In Correctional Services Corp. v. Malesko, (2001), the Supreme Court unanimously held that one of her decisions as an appellate judge had erroneously extended precedent to allow recovery against a private corporation operating a halfway house under contract with the Bureau of Prisons. As noted by Chief Justice Rehnquist,
respondent is not a plaintiff in search of a remedy as in Bivens and Davis. Nor does he seek a cause of action against an individual officer, otherwise lacking, as in Carlson. Respondent instead seeks a marked extension of Bivens, to contexts that would not advance Bivens' core purpose of deterring individual officers from engaging in unconstitutional wrongdoing. The caution toward extending Bivens remedies into any new context, a caution consistently and repeatedly recognized for three decades, forecloses such an extension here.All judges are occasionally "wrong" (i.e., disagreed with by a higher court) in their analyses of the law and/or of the factual record below, even the very best of them, and an admittedly cursory review of some of the opinions authored by Judge Sotomayor gives me no real cause for alarm. That I may agree with some of them and disagree with others does not set off any alarm bells; I can't off hand think of any judge with all of whose opinions I have agreed — or, for that matter, disagreed — even justices on the Supreme Court.
Another point to keep in mind is that as Justice Sotomayor, she will be in an excellent position to participate in the formulation of well reasoned analyses, for at least a couple of reasons. By the time that cases reach the Supreme Court, the arguments tend to be more focused than they are in lower courts. By then, the issues generally have been substantially narrowed and revolve about the question of whether the appellate court below screwed up by misapprehending the law or the facts of record, and accordingly whether it properly affirmed or reversed the trial court. These issues, more often than not, are reasonably well briefed by quite competent counsel accustomed to arguing cases in the rarefied atmosphere of the Supreme Court. Also, since selection as a law clerk to a Supreme Court justice is a bit of a plum, greatly sought by the best and the brightest, there is some comfort in thinking that Justice Sotomayor may have better assistance than she may have had even as a judge on the well regarded Second Circuit. And, of course, as one of nine Justices on the Supreme Court, the opportunities for collegial discussion of cases with brother (and, of course, sister) justices is likely to be a plus.
Article comments
— go to most recent comments1 - Clavos
It's good, Dan(Miller) to have someone opine on this nomination who actually knows something about the judicial system and its ins and outs; it provides a welcome relief from the moronic talking heads (both left and right) on TV.
Thanks for the interesting insight.
2 - Ruvy
What Clavs said....
3 - Dave Nalle
I'm still concerned about her belief that gun rights and other property rights aren't protected by the Constitution and her pparent belief in legislating from the bench, but as these things go, he could have gone worse.
I find it amusing that ABC's headline is "Obama Picks First Hispanic for Supreme Court," when Bush proposed a hispanic appointee and was told by the Democrats that he would be filibustered and ened up not nominating him as a result.
Dave
4 - Jeannie Danna
Is this satire? It certainly is insulting..
5 - Arch Conservative
What is insulting is [Gratuitous vulgarity deleted by Comments Editor] Sotomayer telling firefighters in new Haven that although they had better test scores they don't have the right to jobs because some black guy couldn't pass the same test.
What is insulting is King Barry and the Dems trying to slander Alito as a racist and then actually nominating a racist for the highest court in the land.
[personal attack deleted]
6 - Jeannie Danna
I can't wait for them to publish my "satire" this is going to be heated to say the least ARCH.
Hi Jordan! nice to see a level-headed person in this comment thread...:)
7 - Dan(Miller)
This article offers some questions which Judge Sotomayor might reasonably be asked during the Senate hearing on her candidacy.
Dan(Miller)
8 - roger nowosielski
Archie,
"What is insulting is this fat, racist, pig Sotomayer ..."
Comm'n, Archie. You can be more creative than this. Dave was up in arms when Cheney was termed a "chickenhawk," and he was right. There's nothing to be gained by using abusive language with respect to public figures, however much you may disagree with them. And that is a personal attack on them.
You say you're not doing that with respect to BC participants. But in a sense you are, Arch - indirectly. For anyone who would be in favor of "this fat racist pig" would also be a "fat racist pig" in your estimation - by association.
If there are some decisions or actions by her with which you strongly disagree, speak to those issues, and your voice will carry much further. But resorting to epithets to describe a person's career or their person as a substitute for the relevant details only suggests that you're either unaware of those details or simply incompetent to address them.
And you wouldn't want to create that impression, Arch, do you now? I know you can do better than that.
9 - El Bicho
I like how all the sexists have picked up calling Sotomayor fat, as if there is a swimsuit portion of the process.
10 - Dan(Miller)
In the interest of simplifying the comment process, here are numbered lists of adjectives and nouns:
Adjectives:
1. Stupid
2. Fat
3. Idiotic
4. Moronic
5. Ugly
6. Fucking
7. Retarded
8. Socialistic
9. Communistic
10. Ultra Right
11. Smelly
12. Depraved
Nouns:
1. Pig
2. Cockroach
3. Fagot
4. Gay Hater
5. Insect
6. Pervert
7. Asshole
8. Jerk
9. Racist
10. Warmonger
11. Pacifist
12. Slave Owner
Now, it is merely necessary to fill in the blanks, as illustrated below:
(name) is a(n) 1,2,6 2.
Perhaps this will help until the procedure can be incorporated formally into the BC comment system so that the numbers can be converted automatically into the corresponding nouns and adjectives on the preview screen. To that end, it may be useful to augment the above lists of nouns and adjectives in posts directed to the Comment Editors.
Dan(Miller)
11 - roger nowosielski
That's very clever, Dan. Using the code would do away with personal insults and free our Comment editors from a rather thankless task.
12 - roger nowosielski
I would make a special category of "fool," not included in your noun list. It would be number 13, I take it, and we'd have to think of an appropriate adjective.
It's a gross omission on your part. I had earned me a first-rate insult.
13 - Clavos
Faggot has two "Gs," you moron. :>)
14 - roger nowosielski
That's two counts against you, Clavos.
15 - Dan(Miller)
Clav,
The wrd can be speld wif wn or to gs. Favrng smplfid englsh, I prefer wn.
Dan(Miller)
16 - Clavos
Dn(Mlr),
Wl. N tht cse alrit.
17 - Dan(Miller)
El Bicho, re Comment #11:
But cf 18 U.S.C 2340
Dan(Miller)
18 - Baronius
Dan - Why did you just call El Bicho a stupid socialistic USC cockroach faggot gay-hater warmonger in your last comment? I've heard good things about the university.
19 - Dan(Miller)
Baronius, that's a 6,4 thing to say!
Dan(Miller)
20 - Baronius
You know, it really is.
This comment should be better. You've opposed the nomination of a novice to the Supreme Court. There have been non-judges appointed to the Court before. Have they been measurably worse at the job? Or has the job changed so much that only an experienced judge could perform it now?
21 - roger nowosielski
Nice addition of "view more fresh comments" command at the bottom of the "fresh comments" widget. Kudos to the techies for making things a helluva lot easier.
22 - Dan(Miller)
Baronius,
Non-judges have, indeed, been appointed to the Supreme Court. Mr. Chief Justice Warren had had no judicial experience at all when he was selected for the Supreme Court by President Eisenhower. As Governor of California, Warren had supported the internment of Japanese and U.S. Citizens of Japanese descent during WWII, and was generally seen as a tough-on-crime conservative. Opinions as to his work on the Supreme Court are quite mixed, and it seems fair to say that he is regarded by many "conservatives" as having let the side down. Mr. Justice Thomas had little judicial experience prior to his appointment, and he is generally regarded as a less than stellar performer.
Without a lot of research, I can't really even attempt to compare qualitatively the work done at the Supreme Court even in recent years by various judges based on levels of prior judicial experience; were I to attempt to do so, my attempts would tend to be quite subjective. I think that some were quite good, and that some were not. It appears that there have been forty-two justices without prior judicial experience. The two most recent were Mr. Justice (later, Chief) Justice Rehnquist and Mr. Justice Powell. During the 20th century there were twenty-one, during the 19th century, there were eighteen, and prior to that there were three. These numbers are probably somewhat distorted, since there were fewer than nine justices for a long time, and there were also fewer appellate courts from which to select them.
Society in the United States, and the laws by which she is governed, are more complicated now than at any earlier period, and that seems indisputably the case since the New Deal. There are alphabet agencies galore, there are civil rights and other legal issues unforeseen even fifty years ago, and of course a lot more people. Whatever merit there may once have been in providing on-the-job training at the Supreme Court strikes me as having vanished.
Sitting as an appellate judge provides great experience for the Supreme Court, and it also provides at least a potentially valid basis for evaluating a candidate's judicial temperament and skills at legal analysis. These are learned qualities, neither inborn nor usually revealed in work other than as an appellate court judge. Beyond that, I can do little more than to refer you to my earlier article about how I think a potential justice should be evaluated.
Dan(Miller)
23 - Baronius
Interesting. Two recent CJ's were newbies. I don't hang out with the kind of people who would admire Warren, but Rehnquist is always respected. That being said, I can accept the idea that modern law is too complicated to be interpreted by amateurs.
I have the impression that Thomas has a middling reputation with non-lawyers, but is more respected among lawyers. Not one to talk much during arguments, but actually does his own writing. If Sotomayor really is a bully on the bench, Thomas could end up looking wiser.
24 - El Bicho
As a Bruin alum, Dan better not have equated me with USC. We might have a problem after I double-check the scorecard.
25 - Dan(Miller)
El Bicho, I am concerned that you may not properly understand the meaning of USC, an acronym occasionally used to refer to Unctuous Simian Congresscritters. This is an unfortunate usage for two reasons. First, it is excessively flattering and second, few Congresscritters have discovered how to be truly ape like and extraordinarily suave and ingratiating at the same time. Many of them have, nonetheless, contributed greatly to the expansion of the United States Code, also known as the USC or U.S.C.
Dan(Miller)
Shakes head in self-loathing and goes in search of something better to do.