So It’s Sotomayer

Ken AshfordSupreme CourtLeave a Comment

You probably know this by now:

President Obama announced on Tuesday that he will nominate the federal appeals judge Sonia Sotomayor for the Supreme Court, choosing a daughter of Puerto Rican parents raised in Bronx public housing projects to become the nation’s first Hispanic justice.

Judge Sotomayor, who stood next to the president during the announcement, was described by Mr. Obama as “an inspiring woman who I am confident will make a great justice.”

The president said he had made his decision after “deep reflection and careful deliberation,” and he made it clear that the judge’s inspiring personal story was crucial in his decision. Mr. Obama praised his choice as someone possessing “a rigorous intellect, a mastery of the law.”

But those essential qualities are not enough, the president said. Quoting Justice Oliver Wendell Holmes, Mr. Obama said, “The life of the law has not been logic, it has been experience.” It is vitally important that a justice know “how the world works, and how ordinary people live,” the president said.

I co-argued in front of her once, before she was appointed to the Second Circuit, and found her to be very competent and prepared.

Regarding her jurisprudence, there isn't much for conservatives to object.  She certainly leans "liberal", but not too the point of circumnavigating clear and established law.  In her biggest abortion case, for example, she denied a claim brought by an abortion rights group challenging a Bush policy that prohibited foreign organizations that receive foreign funds from performing or supporting abortions.  Her biggest decision in the field of environmental law also happened to go against environmental groups.  (A rundown of her major decisions can be found here).

But that hasn't stopped the early cirticism.  The (predictable) theme seems to be that she will rule based on her own prejudices, rather than the law.  Exhibit A for this seems to be the recent case of Ricci v. DeStefano, Sotomayor's highest profile case to date.  Sotomayer joined the decision of an en banc panel of the Second Circuit, which upheld a lower court decision denying a lawsuit by white firefighters in New Haven. 

In Ricci, the town of New Haven refused to certify the results of a civil firefighter examination, after the results showed that blacks did unusually worse on it (leading to allegations that the examination itself may have had a racial bias).  New Haven refused to certify the results in order to protect itself against a Title VI civil rights lawsuit.  The white firefighters sued, but the lower court rejected the lawsuit.  The Second Circuit (including Sotomayor) upheld the lower court decision.  The case was recently appealed and re-argued before the U.S. Supreme Court, and the decision will probably come out before Sotomayor is confirmed.

There exists a couple problems with using Ricci as the blunt instrument to hit Sotomayor with.  For one thing, it doesn't really jibe with the allegation that Sotomayor will be swayed by her own personal bias — after all, she is Hispanic, and so was one of the white firefighters who filed the lawsuit and lost.  Secondly, the court was showing deference to the legislative process, which is something conservatives complain that liberal judges don't do.

With the GOP in disarray, it will be interesting to see how senators will vote and more importantly, why they will vote a certain way. The Republicans accidentally sent out their talking points to the media. Here are the talking points:

o President Obama's nomination of Judge Sonia Sotomayor to the Supreme Court is an important decision that will have an impact on the United States long after his administration.

o Republicans are committed to a fair confirmation process and will reserve judgment until more is known about Judge Sotomayor's legal views, judicial record and qualifications.

o Until we have a full view of the facts and comprehensive understanding of Judge Sotomayor's record, Republicans will avoid partisanship and knee-jerk judgments – which is in stark contrast to how the Democrats responded to the Judge Roberts and Alito nominations.

o To be clear, Republicans do not view this nomination without concern. Judge Sotomayor has received praise and high ratings from liberal special interest groups. Judge Sotomayor has also said that policy is made on the U.S. Court of Appeals.

o Republicans believe that the confirmation process is the most responsible way to learn more about her views on a number of important issues.

o The confirmation process will help Republicans, and all Americans, understand more about judge Sotomayor's thoughts on the importance of the Supreme Court's fidelity to the Constitution and the rule of law.

o Republicans are the minority party, but our belief that judges should interpret rather than make law is shared by a majority of Americans.

o Republicans look forward to learning more about Judge Sotomayor's legal views and to determining whether her views reflect the values of mainstream America.

President Obama on Judicial Nominees

o Liberal ideology, not legal qualification, is likely to guide the president's choice of judicial nominees.

o Obama has said his criterion for nominating judges would be their "heart" and "empathy."

o Obama said he believes Supreme Court justices should understand the Court's role "to protect people who may be vulnerable in the political process."

o Obama has declared: "We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom, the empathy to understand what it's like to be poor or African-American or gay or disabled or old-and that's the criterion by which I'll be selecting my judges."

Additional Talking Points

o Justice Souter's retirement could move the Court to the left and provide a critical fifth vote for:

o Further eroding the rights of the unborn and property owners;

o Imposing a federal constitutional right to same-sex marriage;

o Stripping "under God" out of the Pledge of Allegiance and completely secularizing the public square;

o Abolishing the death penalty;

o Judicial micromanagement of the government's war powers.

That's pretty tame if you ask me.  The GOP is in a bit of a bind — how are they to oppose a Hispanic and a woman, who is left but not FAR left, and who is (by all accounts) intelligent and qualified?  AND who many voted for in 1998?  Ed Kilgore writes about the risks for the GOP in opposing the nominee:

Conservatives could definitely try to turn Sotomayor into a latter-day Lani Guinier, and turn her confirmation hearings into a white male pity party, all about identity politics. This would not, of course, go over very well with Latinos, who will naturally feel strongly about their first-ever Supreme Court nominee, and who probably think white men have been pretty well represented in the Court’s history.

The rightwing punditry is a little more unhinged in their opposition.  Take Glenn Beck this morning, who tweeted:

"Does the nominee still have Diabetes? Could the Messiah heal her, or does she just not want to ask?"

Hmmmm.  Such important relevant questions by the loyal opposition.

Anyway, it's off to the races.  I predict a lot of fury [UPDATE: and lies], but in the end, she will pass easily.

UPDATE: Perhaps I should address the "controversy" surrounding Sotomayor regarding her statement in a symposium that the appellate courts are where "policy is made".  This no doubt will be used by conservatives to bolster the argument that Sotomayor will ignore the law and simply use the court to dictate her policy.  Here is Sotomayor making the statement, in context:

The best rebuttal to this comes from the Anonymous Liberal:

The context, as Orin Kerr helpfully explains in this post, is that Sotomayor was explaining the differences between clerking at the District Court level and clerking at the Court of Appeals level. Her point, which is unquestionably true as a descriptive matter, is that judicial decision making at the Court of Appeals level is more about setting policy, whereas judging at the District Court level is a more about deciding individual cases and disputes. And the reason for this is obvious. Decisions at the Court of Appeals level don't just determine the fates of individual litigants; they serve as controlling precedent for all District Court judges within that circuit. Thus any decision by a Court of Appeals becomes the policy of that circuit, at least until it's overruled by the Supreme Court (which is rare).

There is nothing remotely controversial about this. Cases get appealed to the Circuit Court level for one reason: because the answer to the question being litigated is not clear. When the law is clear, no one bothers to appeal (because it's really expensive). A Court of Appeals grapples with the difficult questions, the gray areas in the law, and ultimately issues rulings one way or the other. These rulings then become the policy of that particular circuit, serving as controlling precedent in future cases. This is just as true in the ultra-conservative Fourth Circuit as it is the more liberal Ninth Circuit.

But in Simplistic Republican World, none of this actually happens. Good conservative judges don't "make policy," they simply enforce the law. The law is apparently always clear. Indeed it's a wonder that lawyers even bother to appeal cases in the Fourth Circuit. After all, they should know that the conservative jurists in that circuit will simply "enforce the law" (because they wouldn't dream of "making policy"), so the outcome should be very predictable.

Undoubtedly conservatives will point to Sotomayor's reaction to her own words as evidence that she was letting slip some secret about how liberal judges actually operate. But the obvious truth is that she was merely anticipating that some clown like Orrin Hatch might someday twist her worlds to mean something they don't. She was talking about how all judges operate at the Court of Appeals level. If you're not thinking about the policy implications (i.e., the precedential effect) of your rulings, you're not doing your job.