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In his excellent speech during floor debate about Judge Sotomayor, Alabama's Jeff Sessions touched on what should be one of the most disturbing parts of the judge's record:
"Within the last three years, Judge Sotomayor has heard three monumentally important cases involving: the constitutional right to be free of racial discrimination, the right to keep and bear arms, and the Fifth Amendment right to one's private property. In all three of these cases, Judge Sotomayor joined or authored very brief opinions that avoided the kind of careful analysis we would expect of an appellate judge. In all three cases, individuals went to court with the plain text of the Constitution on their side. And in each case, Judge Sotomayor reached conclusions that denied individual Americans their rights against government power. "
Later: "Judge Sotomayor repeatedly stated, including in her opening statement, that litigants deserve explanations. That she looks into the facts, delves into the record, and explains to litigants why she rules for or against them. I have read the one-paragraph Ricci opinion. And Judge Sotomayor did not afford the firefighters the respect they deserved."
And: "After Maloney was decided, the Seventh Circuit also addressed this issue. Although the Seventh Circuit agreed with the Second Circuit, it reached this conclusion in a much more thorough and thoughtful manner that showed that the judges appreciated the significance of whether to apply the Second Amendment to the states. "
Likewise, he said, on the Didden v. Port Chester case involving eminent domain, "Judge Sotomayor's panel dismissed the merits of the plaintiffs' case in one paragraph."
And: "In these three recent cases, the litigants did not have their rights properly listened to nor protected, in my opinion. Is it because she would have preferred different results from the promotional exam for firefighters? Is it because she does not believe in the rights protected by the Second Amendment? Is it because she favors redevelopment? We are left to wonder, because the cases were certainly not decided based on the plain text of the Constitution and did not openly and thoroughly discuss the serious nature of the issues raised."
He also could have added that her opinion was equally and obnoxiously brief in the case of Hayden v. Pataki, where she would have ruled that currently incarcerated murderers and rapists have a right to vote while behind bars.
We at the Washington Times blasted this tendency to hide behind bizarrely brief opinions in the most controversial (and unpopular) of her decisions in this editorial. The problem is that litigants, lawyers, and the public cannot leave the courtroom understanding WHY a case was decided the way it was if the judge hides behind such brief explanations. On every level, this is an abdication of a judge's responsibility.


Walter Olson kindly asked me to guest-blog here all week, for which I am very grateful. I've gotten a slow start, but plan to make up for it. Anyway, it's worth noting that John McCain's somewhat surprising decision to vote against confirmation of Sonia Sotomayor to the Supreme Court showed not just a well-expressed sense of what the role of the court is, but an admirably thorough amount of research and analysis of Judge Sotomayor's record.

Most interesting, perhaps, is that McCain focused more on Sotomayor's District Court record than just about any other senator, rather than just analyzing her record on the Second Circuit Court of Appeals -- and that his analysis noted several rulings of particular interest to businesses and to property rights:

She was reversed due to her reliance on foreign law rather than U.S. law. She was reversed because the Second Circuit found she exceeded her jurisdiction in deciding a case involving a state law claim. She was reversed for trying to impose a settlement in a dispute between businesses. And she was reversed for unnecessarily limiting the intellectual property rights of freelance authors. These are but a few examples that led me to vote against her nomination to the Second Circuit in 1992 because of her troubling record of being an activist judge who strayed beyond the rule of law.

(NOTE: He obviously meant 1998, not 1992.)

In another forum, I have drafted pieces particularly critical of Sotomayor's decision in Merrill Lynch v. Dabit, summarized concisely by Ed Whelan: "In Merrill Lynch v. Dabit (2006), the Court, in an opinion by Justice Stevens, unanimously (8-0) reversed Sotomayor's ruling that certain state-law securities claims were not preempted by federal law. Stevens pointed out that the Court had rejected Sotomayor's interpretation in cases from 1971 forward."

I think honest businesses will rue the day Sotomayor gets on the high court. And I think McCain is right in his analysis overall.

Felons' right to vote case

It may count as Sonia Sotomayor's least satisfactory answer to Senate questioners.


Nominee Sonia Sotomayor has now disavowed some of the views on gender, race and jurisprudence that she once delivered to admiring audiences on the foundation/conference circuit, and Manhattan Institute fellow Heather Mac Donald, for one, is disappointed:

The airing of her many speeches on identity politics and the law had produced another Ward Churchill moment: An idea that is outright mundane within the academy escapes its hothouse environment and shakes the public temporarily out of its stupor regarding university culture. Now, unfortunately, Sotomayor's bland denials that she ever meant what she said will allow the curtain to fall once more over the mad world of academic legal theory.

A more optimistic interpretation, of course, would be that Sotomayor is ready, like Shakespeare's Prince Hal on attaining the throne, to put away childish things.

Glenn Greenwald vs. Sonia Sotomayor

In the New York Times online "Room for Debate" feature, amid one of his usual diatribes against Republicans, Salon blogger/attorney Glenn Greenwald has some unkind words for Judge Sotomayor as well, assailing as perhaps "disturbing" her "excessively mechanistic and legalistic" rulings against plaintiffs. Alas, he misses a chance to add perspective to this interesting complaint by not apprising readers that he himself as private lawyer was on the losing side of one of these rulings of hers (earlier).


In a column in today's Examiner, I argue that the rancor concerning judicial confirmations today stems in part from the legal academy's efforts to deconstruct the law itself, through such movements as legal realism and critical legal studies. Each school of thought does contain truths, and some areas of law--including tort law and antitrust law--are essentially judge-made, and call out for policy judgment.

But the end result of deconstructing legal formalism is legal-process-as-politics--an express tenet of some strands of critical-legal thought--in which the judiciary is viewed as essentially indistinguishable from the political branches. When legality itself is reduced to no more than policy outcomes, the end result is a less-legitimate judiciary, and a highly charged, political confirmation process.

All of which makes Sonia Sotomayor's testimony so striking. However much Sotomayor's words before the Senate Judiciary Committee may not match some of her previous extra-judicial writings and speeches, her testimony has been a full-throated endorsement of legal formalism, as I note over at NRO. Sotomayor has (a) backed away from her earlier statements suggesting not only that race and gender matter in determining legal outcomes but that it's not a bad thing; (b) expressly repudiated President Obama's "empathy" standard as even being necessary in any cases; and (c) rejected in essence the whole project of transnational legal process, claiming that American law is determined by American traditions apart from obvious exceptions like treaties and contracts with alternate choice-of-law terms.

It's hardly surprising that at least one Crit has thrown up his arms at the spectacle, and led Randy Barnett (and myself) to lift our eyebrows, given an almost indisputable acceptance that the law "is a whole lot more underdeterminate than Judge Sotomayor made it out to be."

The take-aways, as I see it? First, the President's advisors who prepped Sotomayor view legal formalism--however discredited in the academy--as the mainstream public view of the law. Second, Sotomayor's orthodox statements of law constrain somewhat the President's next Supreme Court appointment, since they could "be used pretty powerfully to undercut the legitimacy of a full-blown transnationalist like Harold Koh, or anyone firmly rooted in the Critical Legal Studies school."


A zinger from Tom Goldstein's and Kristina Moore's liveblogging of the confirmation hearings yesterday at ScotusBlog:

4:02 - Tom Goldstein: CS [Sen. Chuck Schumer, D-N.Y.] is walking through the greatest of SS's hits of cases in which she ruled against plaintiffs in sympathetic sounding cases [such as In Re Air Crash Off Long Island, 1996, in which she ruled based on precedent for the defendant airline and against survivor families; Schumer's theme was that the rulings establish Sotomayor's willingness to decide cases on a basis of logic rather than personal empathy].

4:03 - Tom Goldstein: It reaches an extreme when CS points out that she ruled against a poor woman trying to get a loan who didn't have a lawyer. I think that CS might have thought of that case a little differently if he were questioning Sam Alito.

Revisiting the Estrada nomination

ABC's Jan Crawford Greenburg has a devastating rebuke of Sen. Patrick Leahy (via Patterico):

Leahy [yesterday] tried to blame Republicans for failing to get [Miguel Estrada] confirmed when they had a majority -- and then tried to blame Estrada himself, for not answering questions because he may have been "distracted" by a high-paying job offer.

??? Did I hear that right?

Estrada had (and has) a high-paying job, at Gibson Dunn, which he was willing to leave to go on the federal bench. And, regardless, Estrada answered questions every bit as thoroughly as John Roberts, who was confirmed to the DC Circuit--despite his not turning over the same DOJ documents the Judiciary Committee wanted from Estrada.

Estrada was blocked by Democrats for one reason -- the same reason they blocked Bush's other minority and women nominees: They knew he would be on the short list for the Supreme Court if confirmed. And they knew it's a lot easier to block a nominee at the appeals court level, when no one is paying as much attention as the do to the Supreme Court. (Republicans are seeing that now with Sotomayor.) It was a deliberate, thought-through strategy.


Quin Hillyer at The Washington Times' blog, The Water Cooler, notes that Judge Sotomayor is defending her decision in a major eminent domain case, Didden v. Port Chester, because it was required by a clear statute of limitations: Didden was too late when he filed his legal challenge to the "taking" of his property. The law is clear, I ruled accordingly.

The reason such a bizarrely stringent obeisance to a supposed statute of limitations is problematic for her liberal backers is because they keep citing the Ledbetter decision as an example of why judges should take note of "real world" effects of their decisions and show "empathy" for the victim. But the Supreme Court in Ledbetter did exactly what Sotomayor did in the Didden case, namely applied a statute of limitations -- and one that was much more clear, much more unambiguous, than the strained reading Sotomayor put on the statute of limitations in the Didden case. So if she is going to go so overboard in [mis]applying a statute of limitations in Didden, how can the lefties say it is important to have an empathetic woman on the court in order to override unimportant things such as statutes of limitations in cases like Ledbetter's? Again, I have already heard the Demo senators at least twice make reference to Ledbetter in arguing in favor of Sotomayor. How can they make that argument but still defend her Didden ruling?

Well, in politics at least, you can't spell "empathy" without "empty."

Around the web, July 14

  • "Organized Labor Concedes: Employer Violations Rare in Secret Ballot Elections" [James Sherk, Heritage Backgrounder] And before the Washington Post swallows claims of a pro-employer tilt in union-organizing election procedures, it should look at the facts more closely [Sherk, "Foundry" blog]
  • Kevin Funnell on "bankslaughter" proposals to criminalize more instances of bank mismanagement [Bank Lawyer's Blog]
  • "Texas tobacco lawyers now file class action in Arkansas over light cigarettes" [SE Texas Record]
  • Will state courts follow federal Twombly/Iqbal example and adopt meaningful pleading standards? [Day, Tennessee]
  • Even when your target is the state of New York and its longsuffering taxpayers, meritless litigation might eventually get you sanctioned [Wait a Second!, Gollomp v. Spitzer]
  • Sen. John Cornyn's 20 questions for Sonia Sotomayor [Senate via Adler] Nominee's extensive involvement with PRLDEF included challenges to public employment exams [DRJ at Patterico] "Voting booths in Sing Sing" a logical implication of her felon-franchise Hayden v. Pataki dissent? [Alt, NY Post, more] Trading odds on confirmation: 98.5 with 100 = certainty [MargRev]
     

 

Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.