pageok
pageok
pageok
Did Judge Sotomayor Issue an Advisory Opinion?

Senator Cornyn thinks she may have.

[Note: I have no intention of linking to every Cornyn question of the day. I linked this one because it raises an interesting issue that I have not seen discussed in the context of the Sotomayor nomination.]

ruuffles (mail) (www):
Is he actually giving a question every (week)day? It seems like a long time has passed since the 1st one.
6.15.2009 7:55pm
Allen Asch (mail) (www):
Isn't calling it an "advisory opinion" going a little too far with the GOP spin? Isn't that section of the opinion what we would normally call "dicta?"
6.15.2009 7:58pm
Recovering Law Grad:
Isn't Cornyn advocating that more time should pass before Sotomayor's hearings begin? How is he going to get his questions answered promptly?
6.15.2009 8:00pm
kormal:
Sotomayor didn't issue an advisory opinion. She doesn't have the power to do that. And she didn't purport to issue one, either. The opinion purported to give advice. Which actually has little to do with an "advisory opinion."
6.15.2009 8:09pm
widget:
Mmm. Extensive discussion of the merits without even a colorable claim of a continuing controversy. Not good practice. A fairly scored point for Prof. Kerr Sen. Cornyn.
6.15.2009 8:11pm
Mike& (mail):
Judge Sotomayor's opinion ultimately did dismiss the appeal as moot.

Indeed, the offending opinion's last paragraph reads: "However, we need not rule definitively whether the reliance on Shelton tainted the district court's exercise of discretion because we have recently been advised that Friedman has agreed to be deposed. Under these circumstances, the appeal has become moot."

Incidentally, isn't all dicta an advisory opinion? Does this mean that any opinion which contains dicta is a constitutional abomination?
6.15.2009 8:13pm
Mike& (mail):
A fairly scored point for Prof. Kerr Sen. Cornyn.

LOL. Yeah. It reads just like a blog post; and it's pretty clear who is behind this. So basically....

1. Give blogger to special counsel/fancy title.
2. Have blogger write posts on .gov website.
3. Have blogger feed posts to popular law blog from which blogger originated.
4. Get links. Score points!

Pretty smart strategy.
6.15.2009 8:18pm
fnook (mail):
Not good practice. A fairly scored point for Prof. Kerr Sen. Cornyn.

Fair enough, but what normal person actually cares about this? Orin should bail on this Cornyn gig and get back to teaching/blogging. An intellectually honest opposition is great and all, but Sotomayor deserves to be confirmed and he knows it.
6.15.2009 8:19pm
widget:
I have no intention of being critical, by the way. (It would be especially impolite to do so since the man is staying quiet and can't defend himself.) The QotD is a well-written critique of an opinion that actually does push pretty hard on an accepted norm of judicial practice. An "advisory opinion"? Well, I wouldn't go quite that far.

I'm mostly just amused to see legal work product of that caliber coming from a Senator's office.
6.15.2009 8:26pm
Armen (mail):
Hmmm. Question for Cornyn: So is Marbury a prohibited advisory opinion because Marshall went to great lengths to explain that it is the purview of the courts to tell what the law is, yet he ended up dismissing the case for want of jurisdiction?

If so, why cite Marbury repeatedly?
6.15.2009 8:27pm
krs:
Ruuffles, the last question was last Friday, so yes, it appears that Sen. Cornyn intends to ask a question every weekday.
6.15.2009 8:34pm
krs:
An intellectually honest opposition is great and all, but Sotomayor deserves to be confirmed and he knows it.

fnook, I'm not sure that I understand this. Why do you say she "deserves" to be confirmed?
6.15.2009 8:35pm
Cornellian (mail):
I think the real question is "did Sen. Cornyn know what an advisory opinion is before Kerr fed him this talking point?". I have my doubts.
6.15.2009 8:37pm
Acosmist (mail):
Hmmm. Question for Cornyn: So is Marbury a prohibited advisory opinion because Marshall went to great lengths to explain that it is the purview of the courts to tell what the law is, yet he ended up dismissing the case for want of jurisdiction?

If so, why cite Marbury repeatedly?


You need to reread Marbury.
6.15.2009 8:41pm
widget:
C'mon, guys. You know the difference between dicta and issuing an opinion in a moot case.

Dicta is what you get when a court has something to say -- some relief to grant or deny that requires a holding -- and it goes a little (or a lot) further to talk about related issues that aren't squarely in front of it. When the case is mooted by settlement and there's nothing for the court to do, most judges won't go on and give an opinion on the merits.

(Even if the judge had it written before the $#@! parties settled, which is -- I speculate with zero basis other than the opinion itself -- what probably happened here.)
6.15.2009 8:43pm
cboldt (mail):
-- If so, why cite Marbury repeatedly? --
.
Marbury v. Madison is the most often cited opinion in US jurisprudence, and it is [almost] always cited as standing for the OPPOSITE proposition that it actually states.
.
Once one sees what it (wrongly) cited as standing for (the power of courts to make law, "say what the law is"), then it is clear why it is cited repeatedly - to justify an assertion of power.
6.15.2009 8:44pm
Anderson (mail):
The 5th Circuit issued an op last week in a med-mal case where a *single* judge wrote 9 pages about how he thought the case should be decided on remand; Priscilla Owen (who's not been quite the predicted reactionary) joined the opinion on the merits, but not all that dicta.

An unusual example, but if you dig around in any circuit-court judge's ops for long enough, you'll find some dicta to fuss about.

(Agreed re: waste of Prof. Kerr's talents; I presume he sees this as a step upwards to something or other.)
6.15.2009 8:51pm
Steve:
I think the opinion explains itself fairly well... but for some reason about which I will not speculate, Cornyn's website omits the most salient portion of the explanation. Cornyn writes:

In a footnote, Judge Sotomayor responded to Judge Wesley. She recognized that the mootness of the appeal deprived the court of appellate jurisdiction. See id. at 72 n.4. She contended that her opinion's advice was justified nonetheless because it would "hopefully serve the useful purpose of cautioning about the limits of our prior rulings on a frequently litigated issue and perhaps avoid some needless appeals." Id.


The actual footnote reads:

Our concurring colleague does not believe "that this now-mooted appeal warrants a writing on its former merits."Infra, at 73. We recognize that the mootness of this appeal deprives us of appellate jurisdiction to adjudicate the merits and requires dismissal of the appeal. In such circumstances, any discussion of the merits is dicta and would normally be inappropriate. Nevertheless, two esteemed district court judges — in this litigation, In re Subpoena Issued to Friedman, 286 B.R. at 509, and in In re Hechinger Investment Co. of Delaware, 285 B.R. at 609-13 — have assumed that the Shelton rule has been adopted by our Court, a view with which we disagree. In such a circumstance, a non-binding discussion of the merits will hopefully serve the useful purpose of cautioning about the limits of our prior rulings on a frequently litigated issue and perhaps avoid some needless appeals.


I'm not particularly troubled by the fact that Judge Sotomayor and Judge Newman wanted to correct a misconception regarding the pertinent Second Circuit rule (nor am I particularly troubled by Judge Wesley's concurring view, for that matter). But given that the panel articulated a very specific reason for choosing to issue the opinion, it seems odd to omit the specific reason in favor of implying that the panel was merely advancing some abstract purpose.
6.15.2009 8:51pm
arbitraryaardvark (mail) (www):
Mootness is not so simple.
There was a case and controversy at one time. There are rules about when mootness applies to end a case. One of the best known of these is "capable of repetition yet evading review."
See Moore v Ogilvie, or Majors v Abell 1. The proverbial example is Roe v Wade, where Roe was no longer pregnant by the time the case was decided. Subpoenas come and go pretty quickly, compared to the pace at which the 2nd circuit moves. So she could have said that it's not moot at all. Instead, she gave a useful discussion of the issues in dicta and then declared it moot. Not an advisory opinion.
6.15.2009 8:55pm
Antinome (mail) (www):
Did John Cornyn issue an advisory opinion?:


Because our decision on the coverage issue is dispositive of this entire controversy, we do not reach Trinity's challenge to the amount of damages, see Tex.R.App. P. 81(c), except to note that it is controlled by our recent decision in State Farm Fire &Casualty Co. v. Gandy, 925 S.W.2d 696 (Tex.1996). There, we held, "In no event ... is a judgment for plaintiff against defendant, rendered without a fully adversarial trial, binding on defendant's insurer or admissible as evidence of damages in an action against defendant's insurer by plaintiff as defendant's assignee." Id. at 714.


Trinity Universal Ins. Co. v. Cowan, 945 S.W.2d 819, 821 (Tex.,1997).

(Yes this is really dicta, but this whole point is really weak tea. Courts give guidance as to the direction they are leaning on an issue all the time without actually ruling on the issue.)
6.15.2009 9:06pm
widget:
An unusual example, but if you dig around in any circuit-court judge's ops for long enough, you'll find some dicta to fuss about.

This is certainly true.

I presume he sees this as a step upwards to something or other

Shameless cynic! Let him do his public service in peace.
6.15.2009 9:10pm
Bouldergeist (www):
As I see it, Sotomayor was free to wax eloquent; as Corny well knows, judges are notorious for going down rabbit holes in dictum to advance their own hobby horses. (Scalia prefers giving speeches -- presumably, because he can.) Sure, the case was moot, but she wanted to put up smoke signals for the next enterprising barrister. But of course, when that happens, you are giving the other side an engraved invitation to blast you for wasting time:
The majority produces an odd result -- a careful discussion of an issue that would have resolved a dispute but for the fact that it no longer exists. I cannot agree that this now-mooted appeal warrants a writing on its former merits. This Court no longer has jurisdiction to consider the matter.
The people who should be really mad about this are the ones who got decisions by judges, as opposed to judicial decisions. Personally, I would be more appreciative if Sotomayor had spent more time writing meaningful opinions in those actual cases or controversies that she actually had to decide, and a little less time in free-lance law review writing. What really ticks me off is seeing decisions like Busch v. Busch, 773 A.2d 1274 (Pa.Super. 1999) (Judge Eakin's opinion actually put into verse), and Kozinski's admission that he writes decisions with the purpose of getting them into casebooks. Emily Bazelon, The Big Kozinski, Legal Affairs, Jan-Feb. 2004. What we need is more judges who actually do their goddamned jobs.

I'd bet a cookie that if anyone did an exhaustive examination of Corny's record, they'd find at least one foul of the same character.

There was a bankruptcy case in Texas that made the rounds some years ago (hope I can find it in my files) where a judge read the riot act to Congress for passing the Bankruptcy Act (brought to you by MBNA). That's what a lower court judge is supposed to do: bitch and moan like hell about the law until the cows come home, but follow it diligently.
6.15.2009 9:11pm
fnook (mail):
fnook, I'm not sure that I understand this. Why do you say she "deserves" to be confirmed?

Because she's a competent, fair-minded judge.
6.15.2009 9:11pm
24AheadDotCom (mail) (www):
Recovering Law Grad asks: How is he going to get his questions answered promptly?

If you want any questions answered, grab your video camera and go ask them. I'm sure she's available in public now and again. (P.S. I've done that myself with a few public figures, thanks for asking.)

As for the post, what exactly is the point of this? Isn't this an arcane legal matter that only the (unfortunately!) small number of the lawyers in the U.S. would understand or care about? That's not going to prevent the other team from getting the ball over the goal line, now is it?

My coverage of her mostly consists of clip posts, but what I stress is what could be used to turn public opinion against her. And, that's how she could be blocked, not with legal arcana.
6.15.2009 9:23pm
AJK:

I think the real question is "did Sen. Cornyn know what an advisory opinion is before Kerr fed him this talking point?". I have my doubts.


Cornyn has an LLM from UVA, and served as a judge on the Texas Supreme Court and as Attorney-General of Texas, so I think that it is extremely likely that he did in fact know what an advisory opinion is before Kerr fed him this talking point.
6.15.2009 9:34pm
JonC:

Agreed re: waste of Prof. Kerr's talents; I presume he sees this as a step upwards to something or other.


Yes, after clerking on SCOTUS and working in the DOJ, it's clear that Prof. Kerr realized he needed to take a temporary Senate minority advisory gig because it was his next "step upwards." Not because he might actually believe that there's some kind of value to the position or that the arguments he's advancing have some merit to them.
6.15.2009 9:34pm
widget:
Yes, after clerking on SCOTUS and working in the DOJ, it's clear that Prof. Kerr realized he needed to take a temporary Senate minority advisory gig because it was his next "step upwards." Not because he might actually believe that there's some kind of value to the position or that the arguments he's advancing have some merit to them.


I have no doubt whatsoever that Prof. Kerr believes absolutely in the value of what he is doing and further believes that any arguments he may suggest to Sen. Cornyn have merit to them. That is the kind of person he is and it is what he does and no teasing in this thread should be construed to the contrary for a moment (and I doubt Anderson would say any different, though I can't speak for him).

That said, if you can't think of a reason why a person with Prof. Kerr's extremely distinguished resume might have a motive to build a (or improve an existing) relationship with the Republican staff on the Senate Judiciary Committee, you might want to consider the problem again.
6.15.2009 9:47pm
Steve:
Did John Cornyn issue an advisory opinion?

I think the first question you need to answer is whether the Texas Constitution has a "case or controversy" requirement.
6.15.2009 10:02pm
ck:

As for the post, what exactly is the point of this? Isn't this an arcane legal matter that only the (unfortunately!) small number of the lawyers in the U.S. would understand or care about?


And certainly a lawyers' blog is no place to be discussing arcane legal matters.
6.15.2009 10:10pm
ruuffles (mail) (www):

Ruuffles, the last question was last Friday, so yes, it appears that Sen. Cornyn intends to ask a question every weekday.

Thanks. I couldn't find it on his website.
6.15.2009 10:11pm
Oren:

(Even if the judge had it written before the $#@! parties settled, which is -- I speculate with zero basis other than the opinion itself -- what probably happened here.)

Who among us wouldn't release the opinion (all dicta, at this point, of course) under those circumstances?
6.15.2009 10:13pm
Nunzio:
So in a case in which the court has no jurisdiction, she issues a published opinion. But Ricci gets the summary non-precedential order?
6.15.2009 10:33pm
24AheadDotCom (mail) (www):
ck writes: And certainly a lawyers' blog is no place to be discussing arcane legal matters.

This site is great, and no doubt millions turn to it each day for all their legal arcana needs. Keep on keeping on.

However, the people to whom I was directing my concerns are the GOP leadership. While we need to have a great and glorious discussion of extremely arcane issues, the GOP also needs to realize the shocking fact that only a small % of Americans would have an interest in such matters. So, Cornyn needs to have a two-pronged strategy: use someone like Kerr for the legal issues, but also use other (perhaps crypto) proxies to put forth the message that will actually have an impact.

Here's an example: a while back, Orin Kerr offered a sub-Jay Leno post about some newpaper making a mistake related to HaroldKoh. It was like something you'd see from the fill-in host of Good Night Schnectady! I left a comment linking to a discussion of Harold Koh supporting illegal activity and corruption. Orin Kerr deleted the comment, accusing me of "threadjacking". When, highlighting Koh's support for illegal activity could have prevented him from advancing.

Now, Orin Kerr is the brains behind Sen. Cornyn's opposition to SS. And, that's not a good sign for those who, you know, actually don't want her to be on the highest court in the land.
6.15.2009 10:38pm
zuch (mail) (www):
Cornyn is hardly in a position to nitpick a sitting judge to death just to be an obstructionist. Oh, waiddaminnit ... he's in exactly that position. That doesn't make it right, though. But that's what Republicans do.....

Cheers,
6.15.2009 10:42pm
zuch (mail) (www):
Allen Asch:
Isn't calling it an "advisory opinion" going a little too far with the GOP spin? Isn't that section of the opinion what we would normally call "dicta"?
In the RepublicanVerse™, that's still an "opinion". Any port in a storm....

Cheers,
6.15.2009 10:45pm
Psalm91 (mail):
"24.com:

If you want any questions answered, grab your video camera and go ask them. I'm sure she's available in public now and again. (P.S. I've done that myself with a few public figures, thanks for asking.)"

Are you a Bill O'Reilly producer? How dignified to respect rights of privacy so well.
6.15.2009 10:47pm
David M. Nieporent (www):
Is he actually giving a question every (week)day? It seems like a long time has passed since the 1st one.
Only in blog time. The first one was Friday; today's Monday. Not that long a time.
6.15.2009 11:08pm
David M. Nieporent (www):
So in a case in which the court has no jurisdiction, she issues a published opinion. But Ricci gets the summary non-precedential order?
Nunzio has the real takeaway point here. It's not that Sotomayor did something wrong in the case-of-the-day; it's that her behavior is so inconsistent with her behavior in Ricci, where she first participated in the issuance of a summary order and then, when that led to criticism, issued a perfunctory per curiam ruling that didn't discuss any of the issues in the case. And then she, along with her ideological comrades on the 2nd circuit, spent pages to explain why there was really no reason to spend any time actually addressing any of the issues in the case.
6.15.2009 11:16pm
David M. Nieporent (www):
The most innocent explanation -- from their statement "because we have recently been advised that Friedman has consented to the deposition, thereby rendering this appeal moot" -- is that the opinion was already written and was ready to be issued when they learned about the mootness, and they didn't want to waste the effort they had put into it. So they published it and then tacked on, "Oh yeah, but this is moot."
6.15.2009 11:19pm
tvk:
The issue is interesting, though only to lawyers. I really do wonder why Cornyn bothers, since it is pretty hard to spin this decision into political fodder. I would be pretty happy if the confirmation hearings devolved into a detailed debate about the Cases and Controversies clause, though somehow I doubt it will happen.

On the other hand, if Cornyn thinks that Sotomayor is seriously out of line here, he obviously has not read the case that he cites so lovingly. Marbury v. Madison is the original case that gave extensive commentary on the merits, and then ended up dismissing the case for lack of jurisdiction...
6.15.2009 11:31pm
D.R.M.:
zuch —

It is truly fascinating to see "progressives" pretend that they have any moral standing to complain about anything the Republicans have done to any Democratic judicial nominees while Robert Bork is still not on the Supreme Court.
6.16.2009 12:46am
jellis58 (mail):
I hope the next question for her is whether she believes the practice of public high schools crowning a prom queen and king violates Article 1, section 10 of the constituion: "No State shall ....grant any Title of Nobility." I hope Sotomayer is questioned extenstivly on her veiw of this pressing issue. And she better give a straightforward answer. No pro-aristocrats on the court!!!
6.16.2009 5:05am
jellis58 (mail):
I hope the next question for her is whether she believes the practice of public high schools crowning a prom queen and king violates Article 1, section 10 of the constituion: "No State shall ....grant any Title of Nobility." I hope Sotomayer is questioned extenstivly on her veiw of this pressing issue. And she better give a straightforward answer. No pro-aristocrats on the court!!!
6.16.2009 5:05am
Public_Defender (mail):
Given what I've seen of Sotomayor's record in criminal cases, she would would not be my first choice, but if this is the kind of "negative" stuff they have on her, she's going to sail through.

I also see no problem in this site picking up Kerr's work. He got this platform by having something useful to say, and "feeding" truthful information about a judicial candidate's record to a blog is not exactly dirty pool. Sotomayor will sink or swim based on the content and political spin of the arguments for and against her. In this case, the weakness of the attack just highlights her strength.

I don't think the Obama administration is exactly quivering in its boots for fear or more press releases like this one.

As to the substance, I see the point, but as a litigator, it can be helpful for an appeals court to tell trial courts that the standard they are following might not be the right one.

And for those who are horrified at Sotomayor's dicta, take a look at Justice Thomas' concurring opinion in Shepard v. U.S., 543 U.S. 15 (2005):

Almendarez-Torres, like Taylor, has been eroded by this Court's subsequent Sixth Amendment jurisprudence, and a majority of the Court now recognizes that Almendarez-Torres was wrongly decided. See 523 U.S., at 248—249 (Scalia, J., joined by Stevens, Souter, and Ginsburg, JJ., dissenting); Apprendi, supra, at 520—521 (Thomas, J., concurring). The parties do not request it here, but in an appropriate case, this Court should consider Almendarez-Torres' continuing viability. Innumerable criminal defendants have been unconstitutionally sentenced under the flawed rule of Almendarez-Torres. . . .
6.16.2009 6:10am
Public_Defender (mail):
One of the ways to know you're winning is when your opponent makes a really weak argument. This press release shows that Sotomayor is winning, big.

This is praise by weak damnation.
6.16.2009 7:49am
Public_Defender (mail):
Darn. Praise by faint damnation. I can't even get my cliches right. Maybe there's room for me on the anti-Sotomayor team.
6.16.2009 7:50am
Anderson (mail):
Oh, come now, Prof. Kerr's not going to *start* with the truly damning stuff.

Her concurrence in the result in the Puppy Drowning Case, where she wrote that "the legal reasoning of the majority opinion is unsound, but ay caramba, I hate puppies!" will doubtless be featured the day before the confirmation hearings begin.
6.16.2009 9:20am
Anderson (mail):
N.b. that the main concern of the Right with her above-quoted opinion was not the drowning of puppies, which is virtuous and correct when carried out by a party whose last name is "Inc.," but her use of the SPANISH LANGUAGE in an opinion issued by a court of the UNITED STATES.

I believe legislation is being introduced to require English-only in federal opinions. None of that East-Coast-liberal-establishment Latin either, of course. As usual, the GOP has forgotten to wonder what the Catholics will think of that.
6.16.2009 9:25am
rosetta's stones:
Cornyn is a political hack, but there's a particular strain of conservative that's come to the conclusion that he's especial, and worthy of distinction from the rest of the congresscritters, somehow. We'll see how that all works out.
6.16.2009 11:19am
Steve H (mail):

The most innocent explanation -- from their statement "because we have recently been advised that Friedman has consented to the deposition, thereby rendering this appeal moot" -- is that the opinion was already written and was ready to be issued when they learned about the mootness, and they didn't want to waste the effort they had put into it. So they published it and then tacked on, "Oh yeah, but this is moot."


This makes a lot of sense to me. Plus, I am guessing that the Second Circuit doesn't get many chances to rule on matters such as deposition subpoenas, since they rarely make it up that far. So if a judge sees what appears to her to be an obvious misimpression among the lower courts, it's not surprising that the judge would want to point that out, even if technically the judge is supposed to remain silent.

Or maybe I'm not bothered by this because I had a case a couple of years ago where the opposing counsel tried to hide behind Shelton like the guy did in the case before Judge Sotomayor, and it is gratifying to see a judge calling bullshit on that, even if it doesn't really count.
6.16.2009 1:09pm
Eddie Haskel (mail):
Nunzio and Nierpoint:

So when the results of an appeal are not to your liking, you pine away for dicta that removes the sting of the decision?
6.16.2009 1:54pm

Post as: [Register] [Log In]

Account:
Password:
Remember info?

If you have a comment about spelling, typos, or format errors, please e-mail the poster directly rather than posting a comment.

Comment Policy: We reserve the right to edit or delete comments, and in extreme cases to ban commenters, at our discretion. Comments must be relevant and civil (and, especially, free of name-calling). We think of comment threads like dinner parties at our homes. If you make the party unpleasant for us or for others, we'd rather you went elsewhere. We're happy to see a wide range of viewpoints, but we want all of them to be expressed as politely as possible.

We realize that such a comment policy can never be evenly enforced, because we can't possibly monitor every comment equally well. Hundreds of comments are posted every day here, and we don't read them all. Those we read, we read with different degrees of attention, and in different moods. We try to be fair, but we make no promises.

And remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.