Wednesday, June 3, 2009

Judging Sonia Sotomayor

As it was only a few weeks ago that I wrote about opposing only judges who were judicial activists, I decided to give Obama's SCOTUS nominee a good week and a lot of research before I rendered a final verdict (or as final as I get). Of course, I've heard all the pro-Sotomayor talking points (from a perticularly stupid and irrelevant MoveOn email). I've also heard all the criticism from the usual sources (from Rush to Heritage), as well as arguments and counter-arguments (and blather) on the blogs from last week. So for me, it comes down to two questions ( the second of which I researched in detail):

1. Does she possess the qualifications and experience to be a Supreme Court Justice? The short answer is yes (I knew this answer, but I did a little research anyway).

(Excerpted from Wikipedia): Sotomayor entered Yale Law School in fall 1976, where she became an editor of the Yale Law Journal. She published a law review note on the effect of possible Puerto Rican statehood on the island's mineral and ocean rights. In her third year, she filed a formal complaint against a Washington, D.C. law firm for asking discriminatory questions during recruiting; the firm apologized. She obtained her J.D. from Yale Law School in 1979.
On the recommendation of Yale professor and future judge José A. Cabranes, Sotomayor was hired out of law school as an Assistant District Attorney under New York County District Attorney Robert Morgenthau starting in 1979. There she prosecuted everything from shoplifting and prostitution to robberies, assaults, murders, and police brutality.
In 1984, she entered private practice, making partner at the boutique commercial litigation firm of Pavia & Harcourt, where she specialized in intellectual property litigation
n 1987, Governor of New York Mario Cuomo appointed Sotomayor to the board of the State of New York Mortgage Agency.
Sotomayor was appointed in 1988 as one of the founding members of the New York City Campaign Finance Board, where she served for four years. She was a member and top policy maker on the Board of Directors of the the Puerto Rican Legal Defense and Education Fund for 12 years.
Sotomayor was nominated on November 27, 1991, by President George H. W. Bush to a seat on the U.S. District Court for the Southern District of New York vacated by John M. Walker, Jr. She became the youngest judge in the Southern District [irrelevant data removed]....
On June 25, 1997, she was nominated by President Bill Clinton to the seat she now holds, which was vacated by J. Daniel Mahoney.

In other words, she has experience in all aspects of the law and possesses the qualifications we would expect for someone of the highest court.

2. Does she follow a philosophy of judicial restraint, ruling based on existing law, or is she a judicial activist, using her rulings to create new law in line with her political philosophy?

When I typed this question, I didn't have a researched answer. But with the experience being there, my decision regarding her fitness for the court comes down to her judicial philosophy (her liberal political philosophy being irrelevant if she doesn't filter her decisions through it. So let's look at the pertinent points I have heard first. The two points, in short that I've heard from the right are the accusation that she's advocated legislating from the bench, and that she holds a racist judicial view.

Baking Up Policy

To begin, here's a longer version (nod to Dee) of the following quote: "All of the legal defense funds out there, they're looking for people with Court of Appeals experience because it is -- Court of Appeals is where policy is made. And I know, and I know this is on tape, and I should never say that because we don't make law, I know. (laughing) Okay, I know. I know. I'm not promoting it and I'm not advocating it. I'm -- you know. (laughing) [emphasis added]"

Now I listened to it a few times to get a sense rather than just the automatic knee-jerk response to the bolded part (which I had, of course). As I listened to what she said after (the backpedaling), I came to two thoughts. First, she does believe that the courts have some control over deciding what the law says.

However, there is some argument in the idea that the whole body of law relies on three key points: The written laws, precedents of cases involving the written laws, and specific application of the law in individual cases.

This is both a blessing and curse that our judicial system has. Take the Heller decision handed down by the court last year (I'm picking this one because I read the whole damned thing). The majority opinion, in this case, affirmed the contents of the Second Amendment as an individual right, subject to some regulation, but not the kind of regulations that create a de facto abridgement of that right.

In short, it took a court decision, backed by a couple centuries of precedents, to tell us what the Amendment says, i.e. the court made policy.

Roe v Wade is another example of this. But I'm not even going there on that one (and I'll delete anyone who does).

In short, the idea of the courts "making policy" could mean either interpretation and application of the law for specific cases that weren't covered clearly in the original law, or it could mean magically pulling the law out of your ass and ruling it into existence.

So on this alone I would not automatically disqualify her, although she should be grilled damned hard in her confirmation on it.

Latina Power on the Court

Here's the short quote in question:

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

Now I'm hesitant as hell to call anyone racist. And on the face, the quote does have a focus on racial superiority. The full texts of the speech can be found here.

Now after I put the link above in the post, I read the whole speech. First to put it in perspective, the speech was: "the text of the Judge Mario G. Olmos Memorial Lecture in 2001, delivered at the University of California, Berkeley, School of Law, by appeals court judge Sonia Sotomayor. It was published in the Spring 2002 issue of Berkeley La Raza Law Journal, a symposium issue entitled 'Raising the Bar: Latino and Latina Presence in the Judiciary and the Struggle for Representation.'"

In other words, it was a speech about the differences in perspective of judges due to race, sex, and culture. After uttering the above line, which got her pegged with the "racist" label, she went on, in the next sentences, to cite a possible bias by Supreme court Justices Oliver Wendell Holmes and Benjamin Cardozo concerning sex and race discrimination cases.

While Constitutional law itself must be fairly inflexible, the decisions of individual cases must be flexible, based on the judgements of the people deciding the case. A simple example of this is a statutory rape case where an adult is branded a sex offender for decades, forced to register, and can be found online. Simple? What if the "adult" is 18 and the "child" 15, and they're boyfriend/girlfriend? Not simple at all. I wouldn't call the 18-year-old a sex offender, just horny and stupid.

So while I happen to believe the original quote reflects a sentiment that may not be true, it is part of a valid idea, and should be discussed. It's also a reflection of the more liberal mindset that divides us into groups based on skin color, country of origin, parts between our legs, etc. Being an individual that doesn't fit into any group well (other than the aforementioned junk I'm carrying (and even there I'm a little bi)), it's a concept that I loathe on principle. And I can see where someone with a black and white (pun unintended) view of the world can see racism, because I can if I think that way. However, the fixation on race and sex does not necessarily make one a racist.

And specifically, it's something else she needs her ass grilled over heavily in her confirmation.

Overturning in to the Grave

So with those two points at least fuzzy in my mind (enough so that they need to be addressed, but not a singular reason for vehement opposition) , I had to look to her judicial record.

Without getting into the details, here are a smattering of cases (all from the Wikipedia article):
On March 30, 1995, Sotomayor issued the preliminary injunction against Major League Baseball, preventing it from unilaterally implementing a new collective bargaining agreement and using replacement players. Her ruling ended the 1994 baseball strike after 232 days, the day before the new season was scheduled to begin. The Second Circuit upheld Sotomayor's decision and denied the owners' request to stay the ruling.
In Dow Jones v. Department of Justice (1995), Sotomayor sided with The Wall Street Journal in its efforts to obtain and publish a photocopy of the suicide note of former Deputy White House Counsel Vince Foster.

In New York Times Co. v. Tasini (1997), freelance journalists sued the New York Times Company for copyright infringement for the New York Times' inclusion in an electronic archival database (LexisNexis) the work of freelancers it had published. Sotomayor ruled that the publisher had the right to license the freelancer's work. This decision was reversed on appeal, and the Supreme Court upheld the reversal; two dissenters (John Paul Stevens and Stephen Breyer) took Sotomayor's position.

In Castle Rock Entertainment, Inc. v. Carol Publishing Group (also in 1997), Sotomayor ruled that a book of trivia from the television program Seinfeld infringed on the copyright of the show's producer and did not constitute legal fair use. The United States Court of Appeals for the Second Circuit upheld Sotomayor's ruling.

In the 2002 decision Center for Reproductive Law and Policy v. Bush, Sotomayor upheld the Bush administration's implementation of the Mexico City Policy, which states that "the United States will no longer contribute to separate nongovernmental organizations which perform or actively promote abortion as a method of family planning in other nations." Sotomayor held that the policy did not constitute a violation of equal protection, as "the government is free to favor the anti-abortion position over the pro-choice position, and can do so with public funds."

In Pappas v. Giuliani (2002), Sotomayor dissented from her colleagues’ ruling that the New York Police Department could terminate an employee from his desk job who sent racist materials through the mail. Sotomayor argued that the First Amendment protected speech by the employee “away from the office, on [his] own time,” even if that speech was "offensive, hateful, and insulting," and that therefore the employee's First Amendment claim should have gone to trial rather than being dismissed on summary judgment.

So far, without delving into the minutia of the cases, I see a judge who's all over the ideological map, which dispels the the idea that she has a distinct ideological slant. Hell, even Rush Limbaugh acknowledged that her record did not look like the record of a rank ideologue:

You know what else is interesting? I have had friends of mine who are legal beagles and scholars. They have researched her decisions on the Second Circuit and throughout her career as a judge, and they have found something very interesting. Aside from the Ricci case in Connecticut, her decisions do not mirror the racism and bigotry of that speech. So it's going to be hard to go back and say, "Well, she said this, and therefore she gonna rule --" she hasn't ruled, there have been exceptions, but she hasn't ruled as a radical.

Which brings me to the Ricci case. As it is currently a matter under consideration by the Supreme Court, it's not yet settled. And if the SCOTUS upholds the appeals court's ruling, it will go back and be tried.

(For the WSJ story with full audio of the hearing, click here, and let me know if you stay awake, because I'm not losing the hour it'll take.)

Judge Sotomayor was one of a three-judge panel for the appellate court that simply affirmed, without comment, the ruling of the lower court. It was the full appeals court that overturned the panel. And Sotomayor appears to have leaned toward the idea of letting the city redesign the test (to cover their ass), stating, “If your test is going to always put a certain group at the bottom of the pass rate so they’re never, ever going to be promoted, and there is a fair test that could be devised that measures knowledge in a more substantive way, then why shouldn’t the city have an opportunity to try to look and see if it can develop that?”

Answering the Question (and surprising myself)

So let's go back to the question I posed earlier:

2. Does she follow a philosophy of judicial restraint, ruling based on existing law, or is she a judicial activist, using her rulings to create new law in line with her political philosophy?

As far as I can tell, there is no significant evidence that indicates she is a committed judicial activist, bent on recreating the law. Therefore, despite my instinctive distrust of Obama's first choice of a nominee (which was absolutely a politically motivated choice), her record indicates she does appear to have some degree of judicial restraint.

Now this is not a guarantee of the kind of Supreme Court Justice she will be. Look at who she's tapped to replace, Justice David Souter (surprise, surprise, surprise). And she may be a stealth activist (sitting on that tendency for 17 years!). But the only reasons on paper that I see to oppose the hell out of her (despite the fact that the GOP can do nothing to stop even a bad nominee) would be on purely ideological grounds. But just being a commie liberal is not a reason to shoot down a nominee, if their legal judgment is logical, restrained, and sound (or as sound as liberal thought can be).

In the end, she should be questioned vigorously, extensively, and on every point I've highlighted, and every significant decision she's made in court. Perhaps something will emerge then that will disqualify her then. But as of right now, I see no reason for the GOP senators to actively and preemptively oppose her.

Case closed.


dmarks said...

"And specifically, it's something else she needs her ass grilled over heavily in her confirmation."

The New Haven case, in which people were subject to racial discrimination due to official bigotry, and the community ended up served with incompetant/less competant firefighters, is something bad she was involved in, and this certainly does deserve to be discussed a lot.

Shaw Kenawe said...

But...but...Patrick! You came to a conclusion based on facts, not ideology and emotion!

And you've determined that she is not a racist or an activist/liberal judge?

Amazing, isn't it? When you actually do the work yourself and not leave it to gasbags and ideologues to tell you what to think?

Supreme Court Justice John Roberts once said this:

"Some might question whether encouraging homemakers to become lawyers contributes to the common good."

Which is a blatant remark showing bias AGAINST women.

Roberts also did this:

In internal White House memos written in the 1980s, John G. Roberts often showed his conservative edge, offering critical assessments of government programs for women and minorities, making jokes about Hispanics and discussing how to "defund the left."

Which is blatant CONSERVATIVE bias.


But his overall qualifications made those instances of sexism and anti-liberal bias irrelevant when it came to his confirmation.

We have to give Judge Sotomayor the same consideration for her one remark as we gave Judge Roberts.

dmarks said...

""Some might question whether encouraging homemakers to become lawyers contributes to the common good."

I'd rather see it go the other way around, anyway. More lawyers becoming homemakers. Then we get fewer crooks harassing innocent people with frivolous lawsuits.

And when a homemaker spills hot coffee, what does she do? She wipes it up. It's not seen as a way to make millions.

Shaw Kenawe said...


You're very quick to jump on people for racist/sexist remarks, but are willing to make a joke over Justice Roberts' blatant sexist, anti-woman statment.

How quaint.

Patrick M said...

Dmarks: What changed my mind on the New Haven case was the fact that it wasn't about giving anyone anything, as much as it was letting New Haven change its mind and cover its ass from lawsuits. In this case, there were no less competent firefighters promoted.

And while I disagree with Sotomayor on the merits, it's not about promoting o(r not) based on color, but on the city's right to change the rules mid-stream.

Shaw: I think I was clear on this. I suspect she'll be more liberal than she appears. But I don't see enough evidence to justify turning this into a political war.

You came to a conclusion based on facts, not ideology and emotion!

I do that sometimes. What that has to do with Chief Justice Roberts (who's right in what he said because I suspect you're doing a Rush Limbaugh on his comment) is beyond me.

And yes, I just said you're doing the same thing with Roberts' comment that Rush is doing with Sotomayor's. It's called context (or lack thereof in you and Rush's case).

Name: Soapboxgod said...

I happen to think her stance on the Ricci case is enough for me to give her the Nay vote. And, if oral arguments are any indication, the SCOTUS decision on it will affirm that Sotomayor's position was "activist" to the degree that it sought to bastardize Article VII in a quest for quotas.

For those not privy, SEC. 703. of the Civil Rights Act clearly states:

(a) It shall be an unlawful employment practice for an employer--
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or…

And so, a standard assessment test (or rather a promotion test in this case) was given to a number of individuals. The test, being race neutral, served as a measure of aptitude and/or qualifications for the particular job or promotion (in this case firefighter). Yet, because the results of the test did not produce the desired outcome, which is to say in this context that not enough African Americans, Hispanics, or [pick your favorite racial minority] passed the same test that an overwhelming majority of Caucasians did, something must be awry. And so naturally, the conclusion is that the test must be biased in such a manner as to (again referring to SEC. 703 of the ACT) “discriminate against any individual with respect to his compensation”. But let us inquire, discrimate against whom?

Naturally, due to the lack of African Americans, Hispanics, or otherwise in passing the test, the argument becomes one of discrimination against the African Americans, Hispanics, or other minority that failed to meet the requirements as a result of the test.

But I would say, if we are to make an argument (and certainly not a very compelling one) that African Americans, Hispanics, or whomever were intentionally discriminated against due to the administering of this promotional test, is not equally discriminatory on the same grounds to subsequently deny the respondents who did pass the test their rightful compensation?

Of course it is. However, this flip side to the coin is not conducive to the sort of desirable quotas for which the Civil Rights Act is presently bastardized.

It will indeed be interesting to see how the Supreme Court comes down on this case when they issue their opinion come June. Let us hope they side with the original intent of Article VII and that is, if you are intentionally discriminated against, you may thus have a cause of action. However, if the job qualifications or (in this particular case) the test disqualifies you because you are not prepared, then you’d better go find another line of work.

dmarks said...

Shaw: It looks like your idea is that an old bigoted statement by someone else makes a new one OK.

The fact is that Roberts is not up for anything. There is no recall on him. So there is really no point in arguing about what he said, unless it is somehow to give a pass to people who make bigoted statements who are up for nomination now.

Patrick M said...

Soapster: That's the weakness I see in her argument. Covering your ass over possible discrimination is not enough of a reason to chuck out a test, and discriminate against another group in the process.

It indicates she might have let this pass due to the races of the individuals involved, but she doesn't have a pattern of doing so in other cases. This makes it fodder for the confirmation hearing, but not an automatic nay.

Name: Soapboxgod said...

"This makes it fodder for the confirmation hearing, but not an automatic nay."

Very well. Let us then couple it with her ruling against an appeal in Doninger v. Niehoff. I'd perhaps given her the benefit of the doubt had Avery Doninger's "douche bag" comment been made on the school's grounds. However they were not. They were made off campus on Ms. Doninger's blog. Thus, Sotomayor's opinion of such comments presenting a "foreseeable risk of substantial disruption" at the student’s high school thus subsequently not entitling her to a preliminary injunction reversing the school's disciplinary action against her, was, in my honest opinion, without merit.

Strike Two.

Shaw Kenawe said...


I absolutely did not imply that at all. I did write that you jump on anyone who makes a racist remark, but seem not to be bothered by a sexist, anti-woman remark, because you made a joke of Roberts' statement. That's all I said.

YOU are the one claiming I'm justifying an old racist remark for a new one. I did nothing of the sort. I'm pointing out your inconsistency. This time it really IS about you!

Jeez! Pay attention!

dmarks said...

I guess I did let my disdain for the antics of lawyers get the better of me.

Time said...

History is riddled with the disappointment of Presidents and legislators who thought they were appointing to the Supreme Court a certain type of legal and politically ideological judge.
Just as Sutter disappointed the conservatives and President Bush, so to Sotomayor will disappoint the liberals and President Obama.
Different interpretations of a law does not automatically mean a cultural, or social bias.
Language and word definitions are often the cause of legal differences.
The second amendment simply states that the right to own arms was for the purpose of forming an armed militia to protect the colonies. It did not say that individuals had a right to own arms to hunt for food, or fend off Indians, which was the reason most people owned guns then.
We had no army, or finances to buy guns and ammo, but individuals already had those supplies. The second amendment simply protected that source of an armed force.
So one might interpret that only those members of our armed forces, or policemen have a Constitutional right to own guns.
If the armed forces, or police departments did not issue weapons, then I suppose those members would have a Constitutional right to buy and own their own weapons and bring it with them to be armed while on duty.
If a judge is upsetting those on both political sides, chances are they are following the law, not some other supposed bias.
People's complaints of judges are based on their wants and fears, not on the integrity of the law.
Following the law has a funny way of taking us to where we don't want to go.

Patrick M said...

Soapster: You neglect to mention Pappas v. Giuliani, where she, in the minority, defended the rights of an NYPD employee to say racist crap on his own time and not get fired for it. So much for the strike two. We're back to strike one.

Time: That's exactly why I came to my conclusion on Judge Sotomayor.

Name: Soapboxgod said...

"Soapster: You neglect to mention Pappas v. Giuliani, where she, in the minority, defended the rights of an NYPD employee to say racist crap on his own time and not get fired for it. So much for the strike two. We're back to strike one."

Eau Contraire Mon Fraire. This goes directly to my overall point. If one has a sound philosophy by which they reach conclusions. It is fair to say that one would thus conclude the same resolution on similar matters. Obviously that wasn't the case with respect to the two cases and Sotomayor's subsequent opinions. This speaks volumes with regards to Obama's want for a judge with empathy. Because it is only through empathy that one could reach different conclusions on similar matters.

That is not equal application of the law as it well should be.

Toad734 said...

There isn't a reason in the world why she wouldn't be confirmed and if the Republicans even try to block it they will end up with even more egg on their face.

I haven't read much on this but the way I took her saying that they "make policy" was that what they decide ends up being law. That could be totally wrong but thats what I got out of it.

And yes, a latino woman who grew up in the Bronx projects is going to see the world and interpret law differntly than a WASP from Tennessee or a black guy from South Central. The law isn't as clear cut as you think it is, the constitution uses vague words. For instance, you could use the constitution to defend gay marriage (which is exactly why they want to add an amendment banning it) but someone else would never read that into it just as some of our founding fathers didn't think women and black people actually counted as "men" or "man" and so therefore laws didn't apply to them. We now know that isn't the case or at least we interpret it the way we do.

And things aren't black and white as you said with the statutory rape thing. Same goes for a lot of situations; minorities are going to be less trusting of the police and in a case where a cop is killed by someone, they would be more willing to find out why and what the conditions were. Was it a crooked cop? Was the cop using excessive force and was the person who killed the cop merely defending themselves from death? Those are questions that were never raised when we had all white Judges and all white Juries. This is why we need diversity in these positions.

Patrick M said...

Soapster: I'd have to dig deep to find why she ruled two different ways on similar issues. But that's a question that absolutely deserves full airing as well in a confirmation hearing, as it indicates she's not necessarily a racist hyper-partisan.

Toad: Those are questions that were never raised when we had all white Judges and all white Juries. This is why we need diversity in these positions.

What we need are people who can put their personal feelings aside when they make rulings. Use those feelings and thoughts to try to get a sense of what happened, yes. But the rule of law should not be swayed by skin color, or genitalia, or any other demarcation that you seem to value.

If you'll notice, I didn't tackle or comment on the issue of Judge Sotomayor's ethnicity. Because I don't give a shit about it. I care that she'll apply the law without bias. And her record indicates that there's a chance at that, or at the least, she not a rank ideologue.

Diversity for the sake of being diverse is the worst reason possible to pick Supreme court Justices. Diversity comes when the best are selected, regardless of their ethnicity. Only after you have the list of the best do you start with secondary things like political leanings and deep analysis of the most controversial rulings. And then, if you've got nothing else, you check out the skin color or what's in the pants.

Unless you're saying that we should all be racist and exclude people because of their skin color.

dmarks said...

Diversity for diversity's sake requires picking and choosing people for skin color. And that is racist.

Patrick M has it right. Select for excellence, not skin color.

"Unless you're saying that we should all be racist and exclude people because of their skin color."

This is exactly what quotas/preferences/goals do.

Name: Soapboxgod said...

"What we need are people who can put their personal feelings aside when they make rulings." "...the rule of law should not be swayed by skin color, or genitalia, or any other demarcation that you seem to value."

Precisely why the Lady of Justice is wearing a blindfold.

La Shawn said...
This comment has been removed by a blog administrator.
James' Muse said...

Patrick, LaShawn is a troll-turd. I've seen this same post on a couple blogs.

Arthurstone said...

Well done Patrick.

Patrick M said...

Guess I should have checked in sooner.

LaShawn, learn what the difference is between addressing the post and trolling blather.