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).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.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)
Article comments
1 - Dan(Miller)
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.
Dan(Miller)
2 - 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.
3 - roger nowosielski
Not a very fortunate statement, we all agree. We're covering this issue on another thread.
4 - 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.
5 - Dan(Miller)
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!
Dan(Miller)
6 - roger nowosielski
#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.
7 - Dan(Miller)
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.
Dan(Miller)
8 - 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.
"racist!"
"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.
9 - 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."
10 - 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.
11 - 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.
12 - zingzing
obviously, archie, i don't want to talk about it.
13 - Dan(Miller)
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.
Dan(Miller)
14 - roger nowosielski
I suppose the argument would make more sense if there was room in our justice system to mitigate it with mercy.
Is there, Dan?
15 - Sven
Politics=1, Racial diversity=0
16 - 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.
Dan(Miller)