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The Envelope, Please…The Supreme Court Nominee is…Good Grief!

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The White House announced today (26 May 2009) that President Obama's nominee for the U.S. Supreme Court is Judge Sonia Sotomayor, who has been a judge on the prestigious U.S. Court of Appeals for the Second Circuit since 1998 (nominated by President Clinton). Before that, she had been a judge on the also prestigious U.S. District Court for the Southern District of New York since 1992 (nominated by President Bush the elder). Judge Sotomayor is an Hispanic, from the Bronx, and appears to be a "moderate" — whatever that word means. She is, in any event, Constitutionally qualified (there being no Constitutional qualifications whatever), has ample judicial experience, and whether I or anyone else may agree or disagree with some of the opinions she wrote while on the Court of Appeals, her nomination to the Court should be accepted by the Senate, unless something unforeseen comes to light. The question for the Senate to answer is not whether someone else would have been a superior nominee. There are quite likely many others with whom I personally would feel a greater affinity (or, perhaps, "empathy"). Senate Republicans have said that they intend to deal with her nomination fairly, and I anticipate that they will do so. I trust that the Democratic Senators will do so as well.

According to an opinion piece in the New Republic, picked up by NPR, Judge Sotomayor is not the brightest star in the firmament. The author of that article states,

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.

Perhaps I am so pleased with the nomination to the Supreme Court of a judge with a reasonable amount of experience both as an appellate court judge and as a trial court judge that I am overly tempted to overlook these perceived flaws. I am, quite frankly, delighted that President Obama rejected the advice of some in his party to select a candidate from

outside the judicial monastery, somebody who has had some real-life experience, not just as a judge," said Vermont Sen. Patrick Leahy, chairman of the Senate Judiciary Committee. . . .

Sen. Arlen Specter of Pennsylvania, a Judiciary Committee member who last week switched from the Republican to the Democratic Party, suggested someone in the mold of a statesman or stateswoman, and said he could imagine a nominee who was not a lawyer, if that person had the right credentials.

I too can imagine the sort of candidate apparently favored by Senator Specter, and it gives me the willies. In any event, I am not very impressed by the perceived flaws of Judge Sotomayor, and see no basis in them for her rejection by the Senate.

Although I never had an opportunity to argue before the Supreme Court, I did argue a number of cases before the Court of Appeals for the D.C. Circuit and, prior to that, before the U.S. Court of Military Appeals. I had no problem with judges who were aggressive in asking questions, and indeed found their questions more often than not to be quite helpful: they let me know their specific concerns, and hence to focus on them. It is far better to know what matters concern the judges, and to address them specifically, than to waste the short time allotted for oral argument (normally fifteen or twenty minutes) by regurgitating arguments already presented in written briefs. It is not much fun to argue a case before a judge who gives no reason to assume that he is awake.  It was not unusual for some of the questions asked during oral argument to become a focus of an opinion.

True, many years of experience in doing the wrong things is not good experience. However, I see no overwhelming basis for concluding that Judge Sotomayor frequently did the wrong things.

In the recent Second Circuit decision, Ricci v. DeStefano, Judge Sotomayor appears to have written nothing. The context is adequately summarized in Wikipedia:

Eighteen white test takers who would have qualified for consideration for the promotions, including one who is part Hispanic, sued the city, alleging reverse discrimination. The federal district court ruled for the city (DeStefano). Upon appeal, the Second Circuit Court of Appeals initially affirmed the district court's ruling, but then added a per curiam opinion which recommended review by the US Supreme Court. The US Supreme Court agreed to hear the case.

Judge Sotomayor was on the Second Circuit panel which had initially affirmed the decision of the District Court; there is no reason to assume that she wrote the Second Circuit panel's unsigned opinion.

In an unusual short and unsigned opinion, a panel of three judges, including Sotomayor, adopted the district court judge's ruling without adding their own analysis.

Shortly thereafter, she agreed with the per curiam resolution noted above, that the matter should be bucked up to the Supreme Court.

This case has generated lots of debate, raising questions as to why Judge Sotomayor initially voted with two other Second Circuit judges to affirm the District Court decision, and why she did not then or thereafter grapple with the tough issues it presented. In the context of that proceeding, I think that the per curiam resolution in which she concurred was proper. In any event, avoidance of issues is not an opportunity she is likely to have as a Supreme Court justice.

In short, little insight into what Judge Sotomayor may have thought in Ricci v. DeStefano can be gleaned from either of the concurring opinions in which she joined or, indeed, from the panel's unsigned opinion in which she joined and from which she did not dissent. During her confirmation hearing, she may (or may not) be questioned about these things; she may (or may not) answer those questions. Since the Ricci case will more than likely have been decided before she is elevated to the Supreme Court bench, she more than likely will not be in a position to participate in the decision there, from which she in any event would most likely be obliged to recuse herself. Whatever the Supreme Court's decision may be, she will be bound by it.

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.

Supreme Court justices sometimes surprise both those who favored and those who opposed their appointments. Some have been viewed as too "liberal" and others as too "conservative," and as having all or some or none of the baggage associated with those labels.  Whether soon-to-be-Justice Sotomayor will turn out to be a surprise, and if so to whom, is anybody's guess.

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About Dan Miller

  • Bliffle

    The hearings have begun, so the Sotomayor discussion should resume.

    I don’t know whether she’s going to be good or not (she will surely be confirmed), but it looks like she’s no worse than any of the others.

    As for the two common criticisms of her, here are my takes:

    1-the concern over her “…a latina could give a better judgement…”, I think she was just bragging about herself, not expressing a race prejudice.

    2-the statement “…the appelate court is where policy is made…” is simply true. “Policy” IS made in courts. She said, at the time, that she realized this statement was contrary to the usual judicial bragging about “stare decisis”, but when you think about it, all references to precedent are just like references to legislation. And if you’ve ever been in court you realize that judges DO make policy decisions. What they try to do is keep it consistent with other elements of precedent and statute.

    I’m guessing that she’ll be a liberal activist supreme (that’s why Obama picked her), just as Roberts is a conservative activist supreme (that’s why Bush picked him).

  • Thanks for the clarification, Dan. Living in Orange County, CA, and surround by so many that claim the cardinal and gold of the Trojans (during football season)likely has me a little sensitive. That, and a lack of sleep.

    Although considering all the dirt coming out from the investigation into numerous NCAA violations, there are quite a few similarities between the members of University of Southern Cal and the Congresscritters, which may have added to the confusion as well.

    The duel at dawn will have to wait, so feel free to sleep in.

  • 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.


    Shakes head in self-loathing and goes in search of something better to do.

  • As a Bruin alum, Dan better not have equated me with USC. We might have a problem after I double-check the scorecard.

  • 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.

  • 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.


  • 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.

  • 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?

  • Baronius, that’s a 6,4 thing to say!


  • 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.

  • El Bicho, re Comment #11:

    But cf 18 U.S.C 2340


  • Clavos


    Wl. N tht cse alrit.

  • Clav,

    The wrd can be speld wif wn or to gs. Favrng smplfid englsh, I prefer wn.


  • That’s two counts against you, Clavos.

  • Clavos

    Faggot has two “Gs,” you moron. :>)

  • 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.

  • That’s very clever, Dan. Using the code would do away with personal insults and free our Comment editors from a rather thankless task.

  • In the interest of simplifying the comment process, here are numbered lists of adjectives and nouns:

    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

    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.


  • I like how all the sexists have picked up calling Sotomayor fat, as if there is a swimsuit portion of the process.

  • 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.

  • This article offers some questions which Judge Sotomayor might reasonably be asked during the Senate hearing on her candidacy.


  • 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…:)

  • 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]

  • Is this satire? It certainly is insulting..

  • 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.


  • What Clavs said….

  • 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.