Podcast on Sotomayor and Property Rights:

The Manhattan Institute recently posted a podcast I did on Judge Sotomayor's important property rights decisions with Jim Copland, my law school classmate and director of the Institute's Center for Legal Policy.

Jim had a good related column on Sotomayor and the limits of empathy as a guide to judicial decisionmaking in yesterday's National Law Journal.

Psalm91 (mail):
It is hard to imagine any ground for criticizing Sotomayor's life, appearance, education, career, decisions, lack of decisions, philosophy, lack of philosophy, opinions, dissents, gender, ethnicity, food choices, and prospective pernicious effect on American jurisprudence which has not been considered here over the last week. Copland's column is, however, one of the weakest. He cites a dissent and a class action certification decision to predict that she will bring about the downfall of American law. What has she done to inflame so many against her?
6.2.2009 11:46pm
Ilya Somin:
He cites a dissent and a class action certification decision to predict that she will bring about the downfall of American law.

He did not of course claim that this would bring about the "downfall of American law," merely that it showed some flaws in her jurisprudence specifically and empathy-based judging more generally. If you think he is wrong, you might do better to criticize the argument he actually makes rather than attack a straw man of your own creation.
6.2.2009 11:58pm
AlanDownunder (mail):
And good to see that Jeff Rosen remains authoritative.
6.3.2009 12:31am
Psalm91 (mail):

He worries about her influence for years to come. Her decisions are empty. She has no clue about the real world consequences of her decisions. In fact, it is the article which is empty and without argument, simply the recitation of talking point conclusions without analysis of "her jurisprudence". As Goldstein and others have documented, there is no basis at all for calling her an "empathy-based" judge. This is fiction, a creation based on a careless word, no better and no more substantive than looking at the list of Bork's video rentals.
6.3.2009 12:45am
Psalm91 (mail):
The "Anti-Sotomayor Filibuster All-Stars":

"Manuel A. Miranda, Chairman
Richard Viguerie,
David Keene, American Conservative Union
Gary Bauer, American Values
Grover Norquist, Americans for Tax Reform
Larry Pratt, Gun Owners of America
Dr. Virginia Armstrong, Eagle Forum's Court Watch
Colin Hanna, Let Freedom Ring
Mark R. Levin. President, Landmark Legal Foundation
Tom Minnery, Focus on the Family
Wendy Wright, Concerned Women for America
Rev. Miguel Rivera, National Coalition of Latino Clergy &Christian Leaders
Dr. Carl Herbster, AdvanceUSA
Donald E. Wildmon, American Family Association
Niger Innis, Congress of Racial Equality
Willes K. Lee, Hawaii Republican Party. Immediate Past Chairman
Ron Robinson, Young America's Foundation
Michael P. Farris, Esq., Home School Legal Defense Association
Peter Flaherty, National Legal and Policy Center
Kelly Shackelford. Liberty Legal Institute
Dana Cody, Life Legal Defense Foundation.
Susan Carleson, American Civil Rights Union
Phillip Jauregui, Judicial Action Group,
Ilya Shapiro, Esq., Cato Institute
Dean John C. Eastman, Dean, Chapman University School of Law
Dean Mathew D. Staver, Liberty Univ. School of Law (Founder, Liberty Counsel)
Prof. Teresa S. Collett. University of St. Thomas School of Law, Minnesota
Prof. Ronald D. Rotunda, Chapman University School of Law
Michelle Gress, J.D., The Westchester Institute for Ethics
L. Brent Bozell III, Media Research Center
Thomas A. Glessner, JD, National Institute of Family and Life Advocates
Denise Singleton, American Federation of Senior Citizens
Jim Martin, 60 Plus Association
Rev. Rick Scarborough, Vision America
Rev. Louis Sheldon, Traditional Values Coalition
Andrea Lafferty, Traditional Values Coalition
Keith Wiebe, American Association of Christian Schools
Debbie Joslin, Alaska Eagle Forum, Republican National Committeewoman, Alaska
Bruce Ash, Republican National Committeeman, Arizona
Steve Scheffler, Iowa Christian Alliance, Republican National Committeeman, Iowa
W. Ross Little, Jr., Republican National Committeeman, Louisiana
Curly Haugland, Republican National Committeeman, North Dakota
Cathie Adams, Texas Eagle Forum, Republican National Committeewoman, Texas
Kathy Terry, Republican National Committeewoman, Virginia
David Ridenour, The National Center for Public Policy Research
Amy Ridenour, Americans for the Preservation of Liberty
Jeffrey Mazzella, Center for Individual Freedom
William H. Shaker. Rule of Law Committee
William J. Murray, Religious Freedom Coalition
J. C. Willke, MD, International Right to Life Federation
Bradley Mattes, Life Issues Institute
Fr. Thomas J. Euteneuer, Human Life International
Dr. Patricia McEwen, Life Coalition International
Austin Ruse, Catholic Family &Human Rights Institute
Jennifer Kimball, Culture of Life Foundation
Eric Scheidler, Pro-Life Action League
John Jansen, Generations for Life
Mark L. Melcher - The Political Forum
Deal W. Hudson. Catholic Advocate
Brian Burch, Fidelis and
John-Henry Westen,
Tom Shields, Coalition for Marriage and Family
Chuck Muth, Citizen Outreach
William Greene, Ph.D.,
Jimmy LaSalvia, GOProud
Mychal Massie, Project 21
Linda Harvey, Mission America
David Crowe, Restore America
Sandy Rios, Culture Campaign
Robert Peters, Morality in Media
C. Preston Noell III, Tradition, Family, Property, Inc.
Dave Bydalek, Family First
Richard Ford, Heritage Alliance
Peter LaBarbera, Americans for Truth
Tim Echols, Teenpact Leadership
Gary Palmer, Alabama Policy Institute
Bryan Fischer, Idaho Values Alliance
Mary Anne Hackett, Catholic Citizens of Illinois
James Dunlap, Citizens for Community Values of Indiana
Micah Clark, American Family Association of Indiana
Dr. Don Racheter, Iowa Wednesday Group
Dennis K. Baxley, Christian Coalition of Florida
Kent Ostrander, The Family Foundation (Kentucky)
Gene Mills, Louisiana Family Forum
Jason Stern, Louisiana Family Forum Action
Brian Camenker, MassResistance
Kris Mineau, Massachusetts Family Institute
Joseph Ureneck, The Fatherhood Coalition, Massachusetts
Gary Glenn, President, American Family Association of Michigan
Pastor Paul Blair, Reclaiming Oklahoma for Christ
Diane Gramley, American Family Association of Pennsylvania
Fran Bevan, Pennsylvania Eagle Forum
Harry Levine, Victory NH
Carolee Adams, Eagle Forum of New Jersey
Marie E. Tasy, New Jersey Right to Life
Bill Brooks, North Carolina Family Policy Council Action
Bobbie Patray, Tennessee Eagle Forum
Beverly Roberts, Texas Concerned Women for America
Betty Anderson, Eagle Forum of Montgomery Co., Texas
Daniel J. Cassidy, Editor, Sunlit Uplands, South Carolina
Steve Milloy,
Jim Sutherland, California
Lester J. Larsen, Colorado
Chris Dickson, Indiana
Don Feder, Feder Associates, Massachussetts
Doug Reaume, Michigan
Didi Lima, Nevada
Ed Holdgate, New Hampshire
Stephen M. De Luca, New Jersey
Candace deRussy, New York
John C. Armor, Esq., North Carolina
Ed Gehringer, North Carolina
Jerry Stevens, South Carolina
Janet M. LaRue, Esq., Jan LaRue Consulting, Texas
Donna Garner, Texas
Larry Cirgnano, Virginia
Kenneth D. Whitehead, former Assistant Secretary of Education, Virginia
Jeffrey Lord, author, The Borking Rebellion
Mark I. Sutherland, author, Judicial Tyranny
Martha Zoller, "The Martha Zoller Show", Georgia News Network
Janet Parshall, Nationally Syndicated Talk show Host
Share Spotlight"

And don't forget David Duke and Pat Buchanan.
6.3.2009 12:55am
Tugh (mail):
Still waiting for Professor Somin's correction of his most likely unintentional, yet important, factual errors in his prior post re the Didden case...
6.3.2009 1:51am
Jim Copland (www):

As Goldstein and others have documented, there is no basis at all for calling her an "empathy-based" judge.

I don't think Goldstein or anyone else has "documented" this point (see, e.g., my post here). But in any event, I absolutely do not call Sotomayor an "empathy-based" judge, notwithstanding that such might be inferred from some of her extra-judicial writings. Rather, I critique "empathy" as an empty standard -- and yes, I suggest that such emptiness is reflected in many of her decisions.

Many does not mean all or most, of course. Most cases, for most judges, would be uncontroversial; I agree with the POTUS that in evaluating a Court of Appeals judge, the truly close cases are those that are illuminating.

I would differ with Judge Sotomayor's jurisprudence on many cases, not just those listed. And no, I was not able to engage in an exegesis of those cases in an op-ed with a word limit.

I have observed Judge Sotomayor, however, since I clerked on the Second Circuit during her first year on that bench. I absolutely would argue that in cases of first impression she has a tendency to miss the forest for the trees. I am happy to discuss in depth many of her decisions that concern me, in a public forum that makes it worth my while (a comment thread on a blog is not such a forum).

Finally, if you want to attack someone's argument, it's probably not wise to engage in grotesque hyperbole yourself. As Ilya notes, my saying that I will "worry about Sotomayor's influence on the law in the decades to come" -- which I will -- is hardly the equivalent to "predict[ing] that she will bring about the downfall of American law" -- which I don't. Really now.
6.3.2009 8:52am
padraic2112 (mail) (www):
While I personally agree that Didden is a very, very troublesome decision, I'm a little dismayed at the overall coverage of Hon. Sotomayor's record.

Virtually all of the commentary I've seen across the blogosphere in the last week has been focused on two or three court cases. While those cases are telling anecdotes, we don't say, "the plural of anecdotes is not data" for nuttin'.

Has anyone a more in-depth analysis of her record in property rights cases? In a career of over a decade of a public servant (be it a jurist, or a politico, or a police captain for that matter) it's pretty trivial to find one case, or one vote, or one public statement that can bolster an interpretation of that person's career without actually being representative.
6.3.2009 1:08pm

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