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July 13, 2009

Should we expect (or hope) any Sotomayor surprises this week?

As detailed in this latest Washington Post piece, everyone inside the Beltawy is "geared up this morning for a historic Supreme Court confirmation battle as Sonia Sotomayor prepared to take her seat in front of the 19 members of the Senate Judiciary Committee."  I plan to watch some of the festivities, though I fear they will prove to be a bit boring.  Indeed, I am worried that I will be watching like a sometimes NASCAR fan, more interested in seeing some fiery wrecks rather than a lot of smooth driving. 

I am not rooting for, or in any way expecting, Judge Sotomayor to hit a wall as she navigates through these confirmation hearings (indeed, I signed a letter supporting her confimation).  Rather, I am principally rooting for the "judicial activism" attack to become engulfed in flames as Judge Sotomayor gets pressed by Republicans for why she was not more eager to declare unconstitutional a New York restriction the popular gang weapon known as a nunchaku (the Maloney case) or public hiring plans (the Ricci case).  I am also kind of hoping some Senator gets really mixed up when trying to ask a question about Booker or the Eighth Amendment or some other sentencing topic.

Some of my major pre-hearing coverage of Judge Sotomayor and her criminal justice record:

UPDATE:  The first "crash" did not take long to happen, as reported on this live-blog of the hearings from the New York Times:

We’ve Now Been Interrupted | 10:45 a.m. A man who appears to be anti-abortion shouted loudly while Senator Dianne Feinstein was speaking: “Senator, What about the unborn?” He was escorted out the room, and Chairman Leahy is now warning everyone not to interrupt the proceedings. Senator Sessions concurs.

July 13, 2009 at 10:27 AM | Permalink

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"I am principally rooting for the misguided epitaph of 'judicial activism' to become engulfed in flames as Judge Sotomayor gets pressed by Republicans for why she was not more eager to declare unconstitutional... public hiring plans (the Ricci case)."

I don't think it's the Republicans who need to worry about Ricci questions.

The public hiring plan to which you refer was tanked, not by Republicans, but by the very liberals who adopted it. The city fathers of New Haven devised a test for the promotion of firefighters. No serious person could claim (or has claimed) that the test was designeed to favor one group over another. The Ricci plaintiffs took the test in good faith, scored well, and were in line to be promoted. At that point, the city fathers pulled the rug on them because they had the wrong skin color (if half of them had been black, this case would never have existed).

So here are some questions Republicans (and, one would hope, Democrats) should ask: If the denial of an an earned promotion on account of race is not racial discrimination, what is?

Why did Judge Sotomayor have "empathy" for those who came up short on the test but none for those who studied and did well?

Why was Judge Sotomayor content with one paragraph of analysis when the Supreme Court took 93 pages? Is she that much more of a "wise" jurist than all nine Justices?

Why did Judge Sotomayor try to bury the case (and the white firefighters) in an unpublished, per curiam opinion in a way grossly out of proportion to the importance of the issue (as Clinton-appointed Judge Jose Cabranes explained in grisly detail)?

Exploring these questions will scarcely embarrass the Republicans. If anything, the FAILURE to explore them will expose this hearing for what it actually is, to wit, the gushing prelude to a rubber stamp vote a few days from now.

Posted by: Bill Otis | Jul 13, 2009 11:37:01 AM

Bill, you have focused on the merits of Ricci rather than the broader judicial role issue I meant to spotlight. Here is how I mean to frame the inquiry: in the name of ensuring and protecting Equal Protection rights, should federal judges should be actively involved in reviewing decisions by local officials to ensure unjustified racial bias did not infect those decisions?

Bill, in light of your experience as a prosecutor, Iare you really in favor of federal judges actively involved in reviewing decisions by local officials to ensure unjustified racial bias did not infect those decisions? Or, to put the issue in term Judge Sotomayor might see it, here is the question I would like to see posed to Judge Sotomayor: do you think federal judges should be actively involved in questioning the prosecutorial decisions of state prosecutors if and whenever a defendant asserts that unjustified racial bias may have infected those decisions?

Posted by: Doug B. | Jul 13, 2009 11:53:50 AM

I think Bill Otis mis-characterizes the Ricci case. As I have said before, I think Justice Kennedy got the law right in his opinion for the Court, but it was not a foregone conclusion, and the City of New Haven could not have anticipated it.

The City's problem, as I understood it, was that if they didn't invalidate the test, they feared they would get sued by minority firefighters under Title VII, and that they would lose. Now, the irony is that they were sued by the Ricci plaintiffs, and in the end lost anyway. But the important point is that they believed their actions were required under Federal law. It turned out they were wrong about that, but it was clearly a close question, and you can't fault them for coming out on the wrong side of it.

Likewise, I don't fault Sotomayor on the merits of the opinion she signed onto (we don't actually know who wrote it), but the lack of analysis is clearly disturbing.

Posted by: Marc Shepherd | Jul 13, 2009 12:38:02 PM

Marc, how can you not fault Sotomayor on the merits. Her view, SJ for the defendants, attracted not a single vote for at the Supreme Court.

Posted by: federalist | Jul 13, 2009 12:47:19 PM

Federalist, I do not think a judge is de facto incompetent because she signed onto a ruling that not one of the current justices agreed with. I haven't researched this, but I suspect you will find that there have been excellent Supreme Court justices who were reversed unanimously at some point in their careers. Perhaps it even happened to some of the current nine (I haven't checked).

Posted by: Marc Shepherd | Jul 13, 2009 1:40:24 PM

Mark,

New Haven never claimed they actually feared losing a disperate impact suit. Their claim was that they feared even having to defend such a suit. If they had actually shown such a fear of losing a DI case they would have been protected from the Ricci ruling.

Posted by: Soronel Haetir | Jul 13, 2009 1:44:53 PM

Marc, you've moved the goalposts. You said, "I don't fault Sotomayor on the merits . . . ." I was simply pointing out that her view got no votes and wondering how in this case you could say that she deserved no fault.

I agree with you that a unanimous reversal is not always an indication of incompetence. In this case, we have shenanigans and a reversal. Seems to me that there was a thumb on the scales down at the Second Circuit.

Posted by: federalist | Jul 13, 2009 1:47:55 PM

Doug --

"Bill, you have focused on the merits of Ricci rather than the broader judicial role issue I meant to spotlight."

Focusing on the merits is to say the least in bounds when the question is her readiness for the Supreme Court.

"{I]n the name of ensuring and protecting Equal Protection rights, should federal judges...be actively involved in reviewing decisions by local officials to ensure unjustified racial bias did not infect those decisions?"

If the case is properly before them and the question is presented, you bet.

"[I]n light of your experience as a prosecutor, are you really in favor of federal judges [being] actively involved in reviewing decisions by local officials to ensure unjustified racial bias did not infect those decisions?"

Same answer as above. The problem was not that the Ricci case got to court. The problem was that Judge Sotomayor and her panel blew it, depriving the disfavored racial class of the promotions they had earned.

"Or, to put the issue in term[s] Judge Sotomayor might see it, here is the question I would like to see posed to Judge Sotomayor: do you think federal judges should be actively involved in questioning the prosecutorial decisions of state prosecutors if and whenever a defendant asserts that unjustified racial bias may have infected those decisions?"

I believe the correct answer is: No, not "if and whenever." For prisoners with time on their hands and nothing to lose by trying, it's easy to throw any accusation up against the wall (and they do it all the time).

HOWEVER, if the trial court determines that there is a reasonable factual basis behind the claim that Defendant X was prosecuted on account of his race, I am absolutely in favor of judicial review of that claim. And when judicial review occurs, I would hope it would be according to law, rather than according to which racial or identity group the judge "empathizes" with.

As it happens, I did a case on exactly this point, United States v. Olvis, 97 F3d 739 (4th Cir. 1996).


Posted by: Bill Otis | Jul 13, 2009 1:57:14 PM

Marc --

I agree with Soronel Haetir's response, and would add this as well. To accept as a justification for racial discrimination the claim that the city MIGHT have to defend a lawsuit is to invite a pretext for arbitrary governmental behavior so gossamer and subject to manipulation that it could cover anything.

As I said in my original post, if half the candidates who passed the test had been black, this case would never have existed. With all respect, I think you are missing the politics of race that lay behind what the New Haven city council was up to.

Posted by: Bill Otis | Jul 13, 2009 2:10:47 PM

The only "thumb" on the scale was circuit precedent, which dictated the outcome of the Ricci panel decision. I find it difficult to see how one can fairly criticize Sotomayor or the other judges on the Ricci panel for following binding precedent.

Posted by: Anon | Jul 13, 2009 2:13:19 PM

Even assuming that Sotomayor got the Ricci case completely and utterly wrong, I have yet to see any evidence that the REASON she came to the wrong decision was because she "empathized" with the plaintiffs. Judges are often wrong for many reasons -- misreading precedent, bad statutory analysis, sloppy reasoning, etc. Where is the evidence that Sotomayor is guilty of result-oriented "empathy" as opposed to garden-variety bad judging?

Posted by: CN | Jul 13, 2009 2:26:08 PM

Anon, the circuit precedent didn't dictate squat. Those cases didn't involve the tossing of test results because the results didn't, ahem, have the optics.

And anon, surely you don't agree with Sotomayor's decision to bury the case by summary order, do you?

Posted by: federalist | Jul 13, 2009 2:31:58 PM

CN --

"Where is the evidence that Sotomayor is guilty of result-oriented 'empathy' as opposed to garden-variety bad judging?"

It's hard to say whether result orientation or "garden-variety bad judging" is the more compelling disqualifier for being on the Supreme Court, but either is sufficient.

Posted by: Bill Otis | Jul 13, 2009 2:45:31 PM

Ah, so you HAVE no evidence that Sotomayor was result-oriented in Ricci. So when you ask questions like:

"Why did Judge Sotomayor have "empathy" for those who came up short on the test but none for those who studied and did well?"

you are just being disingenuous. As I suspected.

Posted by: CN | Jul 13, 2009 2:49:23 PM

CN, remember, she buried the case by disposing of it in an umpublished summary order. That, coupled with her ridiculous decision to affirm summary judgment for the defendants (a decision not joined by any SCOTUS Justice), gives reason to believe that she wasn't being fair. Additionally, when people talk about being a "wise Latina" and referencing their ethnicity to the quality of their judging, the evidence is certainly there.

Posted by: federalist | Jul 13, 2009 2:57:40 PM

CN --

That I choose to cite your unintended admission that, as a practicioner of "garden-variety bad judging" she's unqualified for the Supreme Court, is scarcely a concession that she's not result-oriented, or that there is no evidence to that effect.

And you can cut out the hypocritical "disingenuous" stuff until you're candid enough to state your real name. Those who snipe from behind the cover of anonymity are poorly positioned to criticize the honesty of those who are at least willing to make themselves known.

Posted by: Bill Otis | Jul 13, 2009 3:10:57 PM

What is the quote; "sound and fury signifying nothing?" Sotomayor will make a fine jurist. If we didn't talk about slanted decisions with the snarling Alito, she gets a pass as well' If the only alleged skeleton is "Ricci" then everybody is grasping at air.
I just wish we could get a Supreme that would adopt the resuscitation of Fourth Amendment to be his legacy as Nino has for the Sixth.

Posted by: Mark #1 | Jul 13, 2009 3:18:05 PM

Judge S gets irritated by incompetence and slowness. If I were a Republican Senator, I would forget all the standard questions.

I would stutter, sputter, and search for words. Then I would rummage through papers, ask for indulgence, and time for my staff to retrieve the list of questions I thought were important, i.e. make her wait a little. Then I would ask female questions. Where does she shop; is she dating, and who made that great outfit. If the Chairman rules them out of order, I would produce phony requests for those answers from my constituents, sort of like bizarre viewer letters on the Letterman Show.

See if she can handle ordinary human conversation, rather than lawyer toughness.

Posted by: Supremacy Claus | Jul 13, 2009 3:21:11 PM

Bill, I said "assuming Sotomayor got the Ricci case completely and utterly wrong...." Read carefully. I do not in fact think Sotomayor got Ricci wrong -- not enough to cause concern -- and I have never seen any evidence that she is a bad judge.

You cling to your claim that Sotomayor's "empathy" causes her to be result-oriented, but you are still unable to provide a shred of evidence for this claim. I have noticed that when you get backed into a corner and are unable to defend yourself with logic or evidence, you lash out and criticize posters for their anonymity. It's a rather obvious tell; you might want to watch that in the future.

(And FYI, when you refuse to engage with commenters unless they reveal their identities, you are doing something similar to what you criticize Sotomayor for doing. Instead of proceeding solely on the basis of logic and evidence, you condition your participation on the identity of the parties.)

Posted by: CN | Jul 13, 2009 3:33:12 PM

Bill: Those are not anonymous people postings. Those are fictional characters. Anytime you wish the name and resume of the author of SC, let me know. You will get the meaningless name and information of a stranger. If you are implying that you may hold such a name accountable, tell us how. Because this comment is by a fictional character, you may refuse to reply.

Posted by: Supremacy Claus | Jul 13, 2009 4:03:20 PM

"Anon, the circuit precedent didn't dictate squat. Those cases didn't involve the tossing of test results because the results didn't, ahem, have the optics.

And anon, surely you don't agree with Sotomayor's decision to bury the case by summary order, do you?"

federalist: In short, Hayden was controlling. The distinction between the two - administering a test, then deciding how to score it in order to reduce disparity in the results in an attempt to comply with Title VII (Hayden) vs. administering a test, then deciding not to use it because of disparity in the results in an attempt to comply with Title VII(Ricci) - was insufficient to take Ricci outside of the ambit of Hayden.

As for summary orders, I generally disfavor them, and without seeing a good reason for a summary order in Ricci, I disagree with the case being disposed of in that manner.

Posted by: Anon | Jul 13, 2009 5:06:43 PM

Sotomayer favors reverse discrimination!! 60% of her rulings have been Overturned by SC. I know it is wishful thinking on my part but I will hope against odds she does not get confirmed.

Posted by: Anon | Jul 13, 2009 6:25:36 PM

Anon: Sotomayor is a left wing extremist, a racist, a sexist, a member of hate groups. One group seeks to retake the Southwest of the United States for Mexico by violence, and to kill the white race. She will likely empower homosexuals, terrorists, criminals. She will be making law instead of applying the law, at every case.

Were it not for the takeover of our government by the lawyer, she would be rejected. However, she will lead the charge to plunder all productive parties, and to empower criminals and terrorists. Why? To generate and maintain lawyer jobs and power. This is the left wing agenda, so she will breeze through even if she makes huge mistakes in her testimony.

A major terrorist attack will ensue. Disloyal lawyers, the major cause of all terrorism success, will be swept away. An Amendment should exclude the lawyer from all benches, all legislative seats, and all responsible policy positions in the Executive.

Posted by: Supremacy Claus | Jul 13, 2009 11:37:43 PM

The nomination hearings offer free airtime for Senators of the not so New South to preach the gospel to the contituency of the hills and the hollers. When the Southern Strategy was devised, Lee Atwater and others, counseled budding Young Republicans to abandon the N word (Sessions was caught-out on the use of an inappropriate synonym "Boy" years ago when he himself was nominated for a federal judgeship)and spout on about such crimes as 'busing', 'affirmative action', and 'activist judges'. Sessions, Cornyn, Corker and their brothers are working these magic words on the floor of the Senate and in the TV interviews from the Halls of Congress. They do not care if anyone else laughs at their cornpone accents (which they hype up each time a microphone gets near) or strange notions of Ms. Sotomayor's racism. This free airtime will get them re-elected. This rant works in the hills and the hollers of Tennessee and Texas. It was race trashing like this that Corker employed to beat his opponent for the Senate seat. These folks know that the nominee will win confrimation and they know that the folks back home like to see them beating up on her.

Posted by: mpb | Jul 15, 2009 7:51:57 AM

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