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Is Judge Sotomayor's Cheerleading for Obama Proper?

Ed Whelan has this very interesting post on whether Judge Sotomayor's public support for Obama's election as President was unduly partisan. Indeed, Whelan suggests the Sotomayor may have violated the canons of judicial ethics requiring judges to maintain the appearance of impartiality.

I have to say that, when I was a federal judge, I certainly would have been reluctant to wade into the merits of what happened during a Presidential election to the extent that Judge Sotomayor did.

Update: Sorry for the broken link to Whelan's post, which I just fixed.

ruuffles (mail) (www):

Judge Sotomayor's public support for Obama's election as President was unduly partisan

By leaving out the date of her remarks, you twist her actions to make it seem like she campaigned for him. In fact, her speech was on April 17, 2009, and remarked on the historic aspects of the elections.
6.5.2009 3:32pm
ruuffles (mail) (www):
Oh and let's not forget Sandra Day O'Connor and her husband's remarks on election night 2000. She was disappointed that Bush lost (at that time) and Gore would likely appoint her successor.
6.5.2009 3:33pm
Downfall:
Link is broken, think you meant this:
6.5.2009 3:33pm
hawkins:
This is a serious question: Does Whelan always take partisan positions? It seems that he always spews GOP talking points. Does he ever offer similar criticisms of Republicans (other than the types conservatives often level at McCain, Specter, etc)?
6.5.2009 3:34pm
levisbaby:
This is a disgraceful post. The remarks were long after the election.

When you were a federal judge, did you care about making misleading and inaccurate statements? What about now?
6.5.2009 3:34pm
Downfall:
Okay, so the link is long and confusing your servers. Let's try it this way:
6.5.2009 3:34pm
Anderson (mail):
This is a serious question: Does Whelan always take partisan positions? It seems that he always spews GOP talking points.

I was wondering the same about "Cassell."
6.5.2009 3:38pm
levisbaby:
What do you think about Sotomayor's allegedly activist views that appellate courts make policy?

"One of the frustrations about being a trial court judge is that you never set broad principles of law; of course, that's reserved for the appellate courts. ...

http://volokh.com/posts/1195865907.shtml
6.5.2009 3:42pm
Observer:
hawkins: Presumably not, since he is a writer for the National Review, an openly partisan publication. Writers for the New York Times are similar in that respect, with the difference that they are not quite as open about admitting their partisanship.
6.5.2009 3:42pm
George Lyon (mail):
Whelen gives the date of the speech. The criticism is valid. A federal judge ought not to be cheerleading the administration that appears before him or her with regularity.
6.5.2009 3:50pm
hawkins:
Observer: Its news to me that the http://www.nytimes.com/2008/07/04/opinion/04fri1.html
6.5.2009 3:53pm
MAM:
Does Cassell or any other lawyer have an obligation to report her?

Pretty weak attempt to, again, tarnish the judge.
6.5.2009 3:54pm
hawkins:
Whoops, my bad. The New York Times has clearly been critical of Obama though. See the post above, as well as criticisms of Richardson and Geithner, just to name a few off the top of my head.
6.5.2009 3:54pm
Bart (mail):
Impartiality is so passe when you are a wise Latina.
6.5.2009 3:55pm
Houston Lawyer:
Apparently nonpartisanship is reserved for Republican-appointed justices.
6.5.2009 4:00pm
Bob Montgomery (mail):
The post fairly clearly refers to post-election remarks:
...wade into the merits of what happened...

It is just a hair ambiguous, but that's nitpicking and likely inadvertent.

Fix the link, though!
6.5.2009 4:01pm
ruuffles (mail) (www):

Apparently nonpartisanship is reserved for Republican-appointed justices.

Oh you mean like how Sandra Day O'Connor, appointed by Reagan, who expressed her discontent at Gore initially being declared the winner and then not recusing herself? Oh I forgot, she's not a real conservative, excuse me.
6.5.2009 4:07pm
ruuffles (mail) (www):

Impartiality is so passe when you are a wise Latina.

Huh, that's strange, the NRO seems to have her confused with a Buddhist.
6.5.2009 4:09pm
ruuffles (mail) (www):

Apparently nonpartisanship is reserved for Republican-appointed justices.

And let's not forgot Scalia, also appointed by Reagan, refused to recuse himself and went on to rule in favor of his hunting partner.
6.5.2009 4:09pm
Steve P. (mail):
A federal judge ought not to be cheerleading the administration that appears before him or her with regularity.

That makes sense. But I'm not so sure she's "cheerleading the administration." From my reading of her quote, she's noting two things:

1. The diverse group of people who came together, despite differences, to vote for an African American, was "awe inspiring", and

2. Obama's message of service is "a clarion call we are obligated to heed"

I don't see #1 as "cheerleading". #2 might be. If I were a federal judge, and said Bush's message of resisting terrorists is a "clarion call we are obligated to heed", would I be cheerleading the previous administration?
6.5.2009 4:15pm
RPT (mail):
Since the Puerto Rican food issue has already been addressed, we're now waiting for the conservative fashion critique.

GL:

Is it your position that sitting judges cannot comment on public affairs?
6.5.2009 4:18pm
Justin (mail):
The failure to note the date of the allegedly improper quotes is incredibly shoddy journalism. That's all I'll say.
6.5.2009 4:19pm
Stamper:
Although probably inappropriate in the O'Connor and Scalia cases, lets not forget that there is a difference between a Supreme Court Justice and a Court of Appeals judge. The Cannon Whelan refers to is specifically applicable to a Circuit Judge and not to a Supreme Court Justice, for obvious reasons.
6.5.2009 4:22pm
ruuffles (mail) (www):

If I were a federal judge, and said Bush's message of resisting terrorists is a "clarion call we are obligated to heed", would I be cheerleading the previous administration?

Check out Scalia's dissent in Boumediene.

Our Armed Forces are now in the field against the enemy, in Afghanistan and Iraq. Last week, 13 of our countrymen in arms were killed. The game of bait-and-switch that today's opinion plays upon the Nation's Commander in Chief will make the war harder on us.
6.5.2009 4:22pm
Houston Lawyer:
And let's not forgot Scalia, also appointed by Reagan, refused to recuse himself and went on to rule in favor of his hunting partner.

There is the little matter of there being a difference between the office and the person holding it.

And I don't recall O'Connor, who I'm no fan of, making a public pronouncement of her discontent. She may well have made those comments but I don't believe that they were for public consumption. In addition, she shouldn't have made the comments even in a nonpublic forum.
6.5.2009 4:24pm
ruuffles (mail) (www):

The Cannon Whelan refers to is specifically applicable to a Circuit Judge and not to a Supreme Court Justice, for obvious reasons.

I'll bite. What are the obvious reasons judicial canons are not applicable to Justices?
6.5.2009 4:24pm
Chico's Bail Bonds (mail):
Cassell, are you trying to give Jeff Rosen a run for his money?

If so, Rosen was worse. Keep trying, though.
6.5.2009 4:26pm
RPT (mail):
The Scalia-Cheney hunting trip is the best rebuttal to this inane commentary.
6.5.2009 4:26pm
Malvolio:
Let's compare 'n' contrast:
At an Election Night party at the Washington, D.C. home of Mary Ann Stoessel, widow of former Ambassador Walter Stoessel, the justice's husband, John O'Connor, mentioned to others her desire to step down, according to three witnesses. But Mr. O'Connor said his wife would be reluctant to retire if a Democrat were in the White House and would choose her replacement. Justice O'Connor declined to comment.
versus
Our challenge as lawyers and court related professionals and staff, as citizens of the world is to keep the spirit of the common joy we shared on November 4 alive in our everyday existence.
I am not thrilled that O'Connor is willing to admit (even to her husband) the degree to which her office is politicized, but Sotomayor's remarks were so unabashedly adulatory they verged on creepy.

Also, the O'Connor story is third-hand cocktail party gossip. Sotomayor was speaking from a prepared text.

Just my opinion, of course.
6.5.2009 4:30pm
Anderson (mail):
said Bush's message of resisting terrorists is a "clarion call we are obligated to heed", would I be cheerleading the previous administration?

I think after 9/11, there was a 99.9% consensus in favor of "resisting terrorists." For that matter, an opinion poll taken on 9/10 would've yielded a similar result.

So I don't think that's cheerleading, no.
6.5.2009 4:32pm
ruuffles (mail) (www):
You left out what O'Connor did:

[A]t an election-night party on Nov. 7, surrounded for the most part by friends and familiar acquaintances, [Justice O'Connor] let her guard drop for a moment when she heard the first critical returns shortly before 8 p.m. Sitting in her hostess's den, staring at a small black-and-white television set, she visibly started when CBS anchor Dan Rather called Florida for Al Gore. "This is terrible," she exclaimed. She explained to another partygoer that Gore's reported victory in Florida meant that the election was "over," since Gore had already carried two other swing states, Michigan and Illinois.

Moments later, with an air of obvious disgust, she rose to get a plate of food, leaving it to her husband to explain her somewhat uncharacteristic outburst.
John O'Connor said his wife was upset because they wanted to retire to Arizona, and a Gore win meant they'd have to wait another four years.

O'Connor spoke while the election was close and did not recuse herself. Sotomayor's comments came 5 months after the election and she was not involved in any case during the election.

Further, O'Connor's comment was clearly partisan as she expressed her desire for a particular candidate because of who he was likely to nominate. Sotomayor's comments were of a general nature, commenting on the historic nature of the election.
6.5.2009 4:36pm
ShelbyC:

This is a disgraceful post. The remarks were long after the election.


I usta thing that righties' comments about how lefties were unable to stomach any criticism of "the one" were kinda out there, but the lefties are starting to bring me around.
6.5.2009 4:40pm
RPT (mail):
Is Sotomayor now "the one"?
6.5.2009 4:50pm
JB:
If O'Connor was so upset at Gore's win, why didn't she retire to Arizona in the spring of 2001?
6.5.2009 4:50pm
Xanthippas (mail) (www):

Whelen gives the date of the speech. The criticism is valid. A federal judge ought not to be cheerleading the administration that appears before him or her with regularity.


Try reading the speech. Before a diversity audience, she's lauding the power of diversity groups to enact political change. This is partisan how?
6.5.2009 4:51pm
levisbaby:
ShelbyC - if you think I'm a leftie, you better put down the bottle.

I'm an AUH20 conservative.
6.5.2009 4:52pm
mcbain (mail):
color me sceptical about that story, for one o'connor did wait another 4 years to retire.

I agree that this whole discussion is lame though, it's not like anyone was expecting obama to nominate a republican.
6.5.2009 4:53pm
Loren:

O'Connor spoke while the election was close and did not recuse herself. Sotomayor's comments came 5 months after the election and she was not involved in any case during the election.


O'Connor also apparently made her comments at a private party, in casual conversation, to friends. She had no particular reason to expect her comments would be made public. Sotomayor's comments were made at a public forum, as part of a prepared speech. She fully knew and appreciated she was making public statements, and had every reason to think her comments would be republished.

(Also: O'Connor's party was watching a black-and-white television? In 2000?)
6.5.2009 4:55pm
ShelbyC:

if you think I'm a leftie, you better put down the bottle.


I did, sorry if I got to wrong. Ain't puttin' down the bottle though. :-).
6.5.2009 4:57pm
Steve:
This is cheerleading for the administration? It's not much different than stuff John McCain has said, for heaven's sake.

Plenty of Republicans have made comments about the historic nature of the last election, all the wonderful things it supposedly says about us as a nation, etc., etc. It's a common sort of sentiment, and it doesn't seem to keep any of them from opposing the administration on all sorts of substantive issues.

Whelan's job is to sift through Sotomayor's past statements and endeavor to find The Biggest Outrage Ever as many times as he possibly can. This is no different from how the liberal groups treat Republican appointees, but it's equally tiresome in either case.
6.5.2009 5:01pm
Observer:
hawkins: The New York Times has been critical of Obama for not being far-Left enough, including on the editorial you link to. This is the equivalent of Whelan and the National Review criticizing McCain or other Republicans for being too liberal, which you acknowledged in your first post on this thread (with the difference that McCain is actually a moderate while Obama is really, really liberal).
6.5.2009 5:03pm
[insert here] delenda est:
If I put down the bottle I'd have to sober up, and then I might wonder who gives a rats about these kind of remarks. So what if Sotomayor is up the One's arse, basically, whilst I would never have made such a comment if I were a judge, what the hell does anyone imagine? That she is going to decide cases in favour of the executive since she thinks that Obama is the awesomest?

She seems a more than competent judge, I think Ricci in particular is an awful decision but a handful here and there isn't bad, let's have her hearing and give her a vote and get over it.

Besides, look on the bright side, Joe Biden no longer participates in the hearings.
6.5.2009 5:08pm
krs:
There actually might be something there. I'm reminded of when the Second Circuit Judicial Council reprimanded Judge Calabresi for making remarks at an ACS panel comparing Bush to Hitler and Mussolini, and I recall being surprised how much the ethical canons restricted the speech of judges.

Even so, I'm not sure that Sotomayor's quoted remarks are unethical. In my personal view, judges should try to be apolitical to the extent possible and avoid the sort of cheerleading that Judge Sotomayor did for Obama, but my personal view probably sets a higher bar than the ethical rules do.
6.5.2009 5:13pm
Commentor (mail):
If I were a federal judge, I think I'd take the approach of the younger Judge Harlan and avoid politics altogether, and not even vote in federal elections.
6.5.2009 5:19pm
ruuffles (mail) (www):

I'm reminded of when the Second Circuit Judicial Council reprimanded Judge Calabresi for making remarks at an ACS panel

Ha! His preface of

Okay, I'm a judge and so I'm not allowed to talk politics

reminds me of Sotomayor's "ok ok I'm not supposed to say that, judges don't make policy."
6.5.2009 5:25pm
mcbain (mail):
krs, to be fair comparing someone to Hitler is so stupid, it is frowned upon on the internet. I bet that they reprimanded him more for lacking in the simile department than anything else.
6.5.2009 5:27pm
levisbaby:

reminds me of Sotomayor's "ok ok I'm not supposed to say that, judges don't make policy."

You mean this quote:

One of the frustrations about being a trial court judge is that you never set broad principles of law; of course, that's reserved for the appellate courts. ...

Oh, wait, that was Mr. Cassell speaking -
http://volokh.com/posts/1195865907.shtml
6.5.2009 5:29pm
Cato The Elder (mail):
OK, but there's still a serious problem here for conservatives who aren't sure she's going to be impartial in her judging, isn't there? I just don't understand how people can keep asserting such claims are totally unfounded when she has a well-documented record of very "iffy" statements like this, especially considering her role as a federal judge.
6.5.2009 5:45pm
Sarcastro (www):
Cato The Elder is right. We need to institute a policy where the person the President chooses for SCOTUS doesn't like him. Better yet, the candidate shouldn't even care.

Because having opinions means you're not going to rule on the law!
6.5.2009 5:50pm
Anderson (mail):
If I put down the bottle I'd have to sober up, and then I might wonder who gives a rats about these kind of remarks.

Well said, and good one-handed typing as well.
6.5.2009 5:51pm
Steve:
OK, but there's still a serious problem here for conservatives who aren't sure she's going to be impartial in her judging, isn't there?

The last President nominated his own personal lawyer and White House Counsel to the Supreme Court, and although conservatives lodged any number of objections, I don't recall "she won't be impartial" as one of them. But some random comments by Sotomayor are a dealbreaker?
6.5.2009 6:25pm
Bill Poser (mail) (www):
So as to ensure impartiality in criminal cases, are judges required to have no bias against crime? Not only does this eem like a bad idea, but I'm not sure how easy it will be to find people who are okay with crime but otherwise qualified. And if a judge has made public statements regarding the need to fight crime, is this evidence of partiality? I don't think so.
6.5.2009 7:19pm
ShelbyC:

I'm reminded of when the Second Circuit Judicial Council reprimanded Judge Calabresi for making remarks at an ACS panel comparing Bush to Hitler and Mussolini...


Well, Obama is taller than Hitler, isn't he?
6.5.2009 7:26pm
dmv (www):
Kerr is going to work for Cornyn (which makes me question Kerr's judgment), an OLC lawyer is signing on, Cassell is posting in the style of Bernstein....

Is this the end of VC as we knew it?
6.5.2009 7:38pm
byomtov (mail):
What's the point here? Who exactly was surprised that Sotomayor was an Obama supporter?

Incidentally, where was Whelan when Roberts, knowing he was under serious consideration for the Supreme Court, nonetheless sat on the Hamdan panel? His associate, Mark Levin offered a tendentious defense of Roberts, but it's hard to see how hearing an important case under those circumstances was just fine, but making a speech expressing support for the President isn't.
6.5.2009 7:57pm
Borris (mail):

Well, Obama is taller than Hitler, isn't he?

Obama is also a "lightworker
".
6.5.2009 8:17pm
MS (mail):
Dear Governor GWB,

You are the best Governor ever---deserving of great respect!

-Harriet
6.6.2009 12:19am
Dave N (mail):
I think there is a difference between sitting on a panel and hearing a case than there is in political cheerleading as part of a speech.

And yes, I do think that judges are allowed to have lives--and that includes having friends who might be part of the other branches of government.

As for Judge Sotomayor, this probably wasn't the smartest thing for her to say (nor were her many "wise Latina woman" comments, either). But I have yet to see anything disqualifying--and absent anything disqualifying, she should be confirmed (even though she obviously would not have been my choice if I were President).
6.6.2009 1:57am
devil's advocate (mail):
entertaining thread this -

obviously folks are throwing up partisan spaghetti and seeing what sticks to the wall, but that is true for both sides. The chips on shoulder are evident in the early griping about the temporal clarity of Cassell's post -- which to any thinking person is quite clear. And given that I credit the partisans of both stripes here as having better than a third grade reading level that attempted impeachment seems a nonstarter.

I second Malvolio. That stuff was creepy. This is especially clear if, as Whelan posed, Roberts had said the same things about Bush. I would have been wondering if we were dealing with the typical case of American blind justice, i.e. don't ask, don't tell.

The wise latina thing, for instance, was quickly explained away, but the focus on the remark -- perhaps overblown if it proved to be isolated -- was rewarded by the unearthing of a pattern of such statements.

I don't necessarily take any of this to be disqualifying, but if the nominee is confirmed, as most observers expect absent real Manchurian Candidate Nominee evidence, the discourse sets a context for criticism of her tenure.

Scalia is the obvious example, where comment on the intellect he brings to the table is generally cabined by criticism of his more conservative ideology. I don't think this particularly unfair and I would expect Sotomayer's votes and written work for the court to be reported against the expectations raised by her adulatory comments on Obama and more esp. Latina women.

For those who find this a grand opportunity to criticize O'Connor's indiscretion, if only Sotomayer has said:


What is our challenge today: Our challenge as lawyers and court related professionals and staff, as citizens of the world is to keep the spirit of the common joy we shared on Election Day alive in our everyday existence for another 25 years.


She would have been right in line with the moderate judicial 'mainstream.

Brian




Wh
6.6.2009 7:59am
Joe Fattal (mail):
That woman wont be cheerleading for Obama, sh'll be dancing for him like everyone that he chose to surround himself with. The man is brilliant, he surround himself with anyone that represent his true values, and his wife Michelle, while he goes around and give us his other side. If that woman ever said a black man instead of a white man she wouldn't have got the job. And as far as the law in her, she is like any attorney, judge I met in my life time. Some have common sense beside their law experience and some don't. She does'nt.
6.6.2009 9:36am
Tony Tutins (mail):

There is the little matter of there being a difference between the office and the person holding it.

Similarly, there is the little matter of there being a difference between the status of "first non-white President" and the person who happens to hold it. Obama's success likely made her reflect on her own struggle to succeed in a white male dominated world.

The existence of such duds as Harding, Carter, and W. makes it hard to argue that two centuries of white male Presidents merely shows meritocracy in action.

And I'm fairly certain that, as a twofer, Sotomayor would have led the cheers for our first woman President, had Hillary managed to earn that title.
6.6.2009 10:24am
Tony Tutins (mail):
ou
That stuff was creepy. This is especially clear if, as Whelan posed, Roberts had said the same things about Bush.

You mean if Roberts had said, "Once again, white people got together to support a white candidate."? Wouldn't that fit into the "Dog Bites Man" category?
6.6.2009 10:31am
mcbain (mail):
Harding wasn't a dud, he gave me the most entertaining 2 hours in american history class.
6.6.2009 10:34am
Angela Spera (mail):
This Latina woman nominated as a Supreme Court Judge is not an American.
She will always be biased as the Portorican students i taught in a New jersey High School. These students refused to speak English. English as second language was taught to these students.
6.6.2009 11:35am
Sarcastro (www):

This Latina woman nominated as a Supreme Court Judge is not an American.


Where's the birth certificate!
6.6.2009 2:26pm
dmv (www):

This Latina woman nominated as a Supreme Court Judge is not an American. She will always be biased as the Portorican students i taught in a New jersey High School. These students refused to speak English. English as second language was taught to these students.

I refuse to believe that was a serious comment. Therefore, I believe the commenter is trying to give Sarcastro a run for his money.
6.6.2009 4:23pm
wyswyg:

Oh you mean like how Sandra Day O'Connor, appointed by Reagan, who expressed her discontent at Gore initially being declared the winner

r


Gore was not "declared the winner" by anybody except the left-wing hacks in the media. Declaring the winner of a Presidential election is just one of the many roles they think they have which they do not have.

It is a disgrace that every American, whether Democrat or Republican, did not express "discontent" with the media behavior in Florida in 2000. It was a blatant attempt to steal an election for their side.
6.7.2009 2:50pm
wyswyg:

You mean if Roberts had said, "Once again, white people got together to support a white candidate."? Wouldn't that fit into the "Dog Bites Man" category?



It would, if there was some evidence that white people engaged in racial voting. Since there is not, it does not.
6.7.2009 2:54pm
wyswyg:
Based on the comments from the left on this site, the Democratic party still retains its racist mindset from the days of Bull Connor. It merely shifted its target.
6.7.2009 2:56pm
MikeS (mail):

Sorry for the broken link to Whelan's post, which I just fixed.


Given that Whelan has placed himself outside the realm of civilized discourse, perhaps you should break it again.
6.7.2009 6:41pm
Tony Tutins (mail):

if there was some evidence that white people engaged in racial voting.

Any evidence that white people engaged in racial voting is swamped out by the large number of votes white people cast for white candidates.
6.7.2009 7:43pm

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