June 30, 2009

"This case sharpens our focus on Judge Sotomayor's troubling speeches and writings, which indicate the opposite belief: that personal experiences and

"This case sharpens our focus on Judge Sotomayor's troubling speeches and writings, which indicate the opposite belief: that personal experiences and political views should influence a judge's decision."

So said Senator Sessions (the ranking Republican on the Judiciary Committee.)

The linked article is mainly about how the Supreme Court's ruling in Ricci v. DeStefano isn't going to keep Sotomayor from getting confirmed. Yes, of course. But the interesting thing is what will be said about the judicial role as a consequence of the new case. It opens up the confirmation hearings for some interesting discussion of what we want from judges.

Sotomayor will take her seat of the Supreme Court. We all know that. What we don't know is what happens next. And these hearings should be about laying the groundwork for the next series of appointments and the next presidential election.

44 comments:

Aaron said...

Its depressing that it is probably a fait accompli. The fact is she has called her impartiality into question, and her actual holding below on a race-charged issue, has been rebuked by all 9 justices to one degree or another. Do you think Mr. Ricci felt that this wise latina gave him a fair shake? Would he reasonably question whether she was fair to him? Of course he would and that should be disqualifying, on a bi-partisan basis.

But of course it isn't.

garage mahal said...

5-4 = 9-0 !

MadisonMan said...

garage, exactly.

Patrick said...

I actually agree with the 9-0 'meme'. The 2nd circuit's ducking of the issues with a simple affirmation is ludicrous.

I mean, it is one of those rare enough cases which are prima facie fucken complicated. My question for Sotomayor would be whether she really is so to dumb as to have failed to notice the very difficult question of appropriate discrimination that this appeal raised.

But she won't be worse than Ginsberg.

Aaron said...

garage

Here's a pop quiz. how many justices would have affirmed the lower court ruling as is?

The answer is zero.

Kirk Parker said...

Garage (and Madison, surprisingly):

How did you miss that the significant disagreement on the Court was whether to remand or to overturn? Every opinion we have here takes at least a few words to chide the appeals court for not giving the issue a proper hearing.

MadisonMan said...

Why surprise? I've said before that if a sitting President is disagreeing with the direction the Supreme Court is moving, and nominates someone to alter that direction, then it should be no surprise that decisions that the nominee has made don't sit well with the present court.

(Assuming the nominee is a Judge, which seems to be de rigueur these days)

Yet somehow, this decision that was overturned is used against Judge Sotomayor? Ridiculous. (But not surprising).

AJ Lynch said...

The local idiotorial against the SCOTUS decision was negatively titled "Court Turns A Blind Eye".

That is too funny - you can not make this stuff up!

Aaron said...

Garage

Here, let me lay it out to you. Justice Ginsberg, in her dissent says:

> Applying what I view as the proper standard to therecord thus far made, I would hold that New Haven had ample cause to believe its selection process was flawed and not justified by business necessity. Judged by that standard, petitioners have not shown that New Haven’s failure to certify the exam results violated Title VII’s disparatetreatment provision.10

If you go down to footnote 10, then you see this:

> 10The lower courts focused on respondents’ “intent” rather than onwhether respondents in fact had good cause to act. See 554 F. Supp. 2d 142, 157 (Conn. 2006). Ordinarily, a remand for fresh consideration would be in order. But the Court has seen fit to preclude further proceedings. I therefore explain why, if final adjudication by this Courtis indeed appropriate, New Haven should be the prevailing party.

So to Ginsberg, the intent standard was wrong, and they should have focused on whether they had good cause to act. Thus she would have reversed the decision and remanded. And its only because the majority reaches the final determination that she also gets the final issue. So 9 justices said the lower courts were wrong in some fashion.

Aaron said...

madison

Ah new spin. The fact she was overturned proves how much we need her wise latina-ness. sheesh.

But doesn't the fact that 9 justices said she got it flat-out wrong at least give you pause? So even Ginsberg is to the right of her? Doesn't that make her kind of radical?

And that assumes that the only difference was ideological. Given her wise latina crack, there is a rational concern that ideology was not the issue so much as race.

Maguro said...

Yet somehow, this decision that was overturned is used against Judge Sotomayor? Ridiculous.

It wasn't so much that decision was overturned, but rather that Sotomayor accepted the city's argument at face value and dismissed the case without appearing to put much thought into it.

Even the liberal justices would have demanded *some* evidence that the test was discriminatory or not necessary for the job.

avwh said...

Sotomayor blew it on Ricci; there's no other possible interpretation, when ALL the sitting liberal SCOTUS justices even disagreed with the summary judgment of Sotomayor's appeals court.

It won't keep her from being confirmed, but it DOES show she's a relative judicial lightweight (just what you'd expect from a pretty blatantly affirmative action pick).

MadisonMan said...

The fact she was overturned proves how much we need her wise latina-ness.

Those are your words, not mine.

Kirk Parker said...

Madison,

My surprise was at your seeming to agree with garage's nonsense (i.e. that any of the dissenters would have upheld the lower court's ruling.)

Pogo said...

The real question is who gets to win the discrimination lawsuit lottery.

Black trumps gay trumps female trumps Hispanic trumps Asian trumps male trumps White.

Maybe Sotomayor can make Article I, Section 2 read, "Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including three fifths of all white males."

Pogo said...

Now that's empathy.

Kirby Olson said...

He should have appointed Ward Churchill.

garage mahal said...

But doesn't the fact that 9 justices said she got it flat-out wrong at least give you pause?.

Looking to a footnote in the dissent on page 10 and ignoring the rest of it is just vulturism.
Give conservatives credit again though, they can spin literally anything. These 9-0 talking points were written before the decision even came down. We never hear a peep about the cases Roberts and Alito were overturned on by the Surpremes, do we? Alito and Roberts both were overruled unanimously on cases, and the Supreme Court routinely reverses close to 60-70% of cases it hears from lower courts.

MadisonMan said...

I appreciated the beautiful brevity of garage's 9:24 remark more than the actual meaning.

traditionalguy said...

When we do not have political courage to decide to do something by (1)an act of Congress or by (2)a Presidential fiat, then we use Judicial Process to see who wins based upon reported facts and slippery law. The wild card is always the intricate Judicial Process. SCOTUS and many Apellate level courts simply refuse to hear many cases. And the ones they do hear are often mis-quoted on the facts to reach a desired result. Admittedly Sotomayor is an experienced player in all of this Judicial Process game playing. But she also appears reasonable and has aimed at the best available result in her decided cases. How that makes her into an unconfirmable Justice is unknown to anyone.

Cedarford said...

Althouse - "Sotomayor will take her seat of the Supreme Court. We all know that."

I'd caution against the conventional wisdom of inevitability.

Though President Hillary, the "Inevitable One", may disagree.

And everyone knew that liberal NY would dare not go against Teddy Kennedy's wishes to place his niece in the Senate. Or the Papal Curia go against the Princesses' later wishes to be Ambassador to the Vatican since the conventional wisdom of the mainly Jewish media was that Kennedy Royalty+Catholic was like Ham+Eggs.

The present conventional wisdom is that Sotomayor has "unbeatable!!" identity politics. She is a woman! She is Latin! She is So Wise! She has Biography!

Because we all know all Hispanics are alike, and Mexicans and Dominicans and Cubans just looove Puerto Ricans and feel a deep mutual solidarity rivalled only by the Semitic groups...
And blacks just loooove her too..evidenced from the mutual brotherhood and harmony of the noble oppressed brown-skinned races peoples on such awesome display from LA to Sao Paul.
(Of course, blacks will support her. But only because Democratic black leaders are paid by moneyed Democrat power brokers to order the compliant black herd to bark and clap their flppers once again on cue.)

No, this might end up like the Republican arguments that Condi Rice was the eventual successor of Beloved Maximum War Leader, Savior of Israel, Master of the Economy, Servant of God - Bush.
Because she was Black! Had Biography! Ice-skated * played piano. And was a woman!

Despite never being elected to anything in her life, not dealing with any domestic policy matter in her life, and being led around by the nose by Neocons..

When people looked closely, all the "bonus points" seemed to disappear, and realization spread she would be most unsuitable for highest office.
No one is talking Condi for President now..

Aaron said...

Garage

> Looking to a footnote in the dissent on page 10 and ignoring the rest of it is just vulturism.

Really, what part of the dissent said “Sotomayor and/or the district court did exactly the right thing?” Given your track record so far on reading the law, I can’t wait to hear it.

Anyway, quote the language that said that the district court or the second circuit did the right thing, in Ginsberg’s eyes.

> These 9-0 talking points were written before the decision even came down.

Right. We all meet at our local mason lodges and get our orders from above. Paranoid much?

If you are seeing a certain agreement in opinion on this point, it is because it is true. Often when many people say the same thing it is because it is true.

By the way, first to an ad hom, so you lose. Indeed, this whole talking points charge is your way of avoiding the facts and the value of the argument. I quote from the opinion itself showing that even Ginsberg thought the lower courts had it wrong, and you respond by saying, more or less, “look! A squirrel!” How about some actual argument citing the opinion, instead of just your own blow-hard ignorance in place of argumentation.

> We never hear a peep about the cases Roberts and Alito were overturned on by the Surpremes, do we?

Were there any that were found to be wrong 9-0? And did they involve any persons that they expressed prejudice toward?

Patrick said...

Count me similarly curious. The only prominent reversal to my knowledge was Hamdan - where there any others? I would be suprised if there were any 9-0s.

tim maguire said...

Quite right Aaron. If garage doubts that footnotes are vital windows into the judge's thoughts, then he knows nothing of how to read court opinions.

former law student said...

that personal experiences and political views should influence a judge's decision.

Sessions is at best naive if he thinks that personal experiences and political views do not influence the justices' decisions. Does he think they just landed here from Vulcan?

With nine justices you can achieve a balance of political views, and a breadth of personal experiences.

The 2nd circuit's ducking of the issues with a simple affirmation is ludicrous.

What to me is ludicrous is to see opponents of judicial activism demand that a court of appeals make law that, to their mind, would discriminate against white people. To what purpose? The case went up to the Supreme Court anyway.

garage mahal said...

Count me similarly curious. The only prominent reversal to my knowledge was Hamdan - where there any others? I would be suprised if there were any 9-0s..

Alito was reversed unanimously in Thomas.

Aaron said...

Garage

Congratulations. You got it half right. Yes, alito was overruled 9-0 in that case. But you haven’t shown any evidence of him having prejudice one way or the other. So once again you fail.

The fact is that Sotomayor has said she values the intellect of latina women over white males. Then she went on to rule against a white male in a discrimination case, in a perfunctory manner. That opinion was so wrong that not one single justice on the supreme court voted to affirm.

Of course justices get things wrong now and then, even 9-0, without it suggesting he or she is unqualified. But when they get it that wrong, when they said something suggesting a certain prejudice, it raises an unique of whether they did so because of the prejudice, or the ordinary mistakes judges make.

Answer this simple question for me. Is it rational to question her impartiality?

Aaron said...

Former

> What to me is ludicrous is to see opponents of judicial activism demand that a court of appeals make law that, to their mind, would discriminate against white people. To what purpose? The case went up to the Supreme Court anyway.

Um, you are quite confused. the people who wanted white people to be discriminated against won in the lower courts.

garage mahal said...

Congratulations. You got it half right. Yes, alito was overruled 9-0 in that case. But you haven’t shown any evidence of him having prejudice one way or the other. So once again you fail..

LOL. So a 5-4 decision means 9-0, and a 9-0 decision means.....what, let me guess....0-9 ?? Just depends!?

former law student said...

the people who wanted white people to be discriminated against won in the lower courts.

The original Second Circuit panel ruling -- the "simple affirmation," remember -- had no precedential value. The ruling affected only a handful of white people, not every white person in Connecticut, Vermont, and New York.

Aaron said...

Garage

Yer a bit slow on the uptake. Let's review my challenge to you:

> Were there any that were found to be wrong 9-0? And did they involve any persons that they expressed prejudice toward?

That's two parts. You only addressed one. But i have made it clear throughout that it wasn't MERELY the fact she was reversed, or reversed 9-0 that was damning, but that she was reversed 9-0 in a race charged cases involving a member of a group she has expressed prejudice toward. As i said in the very first post in this thread:

> The fact is she has called her impartiality into question, and her actual holding below on a race-charged issue, has been rebuked by all 9 justices to one degree or another. Do you think Mr. Ricci felt that this wise latina gave him a fair shake? Would he reasonably question whether she was fair to him? Of course he would and that should be disqualifying, on a bi-partisan basis.

Being wrong (9-0 against her in some respect) in a case of so-called "reverse" discrimination involving a white male, after her wise latina comment, calls whether she judged the case impartially into question in a way that just getting it wrong in any other context doesn't. And that is why the second part of the challenge i threw down to you is so important. and you ignored it.

Epic fail.

Aaron said...

Former

you know you would think being proven wrong 9-0 might have chastened you, but oh well.

The fact is you just have it backwards. none of the conservatives wanted her to discriminate against white people.

And, btw, you twit, they did make law. they said on those facts the conduct was legal. even if the decision's language can't be cited, the outcome can be, affirmed by the second circuit.

Face it. i have told you for months what the supreme court woudl do and how the circuit and district courts got it wrong. And i was vindicated. And without even admitting you were wrong, you dare challenge me on how to read the law, again?

Wow, talk about not being disuaded by reality.

Aaron said...

garage:

And you still haven't answered this question:

> Answer this simple question for me. Is it rational to question her impartiality?

former law student said...

you dare challenge me on how to read the law

Face it, there seem to be big gaps in your legal knowledge, as well as in your reasoning abilities.

garage mahal said...

But i have made it clear throughout that it wasn't MERELY the fact she was reversed, or reversed 9-0 that was damning, but that she was reversed 9-0 in a race charged cases involving a member of a group she has expressed prejudice .

Aaron, WTF? She wasn't reversed 9-0! In Ginsberg dissent she clearly expressed her opinion that New Haven didn't violate Title VII.


> Answer this simple question for me. Is it rational to question her impartiality?
.

No! Base on a review of 96 cases she ruled on which found that she rejected discrimination-related claims by a margin of roughly 8 to 1.

What do you base your question of her impartiality on?

Aaron said...

Former

Says the guy who thinks conservatives wanted white people to be discriminated against.

and utterly got the law wrong in the run up to this decision.

Sheesh.

Aaron said...

Garage

> She wasn't reversed 9-0! In Ginsberg dissent she clearly expressed her opinion that New Haven didn't violate Title VII.

We’re back to this again. Yes, in the quoted passages I pointed out to you (which, by the way, were not on page ten contrary to your first clueless assertion, proving you hadn’t even read the opinion), she said the correct decision was to remand for consideration under the good cause standard she wanted to apply. None of the nine justices said that just because the court decided they had good intent that they were allowed to discriminate, which is what the district court rules and Sotomayor approved of.

> No! Base on a review of 96 cases she ruled on which found that she rejected discrimination-related claims by a margin of roughly 8 to 1.

That says nothing about the merit of each claim.

What we do know is that in this case involving a white male, she was wrong 9-0. And she approved of a ridiculous lower court decision that claimed that no discrimination had occurred at all, under the 14th Amendment, because no one was promoted.

> What do you base your question of her impartiality on?

Primarily her own words, but the ricci case pours gas on the fire.

Kirby Olson said...

I know this is irrelevant, but how much does she weigh? Physically, I mean, and how tall is she? She seems to be way out of proportion, and yet Obama wants us all to thin down, and to watch our weight. Perhaps she will form a bulwark against the Obama administrations attentions to BMI. She'd have to spend a year in one of Obama's reeducation camps for the crime of obesity, I'd think. Not yet a crime, but about to be, unless she can put a stop to it!

Aaron said...

Kirby Olson

She did once say that a wise chubby latina would make better rulings than a beanpole white guy... lol

hdhouse said...

ahhhh I see Aaron the wildass zealot is in full gear...but the reason for this post is from the opening quote: "Sotomayor's 'troubling speeches'" has now morphed from a comment taken fully out of context into "troubling speeches"

What ho Senator Sessions...we had Clarence talking about Long Dong Silver...now there is troubling speech and after watching the republicans donate 8 years of troubling speeched I know it when I see it.

Aaron said...

Hdhouse

Yes, when it comes to equal justice before the law, i am a zealot. I don't apologize for that. I am just disappointed that about 2/3 of congress is apparently uninterested in the concept.

As for Thomas' statements, there is one tiny problem in your comparison. We don't know for sure he made them. by comparison not only to Sotomayor definitely make the comment, but she made similar comments repeatedly.

The third canon of judicial conduct demands taht a judge disqualify herself whenever there is a reasonable question as to her impartiality. Are you really going to say that Mr. Ricci had no reasonable question to her impartiality?

The fact is that our Supreme Court should lead by example. that means that she should step out of every case involving a litigant or attorney who is a white male or latina female, and out of any case involving discrimination. Which then in turn means she is utterly unqualified to be on the bench.

i say that thinking that in most other ways she is well qualified, and actually moderate compared to some of the other options. but like i said, i am a zealot when it comes to equal justice under the law, and therefore however much i might like her otherwise, i cannot support this nomination.

Matt said...

A bunch of white men sitting around browbeating a Latina. This is the groundwork for the next election? If so plan on more Democratic victories.

Not being able to get behind Sotomayor's nomination is odd [at the least] to me. Not only is she more qualified than anyone currently on the court [when they were nominated] but her rulings are not that liberal. In fact, she has been accused of being moderate to conservative in some cases. She certainly backs up corporations. We don't even know where she stands on abortion. She is hardly the far left zealot some want to make her out to be. But because some on the right hate Obama they will oppose anyone he nominates.

Kirby Olson said...

Well, she herself stopped the one Hispanic from getting a raise. So she was browbeating a Hispanic. Shouldn't she have said the hispanic should get a raise, and all the white guys should get taken down a peg or lose their jobs altogether and be replaced by Hispanics (preferably Puerto Ricans)? It does seem that she doesn't really know anything about justice!

scinfinity said...

So, we see Dems slander Robert Bork. Slander Clarence Thomas. Smear John Roberts. Smear Sam Alito. Slander Charles Pickering.

...and then have the audacity to criticize any criticism of Sotomayor?