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July 10, 2009

What questions should Judge Sotomayor be asked in her confirmation hearing?

The WSJ Law Blog has this timely new entry, titled "Sotomayor: A Guest’s Perspective On What Senators Should Ask The Judge."  In what appears to be part of a developing series, Professor Heather Gerken in this post suggests that Senators look beyond headline-making cases to probe methodology:

If you really want to know what a judge is like, don’t ask about highly visible decisions; ask about the invisible work habits that produce them.  Ask Judge Sotomayor simple, even mundane questions about daily life on the bench.  Ask her how she prepares for a case.

How much time a judge spends on preparation is a pretty good proxy for identifying judges who care only about outcomes.  A judge who spends a lot of time reading the briefs and reviewing the case law is the kind of judge who decides one case at a time. 

I hope Senators go beyond the headline-making cases in their questions to Judge Sotomayor, though I doubt we would get too many surprising answers from truly mundane questions about preparation methods.  That said, the kinds of simple questions a child might ask – e.g., "What is your favorite part of being a judge?" or "What cases to you find most difficult (or most fun)?" – would be kind of cool to hear.

Returning to matters of substance, I am of course hoping that criminal justice and sentencing issues get some extended play during next week's Senate hearings.  But, I am hoping Senators do much more than ask the inevitable questions about the death penalty and the Second Amendment.  For example, it might be interesting and useful to ask Judge Sotomayor to compare and contrast her experiences with state and federal criminal justice systems.  Or maybe she should be asked about Justice Kennedy's 2003 speech to the ABA in which he asserted boldly that now America's "resources are misspent, our punishments too severe, our sentences too long."

Any weekend thoughts and ideas for the Senators, dear readers?  (One never knows what blogs a staffer might be reading, so let's try to keep it real – and, yes, I am talking to you, Supremecy Claus.)

July 10, 2009 at 06:27 PM | Permalink

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Comments

Doug, your comments to the 10th Circuit case aren't working.

Here's my response to all on that one:

The right to effective counsel is there to guarantee a fair trial. If the defendant gets a fair trial, the guarantee has been fulfilled. Thus no constitutional violation.

Posted by: federalist | Jul 10, 2009 6:41:42 PM

Prof. Berman, I have noticed that your blog is not displaying more than 25 comments per post. If a post gets more than 25, the number changes, but the comments don't show up. Some sort of bug in Typepad, perhaps.

Federalist, you need to get off your hobby horse. Here's a scenario for you. You are charged with a crime. Your attorney advises you to turn down the prosecution's offer of time served, telling you that their case is extremely weak and he can easily get you an acquittal. Besides, he tells you, even if you're convicted, the maximum sentence for the charge is 6 months. You decide to go to trial, and you get a fair trial. But it turns out that your attorney is a moron and knows nothing about criminal law. You are convicted and sentenced to 10 years in prison. No constitutional violation?

Or how about this one. You are charged with a crime, and you are innocent. You give your attorney the names, phone numbers, and addresses of five solid alibi witnesses. Your attorney says great, I'll call them all at trial. The day of trial comes, but it turns out your attorney is an alcoholic flake and hasn't contacted any of the potential witnesses. You speak up, try to get a continuance and a new attorney, but your attorney lies and says that he investigated the potential witnesses but none of them checked out. The trial goes forward, and it is a fair trial. You are convicted. No constitutional violation?

Posted by: CN | Jul 10, 2009 7:42:54 PM

I wonder if she agrees with C.J. Roberts' view that a judge's role is like an umpire's--to simply "call balls and strikes."

And, of course, I wonder if she empathizes with Supremacy Claus: http://www.courtoons.net/2008/12/25/thursday-december-25-2008/

Posted by: David Mills | Jul 10, 2009 8:24:00 PM

David: Adorable. Thank you. You made my day.

Posted by: Supremacy Claus | Jul 10, 2009 8:35:53 PM

Judge Sotomayor, you have said that your statement that a wise Latina woman would decide a case better than a white male was poorly worded. Exactly what words would you use to convey the thought that women and/or Hispanics make better judges that white males? Or are you ready to renounce the thought as well as the words in which you put it?

Posted by: Bill Otis | Jul 10, 2009 8:37:18 PM

Judge S: You and other justices were raised Catholic. Do you think it is appropriate for the common law to adopt the ideas and methods of the catechism for the core doctrines of the law?

Were ever told the definition of the word, reasonable? If the most reliable guide of "reason" is the New Testament, is it lawful for the reasonable person to be Jesus Christ?

If the making of sentencing guidelines discretionary leads to an increase in the crime rate, especially the murder rate, how would you address that?

Posted by: Supremacy Claus | Jul 10, 2009 8:41:19 PM

Judge Sotomayor, I have the sense that you are the perfect exemplar of President Obama's desire for "empathy" in judges. My problem with empathy is that it isn't law, it's the opposite of law. My other problem is that it begs the question: Empathy for whom? Where was your empathy for the white firefighters who had done absolutely nothing wrong, got scores that would have earned them promotions, but then got dinged because they had the wrong skin color?

If in the year 2009 getting denied a promotion you otherwise would have secured because of the color of your skin isn't racial discrimination, what is?

Under what neutral standard of general application are judges to decide which groups get "empathy" and which are left out in the cold?

Posted by: Bill Otis | Jul 10, 2009 8:44:29 PM

I would try to trap her. I'd try to get her to argue that four Justices supported her position in the Ricci case. Then bury her.

Posted by: federalist | Jul 10, 2009 9:51:21 PM

Prof. Berman: You said, keep it real. I would be interested in your assessment of the hold on reality of people who believe in mind reading, in future forecasting, that 12 strangers off the street can detect the truth by using their gut feelings, after those with knowledge have been excluded. How about people who use fictional character as standard bearers of prudent conduct? Why? Because the fictional character can be objective. A fictional character determined by an individual judge can be objective? I would love to hear your defense of that. No. Here why a fictional character can be objective. He is Jesus Christ, and his standards of conduct are clearly set out in the New Testament. This reliance is totally unlawful in our secular nation.

What about this reality? Immunity grows an enterprise. Liability shrinks it. What qualification or authority or ability does the judge have to legislate stealthy industrial planning by arbitrary granting of immunities mostly to lawyers and agents of lawyer, and liability, mostly everyone productive? Our growth has been 3%, instead of the natural 9% that it should be. The lawyer caused the economic crisis, by forcing bad loans, and failing to regulate shady loans.

Speaking of immunity, I would be interested in Judge S's opinion. What is the justification for the privity obstacle to a legal malpractice claim by an adverse third party, when no other group has enjoyed such a privity obstacle to liability for 100 years? She gives the standard reply, the lawyer cannot have a duty to adverse parties and stay faithful to his client. I ask, what about the dozens of duties enumerated in the Rules of Evidence, of Conduct, of Civil and of Criminal Procedures, and innumerable appellate decisions for 1000 years, making any claim one for negligence per se? The ending of such immunity is neutral. A plaintiff may claim legal malpractice and get made whole if defense counsel files a frivolous or false defense.

*************
I wanted to know from my Senator if Judge Roberts' inability to have natural born offspring would affect his thinking on abortion. No senator asked that. So this is not biased gotcha just against Democrat nominees. Also, epilepsy is associated with mental disorders, and cognitive impairment, would Roberts submit to neuropsychological testing every three years, with publication of the results?

Judge S: Tell us about your divorce. How will it affect your sex discrimination reasoning? Will you release the record of your divorce to the public? Why not?

Diabetes is associated with psychiatric disorder and cognitive impairment. Could you publish your entire medical record, including a record of adherence with diet and insulin treatment. Blood sugar has profound effect on mental function, including the irritability you often display on the bench.

Will you submit to neuropsychological testing every 3 years, and allow publication of the results? Why not?

Does anyone from the Bronx have a judicial temperament, to your knowledge, ever, in all of human history? You may include the period when the Lenape Indians were the main inhabitants. They still acted the same as today's denizens.

Posted by: Supremacy Claus | Jul 10, 2009 10:36:08 PM

An inadequacy of counsel ruling in appellate court should provide a rebuttable presumption of legal malpractice and negligence per se to the criminal defense lawyer client. Aggregate litigation should be permitted. To deter.

Posted by: Supremacy Claus | Jul 10, 2009 10:59:21 PM

Judge Sotomayor, your remarks about the superior judgment of a "wise Latina woman," combined with your erroneous and, frankly, off-handed treatment of the white firefighters in the Ricci case, give some of us reason to wonder whether you can, or want to, give equal consideration to the legal claims of litigants regardless of race or gender. Do you think those concerns are frivolous and, if not, what are you willing to say under oath to assure the American people that you will be even-handed?

Judge Sotomayor, one of the most promient and treasured symbols of a fair-minded legal system is that of Lady Justice wearing a blindfold. What does the blindfold mean to you? What assurance can you give us that you will approach cases with the complete neutrality the blindfold implies?

Posted by: Bill Otis | Jul 11, 2009 8:16:19 AM

http://www.mcclatchydc.com/homepage/story/70284.html

Is there a place on the Court for a member of a racial supremacist group? What if this group seeks to conquer US territory for another nation by violence? Judge, do you believe the American Southwest rightfully belongs to Mexico, and should be returned? If you do not, why do you belong to an organization that believes in and aggressively promotes reconquista?

http://www.humanevents.com/article.php?id=13863

Judge, massive, wealthy, illegal alien paramilitary gangs have thrived with the protection and immunization of the American left wing lawyer. They buy legitimate front businesses that make legal campaign contributions to left wing politicians. These politicians stymie efforts to arrest these gangs. Is that permissible expression of political speech?

Posted by: Supremacy Claus | Jul 11, 2009 8:40:50 AM

Judge: Abraham Lincoln issued an arrest warrant for Chief Justice Taney for treason and potential hanging, if found guilty. A lawyer persuaded Lincoln to not hand the warrant to the federal marshal reaching for it. If a Supreme Court justice is in insurrection against the Constitution and ratified US international treaties, in his decisions, is it proper to impeach or indict the justice for treason? Does the Executive Branch have a duty to protect the Constitution when a Justice rises up against it in an appellate decision.

In another case, a biased judge issued habeas orders releasing purported Southern spies. Soldiers entered the court in session. They pistol whipped the judge when he resisted arrest, threw him in a hellhole prison, bleeding from the scalp. Is that proper, legally?

Article I Section 1 grants lawmaking to the Congress. Is the repeal of a law in judicial review the same as the making of a law for Article I Section 1 purposes? Outside of established custom, where does the Constitution permit judicial review?

There was no charge of irrelevant collateral corruption in Taney's case.

Posted by: Supremacy Claus | Jul 11, 2009 8:52:20 AM

Does she drink Coke?

Posted by: Daniel | Jul 11, 2009 1:15:20 PM

Daniel --

That's about what Leahy has in mind. I can't wait to see him gushing. I wonder if he can spell "R-U-B-B-E-R-S-T-A-M-P.

Posted by: Bill Otis | Jul 11, 2009 1:30:13 PM

Why do you favor reverse discrimination?

Posted by: Anon | Jul 11, 2009 3:25:34 PM

Most of what I’d want to know wouldn’t be easily accessible in a politically charged confirmation hearing.

But over beers I’d ask Judge Sotomayor if the right wing’s relentless crusade against “activist judges” squares with her childhood notions of the role judges should play in a just society?

Is it never OK for judges to pursue wise, just outcomes at the expense of slavishly demurring to congressional whims, regardless of how cynical, wrong-headed or destructive those whims might seem?

I’d ask if it bothers her when zealots who scorn active judges praise “movement judges” for reading the legal tea-leaves so as to promote their inclinations.

I’d ask what she thinks about the ex-cons living in dangerous, deplorable conditions under bridges in Florida because grandstanding pols keep increasing the distance between where sex-offenders are permitted to live and places where children gather. (Friday’s NYT, A15).

Some Florida law enforcement and elected officials acknowledge the unfairness of the situation but remain immobilized by fear of the firestorm of demagoguery any attempt to fix it would surely ignite.

Should judges be powerless in these situations other than to hope legislators grow a spine or a brain?

I’d ask her if the 4th Amendment still has a pulse or if the word “reasonable” -- after the ravages it’s been put through in the name of providing security or discipline or order or safety – still provides any meaningful obstacles for overreaching authorities.

Finally, I’d ask if she’s OK with routinely, zealously using RICO statutes (crafted decades ago to gut lawyered-up mobsters) against ordinary citizens accused of relatively minor deceptive practices or technical regulatory infractions?

Posted by: John K | Jul 11, 2009 5:22:13 PM

Judge S -- If you are confirmed, you will be the only former prosecutor on the bench at the USSC. How might your experiences as a prosecutor inform your rulings on criminal matters? If you had started your legal career as a public defender, instead, do you feel that your approach to criminal cases might be different? (Or, if you had started your career as a public defender, do you think there's any possibility you would have received this nomination at all?)

Posted by: FG | Jul 11, 2009 5:54:45 PM

I'd ask if even a liberal justice such as herself was able to actually finish even a single beer without rolling her eyes straight out of her head at John K's pandering questions? And I'd ask what, if any, kind of beer would have made them even semi-palatable?

Posted by: Ben | Jul 11, 2009 11:45:53 PM

FG, as a public defender, I imagine her informed answers to your last two questions, were she to be so informed, would have to be "Yes," and "No."

Posted by: Ben | Jul 11, 2009 11:50:02 PM

Ben--

My questions might could be seen as "pandering" by those who view Sotomayor as a potential liberal interloper.

And I don't believe she's all that liberal, at least not on criminal justice issues (which is what we're here to discuss). But even if she were as liberal as you apparently think she is, why would sympatico questions from a fellow liberal (me) prompt her to roll her eyes?

Instead wouldn't Ms. Sotomayor and I just do the liberal handshake and finish our drinks?

No, the questions would have been be meant to probe, not pander; probe for the cynical prosecutor beneath the soft exterior.

Posted by: John K | Jul 12, 2009 9:54:43 AM

My point, John K, was that several of your questions were so over the top, particularly the first few, the last two not so much, such that even an ideologue may feel it was being spread on a little thick.

Posted by: Ben | Jul 12, 2009 10:44:27 AM

Over the top...because you say so. That's it?

Posted by: John K | Jul 12, 2009 2:08:17 PM

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