Not surprisingly, the Senate Judiciary Committee approved the nomination of Judge Sonia Sotomayor to the Supreme Court. Not despite her dreadful performance at the hearings. But according to most of the Senators, because of her performance.
Of course, there is little reason to ascribe candor to such assertions.
First: let's assume the Senators are at least sentient human beings, with some understanding of their questions and of Sotomayor's responses. They surely must recognize that she offered virtually nothing of substance about constitutional law, about particular precedents, or about the judicial process. That her answers evinced only the most superficial and simplistic familiarity with the bare-bones holding of some cases, and a grade school recitation of what judges do. Such a performance could not really impress the Senators who claimed it did.
Second: unless, of course, the assumption is unwarranted. It is possible that the Senators who questioned Sotomayor know even less about the law and understand even less about what judges actually do than Sotomayor's responses suggested about her. It is possible that the Senators' familiarity--let alone understanding--of the matters about which they were questioning Sotomayor is even more superficial and even more simplistic than what she showed in her responses. Is that the explanation? Well, there are some who are insisting just that.
But regardless of the foregoing, or of any other variation on those possibilities, let's consider this. A reality--or lack of it--in the fascinating world of senatorial partisan politics. Every Democrat on the Senate Judiciary Committee voted to approve Sotomayor's nomination. All 12. On the other side of the aisle, every Republican but one voted against her. All 7 except Lindsey Graham of South Carolina. Now just consider what the odds are that those votes reflect the Senators' honest assessments of Sotomayor.
Every Democrat supposedly thought Sotomayor did well. Every Republican, but 1, supposedly thought she did poorly. What are the odds?
Let's be clear. How likely is it that all 12 Democrats honestly believed that Sotomayor's performance at the hearings was so strong that it showed or confirmed that she would make an outstanding Supreme Court Justice? How likely is it that all 7 Republicans but 1 honestly believed that her performance was so unsatisfactory that it showed or confirmed that she was not fit to be a Justice? And just how likely is it--what are the odds--that those 2 phenomena would occur simultaneously? All the Democrats and all the Republicans but 1 honestly reaching conclusions about Sotomayor that just happen to coincide with their respective partisan politics?
You don't have to be a mathematician. It's an extreme longshot at best. (Far longer than anything you'd ever see on the Saratoga toteboard.) I'm told it's well beyond 100 to 1 or even 1,000 to 1. More in the order of 100,000+ to 1. "Basically no chance" that 18 of the 19 Senators' honest assessments of Sotomayor's performance would just happen to align with their respective political party's preferences.
(These odds are even higher than those for the Justices' votes in Bush v. Gore. Now whatever one might think of the ultimate 5 to 4 result in that case--vote recount stopped and George W. Bush elected--the voting (as well as the reasoning) was judicially implausable.
What are the odds that the 5 more conservative Justices on the Supreme Court would honestly and impartially interpret the Constitution in such a way that just so happened to help Bush? ["What a splendid coincidence, Clarence!" exclaimed Justice Scalia to an equally surprised Justice Thomas. (I just made that up, reader. Although I wouldn't be surprised...)]
And the 4 more liberal Justices would honestly and impartially interpret the Constitution in a way that just so happened to help Gore? ["Tell me Ruth, how could THEY not see what we see so clearly and objectively?" asked a frustrated Justice Stevens of Justice Ginsburg. (Again, reader, I made that up.)]
Once more, you don't have to be a mathematician to know that the odds are very very long indeed. There's very little chance.
And there's even less of a chance that the assessment of Sotomayor was honest and impartial where 18 of the 19 Senators just happened to fall along political lines.)
The reality of it all is plain. Party and ideology. A liberal Democratic President nominated Sotomayor. The Democratic Senators on the Judiciary Committee voted for her because of their party allegiance to the President, and because they are basically liberal like him and his nominee. Additionally, Sotomayor's performance was not a political disaster that would have made it too risky to vote for her.
The Republican Senators (all but that Lindsey Graham) voted against her because they have no partisan allegiance to the President, and because they are more conservative than the President and his nominee. Additionally, Sotomayor's performance was unimpressive and certainly provided no compelling reason--political or otherwise--to vote for her.
So all the Democratic/liberal Senators on the committee think that the nominee of the Democrat/liberal President proved herself at the hearings to be well qualified for the Supreme Court. All the Republican/conservative Senators, but 1, think the opposite.
As my grandfather would say, "The whole world's a fake."
The next post will take a look at Judge Sotomayor's answers in response to questions about the 2d Amendment. Specifically it will review her explanation of a recent decision in which she participated which held that the Constitution does not protect the right to bear arms against abridgments by state governments.
(Judge Sotomayor's performance at the hearings has been discussed in several previous posts on the New York Court Watcher. See e.g., Sotomayor--Let's Put the Cards on the Table (More on the Dreadful Success: SS on Judging), July 20, 2009; (A Dreadful Success at the Hearings), July 19, 2009.)
Thursday, July 30, 2009
Monday, July 20, 2009
Sotomayor--Let's Put the Cards on the Table (More on the Dreadful Success: SS on Judging)
The immediately preceding post on New York Court Watcher offered an assessment of Judge Sonia Sotomayor's performance at the confirmation hearings. In short, no political bombshells to hurt her chances, but no demonstration that she deserves a seat on the nation's high court either. Substantively abysmal. (See Sotomayor--Let's Put the Cards on the Table (A Dreadful Success at the Hearings), July 19, 2009.)
The next few posts will consider Sotomayor's testimony on a few important topics about which the Senators questioned her. They will be addressed in no particular order, except as I can read the notes I scribbled during the hearings. We'll deal with one major--perhaps all-encompassing--topic in this post.
Judging
Sotomayor was unwilling or unable to offer anything but a grade school account of what judges do. They only look at the facts and apply the law. They make no law and they make no policy. The legislature does that. The judges simply apply the law and policy already made by the legislature. Or they apply precedents. And precedents are apparently nothing more than the judges' past applications of law and policy pre-determined by the legislature.
Can Sotomayor possibly believe that the role of judges is so simplistic? Can she possibly believe that law and policy are so clear and consistent and dictate one particular result in cases that come before appellate judges? Can she possibly not understand that many cases that come before appellate courts, and virtually all that come before the Supreme Court, have no pre-determined result? That they can legitimately be decided in more than one way? That there are virtually always law and policy and precedents supporting each of the different possible results? That judges, and especially Supreme Court Justices, must pick and choose among the law and policy and precedents? That judges, and especially Supreme Court Justices, choose (usually with disagreements among them) which law and policy and precedents will prevail over the others? That in doing so they are creating new precedents? And that in doing so thay are necessarily making law and policy? (That at the absolute least, this is true for landmark decisions?)
Is it really possible Sotomayor believes anything as simplistic as she claimed? Really possible that she does not understand the reality of judge-made law and policy? There are 2 possibilities. Either she really believes what she was saying, or she does not. It's hard to say which would be worse.
Of course the reality of judges making law is understood by every serious judge and student of the judicial process. Sotomayor's own supposed judicial hero, Benjamin Cardozo (who was the Chief Judge of New York State's high court before his tragically short tenure on the Supreme Court) recognized judge-made law as a given. He then proceeded to deal with the real question--i.e., the implications of that given. Oliver Wendall Holmes, another of America's greatest judicial figures (and Cardozo's predecessor on the Court), had previously done the same. So too have countless other jurists and judicial scholars.
But Sotomayor was insisting--repeatedly, till ad nauseum--the opposite. In doing so, she avoided having to explain the judicial role in terms more sophisticated than 3d grade social studies. (She didn't even demonstrate that she could have.) And she helped to keep public discourse about the judiciary at the lowest pssible level. More than that, she helped to keep the American public--as well, apparently, as many Senators--misled and blind about what judges, especially those on the Supreme Court, actually do.
In the next posts we'll look at some other topics addressed by Sotomayor. E,g., gun rights, "fundamental rights," the Ricci case, affirmative action, the right to choose, and the right to privacy. Most of them can be dealt with more briefly than than "Judging." So we should be able to cover more than one at a time.
The next few posts will consider Sotomayor's testimony on a few important topics about which the Senators questioned her. They will be addressed in no particular order, except as I can read the notes I scribbled during the hearings. We'll deal with one major--perhaps all-encompassing--topic in this post.
Judging
Sotomayor was unwilling or unable to offer anything but a grade school account of what judges do. They only look at the facts and apply the law. They make no law and they make no policy. The legislature does that. The judges simply apply the law and policy already made by the legislature. Or they apply precedents. And precedents are apparently nothing more than the judges' past applications of law and policy pre-determined by the legislature.
Can Sotomayor possibly believe that the role of judges is so simplistic? Can she possibly believe that law and policy are so clear and consistent and dictate one particular result in cases that come before appellate judges? Can she possibly not understand that many cases that come before appellate courts, and virtually all that come before the Supreme Court, have no pre-determined result? That they can legitimately be decided in more than one way? That there are virtually always law and policy and precedents supporting each of the different possible results? That judges, and especially Supreme Court Justices, must pick and choose among the law and policy and precedents? That judges, and especially Supreme Court Justices, choose (usually with disagreements among them) which law and policy and precedents will prevail over the others? That in doing so they are creating new precedents? And that in doing so thay are necessarily making law and policy? (That at the absolute least, this is true for landmark decisions?)
Is it really possible Sotomayor believes anything as simplistic as she claimed? Really possible that she does not understand the reality of judge-made law and policy? There are 2 possibilities. Either she really believes what she was saying, or she does not. It's hard to say which would be worse.
Of course the reality of judges making law is understood by every serious judge and student of the judicial process. Sotomayor's own supposed judicial hero, Benjamin Cardozo (who was the Chief Judge of New York State's high court before his tragically short tenure on the Supreme Court) recognized judge-made law as a given. He then proceeded to deal with the real question--i.e., the implications of that given. Oliver Wendall Holmes, another of America's greatest judicial figures (and Cardozo's predecessor on the Court), had previously done the same. So too have countless other jurists and judicial scholars.
But Sotomayor was insisting--repeatedly, till ad nauseum--the opposite. In doing so, she avoided having to explain the judicial role in terms more sophisticated than 3d grade social studies. (She didn't even demonstrate that she could have.) And she helped to keep public discourse about the judiciary at the lowest pssible level. More than that, she helped to keep the American public--as well, apparently, as many Senators--misled and blind about what judges, especially those on the Supreme Court, actually do.
In the next posts we'll look at some other topics addressed by Sotomayor. E,g., gun rights, "fundamental rights," the Ricci case, affirmative action, the right to choose, and the right to privacy. Most of them can be dealt with more briefly than than "Judging." So we should be able to cover more than one at a time.
Sunday, July 19, 2009
Sotomayor--Let's Put the Cards on the Table (A Dreadful Success at the Hearings)
[Yes, at the time of my last post several days ago, I expected to write this post "tomorrow." Well, I guess I'm suffering from Arizona withdrawal and am not quite back into the swing of things. I may also be suffering from hearings overload--glued to the TV for the 4 days--and now hearings withdrawal.]
Judge Sonia Sotomayor's performance at the Senate Judiciary hearings was a success only in the barest, crassest political sense. She avoided saying anything useful as ammunition for conservative Republicans to use against her. But in a substantive sense, her performance was dreadful.
Her testimony was devoid of virtually any meaningful legal, judicial or governmental content. Were she a student of mine, I could not honestly give her a passing grade. (For some prefatory comments to the same effect, see the preceding post on New York Court Watcher: Sotomayor--Let's Put the Cards on the Table (The Hearings--Disappointing at Best), Jul 15, 2009.)
Assuming that Sotomayor was being honest in her testimony, she utterly failed to demonstrate an understanding of, or even much familiarity with, the Constitution, constitutional law, Supreme Court jurisprudence, the role of the Court in safeguarding rights and liberties, or the Court's position in the American tripartite and federal form of government. Indeed, again assuming her honesty in testifying, she affirmatively demonstrated an appalling lack of understanding or familiarity with these absolutely essential matters.
I know that my saying this is upsetting to many fellow liberals, Democrats, and supporters of President Obama. But what's true is true. Sotomayor's performance was simply the weakest--by a wide margin--of any recent Supreme Court nominee to appear before the Senate Judiciary Committee.
Let's be frank, if President Bush (#43) had nominated anyone as lacking in substance at the hearings as Sotomayor, liberals and Democrats would be aghast. We were so when President Bush (#41) nominated Clarence Thomas. But even Thomas's performance was not nearly as weak as hers.
Yes, the hearings are in large measure a game of gotcha by the opposing party. The Senators of the opposite party try to trip the nominee into saying something damaging. The nominee tries to avoid saying anything that might spell trouble. But that has been the nature of the hearings for some time now. And other nominees did not sound so clueless.
The nature of the hearings were the same for Chief Justice Roberts and for Justice Alito. The same for Justices Ruth Bader Ginsburg and Stephen Breyer. The same for the Justice who Sotomayor will replace, David Souter. Yet all of them demonstrated a firm grasp of the case law and the Court. More than a firm grasp. A mastery. Whether one agreed with them or not--politically, philosophically or jurisprudentially--there was no denying that they were each extraordinary capable, knowledgeable, and thoughtful.
The same can not be said honestly about Sotomayor. Whether one likes the way Sotomayor will likely vote on the Court (and I do)--i.e., with the liberals--there is no denying that she failed to prove herself in the same league with Roberts, Alito, Ginsburg, Breyer, Souter, or others in recent memory.
Like others who follow the Court, I love watching these Senate confirmation hearings. Even if much of the questioning by the Senators is inane, at least we learn a good deal about the nominee. Sure, the nominees usually try to conceal their ideological leanings. They usually are very cautious. They usually do their best to avoid controversey. But the depth and breadth of their understanding of constitutional law and the Court's role in our republic becomes pretty clear. Certainly, this was the case for all recent nominees.
Her testimony was devoid of virtually any meaningful legal, judicial or governmental content. Were she a student of mine, I could not honestly give her a passing grade. (For some prefatory comments to the same effect, see the preceding post on New York Court Watcher: Sotomayor--Let's Put the Cards on the Table (The Hearings--Disappointing at Best), Jul 15, 2009.)
Assuming that Sotomayor was being honest in her testimony, she utterly failed to demonstrate an understanding of, or even much familiarity with, the Constitution, constitutional law, Supreme Court jurisprudence, the role of the Court in safeguarding rights and liberties, or the Court's position in the American tripartite and federal form of government. Indeed, again assuming her honesty in testifying, she affirmatively demonstrated an appalling lack of understanding or familiarity with these absolutely essential matters.
I know that my saying this is upsetting to many fellow liberals, Democrats, and supporters of President Obama. But what's true is true. Sotomayor's performance was simply the weakest--by a wide margin--of any recent Supreme Court nominee to appear before the Senate Judiciary Committee.
Let's be frank, if President Bush (#43) had nominated anyone as lacking in substance at the hearings as Sotomayor, liberals and Democrats would be aghast. We were so when President Bush (#41) nominated Clarence Thomas. But even Thomas's performance was not nearly as weak as hers.
Yes, the hearings are in large measure a game of gotcha by the opposing party. The Senators of the opposite party try to trip the nominee into saying something damaging. The nominee tries to avoid saying anything that might spell trouble. But that has been the nature of the hearings for some time now. And other nominees did not sound so clueless.
The nature of the hearings were the same for Chief Justice Roberts and for Justice Alito. The same for Justices Ruth Bader Ginsburg and Stephen Breyer. The same for the Justice who Sotomayor will replace, David Souter. Yet all of them demonstrated a firm grasp of the case law and the Court. More than a firm grasp. A mastery. Whether one agreed with them or not--politically, philosophically or jurisprudentially--there was no denying that they were each extraordinary capable, knowledgeable, and thoughtful.
The same can not be said honestly about Sotomayor. Whether one likes the way Sotomayor will likely vote on the Court (and I do)--i.e., with the liberals--there is no denying that she failed to prove herself in the same league with Roberts, Alito, Ginsburg, Breyer, Souter, or others in recent memory.
Like others who follow the Court, I love watching these Senate confirmation hearings. Even if much of the questioning by the Senators is inane, at least we learn a good deal about the nominee. Sure, the nominees usually try to conceal their ideological leanings. They usually are very cautious. They usually do their best to avoid controversey. But the depth and breadth of their understanding of constitutional law and the Court's role in our republic becomes pretty clear. Certainly, this was the case for all recent nominees.
But this was not true of Sotomayor. The depth and breadth of her understanding was not clear at all. Indeed, based on her responses at the hearings, there is reason to doubt any such depth or breadth on her part. Let alone any mastery. And depth, breadth and even mastery--and not much less--is what we should expect in a nominee for the Supreme Court.
If I sound frustrated, it's because I am. Let me be clear. I am thrilled to have an Hispanic Justice on the Court. I am thrilled to have another woman. (Indeed, I think there should be many more. [An earlier post on New York Court Watcher identified several of the nation's finest woman judges on state supreme courts around the country, and I opined that they would collectively comprise a much stronger Supreme Court than we currently have. See Chief Justice Abrahamson Gets Another Term!! -- and other Great Women Chiefs, April 10, 2009.])
I have wanted to support Sotomayor for those reasons. As well as because I believe she will largely vote the way I would. And because I want to believe that President Obama made a good choice. (Several earlier posts on the New York Court Watcher examined the ideological patterns--largely liberal--in Sotomayor's opinion record as an appellate judge on the 2d Circuit. 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.)
But Sotomayor's performance at the hearings was nothing short of abysmal. And that added to the general mediocrity of her opinions as an appellate judge on the 2d Circuit makes me very disappointed--and, yes, frustrated--with this pick of Obama's. (For a look at some of Sotomayor's best and worst opinions--in my view, that is--see Sotomayor--Let's Put the Cards on the Table (The Good, The Bad, & The Ugly [Opinions]), June 23, 2009.)
In the next post, we'll look at some specifics of Sotomayor's testimony at the hearings. We'll look, for example, at her responses to questions about gun rights, "fundamental rights," the Ricci case and affirmative action, the right to privacy, judging and the role of judges, "empathy,"and even self-defense.
Wednesday, July 15, 2009
Sotomayor--Let's Put the Cards on the Table (The Hearings--Disappointing at Best)
[I've just returned from Arizona and from a break from this blog. After nearly 2 months of perfectly sunny skies, beautiful flora, fauna, and mountains, and great Scottsdale living, I'm back home in my other favorite place, Upstate New York. In fact, as soon as we drove into New York (into the westernmost part of the state on Interstate 90), Cath and I were again struck by just how gorgeous New York is. Lake Erie on the left, rolling hills and vineyards on the right, the landscape deep green but not smothering, Cherry Valley ahead, then mountains and cliffs on either side, the Mohawk River Valley... God's country.
And Saratoga opens in 2 weeks.]
For a court junkie, there are few shows better than the Senate confirmation hearings for a Supreme Court nominee. They're the Sinatra concert of current events.
So C-Span and CNN have been on non-stop. And like all true devotees of these events (i.e., judicial watching geeks), I've spent virtually all my time watching, taking notes, discussing and arguing. [Indeed, within 1 1/2 hours of my arrival back home in the Albany area, I was waxing and waning on TV about the 1st day's opening remarks.]
As I'm writing this, the Senators are engaged in their second round of questioning Judge Sotomayor. The questioning is supposed to finish today. Possibly this evening at the current pace. To be blunt, I hope someone can finally get Sotomayor to respond with something beyond the banalities and superficialities she's been offering up so far. [Note: the questioning was NOT concluded and it will continue tomorrow.]
I know this is heresy for my fellow liberals and Democrats, but let's be frank. This is the weakest performance of a Supreme Court nominee in a long time. She has provided virtually no discussion of the judicial role (except the utter nonsense that judges don't make law or policy), the vital issues (except to say that they all depend upon the specific facts of the case and the precedents), or constitutional principles (except to cite a relevant Supreme Court or 2d Circuit decision).
Sotomayor will likely vote the way I would in most cases. Justice Alito and Chief Justice Roberts usually do not. But their performances before the Senate Judiciary Committee were light years more impressive than hers. They showed themselves to be extremely knowledgeable, to have a command of Supreme Court jurisprudence and the Constitution, and well thought views about the proper role of the Court in our tripartite democratic republic. And before them, Justices Ginsburg and Breyer did the same. Agree with any of them or not, they were extraordinary and they proved themselves highly qualified for the Supreme Court. Sotomayor has not done that. Not close.
Sotomayor may turn out to be a fine, even great Justice. But there has been very little evidence of that at the hearings. Come on, let's put the cards on the table. Her performance (other than avoiding a politically destructive bombshell) has been abysmal.
Beginning tomorrow, some more specific analysis of the substance of Sotomayor's remarks.
And Saratoga opens in 2 weeks.]
For a court junkie, there are few shows better than the Senate confirmation hearings for a Supreme Court nominee. They're the Sinatra concert of current events.
So C-Span and CNN have been on non-stop. And like all true devotees of these events (i.e., judicial watching geeks), I've spent virtually all my time watching, taking notes, discussing and arguing. [Indeed, within 1 1/2 hours of my arrival back home in the Albany area, I was waxing and waning on TV about the 1st day's opening remarks.]
As I'm writing this, the Senators are engaged in their second round of questioning Judge Sotomayor. The questioning is supposed to finish today. Possibly this evening at the current pace. To be blunt, I hope someone can finally get Sotomayor to respond with something beyond the banalities and superficialities she's been offering up so far. [Note: the questioning was NOT concluded and it will continue tomorrow.]
I know this is heresy for my fellow liberals and Democrats, but let's be frank. This is the weakest performance of a Supreme Court nominee in a long time. She has provided virtually no discussion of the judicial role (except the utter nonsense that judges don't make law or policy), the vital issues (except to say that they all depend upon the specific facts of the case and the precedents), or constitutional principles (except to cite a relevant Supreme Court or 2d Circuit decision).
Sotomayor will likely vote the way I would in most cases. Justice Alito and Chief Justice Roberts usually do not. But their performances before the Senate Judiciary Committee were light years more impressive than hers. They showed themselves to be extremely knowledgeable, to have a command of Supreme Court jurisprudence and the Constitution, and well thought views about the proper role of the Court in our tripartite democratic republic. And before them, Justices Ginsburg and Breyer did the same. Agree with any of them or not, they were extraordinary and they proved themselves highly qualified for the Supreme Court. Sotomayor has not done that. Not close.
Sotomayor may turn out to be a fine, even great Justice. But there has been very little evidence of that at the hearings. Come on, let's put the cards on the table. Her performance (other than avoiding a politically destructive bombshell) has been abysmal.
Beginning tomorrow, some more specific analysis of the substance of Sotomayor's remarks.
Tuesday, June 23, 2009
Sotomayor--Let's Put the Cards on the Table (The Good, The Bad, & The Ugly [Opinions])
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.
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.
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