit clerk for another judge put it. “She has an inflated opinion of herself, and is domineering during oral arguments, but her questions aren’t penetrating and don’t get to the heart of the issue.” (During one argument, an elderly judicial colleague is said to have leaned over and said, “Will you please stop talking and let them talk?”) Second Circuit judge Jose Cabranes, who would later become her colleague, put this point more charitably in a 1995 interview with The New York Times: “She is not intimidated or overwhelmed by the eminence or power or prestige of any party, or indeed of the media.”
Her opinions, although competent, are viewed by former prosecutors as not especially clean or tight, and sometimes miss the forest for the trees. It’s customary, for example, for Second Circuit judges to circulate their draft opinions to invite a robust exchange of views. Sotomayor, several former clerks complained, rankled her colleagues by sending long memos that didn’t distinguish between substantive and trivial points, with petty editing suggestions—fixing typos and the like—rather than focusing on the core analytical issues.
Some former clerks and prosecutors expressed concerns about her command of technical legal details: In 2001, for example, a conservative colleague, Ralph Winter, included an unusual footnote in a case suggesting that an earlier opinion by Sotomayor might have inadvertently misstated the law in a way that misled litigants. The most controversial case in which Sotomayor participated is Ricci v. DeStefano, the explosive case involving affirmative action in the New Haven fire department, which is now being reviewed by the Supreme Court. A panel including Sotomayor ruled against the firefighters in a perfunctory unpublished opinion. This provoked Judge Cabranes, a fellow Clinton appointee, to object to the panel’s opinion that contained “no reference whatsoever to the constitutional issues at the core of this case.” (The extent of Sotomayor’s involvement in the opinion itself is not publicly known.)
Not all the former clerks for other judges I talked to were skeptical about Sotomayor. “I know the word on the street is that she’s not the brainiest of people, but I didn’t have that experience,” said one former clerk for another judge. “She’s an incredibly impressive person, she’s not shy or apologetic about who she is, and that’s great.” This supporter praised Sotomayor for not being a wilting violet. “She commands attention, she’s clearly in charge, she speaks her mind, she’s funny, she’s voluble, and she has ownership over the role in a very positive way,” she said. “She’s a fine Second Circuit judge—maybe not the smartest ever, but how often are Supreme Court nominees the smartest ever?
By May 8, Rosen was regretting his earlier title, and trying to qualify his own position. But he still took the occasion to publish excerpts from Sotomayor’s entry in the Almanac of the Federal Judiciary, which includes rating of judges based on reviews of attorneys appearing before them.
Usually lawyers provide fairly positive comments. That’s what makes the discussion of Sotomayor’s temperament so striking. Here it is:
Sotomayor can be tough on lawyers, according to those interviewed. “She is a terror on the bench.” “She is very outspoken.” “She can be difficult.” “She is temperamental and excitable. She seems angry.” “She is overly aggressive—not very judicial. She does not have a very good temperament.” “She abuses lawyers.” “She really lacks judicial temperament. She behaves in an out of control manner. She makes inappropriate outbursts.” “She is nasty to lawyers. She doesn’t understand their role in the system—as adversaries who have to argue one side or the other. She will attack lawyers for making an argument she does not like.”
Not all of Sotomayor’s lawyers’ evaluations in other areas were this negative. As the Almanac puts it “most of lawyers interviewed said Sotomayor has good legal ability,” and “lawyers said Sotomayor is very active and well-prepared at oral argument.”
You can get an idea of what Sonia Sotomayor is like from this 2:10 video excerpt from what seems to be a panel discussion of legal career options at Duke University Law School in 2005. We will be seeing her in the clip, indicating with derision her contempt for the notion of judicial restraint, a good deal in the near future.