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Anti-Anti-Sotomayor:

Judge Sonia Sotomayor would not have been my first pick to replace Justice David Souter -- nor, for that matter, would have anyone else on President Obama's reported short list. Beyond credentials and experience, his criteria and mine scarcely overlap. He sought a progressive justice with a particular sort of "empathy." I would have preferred an originalism-oriented conservative minimalist with a libertarian streak. But this difference in judicial philosophy is not enough, in my view, to justify opposing her confirmation.

There is no question Judge Sotomayor is qualified to be a Supreme Court justice. She has substantial legal experience and is a tremendously accomplished woman. Some of her rulings as a district and appellate judge raise concerns, as do some of her speeches, and I expect that, once confirmed, Justice Sotomayor will write and join many opinions with which I disagree. Yet because I believe the Senate should show the President a fair degree of deference in the judicial confirmation process, particularly when it comes to judicial philosophy, I see insufficient reason to oppose her confirmation. Barring some extreme (and extremely unlikely) revelation, I would encourage the Senate to confirm her before the start of the Supreme Court's next term.

Some with whom I often agree, including some of my co-bloggers, do not believe the Senate owes the President so much deference. Ilya Somin thinks the Senate should consider ideology in the confirmation process. My friends Michael Rappaport and John McGinnis would go farther, endorsing a de facto super-majority requirement for all Supreme Court nominations. They make a good case, but I am not yet convinced. I fear that a political culture in which the Senate is less deferential and is a political culture in which too many exceptional individuals will be precluded from potential service on the Court. I would rather (re)establish a norm of focusing on a nominee's experience and credentials, instead of their judicial philosophy.

Then-Senator Obama adopted a quite different view. He accepted that ideology and judicial philosophy are legitimate grounds for opposing a nominee's confirmation. On this basis he opposed two highly qualified, mainstream conservative nominees, voting against John Roberts and supporting a failed filibuster attempt against Samuel Alito. If then-Senator Obama's standard is the correct one -- that is, if Senators should vote against highly qualified nominees on purely ideological grounds -- then I see little reason for Senate Republicans not to vote against Sonia Sotomayor. What's sauce for the goose is sauce for the gander. She is a highly qualified, mainstream liberal nominee, just as Samuel Alito was a highly qualified, mainstream conservative nominee, and once confirmed Justice Sotomayor is likely to fit in just as comfortably on the liberal wing of the Court as Alito has on the conservative side.

So if then-Senator Obama's conception of the Senate's role in advise and consent were the correct one, conservatives who follow his lead would urge opposition to -- and perhaps even a filibuster of -- Judge Sotomayor's confirmation. But I believe then-Senator Obama endorsed the wrong standard. And so I hope Senate Republicans are disinclined to follow his lead.

Insofar as some conservatives will oppose Sotomayor's confirmation, arguing the Senate owes no meaningful deference to a President's judicial nominees and that she is too liberal to warrant their support, I further hope they will make every effort to keep the discussion on a civil plane. Opposing a nominee on substantive grounds is one thing; name-calling and personal disparagement are another.

Unfortunately, in the past few weeks we have seen quite a few extreme and intemperate attacks on Judge Sotomayor. The process and judicial nominees of both parties deserve better. Some on the Left were quick and careless to label Judge Charles Pickering a "racist"; now some on the Right have committed the same offense against Judge Sotomayor. (And, yes, calling her a "racialist" is just as bad). Whatever was said against Pickering, Clarence Thomas, Miguel Estrada, Priscilla Owen, et al., does not excuse the current descent into gutter politics and gross ad hominem attacks.

As I've noted in previous posts, I have concerns about Judge Sotomayor's now infamous "wise Latina justice" speech. Placing her remarks in context adds some depth and nuance, but it does not make my concerns go away. Steve Chapman, for one, thinks the context makes the statements worse. Yet it is inaccurate and unfair to argue, on the basis of this and other speeches, that Sotomayor is a "racist." To acknowledge that ethnic background and personal experience can and should influence judicial behavior, even while disparaging the ideal of judicial objectivity, is not to embrace racial bigotry. As Senator John Cornyn had the honor to observe, such attacks are "terrible" and "wrong."

Now that the most extreme partisans on each side have had the chance to vent their spleens (and mail out their fund-raising appeals), I hope the debate over Sotomayor's nomination will rise to a higher level. The Supreme Court matters, and a nomination to the Court presents an opportunity for serious discussion about the proper role of the judiciary (even if it's not some grand "teaching moment"). But elections have consequences, and one consequence of President Obama's electoral victory is that he gets to nominate judges for Article III courts.

Conducted substantively and civilly, discussion and debate over her record of judicial decisions and the likely effect of her confirmation could be edifying for the public (not to mention for our students). But this requires critics to present their critiques in a substantive and honest way. Unfortunately, much of the discussion about Sotomayor to date has failed to meet that standard. It's not too late for something better.

Wayne Jarvis:
My problem with the "wise Latina" statement is not the Latina part, but the "wise" part. In my entire life I do not think that I have met a single "wise" person who would stand in front of a group of strangers and describe themselves as wise.

Not enough to block her confirmation, but it still makes me cringe.
6.9.2009 8:16am
BGates:
Absolutely right. We wouldn't want to follow the example of people like Senator Kennedy - not that this is a criticism of the Senator! A man of tremendous integrity and accomplishment, I'm sure any objection he raised to nominees in the past was based on a level of patriotism that Republicans could only dream of emulating. But he is such a generous soul, I'm sure if Senate Republicans were to respectfully request his forbearance if they opted for a more obsequious approach to nominees than he chose, he would graciously refrain from attacking their inconsistency.
Judge Sotomayor repeatedly suggested that she would be inherently, physiologically capable of making better decisions than white men. As white men, Senate Republicans need to admit that they're probably too limited to judge whether she's right or wrong. This is not a racist claim of white racial superiority, it's an uncontroversial statement that Latinos are better judges than Anglos.
The important thing is that Republicans stay on a high moral plane, from their approval of the president's appointees, to their muted criticism of his policies (always prefaced by an acknowledgement that such a brilliant and wonderful man is probably right anyway), all the way to their concession speeches.
6.9.2009 8:28am
John Rosenberg (mail) (www):
Describing Sotomayor as a "racialist" is not at all the same thing as an accusation that she "embrace[s] racial bigotry." A racialist is simply someone who believes in racial essentialism, that there is a substantive content to race that goes beyond mere pigmentation and deeper than such cultural artifacts as tastes in food or music. It is fair, I believe, to describe Sotomayor as a racialist not so much because of her "wise Latina" sentence but because of an even more dramatic sentence that introduced the paragraph that her "wise Latina" belief concluded:


Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging.


Someone who is comfortable with "inherent physiological of cultural differences is a racialist. (And what, by the way, is the difference between an inherent cultural difference and a physiological difference?)
6.9.2009 8:35am
ReaderY:
Sottomayer would not be my first choice for Justice either, for somewhat different reasons. I'm not so sure there's no reason to oppose her nomination. However, there is definitely no reason for unreasoned or ad hominem opposition, or for attacks on her integrity based on facts that seem relatively trivial and assumptions and characterizations that seem forced.

If opponents can find no reason or means to oppose her nomination other than shrill-sounding and unstatesmanlike rhetoric, opposition may in the long run not be such a good idea. Best in the long run not to be perceived as grasping at straws, and for the opposition not to lose its respect with the public. Sometimes one has to wait out the current vogue.
6.9.2009 8:39am
pluribus:
Wayne Jarvis:

My problem with the "wise Latina" statement is not the Latina part, but the "wise" part. In my entire life I do not think that I have met a single "wise" person who would stand in front of a group of strangers and describe themselves as wise.

I, too, have a problem with the statement. I think both Obama and Judge Sotomayor have expressed misgivings about it. I think she said it represented a poor choice of words. I might describe it as an awful choice. But I do not have the problem Wayne Jarvis described. Judge Sotomayor did not describe herself as wise. What she did said is:

I would hope that a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn’t lived that life.

She is aspiring to wisdom, hoping that she can attain it, and that the richness of her experience as a Latina woman will help her do so. This is commendable. In fact, I think it would be reprehensible if she (or any judge, for that matter) did not. Do we not want wise judges? I do, and I think Judege Sotomayor does, too, but it is a goal not always attained. My problem is the suggestion that a Latina woman would reach a "better conclusion" than a white male without the same experience. It is the suggestion of superiority that seems to me unfortunate. I do not think the nomination should stand or fall on this statement alone, though it does give some pause. She will explain it--in fact, I think she has already done so to some extent.
6.9.2009 8:39am
pluribus:
BGates, do you regard Senator Kennedy as the gold standard on Supreme Court nominations? Or is your statement just a tit for tat, we'll do it to you because you did it to us, standard? If the latter, how will that ensure that good men and women become Supreme Court judges? You misbehaved, Senator Kennedy, so we will also misbehave, and to hell with the Supreme Court.
6.9.2009 8:45am
rick.felt:
Judge Sonia Sotomayor would not have been my first pick to replace Justice David Souter

She wouldn't be mine, either. But she also wouldn't be my last. I'd be far more afraid of someone known to be at least as liberal as we suspect Sotomayor of being, but with more intellectual firepower. And if Sotomayor gets knocked out, that might be what we get.

Sotomayor si, Koh no!
6.9.2009 8:48am
Cato The Elder (mail):
She is OBSESSED with race. That bothers me greatly. I don't think it is unfair to think that she will be looking to inject as it as a qualifier in areas it does not belong.
6.9.2009 8:49am
Mark N. (www):
Thanks for the thoughtful argument. This does seem to be a particularly acute case of sound-byte debate overall: if I didn't read legal blogs (mainly here and SCOTUSblog), or do primary-source research myself, I would know virtually nothing about Sotomayor or the pros/cons of having her on the Court.

In particular, the majority of the discussion seems based around three single-sentence talking points:

1. She said that wise Latina justices were better than white males;
2. She decided a controversial case that not promoting white firefighters who did well on a test wasn't illegal; and
3. She is aggressive at oral questioning.

That seems like an awfully narrow set of talking points on which to be discussing the matter. At best, they give me, if I accept that they're indicative, some information about how she might rule in reverse-discrimination cases. But I have to make that connection myself usually, since after delivering the one sentence, the typical "commentator" seems to launch into a rant in which not even a second sentence of analysis appears, and I'm instead treated to a bunch of sob stories about lower-class whites studying for hours, flowing rhetoric about how this country should stand for color-blindness, courageous stands against racism, etc., etc.

It's a bit of a cliche, but I think to a large extent personality-driven blowhard "analysts" are to blame: the Michael Moores, Rush Limbaughs, Bill O'Reillys, Keith Olbermanns, Glenn Becks, Lou Dobbses, and Sean Hannitys of the world are driving political "analysis".
6.9.2009 8:49am
Oren:

A racialist is simply someone who believes in racial essentialism, that there is a substantive content to race that goes beyond mere pigmentation and deeper than such cultural artifacts as tastes in food or music.

What if I don't believe in racial essentialism as an inherent quality of people of a particular race but nevertheless believe that the experience of growing up latino/african american/vietnamese/... , including the social constructs of those communities, plays a huge role in how one forms basic notions of society and, by extension, law and government.

Had Sotomayor been adopted by a middle-class white family in Iowa (or the children of that family adopted by her parents), I would have to say that the manner, community and environment in which the child was brought up vastly outweighs any essential racial qualities, if they even exist.

To me, this seems entirely uncontroversial -- our life experiences shape the way we are and, as an empirical matter that I believe is indisputable, children of different races experience drastically different upbringings. Does that make me a racialist? I don't think so, although I'm willing to accept 'racial realist'.
6.9.2009 8:51am
Oren:

You misbehaved, Senator Kennedy, so we will also misbehave, and to hell with the Supreme Court.

Cut off your nose to spite your face much?
6.9.2009 8:52am
rosetta's stones:

"As Senator John Cornyn had the honor to observe..."


You got it mostly right here, Adler, until you stumbled into calling one of the congresscritters self-preservation moves a demonstration of "honor".

Cornyn could do a truly honorable thing, and grasp Sen. Kennedy's arm and walk off together into retirement.
6.9.2009 8:57am
Observer:
Were any Democrats in the Senate denouncing the over-the-top attacks against Bork, Thomas, Pickering, etc., like Cornyn is denouncing over-the-top attacks against Sotomayor?
6.9.2009 8:59am
GA Onlooker:
It seems to me the fundamental question here is whether the process is properly a primarily political one, or properly an administrative, caretaking role. As a caretaking process, the President's picks are due a great deal of deference and the Senate should seek to weed out on those who are unqualified for the job, which Sotomayor plainly is not. If the process is primarily a political one, then no such deference is due. The President has won an election, as have the Senators. You just count up the votes, majority rule. The President's election is no more or less important to his office that is the Senators'.

I think what troubles people is that there appears to be a transition in the last 30 years or so from caretaking to political. We are still feigning caretaking, while being political. As far as the Founder's perspective, they would have viewed the judiciary as a non-political animal; however, that's not what it has become. Given that, and the Founder's fierce political battles, I'm not sure they would have any trouble over a purely poltical brawl over a political question. The current way the court behaves lends itself more to judicial elections, like most of the states. Given that we don't have judicial elections, the Senate process is now just a proxy for that.
6.9.2009 9:08am
Steve:
She is OBSESSED with race. That bothers me greatly.

I wonder if you realize that you have drawn this conclusion based upon the fact that Sotomayor's critics have presented you with, essentially, a montage of every time in her life she has addressed the issue of race, while omitting virtually the entirety of her career aside from that. Let's see, one of the most prominent Latina judges in the country gets asked to address Latino groups a lot, and she talks to them about what it's been like for her as a Latina. Uh huh, clearly this is highly unusual behavior!

You could portray me as obsessed with cheeseburgers if you did nothing but compile a list of every time I have ordered a cheeseburger. Does that mean I am actually obsessed? Well, perhaps.

It is Sotomayor's critics who are obsessed with race, to the point where they seem uninterested in discussing anything about her lengthy record aside from her comments on race. Do not mistake their single-minded focus for evidence that Sotomayor's actual life has been nothing but one long racial diatribe.
6.9.2009 9:22am
Tim McDonald (mail):
I disagree with the statement "Whatever was said against Pickering, Clarence Thomas, Miguel Estrada, Priscilla Owen, et al., does not excuse the current descent into gutter politics and gross ad hominem attacks."

It is unfortunate for Judge Sotomeyer, but if we allow one side to demonize the other, and then say when the situation is reversed that we must not reply in kind, then you are giving the opposition an unfair advantage, one they will surely take advantage of. If your positions are worth defending, then defend them. Otherwise, you may as well capitulate and cede the field.

As conservatives, we cannot allow the liberals to define the battlefield. While I am sorry for Sotomeyer, she must be treated exactly as Republican nominees have been treated. Period. Unfair as it is. Because to allow her a free pass will actually encourage more vilification of the next Republican nominee.
6.9.2009 9:23am
Kenvee:
This pretty much sums up my feelings. I don't like Sotomayor and have problems with her judicial philosophy and how I think she'll rule in many cases. But I would have the same problems with pretty much any Democratic nominee. She's qualified, and so I think the Senate should confirm her after reasonable confirmation hearings. I said the same thing when Bush was President, and I don't respect people who would change their minds just because someone else is in charge.

Pointing out Obama's hypocrisy in opposing Roberts and Alito for political reasons yet decrying anyone who would do the same for Sotomayor is still fair game, though. I don't think Obama would have any reason to complain if his nominees were derailed for political reasons. I just think we should be better than that.
6.9.2009 9:24am
DG:
{You could portray me as obsessed with cheeseburgers if you did nothing but compile a list of every time I have ordered a cheeseburger. Does that mean I am actually obsessed? Well, perhaps. }

Admitting you have a problem is the first step towards recovery. Why do you let cheeseburgers have this control over you?
6.9.2009 9:25am
Wayne Jarvis:
Pluribus:

Are you saying that "I would hope that a wise Latina woman" = "I would hope that a Latina woman who aspires to wisdom"?

Not exactly obvious.

But her central point seems sounds: a "wise" Latina woman will reach better conclusions than a typical white male. That is to be expected. Just as it would be expected that a stupid Latina woman would reach worse conclusions than a white male.

She stacked the deck!

Cheater.
6.9.2009 9:32am
Just an Observer:
I can applaud Prof. Adler's principled stand, and if I were a senator voting today I would vote to confirm Sotomayor.

But I am not a senator, particularly not a Republican senator. And as an independent I retain some sympathy for those such as Lindsey Graham who raise the issue of whether there should be a consistently noble standard for treatment of judicial nominees, especially Supreme Court nominees, applied by both parties. The recent history of opposition to Roberts and Alito by many Democrats, including Barack Obama, is relevant.

As a citizen, I actually do favor robust exploration of philosophy and ideology in the hearings. They should not be just a genteel review of narrow professional qualifications. I think, for example, that Sotomayor should be pressed hard to explain the record of her speeches, just as I thought it was okay to press Alito about the record of his old memo on abortion strategy.

As for the ultimate decision to consent to a nomination, I don't think there is a constitutional imperative for extreme deference. Senators can search their own consciences for the right standard to apply. In the long run, Obama looked smaller for having voted as he did, and I expect that many Republicans will take a similar course with Sotomayor.
6.9.2009 9:39am
MRSquared (mail):
In the "wise latina" speech, Sotomayor affirms the existence of innate, sub-skin differences amongst the races that could impact their judging. I'm sorry, but it is a belief in such differences that is at the heart of all racism.
6.9.2009 9:44am
pluribus:
Tim McDonald:

It is unfortunate for Judge Sotomeyer. . . . I am sorry for Sotomeyer. . . .

One misspelling might be excused as a typo. Two reveals you don't know what the judge's name is. Try to learn how to spell it. It might lend some credibility to your views.
6.9.2009 9:50am
geokstr (mail):

Tim McDonald:
I disagree with the statement "Whatever was said against Pickering, Clarence Thomas, Miguel Estrada, Priscilla Owen, et al., does not excuse the current descent into gutter politics and gross ad hominem attacks."

It is unfortunate for Judge Sotomeyer, but if we allow one side to demonize the other, and then say when the situation is reversed that we must not reply in kind, then you are giving the opposition an unfair advantage, one they will surely take advantage of. If your positions are worth defending, then defend them. Otherwise, you may as well capitulate and cede the field.

As conservatives, we cannot allow the liberals to define the battlefield. While I am sorry for Sotomeyer, she must be treated exactly as Republican nominees have been treated. Period. Unfair as it is. Because to allow her a free pass will actually encourage more vilification of the next Republican nominee.

Well said.

The left ruthlessly and remorselessly uses Alinsky's Rules for Radicals, which are basically just the most self-serving, one-sided, dirty tricks in the book, and they do it very effectively. Then they give us nothing but sanctimonious moralizing about how we musn't do anything remotely like it when they are in power. Conservatives, mostly being people of honor and principle, fall for it nearly every time too. The hell with that.

Because we rarely are willing to fight back is another of the reasons why the rachet only turns towards the Collective in this country.
6.9.2009 9:50am
Bill N:
Oren,
That "our life experiences shape the way we are" is, indeed, uncontroversial, although I don't know how her growing up in NY vs Iowa (with white adoptive parents, as per your example)may produce more "wisdom," as she seems to suggest. More importantly, your point about "life expericnes" doesn't address a key concern, her apparant belief that "inherent physiological...differences" among races (or sexes—the reference could be to either) may produce greater wisdom. Call it racialism, racial essentialism, or biological determinism, or whatever. It is troubling.
6.9.2009 9:51am
rosetta's stones:
MRS, that belief may be at the heart of racism, but the belief has to manifest somewhere in 2 decades of judicial opinion, before we can take action on it.
6.9.2009 9:51am
SamW:
I don't think so M. I think she affirms, in the aggregate there is a difference in expereince and outlook among majority and minority races and among woman and men. She does not know why that is.
6.9.2009 9:52am
pluribus:
Just an Observer:

In the long run, Obama looked smaller for having voted as he did, and I expect that many Republicans will take a similar course with Sotomayor.

Why do you think they will take a course that makes them look smaller? Do they want to look smaller? Or is it that they are in fact smaller?
6.9.2009 9:53am
A.S.:
So, Professor Adler believes in bringing only a knife to a gunfight, because he prefers the good old days of knife fights even though the other side started regularly bringing guns to the fight back in 1987.

Good plan, Professor Adler!

I'll bet Professor Adler is quite confused as to why good nominees like Miguel Estrada, Charles Pickering, Brett Kavanaugh, etc. seem not to be able to get through the process when they have defenders like himself and Sen. Cornyn.
6.9.2009 9:57am
SamW:
Bill N. I think her inherant physiological reference is to women not races, and she states that she does not know if this explains the "why" there is a difference.
6.9.2009 9:57am
pluribus:
geokstr:

The left ruthlessly and remorselessly uses Alinsky's Rules for Radicals, which are basically just the most self-serving, one-sided, dirty tricks in the book, and they do it very effectively. Then they give us nothing but sanctimonious moralizing about how we musn't do anything remotely like it when they are in power.

Why would you want to use "the most self-serving, one-sided, dirty tricks in the book"? Do you think it will make you look better? Or feel better about yourself? Is this what the left did when Roberts and Alito were nominated? Dod you think dirty tricks will produce better Supreme Court judges? If you decried these tactics when the left used them, why would you want to use the same tactics? This kind of "you did it so we can do it too" strategy seems to me to completely disregard the essential business at hand, which is to pick good judges for the Supreme Court. You seem to be saying it's just a game, to hell with the results.
6.9.2009 10:01am
geokstr (mail):

pluribus:

Tim McDonald:
It is unfortunate for Judge Sotomeyer. . . . I am sorry for Sotomeyer. . . .

One misspelling might be excused as a typo. Two reveals you don't know what the judge's name is. Try to learn how to spell it. It might lend some credibility to your views.


A perfect example of Alinsky's Rule 5. "Ridicule is man's most potent weapon" in action.

Don't like someone disagreeing with you? Find something irrelevant, say, a spelling error, and imply that this obviously means that this person knows nothing about what they are talking about and therefore anything they say is now discredited and worthless.
6.9.2009 10:04am
MRSquared (mail):
From the speech: "Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging."

There is a strong suggestion that the races have inherent non-skin deep physiological differences. Such is the basis of all racism.
6.9.2009 10:09am
Daniel Chapman (mail):
Pluribus: It is just a game. All politics is a game.
6.9.2009 10:09am
mga (mail):
I don't like the Sotomayor nomination. If confirmed, she will join in lots of opinions with which I disagree. But what's the alternative? Obama isn't going to nominate anyone I would like. There are a lot of potential nominees who have better resumes and more left-wing credentials who would be more influential justices.
6.9.2009 10:09am
Jim Fast (mail):
Dear Jonathan,

If you have previously blogged about this than sorry, but who would be on your short list?

Thanks,
6.9.2009 10:10am
SamW:
Yes and Judge Cederbaum, whom she refers, to is talking about women not race. More over she goes on to state she does not know the reason why.
6.9.2009 10:13am
Angus Johnston (www):
From the speech: "Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging."

There is a strong suggestion that the races have inherent non-skin deep physiological differences. Such is the basis of all racism.


Except that there's a parallelism there that you skated past.

"Whether born from experience or inherent physiological or cultural differences ... our gender and national origins may and will make a difference in our judging."

Seems to me that it's at a minimum plausible (I'd say highly likely, but at a minimum plausible) that she was suggesting that physiological difference is to gender what cultural difference is to national origins.
6.9.2009 10:15am
MRSquared (mail):
If you've been around for the last thirty years, you'd know that the mere suggestion of important physical (and cultural) differences between the races is perhaps our greatest taboo. Just ask Jimmy "the Greek." Sotomayor proudly goes at least that far.
6.9.2009 10:17am
Bill N:
SamW:

"I think her inherant physiological reference is to women not races"

You may be right—as I said, it is unclear—but she does reference "gender and national origins."

"she states that she does not know if this explains the "why" there is a difference."


But she does not "discount" or "abhor" the possibility. She seems to have absorbed a fashionable biological determinism without really considering why. I think she needs to explain her thinking much more clearly during the confirmation hearings.

By and large, though, I agree with the thrust of Prof. Adler's post, although I am less troubled when people on either side of the aisle question the ideological underpinnings of a prospective Judge. It is important to have these national conversations, although the Judiciary Committee is hardly an effective leader of the discussion.
6.9.2009 10:17am
Just an Observer:
pluribus:


In the long run, Obama looked smaller for having voted as he did, and I expect that many Republicans will take a similar course with Sotomayor.

Why do you think they will take a course that makes them look smaller? Do they want to look smaller? Or is it that they are in fact smaller?


I am basically making a prediction, recognizing that politicians of both parties sometimes take actions that are not fully statesmanlike.

A primary reason some will vote against the nominee is because they can. Another reason is to avoid unilateral disarmament -- the Democrats did it, so Republicans should retaliate.
6.9.2009 10:20am
MRSquared (mail):
I say confirm her, after putting her through the ringer. Really, she's the least dangerous person Obama could have nominated.

Anyone he'd have nominated would have the same views on race, but with the added kicker of being more luminous and influential. That she's so open about her racialism means her influence will probably be attenuated.
6.9.2009 10:22am
MRSquared (mail):
I say confirm her, after putting her through the ringer. Really, she's the least dangerous person Obama could have nominated.

Anyone he'd have nominated would have the same views on race, but with the added kicker of being more luminous and influential. That she's so open about her racialism means her influence will probably be attenuated.
6.9.2009 10:22am
SamW:
Perhpas Bill N. but her reference to Judge Cedarbaum, points to an earlier discussion in her speech about women not race, and the danger, that Judge Cederbaum stresses that an emphasise on the difference between men in women has been used to justify sexism.
6.9.2009 10:24am
Bill Quick (mail) (www):
I thought the Rutledge nomination back in 1795 settled the issue of using political/ideological standards in the advice and consent process.
6.9.2009 10:26am
Augo Knoke (mail):
I only came late to the Sotomayor discussion on VC. But I was immediately attracted by the difference to other sites in the tone of the bloggers. This does not mean that I agree with each one of them - even if I tried I couldn't as they don't agree among themselves.
Personally, I see nothing objectionable in discussing the judicial philosophy of a candidate, as long as we try to establish that philosophy as objectively as possible. I hate seeing people start from the premise: (S)He's from the other side, so let's rubbish hir. I prefer to have a look on the record, and from there we might differ in our evaluation. If you don't like the philosophy, fine, don't vote for the candidate. Should one side trigger the filibuster on each and every candidate? I doubt the wisdom of it. If there should come up the liberal complement to Scalia, I'd have doubts at the first seat, but on the second and third, why not? I'd definitely prefer not because my political philosophy is on the left, but I couldn't contest the political legitimacy of conservative concerns about shifting the Court too much to - well, ahem - the middle.
I think taking judicial philosophy into account openly would allow a far cleaner process as the current kabuki dances where all sorts of phony issues are brought up as substitute for the real concern about judicial outlook.
The "wise Latina woman" reference is one instance of the theater side of the current proceedings. It does not bother me a bit - I am white and male - because it was a rhetorical trope playing on an earlier quote on wise white men and women, it was a hope expressed, and playful enough to not be taken in the serious way it has been taken. I hate people who forego interesting speech just because some eight years later somebody will strain to read something ominous into one or the other phrase. The world is boring enough. And, incidentally, were it not conservatives complaining of too much political correctness?
Politically, I think there are so many well qualified people in the U.S. judiciary that trying to make it more representative is perfectly reasonable. To me ever since I spent a year and a half in the late eighties in your country, affirmative action has been a success. I am well aware that it hurts on the individual level and can be quite unfair to some but so it would if you hadn't done anything about racial and gender imbalances, and even more so. Therefore, I think your president should fill SCOTUS with qualified women until at least four of the Justices are women.
Now, I wouldn't go as far as archconservative Senator Roman L. Hruska of Nebraska who defended the nomination of Judge Haynsworth arguing that average citizens also had the right to be represented on SCOTUS, nice as the try had been. But a nomination to SCOTUS is not an athletic competition where the one and only one best will be the winner. There have been in the past eminently qualified judges who for purely political reasons never made it to the Supremum.
From what I read here and on Scotusblog, Sotomayor seems to be rather moderate, far less activist as many fear or wish for. I don't think that Jonathan Turley's characterization of her record as not awe-inspiring has been unfair and he certainly did not use the word "dumb" that some people quickly turned his remarks into. She definitley does not strike me as "filibuster material". However, I'd be interested to learn more about her judging on issues of the individual against the state. I have some sympathy with the libertarian wing of conservatism, and I understand on VC there are quite a few libertarian sentiments.
Many thanks for continuing a sane discussion!
6.9.2009 10:30am
Bob White (mail):
Prof. Adler,
I'd second this entire post. Of the possible Obama nominees, I would've preferred Judge Wood, but the election of Obama itself indicates that the existence of my personal preferences does not automatically translate into my preferred results occurring.
6.9.2009 10:37am
first history:
Cato the Elder sez:

She is OBSESSED with race.

Can you provide evidence of this obession in her judicial opinions? Outside of a few speeches (which I see as nothing more as cultural pride), what evidence is there that she has based her rulings on the race of the litigants?rt?

Without evidence, it seems you (and her other critics) are more obsessd with race than she is.
6.9.2009 10:46am
BGates:
You misbehaved, Senator Kennedy

That's exactly the kind of venomous, fact-free display of unbridled and unhinged partisanship for which the public has rightly condemned the Republican party to irrelevance. How dare you, sir. How dare you accuse one of the most respected, nay revered members of the Senate of quote-unquote "misbehavior" when it is the Republican party which seeks endless war for no higher purpose than oil, and probably creating orphans who can be sold off for medical experiment.

(Suggested Senate Republican response: "I decry this unfortunate attack on my colleague Senator Kennedy, who is justly regarded as one of the greatest men ever to join this body, and who I hope would call me a friend. If I choose to conduct myself differently in these confirmation hearings than he did many years ago, it is in no way an accusation against him. I am confident that he always acted in the best interests of his country. I do not say, in the manner of the nutjobs who are still sadly tolerated in my party, "You misbehaved", but rather, "you acted differently than I will"; and I wish the Senator and our President good luck and Godspeed in confirming whoever they want.")
6.9.2009 10:47am
pluribus:
Daniel Chapman:

Pluribus: It is just a game. All politics is a game.

If you honestly believe this (I don't), then why get all hot and bothered about it? I think the selection of a Supreme Court justice is a deadly serious exercise, and that the quality of the judges who sit on the court means a lot for the future of law and justice in our republic. If you think it means nothing more than which team wins the World Series, I feel sorry for you. Fortunately, your view is a distinct minority opinion.
6.9.2009 10:48am
MRSquared (mail):
If Roberts had made similarly racialist comments, I highly doubt that his critics would be limiting their inquiry to whether such comments worked their way into his judicial opinions. Recall the endless interrogation by the leftists in the Senate about the "illegal amigo" comment.
6.9.2009 10:48am
Bored Lawyer:
There is no inherent rule as to the level of deference owed to the President on nominations. There may have been a historical practice one way or the other, but if so one side has certainly not been honoring it in the last several years. Why, then, should the other side continue to grant a level of deference to the President's choices? That is tantamount to unilateral disarmament.

That said, there is no reason for incivillity. One can simply say, "Judge Sotamayor, you are certainly qualified in terms of achievements, but your views are simply not what we believe reflect the proper role of the judiciary in a Constitutional republic. So we are voting against you."

If that means she gets in by a vote of 65-35 or 70-30, then so be it.

(I would think that the threshhold for filibustering should be higher, however. Voting against a nomination is one thing; blocking a nomination from anyone voting on it is another. IMO, the nominee would have to be a crook, a radical or have some other extreme impediment to justify a filibuster.)
6.9.2009 10:53am
pmorem (mail):
It seems to me that there is someone in a position to end this level of political strife.

President Obama could stand up and say that his previous position on confirmations was wrong, and apologize for them.

Until he does, the boundaries and rules that are applied to his nominees must be his own. He owns his choices.
6.9.2009 10:55am
MRSquared (mail):
While he's at it, he could apologize for promising to transcend race, and then, four months after he's sworn in, delivering to us the most racially cynical Supreme Court nomination in some time.
6.9.2009 10:58am
Bored Lawyer:

It seems to me that there is someone in a position to end this level of political strife.

President Obama could stand up and say that his previous position on confirmations was wrong, and apologize for them


But at this point, that would be entirely self-serving. When he was SENATOR Obama, he gave the Presdient no deference. Now that he is PRESIDENT Obama, he wants deference for nominees? Sorry.
6.9.2009 11:05am
ruuffles (mail) (www):

While he's at it, he could apologize for promising to transcend race, and then, four months after he's sworn in, delivering to us the most racially cynical Supreme Court nomination in some time.

"some time"=18 years?
6.9.2009 11:08am
Bored Lawyer:
BTW, just as an aside, I think I once saw someone argue that there should be a difference between the deference given to a cabinet nominee and a judicial nominee.

The former is a member of the excecutive branch and under the President's direct control and responsibility. And, he will only remain in office at most for the life of that administration. So there a great deal of deference should be applied.

A judge or justice are members of an independent branch of government, not subject to the president's control, and with lifetime tenure may serve through several administrations. Their power is much greater than that of a cabinet officer. For that position, less deference is appropriate.
6.9.2009 11:09am
pluribus:
geokstr:

Don't like someone disagreeing with you? Find something irrelevant, say, a spelling error, and imply that this obviously means that this person knows nothing about what they are talking about and therefore anything they say is now discredited and worthless.

You may be a troll (or at least you are giving a good imitation of one) and I am probably encouraging you by replying. But I said nothing of the kind you indicate above. You are the one who supplied all that nonsense about posters knowing "nothing about what they are talking about" and labeling anything "they say" as "discredited and worthless." In fact, I have already posted above my misgivings about Sotomayor:

I, too, have a problem with the statement. I think both Obama and Judge Sotomayor have expressed misgivings about it. I think she said it represented a poor choice of words. I might describe it as an awful choice.

I haven't made up my mind yet whether she should or shouldn't be confirmed, much less posted on that issue here. Actually, I'd like to listen to the hearings before making up my mind on that question. In addition to spelling the nominee's name correctly, responsible posters on her nomination should read the comments of other posters before attacking them. I doubt that you will do so.
6.9.2009 11:20am
pluribus:
Bored Lawyer:

A judge or justice are members of an independent branch of government, not subject to the president's control, and with lifetime tenure may serve through several administrations. Their power is much greater than that of a cabinet officer. For that position, less deference is appropriate.

I quite agree.
6.9.2009 11:21am
MRSquared (mail):
"some time"=18 years?

Arguably, but HW's whole raison d'etre was not hope &change. The hypocrisy here is what is galling. Same with Obama's evolving standard on senatorial review of nominations; he's taking both sides of the same issue to serve a constituency.
6.9.2009 11:21am
Daniel Chapman (mail):
I didn't say it wasn't an IMPORTANT game, pluribus, but the same principles apply whether you're playing for your life or playing for toothpicks. Do you want to win or don't you? It's unfortunate that SCOTUS nominations have been dragged down to this level, but once one side makes it a policy to grill nominees on hot-button issues to score political points, game theory seems to indicate that the other side should respond in kind lest they suffer a disadvantage.

If that seems like bad strategy to you, feel free to explain why. If you're just saying we should be "above" such crass considerations, I'm just going to laugh and walk away.
6.9.2009 11:23am
pluribus:
pmorem:

President Obama could stand up and say that his previous position on confirmations was wrong, and apologize for them.

Yes, he could, but why should he? A senator is entirely within his or her rights in voting against a nominee and explaining the reasons for his or her vote. Republicans will vote against Sotomayor and explain the reasons for their votes, though we don't know yet how many. They have the perfect right to do so. In fact, if they have genuine misgivings about the nominee, they have the duty to do so. The public can judge the reasons and determine whether they are valid or not.
6.9.2009 11:26am
pluribus:
Daniel Chapman:

Do you want to win or don't you? . . . . If that seems like bad strategy to you, feel free to explain why.

Because the future of law and justice in what I regard as the greatest country on earth is at stake. It's much more than a win-loss record for one side or the other. If Supreme Court justices viewed the cases before them as nothing but games, with dirty tricks not only permissible but obligatory in the effort to pile up wins, God save the suffering public.
6.9.2009 11:32am
MarkField (mail):

I thought the Rutledge nomination back in 1795 settled the issue of using political/ideological standards in the advice and consent process.


There was an unspoken concern that Rutledge was, well, not likely to appear on the cover of Sanity Fair.



A judge or justice are members of an independent branch of government, not subject to the president's control, and with lifetime tenure may serve through several administrations. Their power is much greater than that of a cabinet officer. For that position, less deference is appropriate.




I quite agree.


Ditto.
6.9.2009 11:35am
pmorem (mail):
Bored Lawyer:

But at this point, that would be entirely self-serving. When he was SENATOR Obama, he gave the Presdient no deference. Now that he is PRESIDENT Obama, he wants deference for nominees? Sorry.

Call it learning. If he's such a great orator, he surely could make it work.

pluribus:

Yes, he could, but why should he?


I'm not saying he should. Only that he could.

It seems to me that a great many people were pressing Bush to "admit his mistakes" in re Iraq. Here's a chance for Obama to admit one.

If he's interested in "post-partisanship", that would be a reason. Otherwise, the whole "post-partisanship" thing is show to be false.

He owns his choices.
6.9.2009 11:36am
BrianW (mail):
The Democrats will shortly have the votes to confirm anyone they want. As Adler and others here have said, the right could do a lot worse than Sotomayor on several levels. So this entire argument is reduced to how the Republicans want to be perceived and what political hay they want to make in the process.

While I think the pro-forma opposition to a nominee from the other party is to be expected (and I'd put Obama's votes in this category), I believe the histrionics among the base do real long-term damage to their cause.

Isn't the real analogy here Clarence Thomas' confirmation? That process didn't leave anyone smelling like roses and, I think, diminished the respect Thomas was due after confirmation and left him bitter about the process in a way that may have influenced his conduct on the bench.
6.9.2009 11:36am
pluribus:
MRSquared:

Recall the endless interrogation by the leftists in the Senate about the "illegal amigo" comment.

No, if they were "endless," I suppose I would have remembered. If it made any difference to his confirmation, I suppose I would have remembered. If Roberts was rejected, I might have remembered. If Democrats hadn't joined Republicans in voting to confirm him, I might have remembered. You are aware, of course, that Roberts was confirmed, aren't you?
6.9.2009 11:37am
Julian Sanchez (mail):
I find it very hard to believe that the people getting upset about the "wise Latina" speech have read it through with any care.

For the commenter upset that she self-described as "wise," recall that she's riffing off an old quotation to the effect that "a wise old woman and a wise old man will come to the same conclusion." She's continuing with a parallel construction, not calling herself wise.

As others have said, I think the reasonable reading of the "physiological or cultural differences" line is physiological differences are offered as a possible reason gender would influence reasoning, and cultural differences as a possible reason national origin would. If you look at the previous versions of the same talk that have been going around, she is much more explicit that the "physiological" business there is a reference to Carol Gilligan/"In a Different Voice" views of gender differences in cognition -- the same line appears almost verbatim in a context where race isn't mentioned at all.

For the silly claim that Sotomayor is "obsessed" with race, there was a fine essay in Slate on this point: If you are one of a small number of Latina judges, you will be routinely peppered with requests to talk about the subject.
6.9.2009 11:40am
Daniel Chapman (mail):
"the future of law and justice in what I regard as the greatest country on earth is at stake"

Yeah that's great and all, but maybe someone should have mentioned that a LONG time ago. We're currently in working within a system where dirty tricks, sensationalism, and political sound bytes are the norm. Game theory suggests that as long as it's working for one side, they're not going to change strategy until it starts to hurt them.

Did Obama or (especially) Biden suffer for their contribution to the problem? Election results suggest not.
6.9.2009 11:40am
pmorem (mail):
Julian Sanchez wrote:


For the commenter upset that she self-described as "wise," recall that she's riffing off an old quotation to the effect that "a wise old woman and a wise old man will come to the same conclusion." She's continuing with a parallel construction, not calling herself wise.


except that she then proceeds to say "better decisions", rejecting the O'Connor quote.
6.9.2009 11:43am
pluribus:
pmorem:

It seems to me that a great many people were pressing Bush to "admit his mistakes" in re Iraq. Here's a chance for Obama to admit one.

Why was Obama's vote a mistake? Are you saying that no senator who is right thinking could possibly have voted against John Roberts? That anything less than a unanimous vote in his favor was wrong? Senators have the right, and the duty, to exercise their independent judgment on nominees. Independent judgment means a senator can vote yes or no. Obama did that. I don't regard it as a mistake.
6.9.2009 11:43am
ShelbyC:
pluribus:

One misspelling might be excused as a typo. Two reveals you don't know what the judge's name is. Try to learn how to spell it. It might lend some credibility to your views.


Flirt with Muphry's Law much? You might have gotten away with it this time...
6.9.2009 11:44am
Johnny Canuck (mail):
"Game theory suggests that as long as it's working for one side, they're not going to change strategy until it starts to hurt them."

And this is why Republicans should change strategy. It is hurting them. Democrats should be happy if Republicans obstruct. It only diminishes Republicans standing with the electorate. But don't tell them. Let them self-destrcut.
6.9.2009 11:46am
pluribus:
Daniel Chapman:

Yeah that's great and all, but maybe someone should have mentioned that a LONG time ago.

Get real, Chapman. The last two times a president nominated Supreme Court justices, they were confirmed with bi-partisan support. Why? Because the nominees were perceived as well-qualified, despite their conservative views. What dirty tricks were used to derail the nominations of Roberts and Alito? Is that too long ago for you to remember?
6.9.2009 11:47am
Oren:

It seems to me the fundamental question here is whether the process is properly a primarily political one, or properly an administrative, caretaking role.

I reject such a rigid dichotomy. The process is fundamentally administrative with an added political element that kicks in only in such extreme cases as when the nominees is far out of the mainstream.

Where one draws the line is a subjective matter. I call Bork foul, Roberts fair and Alito as fair-but-don't-push-your-lucky-buddy.
6.9.2009 11:48am
Daniel Chapman (mail):
Oh sorry, I thought you were objecting to senators voting against nominees based upon judicial philosophy and ideology. I do seem to remember that being an issue with both of them, although neither nomination came close to approaching Anita Hill territory. Just don't expect Sotomayor to be 99-0. She'll pass, but many senators should vote against her based on her ideology. This is OK, right?

As long as you agree that republicans should treat Sotomayor's nomination exactly like democrats treated Roberts' and Alito's, then I guess we agree. You think it's out of some noble dedication to the Health of the Republic, I think it's game theory. Whatever.
6.9.2009 11:53am
pluribus:
Daniel Chapman:

As long as you agree that republicans should treat Sotomayor's nomination exactly like democrats treated Roberts' and Alito's, then I guess we agree.

I think Sotomayor should be accorded the same respect as Roberts and Alito received. Whether she should be confirmed as they were remains to be seen. I'm willing to wait at least until the hearing on her nomination to decide that question in my own mind. I know that at least some Republicans will vote no. They have that right. Some Democrats may also vote no, which is also their right. I hope all the votes are principled, and not just "gotcha" votes.
6.9.2009 12:03pm
Californio (mail):
If we are to acknowledge our experience, as enriching our outlook - I feel compelled to note that all the "wise Latinas" I grew up with (including grandma) would not even say "wise Latina" - in fact none would call themselves Latina. Sotomayor seems like a decent person, and appears qualified to be on the Supreme Court. But let us be frank - she is a Puerto Rican. That has no negative connotations to me- being an American of Mexican-American descent (more specifically a Californio - look it up). (how could it be negative? I don't even know a Puerto Rican. I wonder if I have even met one....) So why the phraseology? Marketing!

Sotomayor has about as much ethnic connect to me as, say.... George W. Bush. Hey, a hillbilly in West Virginia and Brooke Astor = functional equivalents, being white and all.
6.9.2009 12:10pm
David M. Nieporent (www):
So, Professor Adler believes in bringing only a knife to a gunfight, because he prefers the good old days of knife fights even though the other side started regularly bringing guns to the fight back in 1987.

Good plan, Professor Adler!

I'll bet Professor Adler is quite confused as to why good nominees like Miguel Estrada, Charles Pickering, Brett Kavanaugh, etc. seem not to be able to get through the process when they have defenders like himself and Sen. Cornyn.
(1) "They started it" does not exactly make you look mature and adult.
(2) This is not a "fight," of the knife or gun variety. It's a confirmation hearing.
(3) Brett Kavanaugh seemed to be able to get through the process.
(4) I don't understand how you think that demonizing Sotomayor is going to help Miguel Estrada, Charles Pickering, Brett Kavanaugh, etc. Are Democrats going to say, "Well, since you were mean to her, we see the error of our ways and we're going to stop being mean to your nominees"?
6.9.2009 12:11pm
Daniel Chapman (mail):
I'm assuming all the votes will be principled, just like I assume all of the democrats who voted against alito were based on the principle of "we disagree with his ideology." Once you accept that that's fair game, I think we're on the same page.

Of course, this means questions directed to ideology are fair game at the hearings. So is an investigation into everything they've ever said or written because we all know how open nominees are at the hearings regarding their political beliefs. Once we start to dig up good stuff, you know the political interest groups are going to start using them for fundraising and other political purposes... nothing that can be done about that, really. And if a group of aspiring republican senators want to run campaigns against people who voted for the "pro-abortion" judge, I think that's to be expected.

I think this is the sort of thing we're discussing when we're talking about whether republicans should take the "high road" or not. Roberts/Alito are not examples of the "high road."
6.9.2009 12:17pm
Sarcastro (www):
Dude, the Dems shot Roberts and Alito?

The timing seems so convenient...
6.9.2009 12:18pm
David M. Nieporent (www):
Do you want to win or don't you?
Win what? Demonizing Sotomayor is not going to derail her nomination, and on the off-chance that it does, it's not going to result in a nominee who conservatives think is significantly better.

Nor is there any reason, as I stated above, to think it would cause Democrats to stop demonizing their nominees. Why would it? ("Game theory" isn't a sufficient answer.)
6.9.2009 12:21pm
Steve:
As long as you agree that republicans should treat Sotomayor's nomination exactly like democrats treated Roberts' and Alito's, then I guess we agree.

Uh, yeah. News flash, no one on the liberal side really cares if there are 25 Republican votes against Sotomayor.

Just because Republicans never get sick of whining about how the handful of votes against Roberts and Alito shows the Democrats to be unreasonable and partisan, that doesn't mean the Democrats have any interest in carrying on the same way. So all this rush to preemptively justify votes against Sotomayor is largely a waste of breath.

If people want to vote against her because they think she has an extreme liberal ideology, whatever. Be my guest.
6.9.2009 12:25pm
Oren:

Senators have the right, and the duty, to exercise their independent judgment on nominees. Independent judgment means a senator can vote yes or no. Obama did that. I don't regard it as a mistake.

I don't think the People of Il object too strenuously either. I disagree with Obama's vote (as I said, Roberts is fair in my game) but that's his vote to make.
6.9.2009 12:26pm
Daniel Chapman (mail):
"Win what?"

You really believe that if democrats are allowed to continue investigating, questioning, and campaigning on nominees' political ideology but republicans aren't, that this doesn't help the democrats politically?
6.9.2009 12:26pm
Barbra:
"except that she then proceeds to say "better decisions", rejecting the O'Connor quote."

I don't think so. Sotomayor then proceeds to hope for better decisions. And for her, what might be "better"? That someone who has experienced skepticism based on their race or sex could be better attuned to guard against the making of false or irrelevant presumptions.


Each day on the bench I learn something new about the judicial process and about being a professional Latina woman in a world that sometimes looks at me with suspicion. I am reminded each day that I render decisions that affect people concretely and that I owe them constant and complete vigilance in checking my assumptions, presumptions and perspectives and ensuring that to the extent that my limited abilities and capabilities permit me, that I reevaluate them and change as circumstances and cases before me requires. I can and do aspire to be greater than the sum total of my experiences but I accept my limitations. I willingly accept that we who judge must not deny the differences resulting from experience and heritage but attempt, as the Supreme Court suggests, continuously to judge when those opinions, sympathies and prejudices are appropriate.
6.9.2009 12:29pm
Daniel Chapman (mail):
Out of respect for the thread, I'm going to stop now because I think I've said all I have to say, and I'm starting to cross-post. One question though:

"Uh, yeah. News flash, no one on the liberal side really cares if there are 25 Republican votes against Sotomayor."

Then what's the problem? No one's suggesting a filibuster (if it could even work) so what else is there to complain about? What DOES the "liberal side" really object to? If this is all just an internal soul-searching moment among the political right, how about leaving us to conduct it in peace? :)
6.9.2009 12:30pm
pluribus:
Thank you, Barbra. A good quote and worthy of reflection.
6.9.2009 12:34pm
Sarcastro (www):
[The liberal objections I'm seeing on this thread )and that I subscribe to) are not that Republicans are voting based on political ideology, but rather

1) that they are voting blindly, based only on revenge for BOrk/Alito's wife and

2) that they are voting based on a misinterpretation of her ideology (i.e. "Obsessed with race.)

Though I am coming to think some people that fall into the first category are arguing the second in bad faith, having not read her speech at all.]
6.9.2009 12:38pm
pluribus:
Good points, David Nieporent.
6.9.2009 12:39pm
pluribus:
Daniel Chapman:

Then what's the problem? No one's suggesting a filibuster

When the Republican leader of the Senate, Senator McConnell, says they CAN filibuster though they haven't yet decided if they SHOULD, I take that as at least "suggesting a filibuster."
6.9.2009 12:42pm
A.S.:
(1) "They started it" does not exactly make you look mature and adult.

That's a substance-less objection.

(2) This is not a "fight," of the knife or gun variety. It's a confirmation hearing.

Perhaps you should acquaint yourself with the concept of an analogy.

(3) Brett Kavanaugh seemed to be able to get through the process.

Only took 3 years. But, heck, if you think that's a good precedent, I'll be happy to agree with you that we should have Sotomayor hearings commencing in summer 2012.

(4) I don't understand how you think that demonizing Sotomayor is going to help Miguel Estrada, Charles Pickering, Brett Kavanaugh, etc. Are Democrats going to say, "Well, since you were mean to her, we see the error of our ways and we're going to stop being mean to your nominees"?

That's the idea, yes. If you threaten the other side with responses equally drastic as they have taken, they perhaps might reconsider their decisions. Perhaps if Obama's nominees get beaten up enough (note: again, for those not understanding the concept of an analogy, this doesn't mean literally beaten up), perhaps Obama will nominate Estrada or Pickering to the position he deserves, as Bush did with Roger Gregory.
6.9.2009 12:45pm
levisbaby:

Unfortunately, much of the discussion about Sotomayor to date has failed to meet that standard. It’s not too late for something better.

Translation: We've lost the mud-slinging battle and now we're just embarrassing ourselves.
6.9.2009 12:45pm
RichW (mail):
Part of the problem is past history in that people republicans nominated did not stay the conservative they were thought to be. Were they being delusional, maybe.

But the other part of the problem is that in the past the republicans were deferential to the nominee and gave the appearance of voting on principal and qualifications. Many democrats it appears savage any hint of conservatism. This has been a winning strategy for them and others suggest that republicans do the same now. Game theory does suggest that there are ways, usually multiple to maximize your winning just as there are ways to minimize your loses. I would suggest that since the democrats have a winning strategy the republicans need to adjust theirs to compensate. There usually is not just one way to win, but there is definitely more than one way to minimize losses.

So to me the republican should work on the basis that they are going to lose, Sotomayor is confirmed, so how can they maximize their gain in this case? Maybe to rack her over the coals in a most respectful way that will make everyone realize what is at stake and what they are getting. Potentially, they may even get a few converts so the vote is close, very close
6.9.2009 12:47pm
Daniel Chapman (mail):
I don't, but I'll just come out and say I agree with you that republicans shouldn't filibuster Sotomayor. Thankfully, the democrats didn't go that far, so it would be wrong for the republicans to escalate.
6.9.2009 12:49pm
deepthought:
I don't understand this obsession with her speech. It is hardly the only thing she as said/written on race; for example, how about her judicial opinions (see here, here and here)? If one line in a speech is the only thing her opponents can hang their hat on, it is pretty weak tea (to mix metaphors).


In the rush the find Sotomayor’s “biases,” media personalities and conservative opponents latched onto her Berkeley speech on “A Latina Judge’s Voice,” which provoked Rush Limbaugh’s accusations that she is a “reverse racist” and Newt Gingrich’s now-infamous “tweets” calling for her to withdraw. Instead of looking to the legal precedent in the Second Circuit’s Ricci opinion, the Judicial Confirmation Network said “[Sotomayor] reads racial preferences and quotas into the Constitution, even to the point of dishonoring those who preserve our public safety.”

Anything “ethnic,” from the food she eats to the way she pronounces her last name, has been discussed as possibly influencing her jurisprudence. The mainstream media has highlighted her group affiliations, college comments, and a law school discrimination complaint as evidence of her racial preference possibly trumping pragmatism. And then there’s been the blatant race baiting: most shockingly, Rep. Tom Tancredo today called the civil rights advocacy group La Raza, of which she is a member, “a Latino KKK without the hoods or the nooses.”

It seems to me that there is an infinitely simpler and more accurate way of figuring out whether Judge Sotomayor decides cases involving race fairly and dispassionately - read her decisions. . . . (Tom Goldstein, SCOTUSblog, 5/29/09)


It also speaks as to who is more obsessed with race; it seems her opponents can't stop talking about it.
6.9.2009 1:01pm
D.R.M.:
Tit-for-tat retaliation in SC nominations probably won't restore the old status quo.

However, unilateral Republican deference in SC nominations certainly will not work (as seen in the Ginsburg and Breyer confirmations after Bork and Thomas). And given Obama's election, applying a political standard to SC nominees doesn't seem to have much discernible effect on election chances.

So, call me, well, anti-anti-anti-Sotomayor.
6.9.2009 1:06pm
M N Ralph:

Pointing out Obama's hypocrisy in opposing Roberts and Alito for political reasons yet decrying anyone who would do the same for Sotomayor is still fair game, though.


How has Obama been hypocritical? He took the position that judicial philosophy is a fair consideration in whether to confirm a candidate. To be hypocritical, he'd have to say Republican Senators should not consider Sotomayor's judicial philosophy. If he's said that, I missed it.
6.9.2009 1:12pm
second history:
Now that the most extreme partisans on each side have had the chance to vent their spleens (and mail out their fund-raising appeals), I hope the debate over Sotomayor’s nomination will rise to a higher level.

Don't count on it.
6.9.2009 1:12pm
Nunzio:
Does she pay her taxes?
6.9.2009 1:13pm
Just an Observer:
FYI, Leahy announced today that Sotomayor's hearing will begin July 13.
6.9.2009 1:14pm
Thales (mail) (www):
"Now that he is PRESIDENT Obama, he wants deference for nominees? Sorry."

Just curious, has Obama actually requested deference or suggested in any way that if Senators feel about Sotomayor what he thought about Roberts that they owe him their votes? It seems to me that he has attempted to defend or sell his nominee to the Senate and public--if he were requesting deference he could just say, this is who I pick, now confirm her, little Senators. It was reported this weekend in a NYT magazine article about the President's relationship with Congress that he takes advise and consent so seriously that he individually called every member of the Senate Judiciary Committee to discuss his nomination, which is quite a departure from past practice.
6.9.2009 1:17pm
Cato The Elder (mail):
Of course the Left isn't involved in the histrionics, because that would be antithetical to their long history of civil conduct in other venues. They just call anyone -- hilariously enough, from their own perches of PRIVILEGE -- who disagrees with Sotomayor's nomination "angry white men", telling those who are legitimately worried that this Judge will enact racial quotas from an implacable position on the Supreme Court, to in effect, shove it. There's more than a touch of revelry when they delight in the coming demographic changes of the mid-century, and some of the most extreme leftists I've read have even invoked explicit "racial power" insults in the safety of some echo-chambers. It's not like there isn't plenty of evidence of Sotomayor's jejune and immature thinking on race issues leftover from her younger years, when she invoked stupid "proportionality" arguments to call for more "Hispanic and Chicano" professors at Princeton, and indeed there's no evidence that she has matured from those views since that time. Indeed, there's the burning question: why are the worries about Sotomayor such abject caricatures when, outside of the prying eyes of the public, there are real-life law professors calling themselves Critical Race Theorists who quite seriously champion those very same theories of jurisprudence?

This is a woman who has continuously been involved throughout her life in organizations that are circumscribed about her ethnicity. Did I cherry-pick her involvement in the "moderate activist" Acción Puertorriqueña and her telling law review article on Puerto Rican mineral rights? Did I cherry-pick her involvement in PRLDEF and another case involving "minority voting rights"? (A code-word that reeks of distasteful machine politics) Did I cherry-pick her deep involvement with the La Raza Council and the racialist speeches she continually made at their conferences? What about her referring to the New Haven Fire Department's position in the Ricci case using the royal "we", even as she was supposing to be judging the merits of the case impartially? Come on, she even sued a law firm for the insinuation that she might have been at Yale because of affirmative action - does that sound like a woman who will be measured and charitable in her interpretation of racial issues she holds dear to her heart? She feels that "lower-level crimes were largely products of socioeconomic environment and poverty, but [has] a different attitude about serious felonies" and also "no matter how liberal I am, I'm still outraged by crimes of violence." Goodness gracious, oh me oh my, those ideas couldn't be troubling in the least.

I am a minority myself. I especially don't trust "race men", because I've had enough experiences with those types people who in my experience too often color every action colored through an unhealthy ideology of victimization. Everything is and must be intimately connected to their conception of themselves and the manner they perceive others view them. Yes, it is true that Obama is a liberal, and it would be folly to expect him to nominate anyone but a liberal. But she, at least in my mind, is no ordinary nomination, because it obvious she has worn her ethnicity on her sleeve since very early in her life like some gold star. I have very honestly tried to appraise her pick fairly; I have called out those who have not admitted that she is no less qualified than most of the sitting Justices. But here is my articulation of many Republicans' earnest worry: will she be able to maintain a proper professional distance when a tricky and emotional case comes before SCOTUS' bench? Or will that sensitive Sotomayor of YLS reveal herself whilst her oft intemperate tongue asserts itself? Acting as if those considerations were fully resolved is ridiculous.
6.9.2009 1:36pm
rosetta's stones:
I'd agree, Thales. Obama has shown deference to the Congress here, and the Sotomayor pick is evidence of that. Moving beyond the affirmative action taint of her nomination, she's got very solid qualifications. She's not controversial, imo, and allows a clean vote for anybody who wants one. That would be anybody... any senator.

Some will, like Obama a few years ago, vote against, for whatever political reasons they harbor. But, inside, I'm sure they recognize they have a pretty much simple vote here, thanks to Obama's deference. Sotomayor passes for qualification, and even those who disfavor the Left's preferred judicial type have to be beside themselves that Obama didn't choose one of the many stooges he might have... a lackey whose nomination they would have had to fight.

They may yet get their chance a year or so from now.
6.9.2009 1:36pm
Steve P. (mail):
Am I the only one who thinks that Cato is parodying himself?
6.9.2009 2:02pm
Daniel Chapman (mail):
I am not familiar enough with Cato's views to know whether that's a parody of him or not.
6.9.2009 2:10pm
geokstr (mail):

pluribus:

geokstr:
The left ruthlessly and remorselessly uses Alinsky's Rules for Radicals, which are basically just the most self-serving, one-sided, dirty tricks in the book, and they do it very effectively. Then they give us nothing but sanctimonious moralizing about how we musn't do anything remotely like it when they are in power.

Why would you want to use "the most self-serving, one-sided, dirty tricks in the book"? Do you think it will make you look better? Or feel better about yourself? Is this what the left did when Roberts and Alito were nominated? Dod you think dirty tricks will produce better Supreme Court judges? If you decried these tactics when the left used them, why would you want to use the same tactics? This kind of "you did it so we can do it too" strategy seems to me to completely disregard the essential business at hand, which is to pick good judges for the Supreme Court. You seem to be saying it's just a game, to hell with the results.

This is not a game, it is a war, with the future of civilization at stake. I don't want 1984 to ever get here, but it is looking more and more like it soon might.

I don't necessarily think that we should use the same tactics, but we had better come up with a lot better ones than we have used in the past. At some point, one must determine how much one wants to win, or at least, not lose, and what losing might cost.

I compare the left-right confrontation over the last several decades as - we enter the ring prepared to fight by Marquis of Queensbury rules, while our opponent, who has already bought off the ref and judges (media, hollywood and professoriat), climbs in with a baseball bat with nails imbedded in it. As they are carrying us off to the ER room, we can of course be proud that we have held the higher moral ground, if we live, that is.

If we keep coming back to the fight expecting that our opponent will act civilized the next time, well, that is the definition of insanity, isn't it? And if we also bring a bat with nails to the next fight, you can count on the left to be telling us that we shouldn't be arguing "you did it so we can do it too".

I personally think that based on time-honored rules, Obama won so he gets to pick his team, and she should be confirmed. But to me the Sotomayor nomination is just a tiny engagement in much larger war in which the other side is doing whatever it takes to win, ethics and morals be damned, while we keep insanely assuming that we are both using the same civilized rule book. Much like on many of the posts on this site, the academics and the lawyers argue over the texture of the bark on a small portion of one tree, while the forest burns around them.

Sooner or later the right will have to grow a pair and fight back, or we should simply give up and spare the costs of battle. I leave it to better minds than myself to devise the tactics and strategies, but it better be something that actually works against the opponents we are fighting.
6.9.2009 2:13pm
Baseballhead (mail):
But here is my articulation of many Republicans' earnest worry: will she be able to maintain a proper professional distance when a tricky and emotional case comes before SCOTUS' bench? Or will that sensitive Sotomayor of YLS reveal herself whilst her oft intemperate tongue asserts itself?
The woman's been on a federal bench for near two decades. I don't think she's so sensitive that one bad day is going to reveal anything about her that hasn't already been revealed. She talks a bigger game than she plays; I suspect she, like the man who nominated her, is more incrementalist than revolutionary.

Myself, I'm not a fan. I don't think she's at all a racist (the above post was about right), but I don't find her particularly interesting either way. I do find the opposition to her nomination interesting, though. I suspect people have latched on to this because, well, they've got to have something to attack, and while her resumé is impressive, her judicial record is pretty bland.
6.9.2009 2:14pm
Cato The Elder (mail):
Cato Censorius
6.9.2009 2:21pm
Johnny Canuck (mail):
geokstr:Not sure whether (phonetically) jokester is a parody or not when he says- "I compare the left-right confrontation over the last several decades as - we enter the ring prepared to fight by Marquis of Queensbury rules, while our opponent, who has already bought off the ref and judges (media, hollywood and professoriat), climbs in with a baseball bat with nails imbedded in it."

What I remember is 1972 when Nixon engaged in dirty tricks to derail Muskie, the leading Democratic candidate, and the 2000 election. By the standards of the Canadian courts, 3 of the 5 "Republican" judges would have felt compelled to recuse themselves, leading to a very different result.
6.9.2009 2:47pm
A. Zarkov (mail):
"But I believe then-Senator Obama endorsed the wrong standard. And so I hope Senate Republicans are disinclined to follow his lead."

This is perhaps the fundamental problem with conservatives and libertarians-- they find every excuse not to fight because essentially they have no stomach for it. The left wages warfare against them employing any and all means including: violence, smear campaigns, race baiting, name calling, bribery, parliamentary maneuvering etc. While conservatives and libertarians are writing books and essays, and organizing conferences and workshops, the left is out in force with their shock troops gaining more and more power.
6.9.2009 3:07pm
PaulTX (mail) (www):
Professor Adler,

I'm curious. Is it your view that A) Judge Sotomayor has said nothing that would justify a charge of racism (or "racialism"), or that B) racism is not disqualifying in a Supreme Court justice?
6.9.2009 3:35pm
Barbra:
I don't know why you should be confused Paul. From the post:


it is inaccurate and unfair to argue, on the basis of this and other speeches, that Sotomayor is a “racist.”
6.9.2009 3:50pm
guy in the veal calf office (mail) (www):
Her recent accident indicates that her physiology and cultural background prevent empathy for Athlete Americans.

In fact, the Supreme Court lacks requisite diversity since the retirement of Justice White, and Obama missed a chance to appoint a representative from the athletic community. I am shocked and disheartened.
6.9.2009 3:54pm
Just an Observer:
A. Zarkov: This is perhaps the fundamental problem with conservatives and libertarians— they find every excuse not to fight because essentially they have no stomach for it.

geokstr: Sooner or later the right will have to grow a pair and fight back, or we should simply give up and spare the costs of battle.

I really have to shake my head here. In fact, the makeup of the Supreme Court has become steadily more conservative for several decades now. The "liberal lions" of the Warren court are long gone. Four of the most conservative justices in modern history sit on the court today. The last nominee to be beaten, Harriet Miers, was defeated by a coalition of movement conservatives. No one seriously expects Sotomayor to move the court to the left.

Every nomination is not Armageddon. In this case there is just not a compelling reason for the right to go to the mattresses.
6.9.2009 4:04pm
PaulTX (mail) (www):
Barbra, supra:


I don't know why you should be confused Paul. From the post ...


Because I didn't take my browser window down far enough, and therefore didn't see the last three paragraphs. (Ugh!) Thank you for pointing this out.
6.9.2009 4:09pm
LTR:
There aren't too many things I agree with Obama, but issue of when it is OK to vote against a judicial nominee is one of those things. Judges are really no different than any other thing President proposes to Senate. If it's wrong to vote against Sotomayor on ideological grounds, than it's wrong to oppose Obama's budget on ideological grounds.
6.9.2009 4:15pm
rosetta's stones:
"...go to the mattresses."

If Obama nominates a fumbler like Granholm next time, we'll see DEFCON 3 levels of mattress deployment.

This is what I mean about Obama deferring to Congress this time. He really did so, and it'll make his and their job much easier as a result.
6.9.2009 4:19pm
Just an Observer:
If Obama nominates a fumbler like Granholm next time, we'll see DEFCON 3 levels of mattress deployment.

Perhaps. DEFCON 3 would also need more votes for the Senate minority.

But I suspect that Obama realizes his political capital is not infinite and his legislative agenda is overwhelming. On this nomination he chose not to pick a fight. On some other matters related to law and justice, he has run like a bespectacled nerd from the schoolyard bully.

(I can't mix any more metaphors into this comment without my head exploding, so I will quit.)
6.9.2009 4:34pm
Andrew J. Lazarus (mail):
OMG, Justice Alito is race-obsessed. Via Yglesias, I learn of Justice Alito’s speech “Reflections on growing up as an Italian-American in New Jersey”.

Those who object to Sotomayor because they would prefer a candidate nominated by Sarah Palin, OK, that makes some sense. But save us the hunt for some serious bipartisan objection to peg it to.
6.9.2009 4:35pm
Cato The Elder (mail):

In fact, the makeup of the Supreme Court has become steadily more conservative for several decades now.


Can I escape Stone's Wickard v. Fillburn? What about Flemming v. Nestor? What irreparable damage did the Warren Court cause to the partisan fracturing of this country when they imagined rights out of thin air in Roe v. Wade? How many kids are wasting valuable years of their lives as a result of Griggs v. Duke Power Company? What inestimable hold do the travails of Earl Warren hold over my life? In comparison, what can Justice Black do for me now?
6.9.2009 4:47pm
KWC (mail):
What should be really frightening to you are judges who don't acknowledge that their personal backgrounds affect their jurisprudence.

Who was the Supreme Court justice who reportedly admitted
to his clerk that he had never met a gay person before, even though that clerk was gay, as had been many before?

Everyone knows that Blackmun's Roe v. Wade decision was influenced by his interactions with a largely female family and that the same goes for Rehnquist who started to understand the feminist perspective becuase he had women in his family. Unfortunately, most of these justices don't also have ethnic minorities or open LGBT people in their families or inner circles. It's easier to distrust that which you do not know and this shows in many a Supreme Court decision.

I mean, dissent in Plessy anyone? The we must fear the Yellow Man bit? Something tells me that an Asian-American justice wouldn't have written that.
6.9.2009 4:53pm
Just an Observer:
Cato,

Is your plan for the Senate minority to filibuster every Supreme Court nomination by Obama until he gives up and nominates Brett Kavanaugh?

That strategy does not strike me as realistic.
6.9.2009 5:02pm
second history:
. . . I hope the debate over Sotomayor’s nomination will rise to a higher level. . . .

Conducted substantively and civilly, discussion and debate over her record of judicial decisions and the likely effect of her confirmation could be edifying for the public (not to mention for our students). But this requires critics to present their critiques in a substantive and honest way. Unfortunately, much of the discussion about Sotomayor to date has failed to meet that standard. It’s not too late for something better.


Prof. Adler won't be surprised by the discussion so far. . . disappointed, maybe, but not surprised.
6.9.2009 5:04pm
CJColucci:
Out of respect for the thread, I'm going to stop now because I think I've said all I have to say, and I'm starting to cross-post. One question though:

"Uh, yeah. News flash, no one on the liberal side really cares if there are 25 Republican votes against Sotomayor."

Then what's the problem? No one's suggesting a filibuster (if it could even work) so what else is there to complain about? What DOES the "liberal side" really object to? If this is all just an internal soul-searching moment among the political right, how about leaving us to conduct it in peace? :)


At the risk of giving the game away, there isn't any "problem." Nobody on the liberal side does much mind if 25-30 Senators say -- or even actually think -- that a boring, mainstream judge slightly to the left of the actual center, as opposed to what certain political factions think is the center, is too extreme to vote for. (I doubt if anyone on the conservative side cared that Roberts or Alito missed out on a comparable number of votes, either.) That's fair game, and that's how we all play it most of the time.
The real story is that, whatever reasonable case can be made for opposing Sotomayor, the actual, existing, high-profile opposition is increasingly deranged and unhinged. The dirty little secret is that the liberal side doesn't mind this one bit. They like it. Indeed, they love it. As Napoleon once said, never interfere with the enemy when he is in the process of destroying himself.
6.9.2009 5:09pm
Cato The Elder (mail):
Just an Observer,

Of course not. I am just pointing out that the fact that the Court is nominally conservative now isn't really meaningful or even noteworthy, because history has shown that the "liberal" precedents fundamentally circumscribe the acceptable scope of any conservative "activism" on the Court, used in the sense that mensch Frank Cross uses the term. As a realist I accept the fact that the kind of libertarian conservatism I enjoy is continually fighting an essentially defensive battle across all the branches of government. So as Bork put it -- though I am not endorsing his views in toto -- we inevitably slouch further and further towards Gomorrah.
6.9.2009 5:17pm
rosetta's stones:
JAO, never mind anybody else's opposition, a Granholm nomination would likely bring on DEFCON 3 from the Blue Dogs. I doubt those guys will go for a run-of-the-kennel leftist poodle.
6.9.2009 5:21pm
Just an Observer:
CJColucci: (I doubt if anyone on the conservative side cared that Roberts or Alito missed out on a comparable number of votes, either.) That's fair game, and that's how we all play it most of the time.

Not always. Scalia, for example, was confirmed 98-0.

I, for one, did think the Democratic votes against Roberts and the pro forma filibuster against Alito were significant, and a net negative.

If party-line votes on Supreme Court nominations become the new normal, there is little hope of recovering some comity in our politics.
6.9.2009 5:22pm
loki13 (mail):

we inevitably slouch further and further towards Gomorrah


Personally, I kind of like Gomorrah. No de jure segregation. Domestic violence is punished. Child molestation isn't just "kept in the family". Women are allowed into higher education and can have careers. I get to read informed (and unhinged) commentary on the intertubez. I can quickly look up cases (and check their precedential value) and *ahem* charge clients for that using westlaw, instead of hitting the stacks. I can choose between sashimi, curry, carne asada tacos, and bi bimi bop when I'm hungry- and that's just on this block. The teevee gets, like 700 channels (not that I really watch it).

And the new Star Trek movie was awesome.

Actually, I really like Gomorrah.
6.9.2009 5:30pm
Joseph Slater (mail):
I'm guessing what would really bring the "DEFCON 3" opposition would be a nomination that would change the balance of the court: for example, if Scalia, Thomas, Roberts, or Alito left the court while Obama (or another Dem.) was President.

I'm not saying that would be a principled reason for the opposition to dig in further, but I predict it would happen that way. I think something along those lines happened on the other side when the relatively moderate O'Connor was replaced by someone significantly more right-wing.
6.9.2009 5:34pm
Cato The Elder (mail):

Personally, I kind of like Gomorrah...I really like Gomorrah.

Loki13,

Were you under the impression that Sodom and Gomorrah were some sort of backwards cesspits in the desert? No, no, let me disabuse you of that understandable ignorance. They were cities of sumptuous luxury that had the pleasures of "a fullness of bread" and "an abundance of idleness". I suppose the Biblical lesson we are supposed to draw is perhaps that it was this laxity of diligence that caused their indulgence in sexual immorality. Think kind of like Las Vegas, but more old-school.

And you know, I'm sure all the Sodomites liked Sodom, too. At least they did until they gruesomely perished in a furnace of sulfur and righteous hellfire by their own causing.
6.9.2009 5:51pm
Desiderius:
"can and should"

The two should not be so readily conflated.
6.9.2009 5:52pm
Andrew J. Lazarus (mail):
Cato is certainly persuasive in his case that the Republican and anti-Sotomayor movements are not centered around religious nuts.
6.9.2009 6:02pm
Cato The Elder (mail):
AJL,

Are you aware that you are evangelizing for Jesus by having an advertisement for one of his most famous miracles in your name?
6.9.2009 6:11pm
Jonathan H. Adler (mail) (www):
Jim Fast wrote:

If you have previously blogged about this than sorry, but who would be on your short list?


Were there a conservative administration, and I was asked to identify people for consideration who actually have the sorts of qualifications that are typically required, my list would include (in no particular order)
- Michael McConnell
- Diane Sykes
- Maureen Mahoney
- Jeff Sutton
- Paul Clement
- Viet Dinh
- John Cornyn
- Consuelo Callahan
- Janice Rogers Brown
- Miguel Estrada
- Paul Mahoney
- Alex Acosta
- John Manning
Of course, I'm sure there are others, and deeper consideration of some of those above (and their work) might cause me to reconsider. There are also some who would not be on a short-list now, but could well deserve to be on one 4-8 years from now (e.g. Ted Cruz). Also, I'm excluding some -- including some of my co-bloggers -- who are simply outside the realm of potential nominees as libertarian-leaning academics.

JHA
6.9.2009 6:12pm
Desiderius:
Mark N.,

"It's a bit of a cliche, but I think to a large extent personality-driven blowhard "analysts" are to blame: the Michael Moores, Rush Limbaughs, Bill O'Reillys, Keith Olbermanns, Glenn Becks, Lou Dobbses, and Sean Hannitys of the world are driving political "analysis"."

Cliches get that way because they're true. Here's hoping that more of our fellow citizens find their way to VC where they can read Mark N.'s take rather than the vapidity you note.

Geo,

"Conservatives, mostly being people of honor and principle, fall for it nearly every time too. The hell with that."

Hell's pretty hot. Sure you wouldn't rather reconsider?

If your opposition is as evil as you claim (and I would say that there is a hell of a lot more evil afoot among the Leftist rank and file than our Liberal commenters are prepared to allow themselves to become cognizant of), then it might be some consolation to reflect upon evil's capacity for consuming itself, without any assistance from the good, one way or the other.
6.9.2009 6:18pm
Desiderius:
JHA,

Eugene Volokh should be on any non-left shortlist.

Cato,

Many thanks for your sincere explication of your concerns - I think they poignantly reflect the disquiet that the Sotomayor nomination stirs in many non-left/legal realist minds and hearts.

As for the nominee herself, given the fullness of her record, I don't think that she's quite the droid that you're afraid of.

I'm slightly in support, and, given the alternatives, enthusiastic. The milieu out of which she has emerged? Markedly less so.
6.9.2009 6:26pm
Leo Marvin (mail):

Judge Sonia Sotomayor would not have been my first pick to replace Justice David Souter

Me neither. I was thinking Alec Baldwin.
6.9.2009 6:40pm
M N Ralph:

Were there a conservative administration, and I was asked to identify people for consideration who actually have the sorts of qualifications that are typically required, my list would include (in no particular order)
[snip]
- Viet Dinh
- John Cornyn
[snip]



Dinh? I'm left leaning, but his defense of the constitutionality of the DC Voting Rights Act really makes me question his merit.

Cornyn? I've always disliked him, but his comments concerning violence against judges during the Schiavo incident made me truly despise him. Besides he's always overtly partisan. It would be like Obama nominating Schumer.
6.9.2009 6:43pm
Allan Walstad (mail):
A few thoughts:

1. One might suppose that a wise Latina's life experiences would have taught her the corrosiveness of statements smacking of "my kind of people do it better than yours."

2. Without ultimately trying to derail Sotomayor's nomination, there is value in trumpeting her shortcomings rather persistently because, if done well, it can cost Obama some of his political capital. In the end, I wonder if senators who don't think she's a good nominee, but want to show a certain level of deference (especially when they have no hope of stopping her!), might express their concerns and abstain.

3. The increasing contentiousness of judicial nominations stems at least in part from the fact that the feds are operating well outside of their Constitutional restraints and have not been stopped by the Court. So it does not come down to appointing judges who will enforce the Constitution; rather, it comes down to appointing judges who will violate the Constitution (or permit it to be violated) in the politically preferred ways. I read the piece by Jeff Rowes that Randy Barnett referred to in a commentless post yesterday, and it was right on target in that regard.
6.9.2009 7:07pm
Leo Marvin (mail):
Des,

Thought you'd find the ad on this page interesting. (In case the ad changes, here's what it was now.)
6.9.2009 7:08pm
Desiderius:
LM,

Berlin would no doubt be aghast. Or perhaps not - he had to deal with worse than Leiter in his time, and handled them with uncommon aplomb.

I can't read Leiter for more than five minutes for the same reason I can't listen to Rush for more than three. To me, character speaks louder than ideology, and those two have a ways to go to merit my ear.

Not so with the posters on this blog, and many of the commenters. For which I am eternally grateful.

Fish, on the other hand, is an interesting bird, and even was when I vehemently disagreed with what he was peddling.

In a vain attempt to connect with the thread, reading the words of Sotomayor and even moreso Obama is night and day from reading those of Leiter and fellow stand-stillers.
6.9.2009 7:44pm
Eli Rabett (www):
OK, Obama is re-elected in 2012, and steps down in 2016. In 2017 {Scalia, Thomas, Kennedy} step down. President Clinton nominates Obama. Pass the popcorn
6.9.2009 8:07pm
RPT (mail):
"RS:

Moving beyond the affirmative action taint of her nomination, she's got very solid qualifications."

Aside from the fact that she's "tainted" by her Puerto Rican brown skin, she's pretty good, eh? Right out of the revival of West Side Story.....
6.9.2009 8:22pm
Oren:



And you know, I'm sure all the Sodomites liked Sodom, too. At least they did until they gruesomely perished in a furnace of sulfur and righteous hellfire by their own causing.


The take home message here people is to enjoy our decadent civilization to the fullest. That way, we can at least have something to show for when some spiteful and petty God finally gets around to showing us the infinite mercy of his fiery wrath.
6.9.2009 8:22pm
Oren:

Also, I'm excluding some -- including some of my co-bloggers -- who are simply outside the realm of potential nominees as libertarian-leaning academics.

So, if by the constraints of the question we can't get someone we want ...
6.9.2009 8:25pm
deepthought:
FWIW, the Supreme Court has lifted the stay on the Chrysler/Fiat deal. It is expected to close possibly tomorrow.
6.9.2009 8:55pm
Desiderius:
"FWIW, the Supreme Court has lifted the stay on the Chrysler/Fiat deal. It is expected to close possibly tomorrow."

Well, what would you expect from such a pro-business, not to say fascist, court? Let those Hoosier retirees eat CAFE!
6.9.2009 9:19pm
Oren:
The Hoosier retirees bought Chrysler debt at 43¢/$, indicating that they had serious doubts about the prospects of repayment.
6.9.2009 10:02pm
ReaderY:

So, Professor Adler believes in bringing only a knife to a gunfight, because he prefers the good old days of knife fights even though the other side started regularly bringing guns to the fight back in 1987.


One problem with this line of argument is that when this happens on the streets, the general public sometimes gets frustrated with all the shooting going on and get the idea of trying to clean the streets up by throwing the warring gangs out. Street gangs have to deal with the risk that they will sometimes succeeed.

If political gangs' talk (and behavior) starts emulating street gangs, there is perhaps some risk that the public might start getting similar sentiments and start trying to take similar actions. From a strictly hardnosed point of view of course. No soft soapy sentiment from this quarter. But is is a risk.

I do seem to recall there has been some sort in power in both the White House and Congress. I realize a take-charge gangbanger with a war to fight may not have time to notice these things. But I'm wondering if perhaps this risk may have actually been realized?
6.10.2009 3:12am
ReaderY:
some sort of change in power
6.10.2009 3:15am
Daniel Chapman (mail):
I think you got the metaphor mixed up, ReaderY... I think it's pretty well established (on this thread anyway) that it's the democrats who have escalated the confirmation fights. They definitely haven't suffered electorally because of it.
6.10.2009 7:16am
Oren:
Daniel, given that Reps have controlled the White House for most of recent history, it's not surprising that most of the recent examples of obstruction by Congress came from Dems. That's not to excuse the behavior, but it's at least plausible to imagine that, had the Dems had more chances to nominate, there would a much higher chance of having seen GOP obstruction.
6.10.2009 10:50am
loki13 (mail):

Were you under the impression that Sodom and Gomorrah were some sort of backwards cesspits in the desert? No, no, let me disabuse you of that understandable ignorance.


No, I was fully aware of that. I just don't happen to understand either of the following:

1. What a society that believes in religious pluralism should overly trouble themselves with one particular myth.

2. Why people keep invoking the idea that somehow we are worse off (slouching toward Gomorrah) than in some other time. Just because things are acknowledged today doesn't mean they didn't occur before. I'd rather live today than at any other time previous- and you've done nothing to disabuse me of that notion. I listed a whole bunch of reasons, from serious (segregation, women's rights) to semi-serious (I really like sashimi) to joking... I fail to see how the halcyon days of yore were really that halcyon.

Back to on topic, I think it is a good day when SCOTUS (97% White Male throughout history, because that's how we roll!) is going to add a latina. Preferably wise.
6.10.2009 11:02am
Jon Roland (mail) (www):
From Scott Huminski:

SOTOMAYOR IGNORANT OF THE LAW

Sotomayor flunks on getting the most basic principle of appellate law wrong – the Standard of Review.

In Huminski v. Haverkoch, 11/5/04, 03-7036 2d. Cir., Sotomayor reveals an ignorance of the law by failing to apply the correct standard of review to an important civil rights case. She found appellate review was for reversible error when the correct standard of review for such a case (summary judgment) is De Novo.

A simple google on, “standard of review for summary judgment de novo” supplies tens of authorities on the issue. I guess Sotomayor would rather be wrong than google on such a rudimentary issue. She also could have assigned her flock of law clerks to research the issue. Further, on a motion for rehearing specifically pointing out her error she did not act and correct it.

Here is the link to the Sotomayor summary order from this case in which she presided over.

Legal papers here.

Where the order states “For the Court”, it refers to Sotomayor and the 2 other judges on the case.

Also see a different case of mine, Huminski v. Corsones, No. 02-6201 (2d Cir. 10/07/2004) (“We review a district court's grant or denial of summary judgment de novo.”)

-- Scott Huminski
(202) 239-1252
6.10.2009 1:07pm
Daniel Chapman (mail):
Oren: I could argue with you over the significance of Ginsburg/Breyer, but chances are you already know what I'm going to say and I'm wasting my breath. I'll just point out that "who started it" is irrelevant to my response to ReaderY. He said that an escalation to "guns" from "knives" would lead to a voter backlash and, noting the recent change in power in washington, said that this may have already happened.

Obviously he's confused. That's all I was saying.
6.10.2009 1:14pm
loki13 (mail):
Let's see-


SOTOMAYOR IGNORANT OF THE LAW

Sotomayor flunks on getting the most basic principle of appellate law wrong – the Standard of Review. . . . Sotomayor reveals an ignorance of the law by failing to apply the correct standard of review to an important civil rights case. She [Sotomayor] found appellate review was for reversible error when the correct standard of review for such a case (summary judgment) is De Novo.



Where the order states “For the Court”, it refers to Sotomayor and the 2 other judges on the case.


Perhaps you meant to write that Judge Jose Cabranes (also on the panel) was ignorant of the law. But then Ricci wouldn't be so sweet, eh?
6.10.2009 1:30pm
CJColucci:
Jon, Scott, try reading the damn thing before accusing someone who has been on the bench for so long of so elementary a legal error. There's no discussion at all of the standard of review, just the statement that, upon the court's review (under whatever standard it used) nothing in the record rises to the level of reversible error. "Reversible error" is a possible result of review, not a standard of review. There is no "reversible error" standard of review, and nothing in the opinion suggests that any of the judges think there is.
6.10.2009 1:33pm
loki13 (mail):
I have found two relevant passages in the linked document.

1.

We have considered all of plaintiff’s claims on appeal and found them to be without merit.

Dunno. Sounds like a de novo review of a question of law (summary judgment). There was no reversible error found, as described earlier.

Here's the real giveaway:

2.

(Scott Huminski, pro se, on the brief)
6.10.2009 1:42pm
Bouldergeist (www):
That is the real giveaway, Loki. Pro se litigants are routinely discriminated against in our courts, even when they have an Ivy League education and law degree from a top-tier school and forty years' experience at bar. See, Cogswell v. United States Senate, No. 08-cv-1929-REB-MEH (D.Colo. Mar. 2, 2009). Judge Blackburn described Cogswell's arguments as "imponderous and without merit" ... but then again, he does that with every pro se litigant, irrespective of the merits of the case; you have to read the briefs themselves to learn the truth.

Federal judges are sociopaths; they tell us that themselves (mostly, in dissents and law review articles).
6.10.2009 4:17pm
Bouldergeist (www):
Jon, Scott, try reading the damn thing before accusing someone who has been on the bench for so long of so elementary a legal error.
I've seen too many blinding-stinking obvious errors from experienced judges who ought to know better. Surely, Michael McConnell of the Tenth Circuit would know that a court without jurisdiction can't dismiss a case "with prejudice." So, how did he screw up Harrington v. Wilson, No. 06-1418 (10th Cir. Jun. 7. 2007) (withdrawn)?

As Loki said, the giveaway was that the plaintiff was pro se. Judges hate pro se cases because they actually have to work -- which is what they became judges to avoid.

The reality is that appellate court judges don't even bother to read the opinions "they" write any more. our federal circuit courts have become de facto certiorari courts,William M. Reynolds &William L. Richman, Elitism, Expediency, and the New Certiorari: Requiem for the Learned Hand Tradition, 81 Cornell L. Rev. 273, 275 (1995-96), where reviews of appeals filed by disfavored litigants -- and especially, pro se litigants -- generally take less than ten minutes, see, e.g., Alex Kozinski, Letter (to Judge Samuel A. Alito, Jr.), Jan. 16, 2004 at 5 (150 rulings made in a two-day session); Perfunctory Justice; Overloaded Federal Judges Increasingly Are Resorting to One-Word Rulings, Des Moines Register, Mar. 26, 1999, at 12 (fifty appeals decided in two hours).
6.10.2009 4:26pm
loki13 (mail):
Bouldergeist,

Is there discrimination against pro se litigants? Perhaps. Just as I am sure that particular judges have a bias against certain other types of litigants (and almost all uniformly do a good job of correcting for that bias). My experience in the courtroom has shown me the following:

1. Judges do not discriminate against pro se litigants.

2. Pro se litigants, even lawyers, do a very bad job. This can be subdivided into two areas:
a) Pro se litigants who have legal training (aka lawyers). There's a reason for the phrase "A lawyer who represents himself has a fool for a client." There's a whole host of reasons for this- I recommend looking into it.
b) Pro se litigants without legal training. I would say over 99% of the times I have seen this it has either been farcical or tragic (depending on whether the person was a nutter or was well-meaning and had a good case and just kept missing basic things, e.g. evidentiary objections). The law involves a lot of complicated interlocking pieces that, quite honestly, even some lawyers don't grasp- watching pro se litigants is often a painful experience.

Anyway, I have found it to be a useful shortcut when I am confronted with angry rants about someone "done wrong". If I see it was a pro se case, it is a useful heuristic for me to not give it much credence. Sure, maybe I might miss that one sparkling diamond; but it cuts down on the Texas-sized cow patty I'd have to wade through.

(As for the original post, it was clearly an attempt to bring attention to that litigants case. As I pointed out above, it was a three judge panel, not Sotomayor, even though the entire post referred to it as Sotomayor's decision.)
6.10.2009 4:31pm
John Rosenberg (mail) (www):
Andrew Lazarus wrote:

OMG, Justice Alito is race-obsessed. Via Yglesias, I learn of Justice Alito’s speech “Reflections on growing up as an Italian-American in New Jersey”.

I haven't been able to find the text of this speech. Thus it would be helpful, and relevant to this debate, if Lazarus, Yglesias, or someone could provide some quotes from it where Judge Alito stated his belief, or even hope, that someone fortunate enough to have grown up Italian or Italian-American (whether cultural or inherited) could, as a judge, make "better decisions" than non-Italians.
6.10.2009 4:35pm
Bouldergeist (www):
Loki:
Perhaps you meant to write that Judge Jose Cabranes (also on the panel) was ignorant of the law. But then Ricci wouldn't be so sweet, eh?
Personally, I could give a frig about Ricci, apart from its demonstration of Sotomayor's sloth.

I'm non-partisan about this. All I ask of a federal judge is competence, impartiality, and diligence, and it is rare that I am pleased. For instance, in a recent interview related by the New York Times, Justice Thomas disgraced both himself and the judiciary with the following statement:
“Today there is much focus on our rights,” Justice Thomas said. “Indeed, I think there is a proliferation of rights . . . I am often surprised by the virtual nobility that seems to be accorded those with grievances,” he said. “Shouldn’t there at least be equal time for our Bill of Obligations and our Bill of Responsibilities?”
Adam Liptak, Reticent Justice Opens Up to a Group of Students, N.Y. Times, Apr. 13, 2009.

Justice Thomas has no standing to pontificate about obligations or responsibilities, as he has been too busy writing paeans to himself (Clarence Thomas, My Grandfather’s Son (2007)), giving insipid interviews (A Conversation with Justice Clarence Thomas, Imprimis, No. 36, Vol. 10 (Oct. 2007)), and generally being a celebrity to properly attend to the ‘day job’ we pay him so handsomely to do.

I'm not certain there is even a "rule of law" left in this Third World toilet of a country, owing to the Court's contumacious abandonment of its error-correction role. For many, "the law" is whatever a district court judge wants it to be on any given day, because neither the circuit courts nor the Supreme Court perform anything more than a perfunctory review of errors at the trial court level.
6.10.2009 4:37pm
Bouldergeist (www):
Loki:
Pro se litigants who have legal training (aka lawyers). There's a reason for the phrase "A lawyer who represents himself has a fool for a client." There's a whole host of reasons for this- I recommend looking into it.
There's also a reason for the phrase "the only difference between a lawyer and a lady of the evening is that the latter is honest about what she is doing." There's a whole host of reasons for this- I recommend looking into it.

I prefer to deal in facts, Loki.

What would you say about a judge deciding a case where s/he is a defendant in tort, the plaintiff is asking for roughly $40 million in compensatory and punitive damages, at least sixteen non-conflicted judges are available and authorized by law to hear the matter, and the appeal is statutorily required to be heard by another court, which are the salient (and, judicially noticeable) facts of Smith v. Mullarkey, 121 P.3d 890 (Colo. 2005) (per curiam), cert. denied, 547 U.S. 1067 (U.S. Apr. 17, 2006) (No. 05-1055). Hard to blame that on the pro se plaintiff, don't you think?

I've seen too many cases like this, Loki. When you look at the facts, the pro se litigant's arguments are often better than his or her opponents'. As Senior Judge John Kane of the District of Colorado admits:
… all pro se cases, not just civil rights cases, are treated shabbily and superficially by our courts, both bench and bar. On the bench or in opposition to a pro se litigant, it is very tempting to become annoyed because, quite frankly, it takes more time and effort to deal with the issues as they are presented, there is no implicit rebuttable presumption of trust, as there is with lawyers admitted to practice, that the citations to authority are accurate, on point and unconflicted. Perhaps, more to the point, pro se pleadings —generally speaking— force one to revisit fundamental assumptions and concepts one learned in law school. I don't think this is bad to revisit what we once learned, it's just that it takes a lot more time and time is a very precious commodity.
John L. Kane (Senior Judge, District of Colorado), e-mail (to Sean Harrington), Feb. 3, 2008.
6.10.2009 4:47pm
Bouldergeist (www):
Loki:
(As for the original post, it was clearly an attempt to bring attention to that litigants case. As I pointed out above, it was a three judge panel, not Sotomayor, even though the entire post referred to it as Sotomayor's decision.)
I don't doubt that for a second, but this is a discussion we as a society need to have. What kind of sense could it possibly make for SCOTUS to declare that a state judge must recuse himself if “the probability of actual bias rises to an unconstitutional level,” Caperton v. A.T. Massey Coal Co., No. 08-22 (U.S. Jun. 9, 2009), slip op. at 16, but in the real world, it is perfectly acceptable for a state judge to decide a case in which she is legitimately a defendant in tort?

The justices of the United States Supreme Court have reduced "Equal Justice Under Law" to a mere shibboleth on the frieze of the Supreme Court building, because in the real world, lower courts only follow "binding" precedent is when it takes them where they wanted to go in the first place.
6.10.2009 4:56pm
Scott Huminski (mail):
So Loki,

What are the standards of review

de novo
plain/reversible error
abuse of discretion
and few more by jurisdiction.

Hopefully you are not a lawyer because if you don't know these basic concepts you are dangerous.

Very sophisticated comment about pro se litigants, hmm, because you can't afford a lawyer and you are not one you are an idiot??

-- scott huminski
6.10.2009 4:57pm
CJColucci:
Bouldergeist:
So what mistake, exactly, did the Huminski panel make? Or did you just drop in to vent about pro se cases generally?
6.10.2009 5:02pm
Bouldergeist (www):
Loki:
Back to on topic, I think it is a good day when SCOTUS (97% White Male throughout history, because that's how we roll!) is going to add a latina. Preferably wise.
I wouldn't give a damn if she were a green Orion slave girl. I just want something that looks like a legal system, so that I can invoke my rights as a citizen with some semblance of confidence that they will be respected. In America, you can have your house ransacked and your phones tapped by the government without even so much as a warrant. If you have a secured lien, that and a dollar won't buy you a latte at Starbucks, for all the protection the law provides. I want to see judges who take bribes like Edward J. Nottingham (there was no other way that he could have afforded his weekly ration of Spitzer-class hookers on a judge's salary without his wife noticing) prosecuted to the fullest extent of the law (he won't even be prosecuted, and is back practicing law). I want to know that no man is above the law, and none are beyond its protection.

I'd have a better chance of finding that in Micronesia than in this Third World toilet.
6.10.2009 5:08pm
loki13 (mail):
Mr. Huminski,

I don't bother with arguments ad verecundiam, as I post anonymously, but if you have spent time on this blog you might be aware that I have some small legal knowledge (not that I know everything).

That said, I would recommend the following:

1. I believe your comment re: standards of review is actually addressed to CJColuci. I wrote that summary judgment (dealing with a matter of law) is de novo. I just think the court used poor wording, as I also pointed out (considering all claims and finding them without merit usually sounds like a de novo review, but because of the poor wording it is unclear- they never articulate their standard).

2. As for your last comment, I highly recommend looking at the comment policy (infra). While I do not believe you are an idiot, such wonderful language does not do much to bolster your own credibility about your position.

Best,
Loki13
6.10.2009 5:12pm
Bouldergeist (www):
Colucci:
So what mistake, exactly, did the Huminski panel make? Or did you just drop in to vent about pro se cases generally?
A mistake of transparency. If Scott Huminski doesn't know why he lost, our system has failed him. As Lord Chief Justice Goddard observes, “Time and again this court has said that justice must not only be done but must manifestly be seen to be done." Rex v. Justices of Bodmin [1947] 1 K.B. 321, 325.
6.10.2009 5:14pm
loki13 (mail):

I prefer to deal in facts, Loki.

What would you say about a judge deciding a case where s/he is a defendant in tort, the plaintiff is asking for roughly $40 million in compensatory and punitive damages, at least sixteen non-conflicted judges are available and authorized by law to hear the matter, and the appeal is statutorily required to be heard by another court, which are the salient (and, judicially noticeable) facts of Smith v. Mullarkey, 121 P.3d 890 (Colo. 2005) (per curiam), cert. denied, 547 U.S. 1067 (U.S. Apr. 17, 2006) (No. 05-1055). Hard to blame that on the pro se plaintiff, don't you think?


The singular form of anecdote is not data.

I only have my own (anecdotal) information to go on. The majority of pro se litigation I have seen comes in the following fora:
1. Criminal Trial: really, really bad decision. Usually by prisoners that just barely passed the competent to testify. There was one exception, and he was quite good.
2. Prisoner Pro Se: Infinite amount of time... most of it is quite bad, but there are a few good jailhouse lawyers.
3. Family Pro Se: This is where the tragedy comes in; for the love of all that is holy, please get a lawyer. Please.
4. Smattering of random civil cases: I've seen a lot of nutters (fringe on the flag, name was capitalized yada yada) and one good person who, unfortunately, didn't know quite enough about evidentiary rules and really shot themselves in the foot on a key issue.

So there's that. Pro se litigants aren't all bad, and they shouldn't be discriminated against. Their claims should be taken seriously by the judges hearing their cases. But I'm not their judge, and since the overwhelming majority of cases I've seen involve (nutty? questionable?) claims, I have found it useful on these here intertubez to ignore them unless they've been given some other signal of quality; Nothing from Mr. Huminski (especially the way he keeps going after Sotomayor even though it was a panel decision) is giving me that signal.

I'd be happy to see a longitundinal study, if you know of any.
6.10.2009 5:22pm
Bouldergeist (www):
Loki:
I just think the court used poor wording, as I also pointed out (considering all claims and finding them without merit usually sounds like a de novo review, but because of the poor wording it is unclear- they never articulate their standard).
I don't think that any one of the three judges bothered to read the opinion he got. In most Circuits, oral argument is a rarity, and some judges are assigned the case and dispose of it the same day. When you submit a case for appeal, you assume that the judges will at least read your brief, and it is a certainty that a judge who was assigned a case on January 7 and decided it on January 7 did not read the 40,000 words or so in the briefs and write the opinion the same day.

What would you say to the forty or so appellants (pro se or represented by counsel) whose appeals were decided in Judge Arnold's two-hour session?
6.10.2009 5:22pm
loki13 (mail):

If Scott Huminski doesn't know why he lost


I'm pretty sure the trial court explained to Mr. Huminski why he lost. The appellate court was basically telling Mr. Huminski they agreed with the trial court.
6.10.2009 5:24pm
loki13 (mail):

What would you say to the forty or so appellants (pro se or represented by counsel) whose appeals were decided in Judge Arnold's two-hour session?


You had your three minutes in court?

:P
6.10.2009 5:26pm
Bouldergeist (www):
Loki:
The singular form of anecdote is not data.
Even one incident like that ought to shock the conscience -- just as it did in Caperton.

I'm looking at this problem as more of a systemic breakdown, which affects more than the stray pro se litigant. How can you plan your affairs with confidence if you cannot know if your actions are within permissible bounds? If it happened to Litigant A and Litigant B, it could happen to you.

Judicial misconduct is like a bear in the woods: while you might not always see him, when you find his paw-print in the mud, you know he’s out there. While few litigants can ever expect to see a wad of bills being slipped under a robe, or
the kind of judicial favor-trading described by Prof. Dershowitz, Alan M. Dershowitz, Supreme Injustice: How the High Court Hijacked Election 2000 (New York: Oxford U. Press, 2001) at 116, the paw-prints -- irrational decisions, in irreconcilable conflict with precedent -- are difficult to miss. Professor Karl Llewellyn bluntly observed that judges routinely
manhand[le] ... the facts of the pending case, or of the precedent, so as to make it falsely appear that the case in hand falls under a rule which in fact it does not fit, or especially that it falls outside of a rule which would lead in the instant case to a conclusion the court cannot stomach.
Karl N. Llewellyn, The Common Law Tradition: Deciding Appeals 133 (1960).

Monroe Freedman, one of the nation’s leading scholars on judicial ethics, adds:
Frankly, I have had more than enough of judicial opinions that bear no relationship whatsoever to the cases that have been filed and argued before the judges. I am talking about judicial opinions that falsify the facts of the cases that have been argued, judicial opinions that make disingenuous use or omission of material authorities, judicial opinions that cover up these things with no-publication and no-citation rules.
Monroe Freedman (speech to a judicial council, as reprinted in, Anthony D’Amato, The Ultimate Injustice: When a Court Misstates the Facts, 11 Cardozo L.R. 1313, 1345 (1990).

Our system is broken, Loki.
6.10.2009 5:38pm
loki13 (mail):
Bouldergeist,

I would not disagree with you that our system has problems. From my perspective, most of the problems are caused by the combination of too much litigation and too few resources. Having worked with and observed trial and appellate judges at both the state and federal level, I have found the overwhelming majority to be conscientious and hardworking, performing what is often a thankless job. I can say that the vast majority (conservative and liberal), while having their own political beliefs, do not let those infect their opinions.

Do they get every thing right, all the time? No. They are not gods. But in the same way that an airplane crash is not evidence that we should never fly, evidence of human fallibility in judges is not sufficient to say that the judiciary is broken.
6.10.2009 5:47pm
Bouldergeist (www):
Loki:
I'm pretty sure the trial court explained to Mr. Huminski why he lost. The appellate court was basically telling Mr. Huminski they agreed with the trial court.
Not based on what I've seen. Some of the incontinent garbage I've seen in trial court would shock the conscience. For instance, whoever heard of a facial challenge to a state statute grounded in federal law being summarily thrown out in a summary bench order on Rooker-Feldman grounds?

Power minus accountability equals tyranny. The only way we will ever have a rule of law is if our judges are in some way personally accountable for their decisions.
6.10.2009 5:48pm
loki13 (mail):

The only way we will ever have a rule of law is if our judges are in some way personally accountable for their decisions.


Um, isn't this an ongoing debate? Didn't the framers have this one? How would they be accountable? To whom? We have a number of different systems (the laboratories of democracy and all that):

Lifetime tenure after appointment/confirmation (except impeachment) - the Federal Model
Elected
Appointed (political- e.g. by the governor), then elected
Appointed (non-political, selection board), then "retained"
etc.

There's some wonderful literature on the advantages and disadvantages of each. Great recent studies on the comparative efficiencies of elected v. appointed appellate judges, for example. Or you could do more of an Article I system. Again, though, the primary problem is that the rule of law is often counter-majoritarian; the more accountable you make the judges, the more pressure will be brought to bear on them to rule in a popular fashion (as opposed to upholding the rule of law).
6.10.2009 5:56pm
Bouldergeist (www):
Loki:
Do they get every thing right, all the time? No. They are not gods. But in the same way that an airplane crash is not evidence that we should never fly, evidence of human fallibility in judges is not sufficient to say that the judiciary is broken.
Back in the 1940s, 30% of federal appeals in civil cases were successful; today, that number is closer to 10%. And our federal judges are telling us why this is happening! As one federal district court judge reportedly admitted in open court:
THE COURT: At a conference of the Third Circuit, the Court of Appeals defended their unpublished opinions on the ground that they’re not well reasoned, they don’t give them much thought. So it’s hard to say that that’s a well-reasoned opinion that has any precedential value.
MR. WINEBRAKE: Well, we concede—
THE COURT: It’s instructive on what they’ll do without much thought.
Sarah E. Ricks, The Perils of Unpublished Non-Precedential Federal Appellate Opinions: A Case Study of the Substantive Due Process State-Created Danger Doctrine in One Circuit, 81 Wash. L. Rev. 217, 269 (2006) (emphasis added); see also, Kozinski, Letter, supra (unpublished opinions are “inedible sausage … not fit for human consumption”).

Unpublished appellate opinions make the 1960 Corvair seem like the pinnacle of achievement by comparison. If you knew that three out of every four commercial plane flights would crash, would you be willing to fly from Bozeman, Montana to Savannah, Georgia, changing planes in Denver and Atlanta?
6.10.2009 6:00pm
loki13 (mail):
Bouldergeist,

As much as I enjoy this conversation, it has certainly drifted off-topic and you seem very focused on the same sources for claims that I don't fully agree with.

The difference between 30% and 10% could be explained fairly simply-

There used to be more meritorious appeals filed. Because of the increasing allowance for Federal Appeals of what were state claims, and the increased allowance for indigent filings, there are many more appeals filed, period (just look at prison/prisoner litigation for starters). Then toss in the increased use of corporate lawfare (pursuit of colorable, but non-winning appeals for as long as possible in order to continue making money until appeals are exhausted). Anyway, I wouldn't lend much credence to that statistic.

If you want more high-quality opinions, then hire more judges and staff the courts better. It's a resource problem.

It's been fun. Take care.

Loki13
6.10.2009 6:07pm
Bouldergeist (www):
Loki:
There's some wonderful literature on the advantages and disadvantages of each. Great recent studies on the comparative efficiencies of elected v. appointed appellate judges, for example. Or you could do more of an Article I system. Again, though, the primary problem is that the rule of law is often counter-majoritarian; the more accountable you make the judges, the more pressure will be brought to bear on them to rule in a popular fashion (as opposed to upholding the rule of law).
The selection system doesn't matter. Colorado has a merit system, but the judicial discipline system is controlled by the judiciary, so no judge is ever punished -- even when he or she commits a federal felony. At least in states with judicial elections, someone has an incentive to expose wrongdoing, and those states have more robust policing mechanisms.

The English had an effective system for policing wayward officers, which we appear to have incorporated into Article III. Article III judges are the only American officials who enjoy a freehold in office; this freehold is conditioned on the maintenance of so-called "good Behaviour" in office. U.S. Const. art. III, § 1. As this provision was borrowed from the common law, English precedent is used to establish its contours. See United States v. Wilson, 32 U.S. 150, 160 (1833) (scope of pardon power determined by reference to English law, as the concept was taken from England).

By making an officeholder subject to removal for violating it, the condition of good behavior defined the powers of a given office. Coke listed three grounds for the forfeiture of good behavior tenure: abuse of office, nonuse of office, and willful refusal to exercise an office. Saikrishna Prakash and Steve D. Smith, How to Remove a Federal Judge, 116 Yale L.J. 72, 90 (2006) (citing Coke’s Institutes). Blackstone added that "the oppression and tyrannical partiality of judges, justices, and other magistrates, in the administration and under the colour of their office [could be prosecuted] either by impeachment in parliament, or by information in the court of king's bench." 4 Wm. Blackstone, Commentaries on the Laws of England 140-41 (1765). Thus by implication, the duty to be fair and impartial and to hear every case properly brought before his court were integral parts of the English judge’s job description.

The beauty of this system was that it wasn't necessarily enforced by either the King or Parliament, but by the aggrieved individual himself. Anyone could remove an officer of the Crown with a sinecure subject to good behavior tenure through a writ of scire facias. The best part of this is that there are no separation of powers issues, as the citizen is the sovereign.
6.10.2009 6:10pm
Bouldergeist (www):
Loki:
I would not disagree with you that our system has problems. From my perspective, most of the problems are caused by the combination of too much litigation and too few resources. Having worked with and observed trial and appellate judges at both the state and federal level, I have found the overwhelming majority to be conscientious and hardworking, performing what is often a thankless job.
The problem of insufficient resources feeds on itself. In Colorado, we had three full-time DC judges where we really needed eight, which was the genesis of the Cogswell case (lack of access to the courts = denial of due process). But the real cause is that federal judges too often replace the golden mete-wand of the law with the crooked cord of discretion (Coke). As Scalia recently pointed out, if all you needed was a lawyer who dutifully applied the law to the facts, his or her political leanings would be irrelevant. But if you are hiring an unelected and unaccountable petty dictator, political leanings actually matter. Accordingly, in Colorado, the two senators were of different parties, and they couldn't agree on judges because Bush wanted to put Bybee-class ideologues on the courts.

As for volume, that is to some extent a canard. Chief Judge Alex Kozinski of the Ninth Circuit is known to have written and/or edited fifty drafts of some published opinions, and has admitted to writing some decisions with the intent of getting them into casebooks. While those chosen few who got those jurisprudential Rolls Royces may delight in his craftsmanship, the rest who got rusted-out 1978 Yugos have reason to be livid. Being able to hold the Alex Kozinskis of the world accountable for sub-standard work would improve our system by several orders of magnitude.
6.10.2009 6:20pm
Scott Huminski (mail):
So Loki,

What are appellate standards of review???

Did you ever read in a ruling,

We review this case for reversible error
We review this case for abuse of discretion
We review this case de novo

-- scott huminski
6.10.2009 6:25pm
Bouldergeist (www):
Loki:
Because of the increasing allowance for Federal Appeals of what were state claims, and the increased allowance for indigent filings, there are many more appeals filed, period (just look at prison/prisoner litigation for starters).
The federal statistics remove the prisoner cases, counting them separately. Surprisingly, the percentage of successful prisoner appeals is nearly 10%, iirc.

As for corporate entities using delay tactics, do you really think that tactic wasn't used in 1940? I'd like to see some evidence to support that seemingly spurious claim.

Been fun. Hopefully, it will get someone out there thinking about the topic.
6.10.2009 6:25pm
Scott Huminski (mail):
Loki,

The appellant's briefs are at the original post. Why am I lost? The Center for Judicial Accountability will have the Appellees brief posted shortly.

Please point out my frivolous pro se ignorant points of law instead of a blanket assertion that all pro se litigants are idiots.

-- scott huminski
6.10.2009 6:30pm
Daniel Chapman (mail):
HOLY THREADJACK BATMAN!

How many blogs did you pull this on anyway?
6.10.2009 6:37pm
loki13 (mail):
Bouldergeist,

I really am bowing out after this. I noticed your last few posts and wanted to add a few things.

1. I checked out the Yale L.J. article. Interesting stuff, and a fascinating take. The authors gave short shrift (only a few sentences) to the idea of allowing for a private COA. I can imagine all sorts of difficulties with that, but I appreciate your pointing that out. Hadn't read that before. Learning is always good!

2. You did not provide a source for your statistics, so I was unaware that they broke out certain classes of appeals. If I had time to think it through and review the comparable datasets, I am sure there all sorts of other things that would pop out (for example, there weren't admin. agencies in the first data set). But that would require further study. I don't think the *natural* conclusion is that Judges are "worse". As for my knowledge of corporate litigation- it's anecdotal, but something I am quite familiar with. That and five dollars will get you a cup of joe at starbucks. I just haven't seen evidence of cost-benefit analyses being done in the 40s on prolonging litigation simply for the sake of prolonging it like I do today.

Again, I appreciate your points (and esp. the L.Rev. article). I have to go for real now.
6.10.2009 6:46pm
Scott Huminski (mail):
Well, I guess we have a bunch of cowards at this blog who are afraid to admit what appellate standards of review are and that Sotomayor doesn't have a clue.

-- scott huminski
6.10.2009 9:46pm
Daniel Chapman (mail):
Who here thinks someone picked up on Huminski's name from Loki's 1:42 post and has been trolling us ever since?

Successful Troll is Successful!
6.10.2009 10:15pm
CJColucci:
If Scott Huminski doesn't know why he lost, our system has failed him.

There's something to be said for personal responsibility. And as Yogi Berra once said, "Some people, if they don't already know, you can't explain it to them."
6.10.2009 10:37pm
David M. Nieporent (www):
I've seen too many blinding-stinking obvious errors from experienced judges who ought to know better. Surely, Michael McConnell of the Tenth Circuit would know that a court without jurisdiction can't dismiss a case "with prejudice." So, how did he screw up Harrington v. Wilson, No. 06-1418 (10th Cir. Jun. 7. 2007) (withdrawn)?
Good catch; the tenth circuit overlooked that. Of course, that doesn't change the fact that all of your claims were utterly meritless and/or frivolous, now does it?
6.10.2009 10:57pm
David M. Nieporent (www):
My experience in the courtroom has shown me the following:

1. Judges do not discriminate against pro se litigants.
Agreed. In my experience, they go out of their way to give every bit of leeway to pro se litigants. It's extremely annoying litigating against these people, because they can ignore rules and miss deadlines, and judges will give them yet another chance to get it right, prejudicing their adversaries who are represented by lawyers.
2. Pro se litigants, even lawyers, do a very bad job. This can be subdivided into two areas:
a) Pro se litigants who have legal training (aka lawyers). There's a reason for the phrase "A lawyer who represents himself has a fool for a client." There's a whole host of reasons for this- I recommend looking into it.
b) Pro se litigants without legal training. I would say over 99% of the times I have seen this it has either been farcical or tragic (depending on whether the person was a nutter or was well-meaning and had a good case and just kept missing basic things, e.g. evidentiary objections). The law involves a lot of complicated interlocking pieces that, quite honestly, even some lawyers don't grasp- watching pro se litigants is often a painful experience.
Also agreed. Unfortunately, pro se litigants tend to think the procedural rules are optional, and the substantive rules involve 'tricks' rather than substantive points of law. If you can find a cherry-picked quote, and the court doesn't rule in your favor based on said cherry-picking, then the court must be biased.
6.10.2009 11:18pm
Bouldergeist (www):
BG: I've seen too many blinding-stinking obvious errors from experienced judges who ought to know better. Surely, Michael McConnell of the Tenth Circuit would know that a court without jurisdiction can't dismiss a case "with prejudice." So, how did he screw up Harrington v. Wilson, No. 06-1418 (10th Cir. Jun. 7. 2007) (withdrawn)?

Nieporent: Good catch; the tenth circuit overlooked that. Of course, that doesn't change the fact that all of your claims were utterly meritless and/or frivolous, now does it?
First off, it's not my case. Second, have you read the briefs? I've seen a lot of cases where the court summarily dismissed perfectly valid claims by saying that "the plaintiff's arguments were unavailing."

According to judges, their colleagues are inveterate sociopaths, who routinely fabricate facts and sodomize binding precedent to achieve outcomes other than what would have occurred had they fairly applied the true facts of the case to the binding law of the jurisdiction. [Amusingly, they are always as pure as the driven snow.] Though this is rarely self-evident from a published opinion, the “canary in the coal mine” is often the dissenting judge -- who knows the secrets of freemasonry, and finds that he cannot stand the stench. This colorful dissent from the West Virginia Supreme Court is illustrative:
I have read, and re-read, and re-re-read, the majority’s opinion. I don’t know what was in the Kool-Aid they were drinking, but I believe that the opinion is one of the most factually misleading and legally pernicious cases to be produced by this Court . . .

If there is any light to be found in the majority’s opinion, it is in the fact that it did not actually address the parties’ legal arguments. I suspect it was because the majority opinion could not do so without either issuing an opinion unfavorable to the hospital, or issuing an opinion that was more factually and legally wrong.
Riggs v. West Virginia University Hospitals, Inc., Case No. 33335, 2007.WV.0000109 ¶¶ 159, 225 (W.Va. 2007) (Starcher, J., dissenting).

When a judge desperately wants a particular party to win, he or she becomes economical with the facts, or deliberately fabricates new ones. Dissenters will occasionally point this out, often in acerbic terms: "Today’s majority opinion is so far afield from what the court of appeals held, and what this case is all about, that it is my guess that the court of appeals’ judges ... and also the parties herein, will not recognize that we are discussing their case." Motorists Mut. Ins. Co. v. Said, 590 N.E.2d 1228, 1236 (Ohio 1992) (Douglas, J., dissenting).

Bottom line, I don't think you have the first clue as to what you are talking about, David.
6.11.2009 12:05am
peteSmith (mail) (www):
Loki wrote:

"I don't bother with arguments ad verecundiam, as I post anonymously, but if you have spent time on this blog you might be aware that I have some small legal knowledge . . . I highly recommend looking at the comment policy (infra)"

Why is it that some attempt to feebly demonstrate their own perceived brilliance with an obscure vocabulary. As Jerome Frank wrote, "Too many writers identify profundity with obscurity."

And David M. Nieporent wrote:



I've seen too many blinding-stinking obvious errors from experienced judges who ought to know better. Surely, Michael McConnell of the Tenth Circuit would know that a court without jurisdiction can't dismiss a case "with prejudice." So, how did he screw up Harrington v. Wilson, No. 06-1418 (10th Cir. Jun. 7. 2007) (withdrawn)?



Good catch; the tenth circuit overlooked that. Of course, that doesn't change the fact that all of your claims were utterly meritless and/or frivolous, now does it?

Aside from your evidently deferential take the Tenth Circuit panel's cursory 2-page memdispo, which itself was a cursory rubber-stamp/paraphrasing of former Judge Nottingham's adoption* of the magistrate's rather prolix --but nevertheless patently erroneous-- disposition of that case, upon what analysis have you based your conclusory findings?

I've looked into it. See Bloom &Hershkoff, Federal Courts, Magistrate Judges and the Pro Se Plaintiff, 16 Notre Dame J.L. Ethics &Pub. Pol'y 475, 477, 503 (2002) (describing general reference to magistrates as, “a way to funnel unimportant matters that society regards as annoying away from Article III judges to magistrate judges without life tenure, and so raise concerns about second class justice for unrepresented litigants. . . Some commentators warn that the use of magistrate judges for pro se cases will lead to the 'ghettoization' of indigent persons' claims: the possibility of creating a two-track system of justice-- district judges for wealthy litigants and magistrates for [less wealthy] litigants”). See also Manual for Complex Litigation, Third § 20.14 (Federal Judicial Center, 1995) (Article III Judges often defer pretrial supervision to magistrates to enable those judges “to devote time to more urgent matters”).

________________________
* Nottingham admitted to not being inclined to read the briefs in the case (notwithstanding the requirement of FRCP 72. Could it be that Nottingham was too busy surfing porn in chambers to read the briefs? See Denver's Channel 7 (ABC affiliate) 03/14/2008 report, "Complaint Alleges Judge Viewed Porn In Chambers."
6.11.2009 12:09am
Bouldergeist (www):
Nieporent:
Agreed. In my experience, [judges] go out of their way to give every bit of leeway to pro se litigants. It's extremely annoying litigating against these people, because they can ignore rules and miss deadlines, and judges will give them yet another chance to get it right, prejudicing their adversaries who are represented by lawyers.
I can't really comment from personal knowledge as to what goes on in the debt collection end of the business, but I'd imagine that judges are going to cut pro se debtors who don't have two nickels to rub together a little slack. Isn't it usually easier to call in Rocco?
6.11.2009 12:23am
loki13 (mail):

Why is it that some attempt to feebly demonstrate their own perceived brilliance with an obscure vocabulary.


I never thought argument ad verecundiam was particularly obscure, but that might just be my background. I've found it faster than typing "appeal to authority, which may or may not be fallacious, but as I choose to post anonymously you wwould be unable to determine if I making an appeal that is within my area of expertise."

As for "infra", I blame the bluebook brainwashing they did during my law review years- the same reason I get the funny looks when I cash checks dated June 2d or July 3d.

Anyway, I wanted to tip my cap to you for provided this sentence right after that admonition:

Aside from your evidently deferential take the Tenth Circuit panel's cursory 2-page memdispo, which itself was a cursory rubber-stamp/paraphrasing of former Judge Nottingham's adoption* of the magistrate's rather prolix --but nevertheless patently erroneous-- disposition of that case, upon what analysis have you based your conclusory findings?

memdispo? prolix?

And then parentheticals and a a signal in the next paragraph? Well played, sir. Well played.
6.11.2009 12:26am
Cato The Elder (mail):
Bouldergeist,

That link goes nowhere. You need to delete "http://volokh.com/posts/" from it.
6.11.2009 12:36am
Cato The Elder (mail):
From the New York Times:


Judge Sonia Sotomayor once described herself as “a product of affirmative action” who was admitted to two Ivy League schools despite scoring lower on standardized tests than many classmates, which she attributed to “cultural biases” that are “built into testing.”


I would hope know that a this wise Latina woman with the richness of her experiences would, more often than not, reach a better worse conclusion than a white male in the Ricci case.
6.11.2009 3:21am
Scott Huminski (mail):
Again,

Standard of Review include.

Review for reversible error
Review for abuse of discretion
Review de novo.

Sotomayor got it dead wrong in 03-7036 a law school 101 issue.

Review of summary judgment is de novo. Case law cited at original posts in links.

-- scott huminski
6.11.2009 6:20am
Bouldergeist (www):
From the NY Times article ref'd by Cato:
But in April 2009, Judge Sotomayor delivered a speech on how federal judges look at foreign and international law that suggested she might take a more conservative position on that topic than Justice Souter.

She said that individuals had no right to file a lawsuit to enforce a treaty and that ratified treaties were not legally binding unless Congress separately passed a statute to do so. Treaties usually have effect, she said, only if the president and Congress choose to respect such obligations as a matter of politics, not law.

“Even though Article IV of the Constitution says that treaties are the ‘supreme law of the land,’ in most instances they’re not even law,” she said.
Am I the only one who gets the feeling that we don't even have a Constitution any more?

This is no shot at Sotomayor -- she is merely stating the state of "the law" as it is -- but even Lewis Carroll would be lost in the dust on this one. An intended third-party beneficiary of a treaty used to have standing to have his rights and obligations thereunder determined by the courts. Head Money Cases, 112 U.S. 580, 598-99 (1884). Like the Soviet Union before us, we only sign human rights treaties; in most cases, we have no intention of ever enforcing them.

This is strictly Hans v. Louisiana territory.

One is left to wonder precisely where the legal authority comes from for our President and Senate to be able to vitiate a treaty by declaring sua sponte that it is non-self-executing. The President has the power to make treaties, subject to the advice and consent of the Senate. U.S. Const. art. II, sec. 2, cl. 2. However, a reservation made by a signatory State that is incompatible with the object and purpose of a treaty is a legal nullity. See Vienna Convention on the Law of Treaties, art. 19, 1155 U.N.T.S. 331 (entered into force Jan. 27, 1980) (specifying conditions under which signatory States can offer “reservations”). As an invalid reservation cannot by definition be part of a treaty, it cannot be made under the President’s and Senate’s treaty-making power. Accordingly, if an attempted reservation is invalid, it is void by definition as a matter of domestic law. Furthermore, the Vienna Convention provides: “A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.” Id., art. 27.

As a valid treaty is the supreme law of the land, and it is the province of the courts to say what the law is, Marbury v. Madison, 5 U.S. 137, 177 (1803), it logically follows that courts “of the United States have final authority to interpret an international agreement for purposes of applying it as law of the United States." Juda v. United States, 13 Cl. Ct. 667, 678 (Cl. Ct. 1987). "In construing a treaty … [courts] first look to its terms to determine its meaning." United States v. Alvarez-Machain, 504 U.S. 655, 665 (1992). "In determining whether a treaty is self-executing courts look to the intent of the signatory parties as manifested by the language of the instrument, and if the instrument is uncertain, recourse must be had to the circumstances surrounding its execution." Diggs v. Richardson, 555 F.2d 841, 851 (D.C. Cir. 1976) (emphasis added). One would think that we would at least have the standing to have the courts declare that we are not in compliance with a treaty if we haven't implemented it via statute. See, De la Rosa v. United States, 417 F.3d 145 (1st Cir. 2005), wherein Judge Howard (a Bush appointee, FWIW) observes:

The expectation that treaties would become operative as domestic law upon ratification is also expressed in the Federalist Papers and the ratification debates within the States. For example, in Federalist No. 22, Alexander Hamilton explained that "the treaties of the United States, to have any force at all, must be considered as part of the law of the land. Their true import, as far as respects individuals, must, like all other laws, be ascertained by judicial determinations." Similarly, at the North Carolina ratifying convention, one of the Constitution's supporters explained:
It was necessary that treaties should operate as laws on individuals. They ought to be binding upon us the moment they are made. They involve in their nature not only our own rights, but those of foreigners and should be protected by the federal judiciary.
Even those opposing ratification shared in this view. "Brutus," in criticizing Article III, stated that he could "readily comprehend what is meant by deciding a case under a treaty. For as treaties will be the law of the land, every person who has rights or privileges secured by a treaty, will have the aid of courts in recovering them."
One wonders how originalists like Scalia and Thomas would react to this argument; I suspect that their heads would turn around a la the girl in The Exorcist.
6.11.2009 6:36am
Bouldergeist (www):
Scott H.:
Sotomayor got it dead wrong in 03-7036 a law school 101 issue.
My only explanation is that she never looked at it. None of the courts' defenders here will admit it, but judges have. Where the court failed you is in their failure to show you that they had a grasp of your case sufficient to rule intelligently. If due process is to mean anything, it must include the right to be heard, the right to hear why, and the right to have that "why" make some semblance of sense.
6.11.2009 6:43am
Bouldergeist (www):
Cato:
I would hope know that a this wise Latina woman with the richness of her experiences would, more often than not, reach a better worse conclusion than a white male in the Ricci case.
I wouldn't want to be operated on by an affirmative action doctor ... but then again, three monkeys with darts and dartboards could do a more credible job than the typical work product of our appellate courts. If you are looking for unrivaled brilliance, the last place you would go is our courts.

Sotomayor doesn't need to be talented to ascend to SCOTUS. Just look at her colleagues and in particular, the other affirmative action pick.
6.11.2009 6:49am
Bouldergeist (www):
Adler:
I would rather (re)establish a norm of focusing on a nominee’s experience and credentials, instead of their judicial philosophy.
As would we all, I would suspect.

As Scalia has pointed out, the problem is that we aren't appointing a lawyer capable of applying the law of the land to the facts of the case in a disciplined and transparent manner; rather, we are elevating an unelected and unaccountable dictator. It is understandable that the criteria are somewhat different.
6.11.2009 6:55am
Bouldergeist (www):
As per Cato's request, the corrected link (see above) is here.

I always try to ascertain an attorney's field of law, as I have found that some courts are better than others -- mostly, because judges in certain courts (e.g., Tax Court) don't have a dog in the hunt. YMMV, depending on where you practice.
6.11.2009 7:05am
CJColucci:
I'm somewhat surprised that the thread has reached this length without someone pointing out an obvious fact: Judge Sotomayor has written literally hundreds of opinions -- many of them summary judgment cases -- in which she had some reason or other to recite the governing legal standard. And in hundreds of cases, she recited it, and applied it, correctly. Sometimes, probably, she recited it correctly and a higher court (which gets the last word, right or wrong) said she applied it incorrectly. Par for the course. But what conceivable reason is there to think that when Scott Huminski came along she forgot what she obviously knew -- and a Law School 101 point, at that -- in these hundreds of cases?
6.11.2009 12:14pm
David M. Nieporent (www):
I can't really comment from personal knowledge as to what goes on in the debt collection end of the business, but I'd imagine that judges are going to cut pro se debtors who don't have two nickels to rub together a little slack. Isn't it usually easier to call in Rocco?
I don't really understand your cite here, since the defendant in the case you link to wasn't pro se at all. (And we did commercial litigation, not 'debt collection' as that term is generally used.) In case you were wondering, jury verdict for our client. Jury didn't believe -- as the defendant claimed -- that an employer gave an employee a "gift" of $43,000 and that she paid back $5,000 just for fun.
6.11.2009 12:15pm
David M. Nieporent (www):
Again,

Standard of Review include.

Review for reversible error
Review for abuse of discretion
Review de novo.

Sotomayor got it dead wrong in 03-7036 a law school 101 issue.

Review of summary judgment is de novo. Case law cited at original posts in links.
Again, "reversible error" is not a "standard of review," and she did not claim it as such. She didn't specify the standard of review in a summary disposition.

You're just demonstrating why you lost: you don't understand what you're reading. As Pope said, "A little learning is a dangerous thing." Most pro se litigants have that problem; they learn just enough to think they understand the law, but not enough to know that they don't understand.
6.11.2009 12:19pm
David M. Nieporent (www):
Again, "reversible error" is not a "standard of review," and she did not claim it as such. She didn't specify the standard of review in a summary disposition.
Oh, and to reiterate what others have said, it's not by Sotomayor at all, or at least there's no reason to believe it is.
6.11.2009 12:21pm
Bouldergeist (www):
CJColucci:
I'm somewhat surprised that the thread has reached this length without someone pointing out an obvious fact: Judge Sotomayor has written literally hundreds of opinions -- many of them summary judgment cases -- in which she had some reason or other to recite the governing legal standard.
With all respect, CJ, we don't know enough about the details of each case to pass judgment on whether her work was adequate. Based on my investigation of appellate court work product, an all-purpose phrase like “We have considered all of petitioner-appellant’s arguments and find them to be without merit,” Deskovic v. Mann, No. 97-2946, 2000 U.S. App. LEXIS 15400, *2 (2d Cir. Apr. 26, 2000), all-too-frequently hides a multitude of sins.

The only way to judge Sonia Sotomayor is to read the briefs in those summary dispositions, and see what the appellants were actually asking. For the most part, people don't want to spend good money or time on an appeal unless they think they have a legitimate complaint. My suspicion is that there will be plenty more where Huminski and Deskovic came from.

As for her summarily dismissing Deskovic on the ground that his attorneys purportedly relied on a clerk's erroneous representation, I've seen other courts let statutes pass on even flimsier grounds. I have a philosophical problem with the clerk being an agent of the Court and not being able to rely on his or her erroneous representations; if it were any of us, we'd be hosed.
6.11.2009 4:42pm
Bouldergeist (www):
David N.
I don't really understand your cite here, since the defendant in the case you link to wasn't pro se at all. (And we did commercial litigation, not 'debt collection' as that term is generally used.)
The kind of work you do is going to dictate in no small part the kind of situations you see. In commercial litigation, when you see a pro se, it is usually because s/he has no choice, and is doing the best s/he can. Courts are going to cut a reluctant litigant like that a little slack.

In Tax Court, no one at IRS gives a shit, and the attorneys are consistently professional. Tort litigation is messier, and it would be kind to call divorce court a war zone.
6.11.2009 4:47pm
Bouldergeist (www):
David N. (to Huminski):
You're just demonstrating why you lost: you don't understand what you're reading. As Pope said, "A little learning is a dangerous thing." Most pro se litigants have that problem; they learn just enough to think they understand the law, but not enough to know that they don't understand.
It's not as arcane as all that, David. Law is not quantum physics. Even Ann Coulter could master it.

I don't know why Scott lost, or whether he deserved to lose, and will reserve judgment until I have a chance to review the briefs (and ideally, the transcript of oral argument before the panel, conducted by an attorney). However, the fact that the court refused to explain its decision gives me pause as to whether it actually performed a proper de novo review. When judges can dispatch 200 appeals in a two-day session, their work is almost certain to contain some egregious errors.

If I were to suggest one quick fix for appellate review, it is that the court of appeals could not review the decision by the lower court. As such, they would not be able to lazily affirm; they would be forced to do the work they are getting paid to do.
6.11.2009 4:59pm
Bouldergeist (www):
David N: "it's not by Sotomayor at all"

When you have a vote, you own the decision. If you don't like the outcome, you have a duty to dissent. If federal appellate judges don't have the time to do their day jobs, they shouldn't be giving speeches and teaching classes. She is personally responsible for every decision that comes out of her panels. Without exception.
6.11.2009 5:02pm
CJColucci:
CJColucci:
I'm somewhat surprised that the thread has reached this length without someone pointing out an obvious fact: Judge Sotomayor has written literally hundreds of opinions -- many of them summary judgment cases -- in which she had some reason or other to recite the governing legal standard.
With all respect, CJ, we don't know enough about the details of each case to pass judgment on whether her work was adequate
.

With all respect, Bouldergeist, I do know enough. It's my job to know. I can tell you from an actual base of personal knowledge that Judge Sotomayor really does know that review of a district court decision granting summary judgment is de novo -- the issue Scott Huminski thought, because of a basic reading comprehension error, that he caught her out on. I have read literally dozens of Sotomayor decisions in the ordinary course of my practice, both trial court and Circuit decisions, and when she has had any reason to discuss what the relevant standard of review is she has always gotten it right. No one needs to read the briefs, etc., to figure that out -- though I have read some of the briefs, etc., because I wrote them.
Now if you want to move the goalposts and ask whether she got every case right, then you do have to read briefs, records, oral argument transcripts, and the like. And even that is not enough. I'm not the one to ask in cases where I've done that because I've lost in front of her, and, quite naturally, thought I shouldn't have, though, as far as I could tell, she understood the issues and worked hard -- she just, unaccountably, came out wrong. Of course, I could have been wrong -- and so could anyone else who read the briefs, records, and transcripts, so even doing all that wouldn't much advance one's knowledge of her abilities.
What we have here is a long, tedious exchange started by a disappointed litigant with a reading comprehension problem who has tried to persuade people that a federal judge who has been in Republican cross-hairs for years as a possible Supreme Court nominee is a dolt who doesn't know very basic law. If there were any real evidence of that, someone who actually knows what he or she is talking about would have torpedoed her long before now. Then we wandered off into a long rant on the general treatment of pro se litigants, with nothing to connect the topis to Judge Sotomayor.
All of this must delight Judge Sotomayor's supporters. When your opponents are shooting themselves in the foot, just stay out of the way of stray bullets.
6.11.2009 6:12pm
peteSmith (mail) (www):
Bouldergeist wrote:

When you have a vote, you own the decision. If you don't like the outcome, you have a duty to dissent . . . She is personally responsible for every decision that comes out of her panels. Without exception.

I agree as to the assignment of responsibility, but not as to the relationship between the judge's decision and the actual outcome. See Hon. Patricia M. Wald, The Rhetoric of Results and the Results of Rhetoric: Judicial Writings, 62 U. Chi. L. Rev. 1371, 1374 (1995) ("I have seen judges purposely compromise on an unpublished decision incorporating an agreed-upon result in order to avoid a time-consuming public debate about what law controls. I have even seen wily would-be dissenters go along with a result they do not like so long as it is not elevated to a precedent").
6.11.2009 6:47pm
David M. Nieporent (www):
When you have a vote, you own the decision. If you don't like the outcome, you have a duty to dissent. If federal appellate judges don't have the time to do their day jobs, they shouldn't be giving speeches and teaching classes. She is personally responsible for every decision that comes out of her panels. Without exception.
We're not talking about the "outcome," about which I would agree. We're talking about the language used to report it (based on Huminski's misreading of the document).
6.11.2009 8:31pm
Bouldergeist (www):
CJColucci:
All of this must delight Judge Sotomayor's supporters. When your opponents are shooting themselves in the foot, just stay out of the way of stray bullets.
I'm neither a supporter nor a detractor. I just want judges to do their jobs, and they haven't done their jobs until they show their work.

CJ:
I can tell you from an actual base of personal knowledge that Judge Sotomayor really does know that review of a district court decision granting summary judgment is de novo -- the issue Scott Huminski thought, because of a basic reading comprehension error, that he caught her out on.
I just love cricket references.

It is one thing to say that a judge performed a de novo review, but quite another thing for that judge to have actually performed it. I'm going to withhold judgment on Scott Huminski's case until Elena over at CJA puts up the briefs, but I know from my own experience that judges don't always do a thorough job. Frankly, it is the rare case that they sink their teeth into.

CJ:
Now if you want to move the goalposts and ask whether she got every case right, then you do have to read briefs, records, oral argument transcripts, and the like. And even that is not enough. I'm not the one to ask in cases where I've done that because I've lost in front of her, and, quite naturally, thought I shouldn't have, though, as far as I could tell, she understood the issues and worked hard -- she just, unaccountably, came out wrong. Of course, I could have been wrong -- and so could anyone else who read the briefs, records, and transcripts, so even doing all that wouldn't much advance one's knowledge of her abilities.
I don't expect a judge to get every case "right"; I understand that in many cases, the right answer might not be the one I choose. However, I do find opinions like these problematic. The loser should walk away knowing that his position was fairly considered and rejected on the basis of the law. Scott Huminski did not get that from Sonia Sotomayor, and that is an epic fail.
6.12.2009 7:50am
Bouldergeist (www):
David N:
We're not talking about the "outcome," about which I would agree. We're talking about the language used to report it (based on Huminski's misreading of the document).
As one of my calculus professors used to say, the work isn't done until you have showed your work. I don't know whether the Sotomayor panel used the correct standard (or whether the panel was too damned lazy to do their jobs), and neither do you.

The opinion is supposed to be written for the loser; the winner doesn't care, as long as he wins. The loser ought to walk away from our courts confident that he had something approximating a fair hearing. It is also written for the rest of us, because we need to be confident that our courts will enforce our rights at need. Ricci, Huminski, and Deskovic suggest a disturbing pattern: the woman can't write, and has been covering up that fact by hiding behind summary opinions.

On the face of it, that is a matter of legitimate concern for someone who is about to ascend to a seat on the highest court of the land.
6.12.2009 8:04am
CJColucci:
Ricci, Huminski, and Deskovic suggest a disturbing pattern: the woman can't write, and has been covering up that fact by hiding behind summary opinions.

Oh come on. This is just getting more and more ridiculous. Judge Sotomayor has written literally hundreds of non-summary opinions. If you want to show a "pattern," or that she "can't write," you can cite, you know, actual evidence. Summary opinions are, by their nature, summary. They usually don't have an identifiable author. I know you don't want to hear this, but an enormous number of cases don't deserve more extended treatment. If you want to make a point about Judge Sotomyor's abilities to write and reason, there''s plenty of stuff where she did write and at least tried to reason. If she has any deficiencies in this area, surely you'll be able to find them there.
6.12.2009 10:54am
Jon Roland (mail) (www):
The deficiency being discussed here, not only for Sotomayor but for many if not most judges, that not that they can't reason or write, but that they can't read, understand, or deliberate fast enough to do justice to their caseloads. Part of the problem is that they are being given, or accept, too many cases for the number of courts and judges available, but to the extent they invite a caseload that exceeds their capacity to do justice to, that is blameworthy. It is also blameworthy that they conceal the problem with failures to write decisions that reveal that they didn't have or take the time needed to do justice.

I understand the pressures judges are under to manage, that is, dispose of, their caseloads. Promotion depends on clearing their dockets, not on quality of judging. If they wanted to do their jobs with integrity, they would refuse to hear more cases than they could do justice to, and firmly put the burden on legislators to create more courts and judicial positions.

This can be seen in the way the US Supreme Court only hears about 80 of the 8000 cases submitted to them. How many of those other cases have merit (or more merit than the ones selected for hearing)? That is why I have proposed the size of the US Supreme Court be increased to 28, with cases initially heard by randomly selected panels of three, appealable to randomly selected panels of nine, and appealable from there to a randomly selected en banc panel of 27. With one spare.) See here.

I have also proposed that judges not be appointed to particular courts, but to a nationwide pool for federal judges, statewide for state judges, with members of the pool randomly assigned to courts for short periods of time. That would go a long way to depoliticizing the process.
6.12.2009 11:16am
loki13 (mail):

That is why I have proposed the size of the US Supreme Court be increased to 28, with cases initially heard by randomly selected panels of three, appealable to randomly selected panels of nine, and appealable from there to a randomly selected en banc panel of 27.


There are always two competing values: truth (or justice) and finality. Let us assume that the adversarial system we employ is the best method for determining the "truth" and dispensing "justice". Let us further assume that our appeals process is the best method for correcting any errors that are made in the original trial court.

This becomes a similar problem to the "infinite number of djinns"- we could have a theoretically infinite number of appellate courts, and eventually reach the "truth" in all cases. But that would come at the expense of finality (and efficiency). Conversely, we could have a completely efficient system that is *awesome* at finality (coin flippin', no appeals) that dispenses with "truth" or "justice".

All of this ignore collateral attacks that are allowed, and other types of litigation (spoilation of evidence, malicious prosecution, abuse of process, malicious defense in NH, good faith attacks in insurance litigation etc.).

I don't your analysis that one problem is the case load is correct. I think that the solution of more litigation and more appeals is not.
6.12.2009 1:06pm
Jon Roland (mail) (www):
loki13:

I think that the solution of more litigation and more appeals is not [correct].

Yes, there is a tradeoff between finality and getting it right, but there is only one Surpeme Court that can reconcile divergent legal doctrines and practices in 12 circuits, and that is a bottleneck.

It also seems clear that our present trial and appellate system too often does not give cases the time and deliberation they deserve, leaving aside the elements of bias and incompetence that seems to infest the system. As long as judges are appointed to specific courts the politicization of the judicial selection process is going to create the need to shift the balance toward more deliberation by more judges until further deliberation becomes unlikely to change the outcomes.
6.12.2009 2:06pm
loki13 (mail):

Yes, there is a tradeoff between finality and getting it right, but there is only one Surpeme Court that can reconcile divergent legal doctrines and practices in 12 circuits, and that is a bottleneck.


As evidenced by your previous posts, you appear to believe that there is one "correct" way to analyze the law (esp. the Constitution).

(I apologize if this is an unfair characterization of your posts, but that is the feeling I get.)

I am more comfortable with ambiguity. I am perfectly fine having different circuits gnaw at an issue in different ways for a while; some might even argue that this is a feature, not a bug, of our system.
6.12.2009 4:08pm
Jon Roland (mail) (www):
oki13:

As evidenced by your previous posts, you appear to believe that there is one "correct" way to analyze the law (esp. the Constitution).

For the Constitution, provisions of which can be reasonably determined by historical linguistic analysis, yes. However, the Constitution allows some scope for discretion, and then one has to find standards for determining whether discretion is abused or not, which may be fact-based, or based on whether the discretion serves the reasonable public purposes envisioned by the Founders.

My position is that Dworkin got it wrong on that. However, it is also wrong to treat precedent as binding.

The tough one is due process, because part of the key elements are due notice and a fair hearing on questions within the jurisdiction of the court. It is also one that is subject to changes in technology and circumstances. It essentially brings equity into the constitution as law. The issues in Brown v. Board made no sense before their were mandatory public schools.

One of the things that does not work for me is the ways "commerce" and "necessary and proper" have been stretched beyond original meaning. I maintain the first fundamental constitutional right is the right to a presumption of nonauthority, which means that when there is any doubt in a case between a citizen and the government over the exercise of a power of government, the government loses.
6.12.2009 4:38pm
Bouldergeist (www):
Jon Roland:
The deficiency being discussed here, not only for Sotomayor but for many if not most judges, that not that they can't reason or write, but that they can't read, understand, or deliberate fast enough to do justice to their caseloads. Part of the problem is that they are being given, or accept, too many cases for the number of courts and judges available, but to the extent they invite a caseload that exceeds their capacity to do justice to, that is blameworthy. It is also blameworthy that they conceal the problem with failures to write decisions that reveal that they didn't have or take the time needed to do justice.
The problem is exacerbated by the fact that (a) many appellate judges in particular treat theirs as part-time jobs, (b) they don't manage their time well, and (c) they fabricate facts and sodomize the law to create the illusion that close cases weren't that close. For the most part, judges are freakin' sociopaths, without even a semblance of personal honor.
6.12.2009 11:51pm
Bouldergeist (www):
loki:
I am more comfortable with ambiguity. I am perfectly fine having different circuits gnaw at an issue in different ways for a while; some might even argue that this is a feature, not a bug, of our system.
There is a range of acceptable answers, but all too often, judges are wont to stray so far from rational analysis as to shock the conscience. Karl Llewellyn bluntly observed that judges routinely
manhandl[e] ... the facts of the pending case, or of the precedent, so as to make it falsely appear that the case in hand falls under a rule which in fact it does not fit, or especially that it falls outside of a rule which would lead in the instant case to a conclusion the court cannot stomach.
When our judges cook the books, the stench is unmistakable. As Llewellyn remarked, “[s]uch action leaves the particular point moderately clear: the court has wanted [the result] badly enough to lie to get it.”

There is a palpable difference between ambiguity and honest services mail fraud.
6.12.2009 11:57pm

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