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Further Reflections on the Nomination of Judge Sotomayor to the U.S. Supreme Court

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I hope that were I in President Obama's position, I would not allow questions of gender or ethnicity to sway my decision on whom to nominate to the Supreme Court. Fortunately for all concerned, I am not in his position and never shall be. This is not the first, and will most likely not be the last, instance in which gender and ethnicity were or will be significant factors. That does not make it right, but that's the way it is. Nor does past practice mean that a President must consider gender or ethnicity; that is a political question, an area in which he, ultimately, is the boss. Whether the Senate confirms or rejects a nominee is also a political question, and in that area the Senate is the boss.

Something quite different is true of judicial precedents.  As noted below, they demand adherence, and those established by superior courts must not be brushed off by inferior courts.

There are legitimate concerns about the nomination of Judge Sotomayor, and some which I consider ill considered. It seems unwise for those who oppose her to focus on grounds easily rejected. It would be far more useful to focus on questions of her judicial philosophy in a non-case-specific context, and on how that philosophy may affect her conduct as a Supreme Court justice.

I am particularly troubled by her unfortunate comment a few years ago that

"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."

I don't have any unique insight into what she may have meant, and I hope that she will be questioned during the Senate confirmation hearing until what she meant, and how it might affect her conduct as a Supreme Court justice, are clear. I doubt that she was merely saying that she hoped that a "wise Latina" would more often than not reach a better conclusion than a "white male" who had not been raised as an Hispanic on how best to prepare pollo asado. In the unlikely event that that is all she meant, her hope has been confirmed by my personal experiences; I can't prepare pollo asado worth a hoot.  However, it seems very likely that Judge Sotomayor meant a lot more there and in other statements, and I hope to find out what. Depending on what what is, it may well impact unfavorably (or favorably) on whether she should be confirmed.

Beyond that La Raza speech, there has some "buzz" about two Second Circuit decisions in which she joined her two colleagues on the panels but which she did not write. One is said to suggest that she does not value freedom of speech highly, and the other that she opposes the right to bear arms. My take is rather different. Both cases, regardless of whether she was involved in writing the opinions, show a steadfast adherence to precedent, which in my view is not only acceptable but absolutely necessary for a judge.  I shall attempt to support this thesis below, even though it involves unfortunately lengthy quotations from legal opinions which are, necessarily, somewhat complex.

In a per curiam (unsigned) opinion in Maloney v. Cuomo, (2d Cir. 2008) it was held that the Fourteenth Amendment to the United States Constitution could not, consistently with express Supreme Court decisions on the matter, be used to render a New York State Statute prohibiting the possession of nunchakus violative of the Second Amendment. The opinion notes,

The Second Amendment provides: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." U.S. Const. amend. II. The Supreme Court recently held that this confers an individual right on citizens to keep and bear arms. See District of Columbia v. Heller, 128 S. Ct. 2783, 2799 (2008). It is settled law, however, that the Second Amendment applies only to limitations the federal government seeks to impose on this right. See, e.g., Presser v. Illinois, 116 U.S. 252, 265 (1886) (stating that the Second Amendment "is a limitation only upon the power of congress and the national government, and not upon that of the state"); Bach v. Pataki, 408 F.3d 75, 84, 86 (2d Cir. 2005) (holding "that the Second Amendment's 'right to keep and bear arms' imposes a limitation on only federal, not state, legislative efforts" and noting that this outcome was compelled by Presser), cert. denied, 546 U.S. 1174 (2006).

Heller, a case involving a challenge to the District of Columbia’s general prohibition on handguns, does not invalidate this longstanding principle. See Heller, 128 S. Ct. at 2813 n.23 (noting that the case did not present the question of whether the Second Amendment applies to the states). And to the extent that Heller might be read to question the continuing validity of this principle, we "must follow Presser" because "[w]here, as here, a Supreme Court precedent 'has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to the Supreme Court the prerogative of overruling its own decisions.'" Bach, 408 F.3d at 86 (quoting Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989)) (alteration marks omitted); see also State Oil Co. v. Khan, 522 U.S. 3, 20 (1997). (emphasis added)

Hence, the Second Circuit per curiam opinion faithfully applied precedent established by an earlier Second Circuit decision as well as by the Supreme Court, properly leaving it to the Supreme Court itself to clean up whatever pig's breakfast the Supreme Court may have made of the Second – Fourteenth Amendment interaction in Heller.

Doninger v. Niehoff is a Second Circuit decision in which Judge Sotomayor participated as a member of the three judge panel. The opinion was written by another judge. There, it was held that the trial judge had acted within his discretion in refusing injunctive relief against a school district where a student had been denied an opportunity to become class secretary on account of unseemly language (referring to a school administrator as a "douchbag" and asking others to communicate on the subject with the administrator so as to "piss her off more") in a blog commenting on the actions taken by her school in delaying or canceling a concert, as well as due to other alleged misbehavior.

It has long been held that public school students have less in the way of First Amendment rights than do adults, and that their speech can be constricted where necessary or appropriate to preserve decorum and a proper learning atmosphere in those schools. Here, the trial judge decided that the student's conduct did disrupt, or could have disrupted, school activities.

Although I think the trial judge may have gone overboard, that does not mean that he abused his discretion. The Second Circuit opinion set forth the standard as follows:

We review the denial of a preliminary injunction for abuse of discretion. Id. at 24. Because Doninger seeks the vindication of First Amendment rights, however, "subject to the provision of Federal Rule of Civil Procedure 52(a) that '[f]indings of fact . . . shall not be set aside unless clearly erroneous,' we . . . make a fresh examination of crucial facts" and independently examine the record to do so.

During that process, the Second Circuit

assume[d] for the purposes of this appeal that Doninger met her burden of showing irreparable harm and proceed[ed] to address whether she also demonstrated a clear or substantial likelihood of success on the merits.

Then, the Court recited the substantive standards mandated by precedent:

[C]onstitutional rights of students in public school "are not automatically coextensive with the rights of adults in other settings," Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 682 (1986), but must instead be applied in a manner consistent with the “special characteristics of the school environment," Tinker, 393 U.S. at 506. Thus, school administrators may prohibit student expression that will "materially and substantially disrupt the work and discipline of the school." Id. at 513. Vulgar or offensive speech — speech that an adult making a political point might have a constitutional right to employ — may legitimately give rise to disciplinary action by a school, given the school’s responsibility for "teaching students the boundaries of socially appropriate behavior." Fraser, 478 U.S. at 681. Similarly, so long as their actions are "reasonably related to legitimate pedagogical concerns," educators are entitled to exercise editorial control over school-sponsored expressive activities such as school publications or theatrical productions. Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988). Such controls "assure that participants learn whatever lessons the activity is designed to teach, that readers or listeners are not exposed to material that may be inappropriate for their level of maturity, and that the views of the individual speaker are not erroneously attributed to the school." Id. at 271. Finally, given the special nature of the school environment and the “serious and palpable” dangers posed by student drug abuse, public schools may also "take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use." Morse v. Frederick, 551 U.S. —, 127 S. Ct. 2618, 2622, 2629 (2007).

However, some of the student's relevant activities were via an internet connection at her home, from which she posted the offending blog. This was somewhat troubling to the Second Circuit, but in reliance on prior cases, it decided that

Applying the framework set forth in Wisniewski, the record amply supports the district court’s conclusion that it was reasonably foreseeable that Avery’s posting would reach school
property. Indeed, the district court found that her posting, although created off-campus, "was purposely designed by Avery to come onto the campus." Doninger, 514 F. Supp. 2d at 216. The blog posting directly pertained to events at LMHS, and Avery’s intent in writing it was specifically "to encourage her fellow students to read and respond." Id. at 206. As the district court found, "Avery knew other LMHS community members were likely to read [her posting]." Id. at 217. Several . . .[did] reach school administrators. See Wisniewski, 494 F.3d at 39. The district court thus correctly determined that in these circumstances, "it was reasonably foreseeable that other LMHS students would view the blog and that school administrators would become aware of it." Doninger, 515 F. Supp. 2d at 217.

In affirming the lower court's opinion, the Second Circuit noted:

Avery, by all reports, is a respected and accomplished student at LMHS. We are sympathetic to her disappointment at being disqualified from running for Senior Class Secretary and acknowledge her belief that in this case, "the punishment did not fit the crime." Doninger, 514 F. Supp. 2d at 202 (internal quotation marks omitted). We are not called upon, however, to decide whether the school officials in this case exercised their discretion wisely. Local school authorities have the difficult task
of teaching "the shared values of a civilized social order" — values that include our veneration of free expression and civility, the importance we place on the right of dissent and on proper respect for authority. Fraser, 478 U.S. at 683. Educators will inevitably make mistakes in carrying out this delicate responsibility. Nevertheless, as the Supreme Court cautioned years ago, "[t]he system of public education that has evolved in this Nation relies necessarily upon the discretion and judgment of school administrators and school board members," and we are not authorized to intervene absent “violations of specific constitutional guarantees." Wood v. Strickland, 420 U.S. 308, 326 (1975).

The decision followed precedent, and the judges did what they had to do; they may not have been overjoyed with the result, but could not legitimately change it.

There are aspects of Judge Sotomayor's judicial persona which concern me. The beliefs which she expressed in the La Raza speech are among those concerns. However, I have thus far found no case in which she allowed her emotions, or her "empathy," to prevail over the law or the facts. It strikes me that her judicial persona, as suggested by these two Second Circuit opinions, has not been successfully diminished.

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About Dan Miller

  • Roger, re Comment #14:

    You have assigned me a very difficult task; not because there is no place for mercy in the judicial system, but because there are so very many places for it. This will, therefore, be a very lengthy comment; I can’t think of a suitable way to make it shorter.

    Appellate court proceedings focus on the written record generated at the trial level; of necessity, they are far more sterile than trial court proceedings. That’s probably why television shows and movies focus almost exclusively on trial court proceedings. In contrast, my two Sotomayor articles, as well as my comments there and on the other Sotomayor threads, focus almost exclusively on the appellate level, because Judge Sotomayor is now a judge on the Second Circuit and has been nominated to the Supreme Court; both are with very few exceptions exclusively appellate courts.

    The greatest legitimate opportunities for mercy probably occur at the trial court level. Unfortunately for me in writing this comment, there very many different types of trial court proceedings, and each has multiple permutations and unique opportunities for mercy. For that reason, I can only touch upon the highlights here, and only some of those. I shall not get into probate proceeding, divorce proceedings, tax court proceedings or many others. That would require the writing of a text book, for which I have neither the time nor the inclination nor the competence.

    Basically, there are criminal cases, most involving juries but some not, and there are civil cases, some involving juries and some not. Criminal trials usually have two segments: in the first, guilt and innocence are decided, generally by the jury, unless the judge grants a motion disposing of the case without a finding of guilt. The second segment comes later, if the defendant has been convicted. There, the rules of procedure and of evidence are somewhat relaxed, mainly but not entirely in favor of the defendant.

    The primary functions of a trial judge in any case, criminal or civil, are to keep the proceeding going in an orderly fashion, to act as an impartial referee between the parties and to keep the jury (if any) from considering matters not properly put before it at the trial — news reports, pressure from the outside world, etc. If there is no jury, the trial judge also makes findings of fact and decides who wins. In these and other matters, the trial judge has the latitude to exercise some discretion, more in some matters than in others.

    At the trial level, the judge sees and hears the evidence, including witness testimony. If a criminal defendant elects to testify, the judge hears him. Except as noted above, the jury sees and hears the same stuff as does the judge. At the conclusion of a jury trial, both sides argue their positions and highlight the evidence as they see it. If counsel overstep the line in doing so, it is the responsibility of the judge to shove them back across it. Then, the judge instructs the jury on the applicable law and turns the jury loose to decide the case — in a very complicated case, with expert testimony and a voluminous paper record, the judge also has to do his best to make the case uncomplicated enough for a lay jury to understand; sometimes, that is difficult to do.

    The factual findings of the trial judge, and of the jury, are granted substantial deference on appeal. There are good reasons for this: the judge and/or jury hear the witnesses and are in the best position to decide whose testimony is more, or less, credible. Numerous “human” factors are involved in this process. Appellate courts have no opportunity to hear the witnesses, and have only the bare record of the proceeding below to consider.

    The appellate standards for evaluating a trial are different as to matters of law than as to matters of fact. Generally, an appellate court will overturn the decision of a trial judge if it deems that his rulings as to the law were deficient and that they affected the outcome of the case; the appellate court is in no worse position to understand the law than a trial judge, and sometimes is in a better position to do so. In other matters, the test is whether the trial judge abused his discretion in such a way as to affect the outcome of the case. In a few instances, such as the school free speech case discussed in my Further Reflections article, the trial judge also functions to determine whether an administrative body abused its discretion; then, the test on appeal is, essentially, whether the trial judge abused his discretion in deciding whether the administrative body abused its discretion.

    At the trial level, mercy can be and often is shown by the jury (or by the judge when there is no jury) when it decides the facts upon which the outcome of the case depends. A judge generally has some but often less discretionary latitude in ruling on whether evidence should be admitted as well as on various matters of procedure. During the sentencing portion of a criminal case, the jury (or the judge if there is no jury) also has substantial latitude for showing mercy through imposing a harsh or lenient penalty. Sentencing guidelines and mandatory sentencing laws to some extent curb this latitude, on the theory that there should be at least a modicum of consistency throughout the judicial system. Even so, in most cases there is substantial room for mercy.

    In areas where a trial judge has substantial discretion, there is ample opportunity for him to show or deny mercy, regardless of whether that is why he has that discretion. These things almost impossible to determine from the records available to appellate courts, and hence have little appellate significance.

    There are other points to be made, but this comment is already far too long. Perhaps it might be best to go watch a few trials, and see for yourself how things work. Then, if the case goes to an appellate court, read the briefs and listen to the oral arguments and the questions asked by the judges. Then read the opinion. If you do so, I think you will find that mercy is very much a part of the judicial system.


  • Sven

    Politics=1, Racial diversity=0

  • I suppose the argument would make more sense if there was room in our justice system to mitigate it with mercy.

    Is there, Dan?

  • Bliffle, thanks for the clarification. I must admit that I still do not know what “empathy” signifies, as the word was used by President Obama in connection with his nomination of Judge Sotomayor. If it is to have no significance — if it is to affect neither her perceptions of the law nor of the facts in ways causing her to favor one party over another, then what’s the point?

    Why should one expect an Hispanic female who managed, through parental sacrifice and guidance, much and admirably hard work, great diligence and perhaps a bit of luck, to become one of the privileged few, to be more “empathetic” on the bench than anyone else? “Empathetic” toward whom? Will she have more “empathy” toward those who, as she did, rose fast and far to giddy heights few can even hope to attain? Will she be less “empathetic” toward those who, through laziness, misfortune or otherwise, never achieved much at all? Will she have greater “empathy” toward those who worked hard and succeeded, as she did, or toward those who, unlike her, didn’t? If her alleged “empathy” enables her better to understand the causes of the sufferings of the poor and downtrodden, will she will be more disposed to help them to prevail, or to lean, perhaps ever so slightly, in the opposite direction? Will the fact that (if she is, in fact, a Roman Catholic) she will become the sixth Roman Catholic on the Court cause her to “empathize” with those who support causes espoused by Roman Catholic doctrine? If so, will that cause her to lean toward or against the Roman Catholic position? I suspect that “empathy” could produce either result.

    Based on what she has done in her judicial capacity thus far, I don’t think that whatever “empathies” she may have will cause her to be more disposed, in any meaningful way, toward one side or the other in judicial proceedings which involve her. And if her “empathy” does not impact on what she does as a Supreme Court justice, I don’t see the point of the discussion.


  • zingzing

    obviously, archie, i don’t want to talk about it.

  • Bliffle

    #7 – Dan(Miller) says:

    “I think I understand the chess player – general analogy;…”

    But I don’t think you DO understand. My intention was to specifically dissociate ’empathy’ from ‘sympathy’. The chess player and general may have empathy, but not sympathy for an opponent.

    “… but chess players and generals are presumably trying to win a game or a battle, and in order to do so must attempt to figure out what the other side is up to.

    Judges should not be on either side in a case before them, and I would hope that they neither try to “win” nor help one side to do so.”

    Now you’ve conflated ’empathy’ with conquest.

    Just as it does not follow that ’empathy’ will lead to sympathy, so it is also not true that ’empathy’ will lead to conquest, nor that’ empathy’ is used only for purposes of conquest.

  • Cannonshop

    #8 Zing, I, too, am somewhat annoyed by the whole “Raaaacist!!!” accusation-first when your side (the Dems) were using it, now the GOP’s using it-the latter use legitimizing the former.

    Dan, Thanks for the informative article.

  • Arch Conservative

    Zing…the GOP is just taking a play out of the Dems playbook by screaming racist to get what they want. Instead of bitching King Barry and the Dems should just acknowledge the irony and tell Newt “well played sir.”

  • zingzing

    you guys need to find another quote… that “latina” quote has made the rounds, and has shown to be quite innocuous when taken in its proper context. i understand your problems with her, but the continual harping on this quote leads to the same conversation again and again.


    “not racist!”

    i mean, if you get beyond the first page of this article, there’s more meat to it… but it doesn’t seem like many people will get there. and (and i know i’m being hypocritical) this is all people will comment on.

  • I think I understand the chess player – general analogy; but chess players and generals are presumably trying to win a game or a battle, and in order to do so must attempt to figure out what the other side is up to.

    Judges should not be on either side in a case before them, and I would hope that they neither try to “win” nor help one side to do so. That’s the job of the lawyers presenting their arguments to the judges.


  • #4; good point;
    they’re related, however, because one can’t by sympathetic if they were deprived of empathy. Empathy comes first and is fundamental. Sympathy can be cheap and melodramatic.

  • Here is a Washington Post column which actually seems to make some sense. To summarize it, both the Right and the Left are seeing and shadow boxing with apparitions. Put only a little differently,

    Last night I saw upon the stair
    A little man who wasn’t there.
    He wasn’t there again today.
    Oh how I wish he’d go away!


  • Bliffle

    IMO people confuse ’empathy’ with ‘sympathy’, perhaps intentionally.

    “…I have thus far found no case in which she allowed her emotions, or her “empathy,” to prevail over the law or the facts.”

    IMO ’empathy’ is just the ability to see things from another persons viewpoint. It doesn’t mean that you adopt their case.

    Empathy is not emotional, tho it may affect your emotions. It isn’t a vague ethereal thing.

    Chess players and Generals employ empathy to outwit their opponents.

  • Not a very fortunate statement, we all agree. We’re covering this issue on another thread.

  • Dan

    “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.”—Sotomayor

    I’m glad to see Archie Bunker finally vindicated. A Latina on the Supreme Court is certainly a dose of diversity. But a racist, or LaRazaist Latina is diversity plus.

    Hopefully, she not only can think more “right” than white men, but also understand the limited thinking ability of white men, since her new job will be to determine what the white men who wrote Constitutional law were thinking.

  • A significant amount of mud has been thrown against the wall, probably in the hope that at least some of it may stick. Much, for example, has been made of the sixty percent reversal at the Supreme Court of Judge Sotomayor’s decisions as a judge on the Second Circuit.

    Fortunately, some of my fellow “conservatives” have posted articles debunking these claims. In Power Line, the sixty percent reversal rate claim was effectively challenged.

    [T]he statistic appears to be meaningless. It relates only to Sotomayor’s decisions as to which a petition for a writ of certiorari was granted by the Supreme Court–a total of only five. (The overwhelming majority of such petitions are denied.) Of the five cases in which the Supreme Court granted the writ of certiorari, it reversed three. Not only is this a ridiculously small sample, the overall rate of reversal of cases in which the Supreme Court grants cert appears to be around 70 percent. This shouldn’t be too surprising, as it requires four votes on the court to grant a writ of certiorari, and five to reverse the Court of Appeals’ decision.

    So, unless there is more to the story, conservatives should stop citing the 60 percent figure as evidence of any lack of competence on Sotomayor’s part.

    There may well be good and sufficient reasons to oppose Judge Sotomayor’s confirmation; to throw stuff around without making sure it makes sense is not only wrong, it is counterproductive.