This is the 5th post on New York Court Watcher examining the record of Judge Sonia Sotomayor. (See Sotomayor--Let's Put the Cards on the Table (Some Common Threads in Her Opinions), June 5, 2009; (Versus Her Colleagues), June 3, 2009; (Ideological Patterns in Her Opinions), June 2, 2009; (First, Some Prefatory Comments), May 28, 2009.)
Unless you've been stranded with the survivors on Lost in a different time warp, you know that Sotomayor is President Obama's nominee for the Supreme Court to replace the outgoing Justice David Souter. In the previous posts on New York Court Watcher, we've looked at Sotomayor's judicial opinion record, the ideological patterns in those opinions, contrasts with her colleagues, and some common threads tying her opinions together.
This post will identify a couple of hits, misses, and downright rotten apples among her opinions as a federal appeals judge. Just a couple in each category. Nothing magical about 2 each. Just didn't want this post to go on too long. And of course, these are my personal (if, hopefully, professionally informed) evaluations. But I don't think I'm too far off the mark on any of them.
The Good (Il Buono [Clint Eastwood])
--U.S. v. Lopez (2008). This case involved a formerly legal immigrant who was deported and subsequently convicted for illegal reentry when he returned. The problem was that the deportation order was tainted. He had been told--first by the immigration judge and then by the appeals board--that he had no right to a judicial review of the deportation order. Actually, however, he did.
Writing for the majority, Sotomayor avoided a rigid, mechanical ruling. I.e., the defendant was deported, he reentered, so he's guilty, period.
Instead, Sotomayor took account of the special facts. I.e., the government's responsibility for depriving the defendant of a judicial review of the deportation order. Her opinion explained that the trial court that convicted the defendant had to reconsider the conviction in light of the government's misinformation. If the resulting treatment of the defendant was found to be fundamentally unfair, then the conviction could not stand.
--U.S. v. Gori (2000). This case involved a police stake-out of an apartment which they suspected was used for drug dealing. The police waited in the hallway, hoping to see something. They could do little else, because they didn't have a warrant or the probable cause to obtain one.
When the door of the apartment opened for a food delivery, however, the police--displaying their shields and holding their weapons--ordered the occupants into the hallway and against the wall. One thing led to another, the police obtained consent to search the apartment, and they found drugs.
Sotomayor's colleagues saw no problem with the police conduct. For them, the critical fact was that an occupant of the apartment had voluntarily opened the door, exposing the others to the police.
Sotomayor dissented. As she saw it, the critical fact was that the police had seized the occupants from the apartment without the requisite constitutional justification--i.e., a warrant, or probable cause and some emergency. As she explained, mere reasonable suspicion may be sufficient to briefly detain individuals who happen to be in a public place. But the Constitution, as spelled out in relevant 4th Amendment case law, requires more than that before the government is allowed to exercise authority over individuals inside a private residence.
The Bad (Il Cattivo [Lee Van Cleef])
--Kelsey v. County of Schoharie (2009). This case involved a "clothing exchange" for newly arrived inmates of a county jail in upstate New York. Upon admission to the jail, inmates are required, among other things, to surrender their street clothes, take a shower, and don the inmate uniform.
Sotomayor's colleagues [in a well-reasoned opinion by Judge Roger Miner] found the procedure to be perfectly justified for health, safety, and discipline reasons. She, however, dissented on the ground that the procedure was an unconstitutional strip search. According to her, it was a strip search because the inmates' private parts were sometimes exposed to the guards. And according to her, it was unconstitutional because the 4th Amendment requires reasonable suspicion that the inmate has contraband or a weapon to justify such a search.
Sotomayor's (understandable) antipathy to required stripping is evident elsewhere. (See e.g., her dissent in N.G. & S.G. v. Conn [2004] against strip searches in a juvenile detention facility; she may well have had a stronger argument in that case.) That antipathy seems to have blinded her to the compelling administrative purposes served by a "clothing exchange" when inmates are being prepared for incarceration.
--U.S. v. Falso (2008). This case was discussed in a previous post. (See Sotomayor--Let's Put the Cards on the Table (Some Common Threads in Her Opinions), June 5, 2009.) As I wrote there:
"In [this] case, Sotomayor authored a majority opinion upholding child pornography convictions. The problem was that the evidence supporting the convictions was obtained through an unconstitutional search. All the judges agreed on that. And they all agreed that the evidence normally could not be used. (For those unfamiliar, that's what's called the "exclusionary rule.") Nevertheless, Sotomayor argued that it was okay for the prosecution to use the evidence in this case because the investigating officer's mistake in conducting the search was made in good faith. (For those unfamiliar, that's what's called the "good faith exception" to the exclusionary rule.)
"The problem with THAT, however, as the dissenter made clear, was that the police officer in the case had not acted in good faith at all. Yes, the officer had a warrant authorizing the search. But he had recklessly disregarded the truth, and perhaps deliberately lied, when he himself obtained the warrant--which all the judges agreed was no good.
"It is very difficult to read the opinions in that case--Sotomayor's and the dissenter's--without concluding that Sotomayor had stretched the law and the facts. It's pretty evident that she did so in order to be able to uphold the child pornography convictions. Outside the realm of child pornography, pedophile, and related child victimization cases, Sotomayor's record of supporting the rights of the accused strongly suggests that she would not otherwise have ruled the way she did."
The Ugly (Il Brutto [Eli Wallach])
--Ricci v. DeStefano [City of New Haven] (2008). This is the New Haven firefighters case that has gained considerable notoriety. In short, the city discarded a test for promotions because non-white takers had performed poorly. Some firefighters with high scores on the test were denied promotion in favor of some non-white firefighters who had not done nearly as well. The city was sued for "reverse discrimination"--i.e., racial discrimination in favor of African-Americans over white-Americans in violation of the Equal Protection guarantee of the 14th Amendment.
This is not an easy case. Yes, blind ideologues on the left and on the right think it's easy. They each think their respective opposite views are clearly correct. The city's action was clearly legal; it was just as clearly illegal. That's a fairly good indication that the issues aren't clearly one way or the other.
The trial judge presiding over the lawsuit wrote a lengthy opinion exploring the issues and dismissed the claim of discrimination--i.e., upheld the city's affirmative action. A year and a half later, that trial decision was affirmed by the 2d Circuit. Specifically, by a 3-judge panel that included Sotomayor.
The decision reached by Sotomayor and her 2 colleagues is not really the problem. Not the worse one anyway. [I may think their decision is wrong; right-wing blowhards are sure it is. Others may think it's right; some knee-jerk liberals, with whom I more frequently agree, are sure it is.]. But come on, this is a toughie. Race blindness versus diversity. Both compelling interests. In conflict.
So the real problem is not the decision itself. But how that decision was rendered. Cavalier, covert, and--I'll be blunt--cowardly. Let me explain.
Sotomayor and her 2 colleagues on the panel decided this important, controversial, difficult constitutional case with a summary order. Yes, summarily. In a one paragraph opinion--six sentences--"explaining" the decision. In fact, the opinion was simply a few conclusory lines, with precious little that could be mistaken for legal analysis. Surely the case deserved more than that. Even if Sotomayor and her 2 colleagues, for whatever reason, really thought that the claim of the firefighters who were denied promotion was devoid of any legal merit justifying a more serious treatment.
Worse than that, the summary order was unpublished. Yes, that pitiful one paragraph opinion of Sotomayor and her 2 colleagues for this extremely important case was not to appear in the published reports of the court's decisions. It was to be buried among other summary orders. Decisions of the court typically involving matters having absolutely no consequence or implication beyond the particular dispute between particular parties. Of course, the Ricci case does not fit into that category at all.
The summary order remained unpublished until other judges on the 2d Circuit complained. They made clear that they believed such cursory treatment was inappropriate. Sotomayor and her 2 colleagues then withdrew the unpublished summary order, changed a few words, and reissued it for publication. As a per curiam opinion.
And what's the significance of a per curiam ? Well, these opinions--literally "for the court"--are usually (but not always) reserved for decisions that break no new ground, decisions where the law is well settled, decisions not requiring extensive legal analysis, decisions not meriting full-blown legal analysis and explanation for the court's judgment. Sooooo, Sotomayor and her 2 colleagues issued a per curiam opinion comprised of the 1 substantive paragraph--6 sentences. Entirely inappropriate for a case of this significance, this difficulty, and the competing compelling interests at stake.
But beyond that, what a per curiam opinion means is that no one signs. No one claims authorship. None of the judges takes responsibility--the credit or the blame--for writing the opinion and for choosing what to include or not. (Or they all take responsibility. Meaning, again, that none of them takes individual responsibility for the opinion. Judges usually want to take credit for important opinions. So when they avoid it--especially for the important cases--you know something is up.)
[I've observed this phenomenon of appellate judges issuing cursory unsigned opinions. Even in very important and difficult cases which surely required more. I observed this first hand as a law clerk and subsequently as an academic studying the official reports of judicial decisions. The company line from the courts is that these short unsigned opinions--per curiam or memorandum--are used for the readily disposable, easy cases where the controlling law is well-settled and clear. Was the Ricci case that?
In truth, these unsigned writings are also used where the court or the judge assigned to write the opinion wishes to avoid confronting the difficult or controversial issues raised in a case and does so by simply writing a few innocuous lines that don't fully reveal what's actually at stake. Or the judges of the court cannot agree, so one of them writes a few lines that muddies the issues, glosses over the differences among the judges, says very little, decides even less, disposes of the case, and avoids saying anything that would be unpopular either within the court or with interested parties or the public.
In short, these cursory unsigned opinions are usually pretty poor exemplars of judicial decision-making. And often they are little more than a means to avoid difficult choices or criticism. Remember, judges sign opinions they're proud of.]
Neither Sotomayor nor either of her 2 colleagues on the panel took personal credit (or blame) for the Ricci opinion. We do not know exactly the reasons. What we do know is that Sotomayor either 1) wrote the opinion and didn't sign her name, or 2) she didn't write that opinion and somehow didn't think it necessary to author a more adequate separate one of her own. Either way, she was part of this rather shameful exercise. Cavalier, covert (until pressed into the open), and cowardly.
The Supreme Court granted review of the Ricci case. The Justices apparently thought the case important enough, involving sufficiently unsettled and unclear law, to deserve a full hearing and decision by the nation's highest Court. Their decision should be issued any day now. I'm betting the Justices will write more than 6 sentences.
--Didden v. Village of Port Chester (2006). This was a case involving governmental taking of private property, against the wishes of the owner, for economic development by a private firm. It raises many of the issues involved in the very controversial 5-4 decision of the Supreme Court in Kelo v. New London (2005).
As the Supreme Court did in Kelo, the 2d Circuit in Didden upheld the governmental taking. However, unlike the Supreme Court in Kelo and unlike other courts applying Kelo, the 2d Circuit panel rendered its decision in an unpublished, unsigned, summary order. In Kelo and in several decisions by other courts applying it, the issues were fully examined and the conclusions fully explained. In Didden, the 2d Circuit disposed of the case in a cursory 3 paragraphs.
The unpublished, unsigned, 3-paragraph decision was rendered by Sotomayor (the senior judge on the panel) and 2 colleagues. As in Ricci, Sotomayor acquiecsed in the disposition of a very difficult, important, and controversial case in a wholly inadequate and, arguably, shameful manner. Certainly unworthy of a distinguished federal appeals court, as well as a nominee for the Supreme Court.
There it is. The (2) good. (2) bad, and (2) ugly. Hopefully this sheds some light on President Obama's nominee for the high court which--as far as I have read and heard--has been missing from the general coverage.
Tuesday, June 23, 2009
Thursday, June 11, 2009
Supreme Court: 5-4 Against West Virginia Justice--Only 5-4 !!!
This was not a difficult case. It was one of the easier ones.
But the current Court--the Supreme Court, whose foremost role is to safeguard the Constitutional guarantees for a free society, such as due process--just barely got it right.
Many if not most of the cases that get to the nation's highest court are tough. They're close. Reasonable, smart, conscientious judges can and do disagree about what the decision should be.
In those more typical cases, there is law supporting both sides. There are good reasons, policies and principles favoring each side. The Justices are required to judge. To exercise judgment. To pick the best result. What they believe is the best result. The text of the Constitution or of legislation virtually never dictates one particular result. (Sorry, but notwithstanding the political nonsense, judging at high appeals courts ain't that simple.)
There's no mechanical way to resolve the issues. It's not just a matter of here are the facts, here is the law, here's the answer. It's not: he was driving 70 mph, the limit is 50, so he's guilty of speeding. Such cases where the law is similarly certain and its application to the facts is clear are extremely rare at the Supreme Court. Such cases are decided much further down the chain of command.
The simple reality is that most cases that get to the Supreme Court can go either way. The Justices must pick and choose. They must decide what the law "is"--speaking realistically, what the law shall henceforth be. They're making law. They have to. (Again, forget the nonsense to the contrary.)
Some cases, however, are a bit easier than others. Even if the law is not otherwise clear. Even if there are precedents and relevant written provisions to support both sides. In these easier cases, one resolution is pretty obviously the wiser and most fair and most consistent with the highest constitutional principles.
That was the kind of case the Supreme Court decided Monday. Caperton v. Massey Coal Co. was the official name. But it was about Brent Benjamin. He is a West Virginia justice who refused to disqualify himself in the Caperton lawsuit.
To appreciate what was going on, let's try this.
But the current Court--the Supreme Court, whose foremost role is to safeguard the Constitutional guarantees for a free society, such as due process--just barely got it right.
Many if not most of the cases that get to the nation's highest court are tough. They're close. Reasonable, smart, conscientious judges can and do disagree about what the decision should be.
In those more typical cases, there is law supporting both sides. There are good reasons, policies and principles favoring each side. The Justices are required to judge. To exercise judgment. To pick the best result. What they believe is the best result. The text of the Constitution or of legislation virtually never dictates one particular result. (Sorry, but notwithstanding the political nonsense, judging at high appeals courts ain't that simple.)
There's no mechanical way to resolve the issues. It's not just a matter of here are the facts, here is the law, here's the answer. It's not: he was driving 70 mph, the limit is 50, so he's guilty of speeding. Such cases where the law is similarly certain and its application to the facts is clear are extremely rare at the Supreme Court. Such cases are decided much further down the chain of command.
The simple reality is that most cases that get to the Supreme Court can go either way. The Justices must pick and choose. They must decide what the law "is"--speaking realistically, what the law shall henceforth be. They're making law. They have to. (Again, forget the nonsense to the contrary.)
Some cases, however, are a bit easier than others. Even if the law is not otherwise clear. Even if there are precedents and relevant written provisions to support both sides. In these easier cases, one resolution is pretty obviously the wiser and most fair and most consistent with the highest constitutional principles.
That was the kind of case the Supreme Court decided Monday. Caperton v. Massey Coal Co. was the official name. But it was about Brent Benjamin. He is a West Virginia justice who refused to disqualify himself in the Caperton lawsuit.
To appreciate what was going on, let's try this.
Imagine you're involved in a legal dispute with a big company. At the trial, you proved your case. The company was ordered to pay back the money you lost because of its fraud.
Imagine further, that the company appealed to your state's supreme court. In the meantime, however, there would be a judicial election, and the head of the company you had successfully sued decided to get involved. In fact, he spent $3 million helping to defeat a sitting justice and elect the challenger.
Imagine now, that when your case gets to the state supreme court, your lawyer asks the newly elected justice to recuse himself. I.e., to remove himself from the case and to let the other justices decide the appeal without him. Your lawyer argues that the new justice shouldn't be ruling on a case involving someone who just spent $3 million to get him elected. But the new justice insists on participating.
Finally, imagine that the state supreme court decides the case by a 3-2 vote. And it's the new justice's vote that made the difference. Unfortunately, but not unexpectedly, he voted in favor of his benefactor's company. So the verdict you won at trial against the company has been overturned.
Of course, you can't believe that's fair. How could that justice be allowed to rule on your lawsuit against the company that just spent $3 million to get him elected? Your lawyer complains to the United States Supreme Court that your federal constitutional guarantee to due process was violated. That Court agrees to hear your appeal.
That is the Caperton case that the Supreme Court decided Monday. And only a bare 5-4 majority of the Court's Justices found that the state justice should have recused himself. More than that, the Court divided along ideological grounds--liberals versus conservatives. The 4 liberal Justices voted that constitutionally guaranteed due process required the state justice to recuse himself under the extreme facts of the case. The 4 conservative Justices saw no due process problem. According to them, the Constitution was not offended by a state judge ruling on a matter involving his $3 million dollar election supporter. The liberals won because swing voter, Justice Anthony Kennedy, sided with them.
How is the right to a fair hearing before an impartial judge a liberal versus conservative issue? Of course it's not. Or it shouldn't be. But maybe there's something else.
Maybe the vote at the Supreme Court is really about sympathies for or against the defendant. It's a big coal company. Or maybe it's really about sympathies for or against the state justice in question. He is a Republican. And the sitting state justice he challenged and defeated, with the help of the big coal company, is a Democrat. Could the vote at the Supreme Court reflect such crass partisan politics?
What did the Justices say in their opinions?
Justice Kennedy emphasized that this was an extreme case. Among the crucial factors was the enormous amount spent to help elect the new state justice. The timing of the expenditure--i.e., while the appeal was pending. And the fact that the benefactor of the state justice was directly involved in the case--i.e., not just some person or entity with some interest in the outcome.
The common standard under rules of judicial ethics prohibits a judge from participating in a case when reasonable people would question that judge's impartiality. Under that standard, the state justice clearly should have recused himself. But the Supreme Court decides what the federal Constitution requires, not the rules of judicial ethics. That is, what does due process require? Stated otherwise, what does fundamental fairness demand, or prohibit?
In his opinion for the Court's majority, Justice Kennedy wrote that due process demands that a judge recuse himself when--and only when--there is a real probability of bias. As he restated it: when there is a substantial risk of actual bias on the part of the judge. Kennedy and the 4 liberals (Stevens, Souter, Ginsburg, and Breyer) concluded that there was such a risk in this extreme case. The state justice should not have participated.
The 4 dissenting Justices spoke through Chief Justice John Roberts. Joined by the other conservatives on the Court (Scalia, Thomas, and Alito), Roberts' main point was that the majority failed to articulate a clear standard for deciding these types of cases, and that it would be very difficult to do so. To demonstrate his point, Roberts listed 40 questions about the standard that the majority did apply in this case.
(It is hard to read Roberts' dissenting opinion without getting the impression that he's more a lawyer advocating for a particular position, than a judge trying to resolve an issue. It reminds me of students who write "research" papers that are really arguments for opinions they've already held, rather than conclusions actually reached after disinterested study of the questions supposedly being examined.)
In any event, Roberts is undoubtedly correct that the majority's standard is not particularly clear. At the least, it will not clearly provide the answer to future, more difficult, closer cases. BUT, that is an argument for a clearer standard. For a standard more readily applied. It is NOT an argument against the majority's conclusion that the state justice in Caperton should have recused himself. It is not an argument against the proposition that basic due process DOES require judges to recuse themselves in similarly extreme cases.
But beyond that, there is a deeper flaw in Roberts' dissent. And he's a smart fellow. He knows it. The majority's standard is not particularly clear? It will take other cases to clarify the standard? Come on! Under that argument, precious little would ever have been decided by the Supreme Court. That's an argument for judicial paralysis. For constitutional paralysis.
Let's see. The Constitution's guarantee against unreasonable searches. Hmm, "unreasonable?" The Supreme Court certainly did not--in the past or yet--establish a clear standard which would resolve all future cases.
The right against compelled self-incrimination. Hmm, "compelled?" Struggled with that one for a long time, and still does.
Due process. Hmm, what process is "due?" It only took about 100 years from the adoption of the 14th Amendment for the Court to decided that jury trials, the assistance of counsel, the right to confront adverse witnesses, the right against double jeopardy, the self-incrimination privilege, and other protections we now take for granted were part of the process required as "due" in all criminal cases. And that standard continues to be refined in many cases before the Court every year.
Then there are the standards for what speech, press and religious exercise are "free." Oh, and that's true even though the Constitution literally allows "no law" prohibiting those freedoms. The Court has never stopped trying to refine the standard for "no law"--since the literal standard used by the Framers wasn't really so clear either!
And of course there's the 2d Amendment. The language and the case law haven't exactly provided clarity.
What about "equal" protection?
Okay, we could go on ad nauseam. But the point should be clear. Standards rarely are. And even when they are, they are repeatedly refined as the cases and the times require. So this objection of Roberts and the 3 who joined him in dissent is pretty lame.
At least it is lame as an argument against deciding whether the West Virginia justice should have recused himself. Yes, he should have. As a matter of basic due process. Now, Roberts et. al., argue for a better standard if you think the majority's was not clear enough.
One final observation. There was the other point emphasized in Roberts' dissenting opinion. That the majority's decision will undermine confidence in the judiciary. Apparently, the Supreme Court deciding that a state justice was wrong to participate in a case and should have recused himself will hurt the reputation of courts and judges.
Well, no. What undermines confidence in the judiciary and hurts the reputation of courts and judges is a judge whose impartiality is highly suspect. A judge on the state's highest court who sits on a case involving the $3 million supporter of his recent election to the bench. (Let alone a judge who then votes to overturn a judgment against that benefactor.)
What also undermines confidence in the judiciary is a United States Supreme Court divided along politically ideological lines in a case such as this. Where only a bare majority say that that state judge should have recused himself. And where the Supreme Court Justices who sided with the state judge just happen to be aligned with his political party and with his more conservative politics.
As I said at the outset, this was not a difficult case. How was it just 5-4? And how was it divided along politically ideological grounds?
Just another illustration of the need for a truly great new Justice or two , to help raise the level of this Court's decisionmaking.
Imagine further, that the company appealed to your state's supreme court. In the meantime, however, there would be a judicial election, and the head of the company you had successfully sued decided to get involved. In fact, he spent $3 million helping to defeat a sitting justice and elect the challenger.
Imagine now, that when your case gets to the state supreme court, your lawyer asks the newly elected justice to recuse himself. I.e., to remove himself from the case and to let the other justices decide the appeal without him. Your lawyer argues that the new justice shouldn't be ruling on a case involving someone who just spent $3 million to get him elected. But the new justice insists on participating.
Finally, imagine that the state supreme court decides the case by a 3-2 vote. And it's the new justice's vote that made the difference. Unfortunately, but not unexpectedly, he voted in favor of his benefactor's company. So the verdict you won at trial against the company has been overturned.
Of course, you can't believe that's fair. How could that justice be allowed to rule on your lawsuit against the company that just spent $3 million to get him elected? Your lawyer complains to the United States Supreme Court that your federal constitutional guarantee to due process was violated. That Court agrees to hear your appeal.
That is the Caperton case that the Supreme Court decided Monday. And only a bare 5-4 majority of the Court's Justices found that the state justice should have recused himself. More than that, the Court divided along ideological grounds--liberals versus conservatives. The 4 liberal Justices voted that constitutionally guaranteed due process required the state justice to recuse himself under the extreme facts of the case. The 4 conservative Justices saw no due process problem. According to them, the Constitution was not offended by a state judge ruling on a matter involving his $3 million dollar election supporter. The liberals won because swing voter, Justice Anthony Kennedy, sided with them.
How is the right to a fair hearing before an impartial judge a liberal versus conservative issue? Of course it's not. Or it shouldn't be. But maybe there's something else.
Maybe the vote at the Supreme Court is really about sympathies for or against the defendant. It's a big coal company. Or maybe it's really about sympathies for or against the state justice in question. He is a Republican. And the sitting state justice he challenged and defeated, with the help of the big coal company, is a Democrat. Could the vote at the Supreme Court reflect such crass partisan politics?
What did the Justices say in their opinions?
Justice Kennedy emphasized that this was an extreme case. Among the crucial factors was the enormous amount spent to help elect the new state justice. The timing of the expenditure--i.e., while the appeal was pending. And the fact that the benefactor of the state justice was directly involved in the case--i.e., not just some person or entity with some interest in the outcome.
The common standard under rules of judicial ethics prohibits a judge from participating in a case when reasonable people would question that judge's impartiality. Under that standard, the state justice clearly should have recused himself. But the Supreme Court decides what the federal Constitution requires, not the rules of judicial ethics. That is, what does due process require? Stated otherwise, what does fundamental fairness demand, or prohibit?
In his opinion for the Court's majority, Justice Kennedy wrote that due process demands that a judge recuse himself when--and only when--there is a real probability of bias. As he restated it: when there is a substantial risk of actual bias on the part of the judge. Kennedy and the 4 liberals (Stevens, Souter, Ginsburg, and Breyer) concluded that there was such a risk in this extreme case. The state justice should not have participated.
The 4 dissenting Justices spoke through Chief Justice John Roberts. Joined by the other conservatives on the Court (Scalia, Thomas, and Alito), Roberts' main point was that the majority failed to articulate a clear standard for deciding these types of cases, and that it would be very difficult to do so. To demonstrate his point, Roberts listed 40 questions about the standard that the majority did apply in this case.
(It is hard to read Roberts' dissenting opinion without getting the impression that he's more a lawyer advocating for a particular position, than a judge trying to resolve an issue. It reminds me of students who write "research" papers that are really arguments for opinions they've already held, rather than conclusions actually reached after disinterested study of the questions supposedly being examined.)
In any event, Roberts is undoubtedly correct that the majority's standard is not particularly clear. At the least, it will not clearly provide the answer to future, more difficult, closer cases. BUT, that is an argument for a clearer standard. For a standard more readily applied. It is NOT an argument against the majority's conclusion that the state justice in Caperton should have recused himself. It is not an argument against the proposition that basic due process DOES require judges to recuse themselves in similarly extreme cases.
But beyond that, there is a deeper flaw in Roberts' dissent. And he's a smart fellow. He knows it. The majority's standard is not particularly clear? It will take other cases to clarify the standard? Come on! Under that argument, precious little would ever have been decided by the Supreme Court. That's an argument for judicial paralysis. For constitutional paralysis.
Let's see. The Constitution's guarantee against unreasonable searches. Hmm, "unreasonable?" The Supreme Court certainly did not--in the past or yet--establish a clear standard which would resolve all future cases.
The right against compelled self-incrimination. Hmm, "compelled?" Struggled with that one for a long time, and still does.
Due process. Hmm, what process is "due?" It only took about 100 years from the adoption of the 14th Amendment for the Court to decided that jury trials, the assistance of counsel, the right to confront adverse witnesses, the right against double jeopardy, the self-incrimination privilege, and other protections we now take for granted were part of the process required as "due" in all criminal cases. And that standard continues to be refined in many cases before the Court every year.
Then there are the standards for what speech, press and religious exercise are "free." Oh, and that's true even though the Constitution literally allows "no law" prohibiting those freedoms. The Court has never stopped trying to refine the standard for "no law"--since the literal standard used by the Framers wasn't really so clear either!
And of course there's the 2d Amendment. The language and the case law haven't exactly provided clarity.
What about "equal" protection?
Okay, we could go on ad nauseam. But the point should be clear. Standards rarely are. And even when they are, they are repeatedly refined as the cases and the times require. So this objection of Roberts and the 3 who joined him in dissent is pretty lame.
At least it is lame as an argument against deciding whether the West Virginia justice should have recused himself. Yes, he should have. As a matter of basic due process. Now, Roberts et. al., argue for a better standard if you think the majority's was not clear enough.
One final observation. There was the other point emphasized in Roberts' dissenting opinion. That the majority's decision will undermine confidence in the judiciary. Apparently, the Supreme Court deciding that a state justice was wrong to participate in a case and should have recused himself will hurt the reputation of courts and judges.
Well, no. What undermines confidence in the judiciary and hurts the reputation of courts and judges is a judge whose impartiality is highly suspect. A judge on the state's highest court who sits on a case involving the $3 million supporter of his recent election to the bench. (Let alone a judge who then votes to overturn a judgment against that benefactor.)
What also undermines confidence in the judiciary is a United States Supreme Court divided along politically ideological lines in a case such as this. Where only a bare majority say that that state judge should have recused himself. And where the Supreme Court Justices who sided with the state judge just happen to be aligned with his political party and with his more conservative politics.
As I said at the outset, this was not a difficult case. How was it just 5-4? And how was it divided along politically ideological grounds?
Just another illustration of the need for a truly great new Justice or two , to help raise the level of this Court's decisionmaking.
Friday, June 5, 2009
Sotomayor--Let's Put the Cards on the Table (Some Common Threads in Her Opinions)
There are some readily identifiable interests that tie Judge Sotomayor's opinions together. Indeed, these interests seem to explain opinions which might otherwise appear somewhat atypical for her, or which are not easily reconcilable with the underlying facts or law.
Let's look at 4 particularly salient ones. When these interests have been involved in a case (and again, we are speaking of the difficult, divided cases in which Sotomayor wrote either the majority or dissenting opinion), they seem to have determined the result she reached.
Protecting children, insuring criminal due process, holding business accountable, and weeding out unequal treatment of minorities. These interests have been very good predictors of the outcome Sotomayor would support in her opinions.
Here they are depicted graphically.
GRAPH 1
Common Threads in Sotomayor's Opinions
(click to enlarge)
As shown in Graph 1, in the divided cases where the protection of children was somehow involved, Sotomayor always argued in her opinions for the result that promoted that interest. That is, in 5 out of 5 difficult, divided cases where that interest was implicated, she argued for the interpretation of the facts and the law that supported the outcome most favorable to safeguarding the welfare of minors. These cases involved such matters as investigating child pornography, prosecuting sex with minors, strip searching juveniles in detention, and minors suing a charitable institution.
In those cases involving criminal due process--i.e., the fairness of procedures and treatment--she adopted that interpretation of the law and facts favorable to the suspect, accused, or convicted in 80% of her opinions. That represents 12 out of 15 difficult, divided cases.(Actually, these do not include 3 cases involving crimes directed at protecting children. I'll explain why I have excluded them shortly.) These cases involved such matters as search and seizure, the prosecution's burden of proof, sentencing, and deportation based on criminal convictions.
In those cases involving holding business accountable, her opinions argued for being tough on business 90% of the time. That's 9 out of 10 close, divided cases. These cases involved such matters as excise tax and bankruptcy fraud prosecutions, anti-trust, employment discrimination claims, and negligent product design.
Where discrimination against minorities was claimed, she found the claims had merit in all her of opinions. That's 6 out of 6 cases that were difficult enough to divide her colleagues. These cases--oftentimes related to business accountability--involved claims of sex, race and disability discrimination in employment, education, and voting rights.
To understand how significant the foregoing figures are, remember this. These interests that Sotomayor strongly favors do not arise in a vacuum. They are certainly all worthy. But in the difficult, close cases we are focusing on, these interests are always competing with others that are also quite important.
For example, protecting children sometimes competes with interests in religious freedom, parental rights, privacy, and free speech to name a few. Criminal due process typically competes with crime control and just punishment--especially compelling when the crimes being investigated or prosecuted are particularly heinous. Business accountability often competes with a robust free market and other commercial interests. Weeding out inequality often competes with personal and institutional choice, often made for reasons having little or nothing to do with intentional discrimination.
Regardless of competing considerations, however, Sotomayor overwhelmingly took positions to favor the 4 interests identified. Stated otherwise, those other considerations were subordinated to her favored interests in virtually all the opinions she wrote in cases where there was a conflict.
This point is underscored by contrasting Sotomayor's record with that of her colleagues. Specifically, let's contrast the frequency with which Sotomayor argued in support of the 4 interests we've identified, with the frequency that the majority of her colleagues--i.e., the court--did so in the same cases.
GRAPH 2
Common Threads in Sotomayor's Opinions
Versus Her Colleagues
(click to enlarge)
The contrast is quite substantial. In fact, the frequency with which a majority of her colleagues sided with Sotomayor's favored interests in these divided cases is too low to consider any of them a common thread in the majority opinions. Certainly not to any degree approximating that in her opinions.
Protecting children: Sotomayor, 100%. The majority of her colleagues, 60%. And that's the closest it gets. Criminal due process: 80% - 33%. Business accountability: 90% - 50%. Minority equality: 100% - 33%.
Let's conclude with an of example of how these common threads in Sotomayor's opinions--i.e., her favored interests--have affected the results she reached. Consider what appears to be her overriding interest in protecting children, and how this has played out in her review of convictions for crimes involving child victims.
We've already discussed (both in this post and the immediately preceding one) that Sotomayor's opinion record in criminal cases is quite liberal. She strongly favors the rights of suspects, accuseds, and the convicted. As we just saw, her opinions sided with the claims of criminal due process in 80% of the divided cases (as contrasted with the 33% for the majority of her colleagues in the same cases).
I said earlier that the criminal cases involving child protection are not included in these figures. I excluded them to highlight the impact that the consideration of child protection has on Sotomayor's opinions. While her opinions sided with the claims of due process violation 80% of the time (i.e., excluding cases involving crimes against children), her opinions NEVER sided with such due process claims when crimes of child victimization were involved. In 3 out of 3 divided cases involving crimes of child victimization, she OPPOSED the due process claims. 100% conservative! That, however, coincides with Sotomayor's 100% opinion record--in both criminal and civil cases--of taking the side more protective of children, or more tough on their offenders.
U.S. v. Falso (Sept. 2008) is instructive. In that case, Sotomayor authored a majority opinion upholding child pornography convictions. The problem was that the evidence supporting the convictions was obtained through an unconstitutional search. All the judges agreed on that. And they all agreed that the evidence normally could not be used. (For those unfamiliar, that's what's called the "exclusionary rule.") Nevertheless, Sotomayor argued that it was okay for the prosecution to use the evidence in this case because the investigating officer's mistake in conducting the search was made in good faith. (For those unfamiliar, that's what's called the "good faith exception" to the exclusionary rule.)
The problem with THAT, however, as the dissenter made clear, was that the police officer in the case had not acted in good faith at all. Yes, the officer had a warrant authorizing the search. But he had recklessly disregarded the truth, and perhaps deliberately lied, when he himself obtained the warrant--which all the judges agreed was no good.
It is very difficult to read the opinions in that case--Sotomayor's and the dissenter's--without concluding that Sotomayor had stretched the law and the facts. It's pretty evident that she did so in order to be able to uphold the child pornography convictions. Outside the realm of child pornography, pedophile, and related child victimization cases, Sotomayor's record of supporting the rights of the accused strongly suggests that she would not otherwise have ruled the way she did.
Similarly, it is pretty clear when reviewing all of Sotomayor's opinions in the close, divided cases, that each of the common threads identified here--i.e., her favored interests--has influenced the positions she has taken. Most judges, if not all, are affected in like manner. No doubt, some more than others. For Judge Sotomayor, her opinions evince considerable influence from some interests that are readily identifiable.
This has been the 4th in a series of posts on New York Court Watcher examining the judicial record of Supreme Court nominee Sonia Sotomayor. (See Sotomayor--Let's Put the Cards on the Table (Versus Her Colleagues), June 3, 2009; (Ideological Patterns in Her Opinions), June 2, 2009; (First, Some Prefatory Comments), May28, 2009.) Forthcoming posts will look at some selected opinions--representative of her best and the opposite--and at some of her non-judicial statements and writings that are currently causing such public and partisan-political stir.
Let's look at 4 particularly salient ones. When these interests have been involved in a case (and again, we are speaking of the difficult, divided cases in which Sotomayor wrote either the majority or dissenting opinion), they seem to have determined the result she reached.
Protecting children, insuring criminal due process, holding business accountable, and weeding out unequal treatment of minorities. These interests have been very good predictors of the outcome Sotomayor would support in her opinions.
Here they are depicted graphically.
GRAPH 1
Common Threads in Sotomayor's Opinions
(click to enlarge)
As shown in Graph 1, in the divided cases where the protection of children was somehow involved, Sotomayor always argued in her opinions for the result that promoted that interest. That is, in 5 out of 5 difficult, divided cases where that interest was implicated, she argued for the interpretation of the facts and the law that supported the outcome most favorable to safeguarding the welfare of minors. These cases involved such matters as investigating child pornography, prosecuting sex with minors, strip searching juveniles in detention, and minors suing a charitable institution.
In those cases involving criminal due process--i.e., the fairness of procedures and treatment--she adopted that interpretation of the law and facts favorable to the suspect, accused, or convicted in 80% of her opinions. That represents 12 out of 15 difficult, divided cases.(Actually, these do not include 3 cases involving crimes directed at protecting children. I'll explain why I have excluded them shortly.) These cases involved such matters as search and seizure, the prosecution's burden of proof, sentencing, and deportation based on criminal convictions.
In those cases involving holding business accountable, her opinions argued for being tough on business 90% of the time. That's 9 out of 10 close, divided cases. These cases involved such matters as excise tax and bankruptcy fraud prosecutions, anti-trust, employment discrimination claims, and negligent product design.
Where discrimination against minorities was claimed, she found the claims had merit in all her of opinions. That's 6 out of 6 cases that were difficult enough to divide her colleagues. These cases--oftentimes related to business accountability--involved claims of sex, race and disability discrimination in employment, education, and voting rights.
To understand how significant the foregoing figures are, remember this. These interests that Sotomayor strongly favors do not arise in a vacuum. They are certainly all worthy. But in the difficult, close cases we are focusing on, these interests are always competing with others that are also quite important.
For example, protecting children sometimes competes with interests in religious freedom, parental rights, privacy, and free speech to name a few. Criminal due process typically competes with crime control and just punishment--especially compelling when the crimes being investigated or prosecuted are particularly heinous. Business accountability often competes with a robust free market and other commercial interests. Weeding out inequality often competes with personal and institutional choice, often made for reasons having little or nothing to do with intentional discrimination.
Regardless of competing considerations, however, Sotomayor overwhelmingly took positions to favor the 4 interests identified. Stated otherwise, those other considerations were subordinated to her favored interests in virtually all the opinions she wrote in cases where there was a conflict.
This point is underscored by contrasting Sotomayor's record with that of her colleagues. Specifically, let's contrast the frequency with which Sotomayor argued in support of the 4 interests we've identified, with the frequency that the majority of her colleagues--i.e., the court--did so in the same cases.
GRAPH 2
Common Threads in Sotomayor's Opinions
Versus Her Colleagues
(click to enlarge)
The contrast is quite substantial. In fact, the frequency with which a majority of her colleagues sided with Sotomayor's favored interests in these divided cases is too low to consider any of them a common thread in the majority opinions. Certainly not to any degree approximating that in her opinions.
Protecting children: Sotomayor, 100%. The majority of her colleagues, 60%. And that's the closest it gets. Criminal due process: 80% - 33%. Business accountability: 90% - 50%. Minority equality: 100% - 33%.
Let's conclude with an of example of how these common threads in Sotomayor's opinions--i.e., her favored interests--have affected the results she reached. Consider what appears to be her overriding interest in protecting children, and how this has played out in her review of convictions for crimes involving child victims.
We've already discussed (both in this post and the immediately preceding one) that Sotomayor's opinion record in criminal cases is quite liberal. She strongly favors the rights of suspects, accuseds, and the convicted. As we just saw, her opinions sided with the claims of criminal due process in 80% of the divided cases (as contrasted with the 33% for the majority of her colleagues in the same cases).
I said earlier that the criminal cases involving child protection are not included in these figures. I excluded them to highlight the impact that the consideration of child protection has on Sotomayor's opinions. While her opinions sided with the claims of due process violation 80% of the time (i.e., excluding cases involving crimes against children), her opinions NEVER sided with such due process claims when crimes of child victimization were involved. In 3 out of 3 divided cases involving crimes of child victimization, she OPPOSED the due process claims. 100% conservative! That, however, coincides with Sotomayor's 100% opinion record--in both criminal and civil cases--of taking the side more protective of children, or more tough on their offenders.
U.S. v. Falso (Sept. 2008) is instructive. In that case, Sotomayor authored a majority opinion upholding child pornography convictions. The problem was that the evidence supporting the convictions was obtained through an unconstitutional search. All the judges agreed on that. And they all agreed that the evidence normally could not be used. (For those unfamiliar, that's what's called the "exclusionary rule.") Nevertheless, Sotomayor argued that it was okay for the prosecution to use the evidence in this case because the investigating officer's mistake in conducting the search was made in good faith. (For those unfamiliar, that's what's called the "good faith exception" to the exclusionary rule.)
The problem with THAT, however, as the dissenter made clear, was that the police officer in the case had not acted in good faith at all. Yes, the officer had a warrant authorizing the search. But he had recklessly disregarded the truth, and perhaps deliberately lied, when he himself obtained the warrant--which all the judges agreed was no good.
It is very difficult to read the opinions in that case--Sotomayor's and the dissenter's--without concluding that Sotomayor had stretched the law and the facts. It's pretty evident that she did so in order to be able to uphold the child pornography convictions. Outside the realm of child pornography, pedophile, and related child victimization cases, Sotomayor's record of supporting the rights of the accused strongly suggests that she would not otherwise have ruled the way she did.
Similarly, it is pretty clear when reviewing all of Sotomayor's opinions in the close, divided cases, that each of the common threads identified here--i.e., her favored interests--has influenced the positions she has taken. Most judges, if not all, are affected in like manner. No doubt, some more than others. For Judge Sotomayor, her opinions evince considerable influence from some interests that are readily identifiable.
This has been the 4th in a series of posts on New York Court Watcher examining the judicial record of Supreme Court nominee Sonia Sotomayor. (See Sotomayor--Let's Put the Cards on the Table (Versus Her Colleagues), June 3, 2009; (Ideological Patterns in Her Opinions), June 2, 2009; (First, Some Prefatory Comments), May28, 2009.) Forthcoming posts will look at some selected opinions--representative of her best and the opposite--and at some of her non-judicial statements and writings that are currently causing such public and partisan-political stir.
Wednesday, June 3, 2009
Sotomayor--Let's Put the Cards on the Table (Versus Her Colleagues)
Sonia Sotomayor's judicial record is not only much more politically liberal than conservative. It is also much more liberal than that of her colleagues. (And as the 3 following graphs show, it's not that close.)
This is not being stated as a complaint or criticism. (Disclosure: In the unlikely event it is not readily apparent from what has previously been written on New York Court Watcher, I strongly favor a judge who would be more politically liberal than the current Supreme Court is, and to help change the Court's quarter-century old rightward direction.) No, this is stated simply because it is what Sotomayor's record shows. And because there has been considerable public dissembling and obfuscation about it.
We should know what we are getting in a Supreme Court nominee. We should at least know what her judicial track record is and what it tells us. Even if she should surprise us later and turn into something else once she's confirmed. We should at least know what she has been. That's the best indication we currently have of what she will be. And as we've already seen, Sotomayor's judicial track record is pretty clear. (See yesterday's post: Sotomayor--Let's Put the Cards on the Table (Ideological Patterns in Her Opinions), June 2, 2009.) At least it's clear as to where she falls on a liberal-to-conservative ideological spectrum.
Let's take another look at her record and, specifically again, at its ideological profile. But this time let's take a somewhat different look. Let's look at her dissenting opinions alone. The opinions in which she disagreed with her colleagues. Why? Because these are the most revealing of all.
Yes, all the opinions and votes in the divided cases are revealing. These difficult, controversial, especially divisive cases, where the members of a court simply cannot come together as one, tell us a great deal. Each judge is required to choose a side, and to do so publicly with a vote and maybe even an opinion.
But the dissents in these divided cases are the most revealing of all. They represent the issues which a judge believes to be so important, so much a matter of principle, so incapable of compromise, that the judge is willing to break with her colleagues, and to do so openly. To do so in a written opinion. An opinion explaining why she believes her colleagues are wrong, why she is right, and why the disagreement with her colleagues is too big or too critical to be disregarded or glossed over for the sake of public unanimity and collegiality.
These are the opinions about issues which a judge believes are so important that she is willing to break publicly with her colleagues and to expend the additional time and energy--beyond the shared responsibilities of writing unanimous and majority opinions--to write a dissent. Not a writing for the institution. But a personal one for the judge herself.
Here then is a graphic account of Judge Sotomayor's dissenting opinions--the public disagreements with her colleagues.
GRAPH 1
Ideological Patterns in Sotomayor's Dissenting Opinions
(click to enlarge)
The patterns are even clearer in her dissents than in her combined opinions--majority as well as dissents. Remember, these are the opinions where Judge Sotomayor was writing for herself. Where she choose to take the additional time and energy to express her disagreement with the positions taken by the other judges deciding the case with her. Disagreement with the judges who prevailed but with whom she chose not to go along.
And look how these opinions break down. In cases involving "law & order" issues, she wrote dissenting opinions adopting the liberal position--i.e., more favorable to the rights of the accused--89% of the time.
In the "discrimination" cases, those involving claims of discriminatory treatment of minority or other vulnerable classes, her dissents were 80% liberal--i.e., supportive of the claimants.
In the "privacy" cases, involving bodily, home and conversational privacy, her dissents were 100% liberal--i.e., supportive of the claims that privacy had been violated.
In the "litigation/business" cases, her dissents were 78% liberal--i.e., supportive of the civil litigation or otherwise opposed to or tough on business interests.
Overall, she took the politically liberal position in 82% of her dissents. In short, where she disagreed with the majority of her colleagues--where she openly disagreed with the decision reached by her court--she took the more politically liberal position 82% of the time. Stated otherwise, she took a more politically conservative position than her colleagues in only only 18% of the cases.
Here again is that first graph. But this time it includes the contrast between how frequently Sotomayor disagreed with her colleagues and took a more liberal position, with how frequently she did so and took a more conservative one.
GRAPH 2
Ideological Patterns in Sotomayor's Dissenting Opinions
Liberal vs. Conservative
(click to enlarge)
The contrast is quite striking. And remember, these are her personal opinions. Not institutional. Not collegial. Not compromise. Not glossing over differences. Sotomayor's own positions on the issues important enough to her to justify these public disagreements with her colleagues.
This graph, like graph 1, reflects Sotomayor's positions in the dissenting opinions she authored as a federal appeals judge. There are 20 of them in all; 17 of them break down along politically liberal versus politically conservative lines. Those are the ones visualized in the 2 graphs.
Yes, I know. "But she participated in so many more cases. This is only a fraction." Yes, but it's the fraction that tells us about the judge and her colleagues. Its the fraction that allows us an insight into the "inner sanctum" of judicial deliberations. The fraction that tells us what the judge cares about the most. The fraction that tells us how a judge sides on the tough questions, the difficult ones, the ones that the judges--like the rest of us--disagree about the most. And about which they, like us, feel the most fervently.
And that's why judicial scholars focus on such cases and such opinions. 'Nuff said about that.
Now let's consider one more aspect of Sotomayor's judicial record. How does her record contrast ideologically with that of her colleagues? Let's take a look once again, as we did in yesterday's post, at all Sotomayor's opinions in divided cases. All her majority opinions as well as her dissents. Hence, all the opinions in those tough, controversial, divisive cases (Yes, you know the descriptors by now.) in which the judges just could not disregard their differences and join together as one.
Specifically, let's look at Sotomayor's record in all these cases as contrasted with the record of her colleagues. That is, the ideological patterns in Sotomayor's majority + dissenting opinions as opposed to that of the majority of her colleagues--i.e., the court's decision--in all those cases.
Here it is.
GRAPH 3
Ideological Patterns in Sotomayor's Opinions
Sotomayor vs, Her Colleagues
(click to enlarge)
Okay, it's not even close. Sotomayor took the more politically liberal position more than twice as frequently as her colleagues.
To be clear: in those divided--i.e., non-unanimous--cases in which Judge Sotomayor wrote an opinion, either the majority for the court or her own dissent, she adopted and argued for the more politically liberal position, on the issue in question in those cases, more than 2 times as often as did the majority of her colleagues in those same cases.
And remember, this is the federal appeals court for the 2d Circuit. It sits in New York, New York. This is not the 4th Circuit sitting in Richmond, Virginia. Or the 11th sitting in Georgia. Or the 10th sitting in Utah. This Manhattan court is not one of the more conservative courts in the country. And Sotomayor's record is unmistakeably liberal even by the standards of that court.
(For a list of the kinds of issues dealt with by Sotomayor and her colleagues in the divided cases, see yesterday's post on New York Court Watcher. Again, that's Sotomayor--Let's Put the Cards on the Table (Ideological Patterns in Her Opinions), June 2, 2009.)
In the next post, we'll identify some salient common threads in Judge Sotomayor's opinions. Substantive, not stylistic. (Perhaps we'll discuss a little about the latter in a subsequent post.)
This is not being stated as a complaint or criticism. (Disclosure: In the unlikely event it is not readily apparent from what has previously been written on New York Court Watcher, I strongly favor a judge who would be more politically liberal than the current Supreme Court is, and to help change the Court's quarter-century old rightward direction.) No, this is stated simply because it is what Sotomayor's record shows. And because there has been considerable public dissembling and obfuscation about it.
We should know what we are getting in a Supreme Court nominee. We should at least know what her judicial track record is and what it tells us. Even if she should surprise us later and turn into something else once she's confirmed. We should at least know what she has been. That's the best indication we currently have of what she will be. And as we've already seen, Sotomayor's judicial track record is pretty clear. (See yesterday's post: Sotomayor--Let's Put the Cards on the Table (Ideological Patterns in Her Opinions), June 2, 2009.) At least it's clear as to where she falls on a liberal-to-conservative ideological spectrum.
Let's take another look at her record and, specifically again, at its ideological profile. But this time let's take a somewhat different look. Let's look at her dissenting opinions alone. The opinions in which she disagreed with her colleagues. Why? Because these are the most revealing of all.
Yes, all the opinions and votes in the divided cases are revealing. These difficult, controversial, especially divisive cases, where the members of a court simply cannot come together as one, tell us a great deal. Each judge is required to choose a side, and to do so publicly with a vote and maybe even an opinion.
But the dissents in these divided cases are the most revealing of all. They represent the issues which a judge believes to be so important, so much a matter of principle, so incapable of compromise, that the judge is willing to break with her colleagues, and to do so openly. To do so in a written opinion. An opinion explaining why she believes her colleagues are wrong, why she is right, and why the disagreement with her colleagues is too big or too critical to be disregarded or glossed over for the sake of public unanimity and collegiality.
These are the opinions about issues which a judge believes are so important that she is willing to break publicly with her colleagues and to expend the additional time and energy--beyond the shared responsibilities of writing unanimous and majority opinions--to write a dissent. Not a writing for the institution. But a personal one for the judge herself.
Here then is a graphic account of Judge Sotomayor's dissenting opinions--the public disagreements with her colleagues.
GRAPH 1
Ideological Patterns in Sotomayor's Dissenting Opinions
(click to enlarge)
The patterns are even clearer in her dissents than in her combined opinions--majority as well as dissents. Remember, these are the opinions where Judge Sotomayor was writing for herself. Where she choose to take the additional time and energy to express her disagreement with the positions taken by the other judges deciding the case with her. Disagreement with the judges who prevailed but with whom she chose not to go along.And look how these opinions break down. In cases involving "law & order" issues, she wrote dissenting opinions adopting the liberal position--i.e., more favorable to the rights of the accused--89% of the time.
In the "discrimination" cases, those involving claims of discriminatory treatment of minority or other vulnerable classes, her dissents were 80% liberal--i.e., supportive of the claimants.
In the "privacy" cases, involving bodily, home and conversational privacy, her dissents were 100% liberal--i.e., supportive of the claims that privacy had been violated.
In the "litigation/business" cases, her dissents were 78% liberal--i.e., supportive of the civil litigation or otherwise opposed to or tough on business interests.
Overall, she took the politically liberal position in 82% of her dissents. In short, where she disagreed with the majority of her colleagues--where she openly disagreed with the decision reached by her court--she took the more politically liberal position 82% of the time. Stated otherwise, she took a more politically conservative position than her colleagues in only only 18% of the cases.
Here again is that first graph. But this time it includes the contrast between how frequently Sotomayor disagreed with her colleagues and took a more liberal position, with how frequently she did so and took a more conservative one.
GRAPH 2
Ideological Patterns in Sotomayor's Dissenting Opinions
Liberal vs. Conservative
(click to enlarge)
The contrast is quite striking. And remember, these are her personal opinions. Not institutional. Not collegial. Not compromise. Not glossing over differences. Sotomayor's own positions on the issues important enough to her to justify these public disagreements with her colleagues.This graph, like graph 1, reflects Sotomayor's positions in the dissenting opinions she authored as a federal appeals judge. There are 20 of them in all; 17 of them break down along politically liberal versus politically conservative lines. Those are the ones visualized in the 2 graphs.
Yes, I know. "But she participated in so many more cases. This is only a fraction." Yes, but it's the fraction that tells us about the judge and her colleagues. Its the fraction that allows us an insight into the "inner sanctum" of judicial deliberations. The fraction that tells us what the judge cares about the most. The fraction that tells us how a judge sides on the tough questions, the difficult ones, the ones that the judges--like the rest of us--disagree about the most. And about which they, like us, feel the most fervently.
And that's why judicial scholars focus on such cases and such opinions. 'Nuff said about that.
Now let's consider one more aspect of Sotomayor's judicial record. How does her record contrast ideologically with that of her colleagues? Let's take a look once again, as we did in yesterday's post, at all Sotomayor's opinions in divided cases. All her majority opinions as well as her dissents. Hence, all the opinions in those tough, controversial, divisive cases (Yes, you know the descriptors by now.) in which the judges just could not disregard their differences and join together as one.
Specifically, let's look at Sotomayor's record in all these cases as contrasted with the record of her colleagues. That is, the ideological patterns in Sotomayor's majority + dissenting opinions as opposed to that of the majority of her colleagues--i.e., the court's decision--in all those cases.
Here it is.
GRAPH 3
Ideological Patterns in Sotomayor's Opinions
Sotomayor vs, Her Colleagues
(click to enlarge)
Okay, it's not even close. Sotomayor took the more politically liberal position more than twice as frequently as her colleagues.To be clear: in those divided--i.e., non-unanimous--cases in which Judge Sotomayor wrote an opinion, either the majority for the court or her own dissent, she adopted and argued for the more politically liberal position, on the issue in question in those cases, more than 2 times as often as did the majority of her colleagues in those same cases.
And remember, this is the federal appeals court for the 2d Circuit. It sits in New York, New York. This is not the 4th Circuit sitting in Richmond, Virginia. Or the 11th sitting in Georgia. Or the 10th sitting in Utah. This Manhattan court is not one of the more conservative courts in the country. And Sotomayor's record is unmistakeably liberal even by the standards of that court.
(For a list of the kinds of issues dealt with by Sotomayor and her colleagues in the divided cases, see yesterday's post on New York Court Watcher. Again, that's Sotomayor--Let's Put the Cards on the Table (Ideological Patterns in Her Opinions), June 2, 2009.)
In the next post, we'll identify some salient common threads in Judge Sotomayor's opinions. Substantive, not stylistic. (Perhaps we'll discuss a little about the latter in a subsequent post.)
Tuesday, June 2, 2009
Sotomayor--Let's Put the Cards on the Table (Ideological Patterns in Her Opinions)
Her judicial record is politically liberal. (And the graphs below will show this quite vividly.)
It's certainly not conservative. But neither is it politically centrist or moderate. It is pretty unmistakeably liberal.
Spending countless hours reading Judge Sonia Sotomayor's judicial opinions, and then many more exploring the common threads and bottom lines in them, leads to that rather inescapable conclusion. Unless, that is, one is intent on joining that chorus of supporters who believe they must insist that Sotomayor has no clear political leaning. But that is patently ridiculous. She's a liberal. I'm fine with that. And that is what her judicial record shows.
This is not to say that her record is one of a radical leftist. Only a right-wing conservative could review her opinions and draw such a conclusion. But by the same token, only a rather left-wing liberal could draw the conclusion that she is no liberal, that she cannot readily be classified, that she is really middle-of-the-road.
Let's be honest and clear-eyed. Let's not get caught up in the campaign for Sotomayor. That of the Obama administration, the Democrats, liberal groups, the sympathetic press and commentators, and other supporters. (Let's not get caught up in the right-wing campaign against her either. But much of that has been so outrageous and so irresponsible that it's easier to dismiss.)
She IS a liberal. If she is confirmed by the Senate and takes her seat on the Supreme Court, she will be part of the Court's liberal wing. She will generally side with liberal Justices Stevens, Ginsburg, and Breyer.
She will NOT be joining Chief Justice Roberts and Justices Scalia, Thomas, and Alito as a member of the Court's conservative wing. And neither will she be a moderately conservative swing-vote like Justice Kennedy currently is--or like Justice O'Connor was for many years before her retirement.
Unless, of course, she undergoes a dramatic ideological transformation. Or her judicial record to date actually means exactly the opposite of what it shows.
OK, let's get real, and let's take a graphic look at that record.
GRAPH 1
Ideological Patterns in Sotomayor's Opinions
(click to enlarge)
Graph 1 shows Judge Sotomayor's record to be quite liberal. Overall, and in each of several sub-sets of cases.
The graph reflects the opinions that Sotomayor has written in divided decisions during her tenure as a federal appellate judge. That is, the majority and dissenting opinions she has written while a judge on the U.S. Court of Appeals for the 2d Circuit (which sits in Manhattan) in those cases in which there was some disagreement among the judges.
These are the revealing decisions. Much more so than the others where the judges join together in one decision. Those unanimous decisions--where all the judges agree, at least publicly-- tell us little. We never know for sure whether there actually were internal disagreements among the judges which ultimately were concealed in compromise. Or which never saw the light of day because a disagreeing judge chose not to write a dissent for any one of a host of possible reasons.
But in the non-unanimous cases, we know that the judges felt strongly enough that they couldn't reach a compromise or gloss over their differences. We know that at least one judge felt strongly enough to go public with a disagreement by authoring a dissenting opinion. And we know that the judge writing the opinion for the majority of the court had to respond and explain why she thought the dissenter was wrong.
So these divided cases tell us the most about the individual judges and their views. The dissenting and majority opinions of a particular judge, especially when viewed collectively, tell us a great deal about what she thinks is important, what she agrees and disagrees with.
So Graph 1, as well as the next graph in this post, reflects the opinions of Sotomayor in these very revealing cases. (Forget about the nonsense being circulated about Sotomayor joining in so many decisions with the other judges, conservative as well as liberal. Do you think that conservative Justice Scalia and liberal Justice Ginsburg are on the same political wavelength because they vote together in all the Supreme Court's unanimous decisions? Of course not. If you want to know about a judge, look at how she votes and writes in the more difficult, more controversial cases where the judges publicly disagree--i.e., the divided cases!)
Let's take another look at Sotomayor's record of opinions in the divided cases. This time, to make the ideological patterns even more vivid, let's add to Graph 1 the frequency with which she took conservative positions. This provides a pretty striking contrast.
GRAPH 2
Ideological Patterns in Sotomayor's Opinions
Liberal vs. Conservative
(click to enlarge)
Graph 2, like Graph 1, is based on Sotomayor's majority and dissenting opinions in divided cases. There were 33 in all. 29 of them had readily identifiable liberal versus conservative positions. This graph, like the previous one, reflects Sotomayor's positions in the opinions she wrote in those 29 cases. They represent a very wide range of issues.
In the 'law & order" category, Sotomayor's opinions dealt with jury selection, the sufficiency of evidence to prove guilt, enhanced sentencing for aggravating factors, warrantless searches and seizures, child pornography, sexual misconduct with minors, drug crimes, possession of stolen goods, the ramifications of criminal convictions on other proceedings, and many other issues. She either took a position that was at odds with a majority of her colleagues, or she wrote for the majority against a dissenter.
On those "law & order" issues, she took the more liberal position--i.e., the position more favorable to the rights of the accused--twice as frequently as she took the more conservative one. As Graph 2 shows, 67% to 33%.
The "discrimination" category of cases involved issues of sex, race, and age discrimination. In each of these, it was a member of the minority or vulnerable class claiming the discrimination--i.e., woman, African-American or Hispanic, or elderly. The claims arose in both criminal and civil cases. They involved jury selection, employment, and voting rights. Sotomayor took the liberal position--i.e., siding with the party claiming discrimination--almost every time. As the graph shows, 86% to 14% of the time.
The "privacy" category includes issues of strip searches, wiretapping, and police searches and seizures in the home. Sotomayor objected to the government intrusions on privacy 80% of the time.
The "litigation/business" category includes all those cases with an issue having a pro versus anti civil litigation component to it, or with positions that were sympathetic versus unsympathetic to business interests. Among those were class actions, securities fraud, bankruptcy fraud, employment discrimination, negligent product design, and business tax violation. Sotomayor took the more liberal position--i.e., supportive of civil litigation and unsympathetic to business--in almost all the cases. As the graph shows, 85% to 15% of the time.
Summing it all up. Sotomayor took the liberal position in her majority and dissenting opinions in 72% of the cases.
Now that's not 100% or 90%. But it's not 50%, or 45-55% either. So it is, in fact, pretty clear what Sotomayor's juris-political leanings are. Again, as my Dad would say, let's put the cards on the table.
As I previously wrote on New York Court Watcher, we will look at Judge Sonia Sotomayor's record from several different angles in several posts. (See Sotomayor--Let's Put the Cards on the Table (First, Some Prefatory Comments), May28, 2009.) Tomorrow's post will continue to look at the ideological breakdown of her judicial opinions. We'll look at her record in dissent--dissenting opinions are typically the most revealing of a judge's judicial writings. We'll also compare her ideological track record to that of her colleagues. Is she all that liberal when compared to them? Or even more so? (Yes, I hate those damned teasers too. But I want to wrap this one up for today, because I do want to make sure I finish the next post for tomorrow.)
It's certainly not conservative. But neither is it politically centrist or moderate. It is pretty unmistakeably liberal.
Spending countless hours reading Judge Sonia Sotomayor's judicial opinions, and then many more exploring the common threads and bottom lines in them, leads to that rather inescapable conclusion. Unless, that is, one is intent on joining that chorus of supporters who believe they must insist that Sotomayor has no clear political leaning. But that is patently ridiculous. She's a liberal. I'm fine with that. And that is what her judicial record shows.
This is not to say that her record is one of a radical leftist. Only a right-wing conservative could review her opinions and draw such a conclusion. But by the same token, only a rather left-wing liberal could draw the conclusion that she is no liberal, that she cannot readily be classified, that she is really middle-of-the-road.
Let's be honest and clear-eyed. Let's not get caught up in the campaign for Sotomayor. That of the Obama administration, the Democrats, liberal groups, the sympathetic press and commentators, and other supporters. (Let's not get caught up in the right-wing campaign against her either. But much of that has been so outrageous and so irresponsible that it's easier to dismiss.)
She IS a liberal. If she is confirmed by the Senate and takes her seat on the Supreme Court, she will be part of the Court's liberal wing. She will generally side with liberal Justices Stevens, Ginsburg, and Breyer.
She will NOT be joining Chief Justice Roberts and Justices Scalia, Thomas, and Alito as a member of the Court's conservative wing. And neither will she be a moderately conservative swing-vote like Justice Kennedy currently is--or like Justice O'Connor was for many years before her retirement.
Unless, of course, she undergoes a dramatic ideological transformation. Or her judicial record to date actually means exactly the opposite of what it shows.
OK, let's get real, and let's take a graphic look at that record.
GRAPH 1
Ideological Patterns in Sotomayor's Opinions
(click to enlarge)
Graph 1 shows Judge Sotomayor's record to be quite liberal. Overall, and in each of several sub-sets of cases.The graph reflects the opinions that Sotomayor has written in divided decisions during her tenure as a federal appellate judge. That is, the majority and dissenting opinions she has written while a judge on the U.S. Court of Appeals for the 2d Circuit (which sits in Manhattan) in those cases in which there was some disagreement among the judges.
These are the revealing decisions. Much more so than the others where the judges join together in one decision. Those unanimous decisions--where all the judges agree, at least publicly-- tell us little. We never know for sure whether there actually were internal disagreements among the judges which ultimately were concealed in compromise. Or which never saw the light of day because a disagreeing judge chose not to write a dissent for any one of a host of possible reasons.
But in the non-unanimous cases, we know that the judges felt strongly enough that they couldn't reach a compromise or gloss over their differences. We know that at least one judge felt strongly enough to go public with a disagreement by authoring a dissenting opinion. And we know that the judge writing the opinion for the majority of the court had to respond and explain why she thought the dissenter was wrong.
So these divided cases tell us the most about the individual judges and their views. The dissenting and majority opinions of a particular judge, especially when viewed collectively, tell us a great deal about what she thinks is important, what she agrees and disagrees with.
So Graph 1, as well as the next graph in this post, reflects the opinions of Sotomayor in these very revealing cases. (Forget about the nonsense being circulated about Sotomayor joining in so many decisions with the other judges, conservative as well as liberal. Do you think that conservative Justice Scalia and liberal Justice Ginsburg are on the same political wavelength because they vote together in all the Supreme Court's unanimous decisions? Of course not. If you want to know about a judge, look at how she votes and writes in the more difficult, more controversial cases where the judges publicly disagree--i.e., the divided cases!)
Let's take another look at Sotomayor's record of opinions in the divided cases. This time, to make the ideological patterns even more vivid, let's add to Graph 1 the frequency with which she took conservative positions. This provides a pretty striking contrast.
Ideological Patterns in Sotomayor's Opinions
Liberal vs. Conservative
(click to enlarge)
Graph 2, like Graph 1, is based on Sotomayor's majority and dissenting opinions in divided cases. There were 33 in all. 29 of them had readily identifiable liberal versus conservative positions. This graph, like the previous one, reflects Sotomayor's positions in the opinions she wrote in those 29 cases. They represent a very wide range of issues.In the 'law & order" category, Sotomayor's opinions dealt with jury selection, the sufficiency of evidence to prove guilt, enhanced sentencing for aggravating factors, warrantless searches and seizures, child pornography, sexual misconduct with minors, drug crimes, possession of stolen goods, the ramifications of criminal convictions on other proceedings, and many other issues. She either took a position that was at odds with a majority of her colleagues, or she wrote for the majority against a dissenter.
On those "law & order" issues, she took the more liberal position--i.e., the position more favorable to the rights of the accused--twice as frequently as she took the more conservative one. As Graph 2 shows, 67% to 33%.
The "discrimination" category of cases involved issues of sex, race, and age discrimination. In each of these, it was a member of the minority or vulnerable class claiming the discrimination--i.e., woman, African-American or Hispanic, or elderly. The claims arose in both criminal and civil cases. They involved jury selection, employment, and voting rights. Sotomayor took the liberal position--i.e., siding with the party claiming discrimination--almost every time. As the graph shows, 86% to 14% of the time.
The "privacy" category includes issues of strip searches, wiretapping, and police searches and seizures in the home. Sotomayor objected to the government intrusions on privacy 80% of the time.
The "litigation/business" category includes all those cases with an issue having a pro versus anti civil litigation component to it, or with positions that were sympathetic versus unsympathetic to business interests. Among those were class actions, securities fraud, bankruptcy fraud, employment discrimination, negligent product design, and business tax violation. Sotomayor took the more liberal position--i.e., supportive of civil litigation and unsympathetic to business--in almost all the cases. As the graph shows, 85% to 15% of the time.
Summing it all up. Sotomayor took the liberal position in her majority and dissenting opinions in 72% of the cases.
Now that's not 100% or 90%. But it's not 50%, or 45-55% either. So it is, in fact, pretty clear what Sotomayor's juris-political leanings are. Again, as my Dad would say, let's put the cards on the table.
As I previously wrote on New York Court Watcher, we will look at Judge Sonia Sotomayor's record from several different angles in several posts. (See Sotomayor--Let's Put the Cards on the Table (First, Some Prefatory Comments), May28, 2009.) Tomorrow's post will continue to look at the ideological breakdown of her judicial opinions. We'll look at her record in dissent--dissenting opinions are typically the most revealing of a judge's judicial writings. We'll also compare her ideological track record to that of her colleagues. Is she all that liberal when compared to them? Or even more so? (Yes, I hate those damned teasers too. But I want to wrap this one up for today, because I do want to make sure I finish the next post for tomorrow.)
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