Justice Antonin Scalia has a well developed capacity for indignation that he directs at any number of targets, including Congress, “living constitutionalists,” and international law advocates. But even long-time Scalia watchers seemed surprised early in the current Supreme Court term when Scalia chose Jewish war veterans for one of his signature from-the-bench outbursts.
Scalia professed incomprehension during the Oct. 7 arguments in Salazar v. Buono that Jewish war veterans could feel slighted at the designation of a Christian cross — with no other religious symbol — as a national memorial to World War I veterans. The eight-foot high cross, originally erected by the Veterans of Foreign Wars but later given official recognition by Congress, sits atop a hill in a remote location in the Mojave Desert in California.
“The cross doesn’t honor non-Christians who fought in the war?” Scalia asked of the lawyer representing a plaintiff who views it as an unconstitutional government endorsement of religion. The cross, Scalia continued, “is the most common symbol of the resting place of the dead.”
In all seriousness, ACLU attorney Peter Eliasberg felt obliged to explain to Scalia, a devout Roman Catholic, that the cross may be a common symbol for Christians, but not for others. “I have been in Jewish cemeteries,” Eliasberg said. “There is never a cross on a tombstone of a Jew.”
Scalia remained unconvinced. His voice rising, Scalia insisted that the idea that the cross honors only Christian war veterans was “an outrageous conclusion.”
The episode comes to mind these days as Scalia’s legacy during 23 years on the Court is being examined thanks to the first full-length biography of the justice. In American Original, Joan Biskupic, the longtime Supreme Court reporter for USA Today, provides a scrupulously fair account of Scalia’s life and views.
Biskupic, a friend and colleague for 20 years, has informed her narrative with several interviews with Scalia himself and with six of Scalia’s current or former colleagues. She accurately describes his reputation for brilliance, his strongly held legal views and his apparently increased influence in the four years since the appointments of Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr.
Along with those positives, however, Biskupic also presents the major elements of the less favorable view of Scalia the justice: his outsized ego, overbearing personality, and intellectual inconsistency. Tellingly, the most damning items come from Scalia himself or from other justices who simultaneously profess admiration for and exasperation with their irascible colleague.
“I love him,” Justice Ruth Bader Ginsburg tells Biskupic, “but sometimes I’d like to strangle him.” Ginsburg and her husband are close friends with Scalia and his wife: the justices share a passion for opera; the families share festive holiday dinners.
Justice John Paul Stevens, the longest serving of the Court’s current members, says all the justices admire Scalia’s “writing ability and his style and all the rest.” But, Stevens adds, “Everybody on the Court from time to time has thought he was unwise to take such an extreme position, both in tone and in the position.”
From Biskupic’s telling, Scalia’s dogmatism may be traced as far back as his years as a student at a Jesuit-run, all-male military academy, where the school newspaper once described him as “an exemplary Catholic.” Scalia’s pre-ecumenical faith helps explains his blind spot to the Jewish war veterans’ argument. So too his experience at an all-male military academy helps explain Scalia’s scornful dissent when the Court in 1996 ruled the all-male Virginia Military Institute guilty of unconstitutional sex discrimination.
From Scalia himself, readers learn that despite his illustrious career he nurses long lingering resentments. More than 50 years later, Scalia still broods that Princeton rejected him because of his Italian immigrant background. (He went on to graduate first in his class from Georgetown.) Nearly 30 years after the fact, he remains “bitterly disappointed” that President Ronald Reagan passed him over for solicitor general in 1981. (He was appointed the next year to the federal appeals court in Washington.) And after Chief Justice William H. Rehnquist’s death in 2005, Scalia evidently hoped for elevation to the post even while acknowledging the reasons for picking someone else.
Biskupic recounts some of the many examples of Scalia’s argumentative questioning from the bench — and his response that Ginsburg can be just as bad. She quotes some of Scalia’s inflammatory dissents — and his comment in a slightly different context that he is “not that nasty a fellow.” And she notes, in the face of Scalia’s denial, that he applies his “originalism” to constitutional cases selectively, upholding laws that he approves (abortion regulations) while striking down laws that he disapproves (the District of Columbia gun ban).
Throughout, Biskupic draws a portrait of a justice who is the very antithesis of the model judge of open mind and judicious temperament. Scalia came to the Court on Rehnquist’s elevation to the chief justiceship in 1986 and succeeded then to Rehnquist’s place as the most conservative of the nine. When Rehnquist’s bust was unveiled at the Supreme Court last week [Dec. 10], Roberts remembered his fellow conservative as “modest and unassuming,” while the liberal Stevens recalled Rehnquist as “absolutely impartial” in all procedural matters.
Some day, Scalia will be honored with his own bust in the Supreme Court building. There will be fond tributes, no doubt, but modesty and impartiality will likely go unmentioned.
Sunday, December 13, 2009
Thursday, October 8, 2009
Repealing 'Don't Ask, Don't Tell' With the Presidential Pen
John F. Kennedy promised during his 1960 presidential campaign to end racial discrimination in federally assisted housing “with the stroke of a pen,” but the author of Profiles in Courage waited almost two years to issue the promised executive order.
Bill Clinton promised during his 1992 campaign to end discrimination against gays in the military, but in office he backed away from an executive order and gave Congress running room to write discrimination into law with the “don’t ask, don’t tell” policy.
Fifteen years later, Barack Obama campaigned on a promise to repeal “don’t ask, don’t tell” if elected. But the White House and Congress have put gays in the military on a back burner along with other gay rights issues until the economy is revived, health care reformed and Afghanistan made safe for democracy.
As a result, some in the gay rights community are calling for Obama to end the discrimination against gay and lesbian service members with the stroke of his presidential pen. Specifically, they believe Obama can and should stop any enforcement of “don’t ask, don’t tell” under a statutory provision authorizing the commander in chief to issue a “stop loss” executive order during what is recognized as an official military emergency.
With two wars ongoing and manpower needs pressing, advocates for gay service members point out that the policy has cost the military more than 13,000 service members since its inception. Among those discharged are at least 59 Arabic linguists, trained by the military at considerable expense and vitally needed for intelligence-gathering and analysis in combating al Qaeda and other anti-American Islamist groups.
In the first place, Congress passed the law establishing the policy on the basis of anecdote and opinion instead of research and evidence. The Pentagon submitted a 15-page report by its Military Working Group that consisted mostly of compilations of anti-gay attitudes by senior military officers. The Pentagon succeeded in mostly burying a more scientific, 500-page study by the RAND Corporation that said sexual orientation was “not germane” to military service and predicted a non-discrimination policy could be implemented effectively with proper leadership.
Whatever plausibility the military’s concerns might have had in 1993, they are refuted by the evidence since then from the 24 countries that now allow military service by out gay men and lesbians, according to Nathaniel Frank, a senior researcher with the Palm Center at the University of California-Santa Barbara. As Frank writes in his argumentative but well documented book Unfriendly Fire, none of those countries — including such U.S. allies as Britain, Canada, and Israel — has seen any impairment to unit cohesion, recruitment, or fighting capability.
Within the U.S. military, “don’t ask, don’t tell” has hurt rather than helped unit cohesion. For gay service members, the policy fosters suspicions of their colleagues and diminishes military comradeship at a time when more and more straight service members have no problem interacting with gays. But for homophobic service members, the policy contributes to a climate that encourages anti-gay harassment and ignores it when it occurs.
One thing has changed since 1993: public opinion. Most Americans opposed the idea of gays in the military in 1993. Today, various polls show upwards of 75 percent of Americans favor allowing gays to serve openly in the military. The most recent Gallup poll found majority support even among self-identified conservatives, Republicans and churchgoers.
Despite the compelling evidence and the favorable shift in public attitudes, the White House says Obama cannot act on his own because “don’t ask, don’t tell” is statutory law, not an executive order. Frank and fellow researchers at the Palm Center disagree. They point to a provision in the law (10 U.S.C. § 12305) that allows the president to suspend separations from the military during any period of national emergency, such as now, in which members of a reserve component are serving involuntarily on active duty.
The White House is reportedly unconvinced of the legal argument and concerned about the political fallout. The risks are not slight. A preemptive presidential action could antagonize both Congress and the military leadership. “If you stick your finger in the eyes of [Defense Secretary Robert] Gates and [Joint Chiefs of Staff Chairman] Mike Mullen, I’m not sure how far that gets you,” says Aubrey Sarvis, executive director of Servicemembers Defense Legal Network.
Sarvis says he would favor the executive order approach only if Obama simultaneously pushes the issue on Capitol Hill. Frank and his colleagues say the executive order might cost Obama less political capital in the end. And they also expect that allowing gays to serve openly would prove to all but the unpersuadable that an enlightened policy enhances military readiness at no cost to unit cohesion or recruitment.
Sixty years ago, President Harry Truman ended racial segregation “with the stroke of a pen.” Military leaders were opposed — and later dragged their feet in implementing the new policy — but Truman reminded them that he was commander in chief. History vindicates his decision. Obama, facing a less treacherous political terrain, might consider whether history would similarly look with favor on a similar exercise of presidential courage today.
Bill Clinton promised during his 1992 campaign to end discrimination against gays in the military, but in office he backed away from an executive order and gave Congress running room to write discrimination into law with the “don’t ask, don’t tell” policy.
Fifteen years later, Barack Obama campaigned on a promise to repeal “don’t ask, don’t tell” if elected. But the White House and Congress have put gays in the military on a back burner along with other gay rights issues until the economy is revived, health care reformed and Afghanistan made safe for democracy.
As a result, some in the gay rights community are calling for Obama to end the discrimination against gay and lesbian service members with the stroke of his presidential pen. Specifically, they believe Obama can and should stop any enforcement of “don’t ask, don’t tell” under a statutory provision authorizing the commander in chief to issue a “stop loss” executive order during what is recognized as an official military emergency.
With two wars ongoing and manpower needs pressing, advocates for gay service members point out that the policy has cost the military more than 13,000 service members since its inception. Among those discharged are at least 59 Arabic linguists, trained by the military at considerable expense and vitally needed for intelligence-gathering and analysis in combating al Qaeda and other anti-American Islamist groups.
In the first place, Congress passed the law establishing the policy on the basis of anecdote and opinion instead of research and evidence. The Pentagon submitted a 15-page report by its Military Working Group that consisted mostly of compilations of anti-gay attitudes by senior military officers. The Pentagon succeeded in mostly burying a more scientific, 500-page study by the RAND Corporation that said sexual orientation was “not germane” to military service and predicted a non-discrimination policy could be implemented effectively with proper leadership.
Whatever plausibility the military’s concerns might have had in 1993, they are refuted by the evidence since then from the 24 countries that now allow military service by out gay men and lesbians, according to Nathaniel Frank, a senior researcher with the Palm Center at the University of California-Santa Barbara. As Frank writes in his argumentative but well documented book Unfriendly Fire, none of those countries — including such U.S. allies as Britain, Canada, and Israel — has seen any impairment to unit cohesion, recruitment, or fighting capability.
Within the U.S. military, “don’t ask, don’t tell” has hurt rather than helped unit cohesion. For gay service members, the policy fosters suspicions of their colleagues and diminishes military comradeship at a time when more and more straight service members have no problem interacting with gays. But for homophobic service members, the policy contributes to a climate that encourages anti-gay harassment and ignores it when it occurs.
One thing has changed since 1993: public opinion. Most Americans opposed the idea of gays in the military in 1993. Today, various polls show upwards of 75 percent of Americans favor allowing gays to serve openly in the military. The most recent Gallup poll found majority support even among self-identified conservatives, Republicans and churchgoers.
Despite the compelling evidence and the favorable shift in public attitudes, the White House says Obama cannot act on his own because “don’t ask, don’t tell” is statutory law, not an executive order. Frank and fellow researchers at the Palm Center disagree. They point to a provision in the law (10 U.S.C. § 12305) that allows the president to suspend separations from the military during any period of national emergency, such as now, in which members of a reserve component are serving involuntarily on active duty.
The White House is reportedly unconvinced of the legal argument and concerned about the political fallout. The risks are not slight. A preemptive presidential action could antagonize both Congress and the military leadership. “If you stick your finger in the eyes of [Defense Secretary Robert] Gates and [Joint Chiefs of Staff Chairman] Mike Mullen, I’m not sure how far that gets you,” says Aubrey Sarvis, executive director of Servicemembers Defense Legal Network.
Sarvis says he would favor the executive order approach only if Obama simultaneously pushes the issue on Capitol Hill. Frank and his colleagues say the executive order might cost Obama less political capital in the end. And they also expect that allowing gays to serve openly would prove to all but the unpersuadable that an enlightened policy enhances military readiness at no cost to unit cohesion or recruitment.
Sixty years ago, President Harry Truman ended racial segregation “with the stroke of a pen.” Military leaders were opposed — and later dragged their feet in implementing the new policy — but Truman reminded them that he was commander in chief. History vindicates his decision. Obama, facing a less treacherous political terrain, might consider whether history would similarly look with favor on a similar exercise of presidential courage today.
Sunday, October 4, 2009
Justices' Choice: Protecting Animals or Free Speech?
Hard cases make bad law. Consider one at the start of the Supreme Court’s new term that asks the justices to choose between protecting the First Amendment and preventing cruelty to animals.
Ten years ago, Congress passed a law making the “depiction of animal cruelty” a federal crime. The act was aimed at outlawing so-called “crush videos,” horrific depictions of women, often in high heels, crushing puppies, kittens, or other small animals to death. The videos were said to have been readily available on the Internet to users who, perversely, found them sexually arousing.
The law was written broadly to get over significant obstacles in enforcement. Specifically, the law prohibits creating, selling, or possessing any photograph or video in which an animal is “intentionally maimed, mutilated, tortured, wounded, or killed” if the conduct is illegal under federal law or under the law of the jurisdiction where the depiction is created, sold, or possessed.
Despite its evidently salutary purpose, the act represented a significant incursion on the First Amendment. The justices are now being asked to rule a category of speech outside the First Amendment for the first time since the Court’s 1982 decision, New York v. Ferber, upholding a state ban on child pornography. As with the child porn law, the argument is that the only way to prevent harm — to children in one case, to animals in the other — is to dry up the market by allowing the government to prosecute not only the producers of the offending material, but also the buyers.
The new act tries to acknowledge free-speech concerns. It exempts any material that has “serious religious, political, scientific, educational, journalistic, historical, or artistic value.”
Ten years later, the government has prosecuted only one person under the law. Robert Stevens, a Virginia man, was indicted in 2004 for on charges of selling to undercover law enforcement agents in Pennsylvania two videos depicting dog fighting and a third showing pit bulls in a wild boar hunt. Dog fighting is illegal in all 50 states, but not in Japan, where one of the videos was made.
Stevens, who made and narrated the videos, was convicted in March 2005 by a federal jury in Pennsylvania that rejected his effort to portray the videos as a celebration of pit bulls’ nobility and character. On appeal, however, the Third U.S. Circuit Court of Appeals overturned the convictions in June 2008 and found the law unconstitutional on free-speech grounds.
The appeals court said the law failed to satisfy the demanding “strict scrutiny” test. The government’s interest in preventing cruelty to animals had not been shown to be compelling, the majority judges said. In addition, the statute was not narrowly tailored to further that interest; instead, the judges suggested, the government should strengthen enforcement of the underlying laws preventing cruelty to animals.
The Humane Society of the United States had cheered passage of the law and claimed success in drying up the market for crush videos — perhaps a reason for the lack of prosecutions. With the appeals court’s decision, however, the society said crush videos are again readily available on the Internet. It found one site that offered 118 videos for sale at prices ranging from $20 to $100.
Media groups rallied in support of the appeals court’s decision after the justices agreed to hear the government’s plea to revive the law. They say the law overreaches by encompassing everything from artistic renderings of bullfights to journalistic coverage of hunting and fishing. Attacking the law is not popular, the opponents say. But their number includes one strange but powerful bedfellow: the National Rifle Association.
Conservatives like to claim that on the current Supreme Court the conservative justices are the most consistent defenders of the First Amendment. The claim depends primarily on the conservatives’ recent invocation of political speech grounds to question the constitutionality of campaign finance regulations. But Justices Antonin Scalia and Anthony M. Kennedy also established their First Amendment bona fides two decades ago by joining in decisions that struck down federal and state laws banning desecration of the U.S. flag.
Handicapping the current case, United States v. Stevens, is difficult at best. In defending the law, the government is asking the justices to accept the broad proposition that speech can be categorically prohibited if the harm to society outweighs any benefits from the speech. That broad argument might appeal to Justice Stephen G. Breyer, who likes to take a pragmatic approach to First Amendment issues. But the Court need not go that far to uphold the law. It could simply follow the “dry up the market” rationale adopted in Ferber.
The media groups’ “slippery slope” argument may appeal to Kennedy, who has joined with liberal justices in some cases to strike down sex-related speech regulations. But Kennedy is also a moralist who, most recently, allowed his anti-drug views to overcome free-speech concerns in upholding the suspension of an Alaska student for displaying a patently harmless “Bong Hits for Jesus” banner in Morse v. Frederick (2006). He may find cruelty to animals at least as offensive.
The arguments are on Tuesday, Oct.5, the second day of the new term. It’s a hard case. With strong arguments on both sides, the justices will need to take care to avoid making bad law.
Ten years ago, Congress passed a law making the “depiction of animal cruelty” a federal crime. The act was aimed at outlawing so-called “crush videos,” horrific depictions of women, often in high heels, crushing puppies, kittens, or other small animals to death. The videos were said to have been readily available on the Internet to users who, perversely, found them sexually arousing.
The law was written broadly to get over significant obstacles in enforcement. Specifically, the law prohibits creating, selling, or possessing any photograph or video in which an animal is “intentionally maimed, mutilated, tortured, wounded, or killed” if the conduct is illegal under federal law or under the law of the jurisdiction where the depiction is created, sold, or possessed.
Despite its evidently salutary purpose, the act represented a significant incursion on the First Amendment. The justices are now being asked to rule a category of speech outside the First Amendment for the first time since the Court’s 1982 decision, New York v. Ferber, upholding a state ban on child pornography. As with the child porn law, the argument is that the only way to prevent harm — to children in one case, to animals in the other — is to dry up the market by allowing the government to prosecute not only the producers of the offending material, but also the buyers.
The new act tries to acknowledge free-speech concerns. It exempts any material that has “serious religious, political, scientific, educational, journalistic, historical, or artistic value.”
Ten years later, the government has prosecuted only one person under the law. Robert Stevens, a Virginia man, was indicted in 2004 for on charges of selling to undercover law enforcement agents in Pennsylvania two videos depicting dog fighting and a third showing pit bulls in a wild boar hunt. Dog fighting is illegal in all 50 states, but not in Japan, where one of the videos was made.
Stevens, who made and narrated the videos, was convicted in March 2005 by a federal jury in Pennsylvania that rejected his effort to portray the videos as a celebration of pit bulls’ nobility and character. On appeal, however, the Third U.S. Circuit Court of Appeals overturned the convictions in June 2008 and found the law unconstitutional on free-speech grounds.
The appeals court said the law failed to satisfy the demanding “strict scrutiny” test. The government’s interest in preventing cruelty to animals had not been shown to be compelling, the majority judges said. In addition, the statute was not narrowly tailored to further that interest; instead, the judges suggested, the government should strengthen enforcement of the underlying laws preventing cruelty to animals.
The Humane Society of the United States had cheered passage of the law and claimed success in drying up the market for crush videos — perhaps a reason for the lack of prosecutions. With the appeals court’s decision, however, the society said crush videos are again readily available on the Internet. It found one site that offered 118 videos for sale at prices ranging from $20 to $100.
Media groups rallied in support of the appeals court’s decision after the justices agreed to hear the government’s plea to revive the law. They say the law overreaches by encompassing everything from artistic renderings of bullfights to journalistic coverage of hunting and fishing. Attacking the law is not popular, the opponents say. But their number includes one strange but powerful bedfellow: the National Rifle Association.
Conservatives like to claim that on the current Supreme Court the conservative justices are the most consistent defenders of the First Amendment. The claim depends primarily on the conservatives’ recent invocation of political speech grounds to question the constitutionality of campaign finance regulations. But Justices Antonin Scalia and Anthony M. Kennedy also established their First Amendment bona fides two decades ago by joining in decisions that struck down federal and state laws banning desecration of the U.S. flag.
Handicapping the current case, United States v. Stevens, is difficult at best. In defending the law, the government is asking the justices to accept the broad proposition that speech can be categorically prohibited if the harm to society outweighs any benefits from the speech. That broad argument might appeal to Justice Stephen G. Breyer, who likes to take a pragmatic approach to First Amendment issues. But the Court need not go that far to uphold the law. It could simply follow the “dry up the market” rationale adopted in Ferber.
The media groups’ “slippery slope” argument may appeal to Kennedy, who has joined with liberal justices in some cases to strike down sex-related speech regulations. But Kennedy is also a moralist who, most recently, allowed his anti-drug views to overcome free-speech concerns in upholding the suspension of an Alaska student for displaying a patently harmless “Bong Hits for Jesus” banner in Morse v. Frederick (2006). He may find cruelty to animals at least as offensive.
The arguments are on Tuesday, Oct.5, the second day of the new term. It’s a hard case. With strong arguments on both sides, the justices will need to take care to avoid making bad law.
Friday, September 25, 2009
Sotomayor Shows Restraint; Roberts, Not So Much
Supreme Court Justice Sonia Sotomayor presented herself during her Senate confirmation hearing as a judge’s judge, committed to following precedent and deciding cases strictly on the facts and law with no ideological agenda. In her courtroom debut on Sept. 9, Sotomayor appeared true to her confirmation persona with questions indicating a cautious approach to a major campaign finance case before the Court.
The same cannot be said about Chief Justice John G. Roberts Jr. In his confirmation hearings four years ago, he sounded similar themes of non-ideological judicial restraint. But in Citizens United v. Federal Election Commission, Roberts appears ready to lead the Court into scrapping a 20-year-old precedent barring corporations from direct spending in electoral politics and undercutting a century-old law prohibiting corporations from contributing to congressional or presidential candidates.
Citizens United is one of several cases due for decision during the term that opens on Oct. 5 that will test the Roberts Court’s respect for precedent and judicial restraint. Thus far, the Court’s record is mixed. Roberts and President George W. Bush’s other appointee, Justice Samuel A. Alito Jr., have provided critical votes in a number of 5-4 decisions that have significantly undermined prior rulings but stopped short of overturning them.
In one criminal law case this year, however, the Court explicitly overturned a 1986 decision that had barred police from interrogating a suspect once a lawyer had been retained or appointed. The 5-4 decision in Montejo v. Louisiana came two months after the Court had issued a post-argument request to the lawyers in the case asking them to address the question whether to overturn the prior decision, Michigan v. Jackson.
The Court has followed a similar course in Citizens United by asking for a new round of briefs in the case after having heard arguments in March. The case stems from a Federal Election Commission enforcement action against a conservative group for using corporate funds to help finance a 90-minute documentary, Hillary: The Movie, sharply critical of then-Sen. Hillary Rodham Clinton during her 2008 presidential campaign.
Initially, the case seemed likely to be important but not earthshaking. Citizens United had a number of specific arguments why the documentary should not be subject to provisions of the McCain-Feingold Act that bar the use of corporate funds in election-season broadcast advertising in support of or opposition to a candidate for federal office.
Before argument, however, the group handed the case to a new lawyer: Theodore Olson, the high-profile conservative and former U.S. solicitor general. Olson asked the justices to reconsider the 2003 decision upholding McCain-Feingold and an earlier ruling, Austin v. Michigan Chamber of Commerce (1990). In Austin, the Court held, 6-3, that states (and, by implication, the federal government) can prohibit corporations from spending money from their treasuries on political campaigns even if the expenditures are independent of the candidate.
The order asking for new briefs made clear that at least some of the justices were drawn to Olson’s aggressive position in the case. When the case was reargued on Sept. 9, Sotomayor used two sets of question to signal her preference for a narrow decision. She asked Olson whether he was “giving up” on his earlier arguments, which she noted would allow the Court to “avoid the constitutional question.” As a follow-up, the former trial judge asked Olson why the Court should decide the broad constitutional question with no trial record on the many issues implicated.
Sotomayor again displayed her inclination to judicial restraint during arguments by attorney Floyd Abrams, a well known First Amendment expert representing Senate Republican Leader Mitch McConnell of Kentucky in opposing the law. Abrams suggested the ban on corporate spending in political races was unneeded because about half the states had no such laws on the books. Sotomayor turned the suggestion around: If half the states have such laws and half don’t, she reasoned, would the Court be “cutting off [the] democratic process” by declaring any such law unconstitutional?
By contrast, Roberts and other conservatives sounded like activist judges ready to upset established legal principles. When Solicitor General Elena Kagan — in her first Supreme Court appearance — referred to the 1909 law barring corporations from making contributions to federal candidates, Justice Antonin Scalia said the Court had never approved the law. Later, Roberts directly questioned the rationale of the Austin ruling. And in his sharpest comment, Roberts sneered at the FEC’s role in deciding how to enforce the law. “We don’t put the First Amendment in the hands of FEC bureaucrats,” he said.
By the end of the arguments, it seemed clear that the government was destined to lose the case, and the only question was how badly. As Stephen Shapiro, national legal director of the American Civil Liberties Union, pointed out in a Supreme Court preview session, the justices have several ways to decide the case without overturning past decisions. “But it could have done that this spring,” Shapiro continued. “Obviously, they had bigger things in mind.”
The bigger thing appears to be free rein for corporations to spend on federal or state campaigns without creating separate political action committees and soliciting voluntary contributions for the purpose. Shapiro notes that in the past Roberts has taken the Court “to the verge” of overruling precedent several times and then stopped just short. This time, an activist agenda may overcome that salutary impulse toward judicial restraint.
The same cannot be said about Chief Justice John G. Roberts Jr. In his confirmation hearings four years ago, he sounded similar themes of non-ideological judicial restraint. But in Citizens United v. Federal Election Commission, Roberts appears ready to lead the Court into scrapping a 20-year-old precedent barring corporations from direct spending in electoral politics and undercutting a century-old law prohibiting corporations from contributing to congressional or presidential candidates.
Citizens United is one of several cases due for decision during the term that opens on Oct. 5 that will test the Roberts Court’s respect for precedent and judicial restraint. Thus far, the Court’s record is mixed. Roberts and President George W. Bush’s other appointee, Justice Samuel A. Alito Jr., have provided critical votes in a number of 5-4 decisions that have significantly undermined prior rulings but stopped short of overturning them.
In one criminal law case this year, however, the Court explicitly overturned a 1986 decision that had barred police from interrogating a suspect once a lawyer had been retained or appointed. The 5-4 decision in Montejo v. Louisiana came two months after the Court had issued a post-argument request to the lawyers in the case asking them to address the question whether to overturn the prior decision, Michigan v. Jackson.
The Court has followed a similar course in Citizens United by asking for a new round of briefs in the case after having heard arguments in March. The case stems from a Federal Election Commission enforcement action against a conservative group for using corporate funds to help finance a 90-minute documentary, Hillary: The Movie, sharply critical of then-Sen. Hillary Rodham Clinton during her 2008 presidential campaign.
Initially, the case seemed likely to be important but not earthshaking. Citizens United had a number of specific arguments why the documentary should not be subject to provisions of the McCain-Feingold Act that bar the use of corporate funds in election-season broadcast advertising in support of or opposition to a candidate for federal office.
Before argument, however, the group handed the case to a new lawyer: Theodore Olson, the high-profile conservative and former U.S. solicitor general. Olson asked the justices to reconsider the 2003 decision upholding McCain-Feingold and an earlier ruling, Austin v. Michigan Chamber of Commerce (1990). In Austin, the Court held, 6-3, that states (and, by implication, the federal government) can prohibit corporations from spending money from their treasuries on political campaigns even if the expenditures are independent of the candidate.
The order asking for new briefs made clear that at least some of the justices were drawn to Olson’s aggressive position in the case. When the case was reargued on Sept. 9, Sotomayor used two sets of question to signal her preference for a narrow decision. She asked Olson whether he was “giving up” on his earlier arguments, which she noted would allow the Court to “avoid the constitutional question.” As a follow-up, the former trial judge asked Olson why the Court should decide the broad constitutional question with no trial record on the many issues implicated.
Sotomayor again displayed her inclination to judicial restraint during arguments by attorney Floyd Abrams, a well known First Amendment expert representing Senate Republican Leader Mitch McConnell of Kentucky in opposing the law. Abrams suggested the ban on corporate spending in political races was unneeded because about half the states had no such laws on the books. Sotomayor turned the suggestion around: If half the states have such laws and half don’t, she reasoned, would the Court be “cutting off [the] democratic process” by declaring any such law unconstitutional?
By contrast, Roberts and other conservatives sounded like activist judges ready to upset established legal principles. When Solicitor General Elena Kagan — in her first Supreme Court appearance — referred to the 1909 law barring corporations from making contributions to federal candidates, Justice Antonin Scalia said the Court had never approved the law. Later, Roberts directly questioned the rationale of the Austin ruling. And in his sharpest comment, Roberts sneered at the FEC’s role in deciding how to enforce the law. “We don’t put the First Amendment in the hands of FEC bureaucrats,” he said.
By the end of the arguments, it seemed clear that the government was destined to lose the case, and the only question was how badly. As Stephen Shapiro, national legal director of the American Civil Liberties Union, pointed out in a Supreme Court preview session, the justices have several ways to decide the case without overturning past decisions. “But it could have done that this spring,” Shapiro continued. “Obviously, they had bigger things in mind.”
The bigger thing appears to be free rein for corporations to spend on federal or state campaigns without creating separate political action committees and soliciting voluntary contributions for the purpose. Shapiro notes that in the past Roberts has taken the Court “to the verge” of overruling precedent several times and then stopped just short. This time, an activist agenda may overcome that salutary impulse toward judicial restraint.
Thursday, July 23, 2009
Race and Testing: Disparities Real, Solutions "Elusive"?
Midway through her opinion in the New Haven firefighters case, Judge Janet Bond Arterton wrote plaintively about the principal issue in the case: why white firefighters scored higher on the promotions exam in 2003 than their Hispanic or African-American colleagues. “The reasons for the testing disparities,” the federal judge wrote, “remain elusive.”
Thanks to the Supreme Court’s decision in the case, the reasons will remain elusive. Just as in Bush v. Gore nine years ago, the court’s conservative majority short-circuited normal appellate practice by deciding on its own how to apply a brand-new legal standard in a sharply disputed factual context.
Now, only three weeks after the Supreme Court decision in Ricci v. DeStefano, comes new evidence of the importance of the testing question not only for New Haven but for fire departments throughout the country, many of them still disproportionately white. Ruling in a suit brought by the Bush administration, a federal judge in New York City has found that the city’s fire department used racially discriminatory tests for entry-level hires from 1999 through 2007. Judge Nicholas Garaufis, appointed to the bench by President Bill Clinton in 2000, blamed the tests for the stark underrepresentation of Hispanics and African-Americans in the department.
As Garaufis set out in a 93-page opinion, available here, the city admitted entry-level candidates to the fire department academy for that period based solely on written tests. The exam had no elements that tested practical performance on the job, he found, even though the city’s expert acknowledged at trial the importance of “non-cognitive abilities” for entry-level firefighters.
The pass rate on the two exams used was substantially higher for white applicants than for African-Americans: 90 percent and 97 percent for whites compared to 60 percent and 85 percent for blacks. For both exams, Garaufis noted, the pass rate was based solely on the number of openings at the academy, not on some job-related measurement of the knowledge or abilities needed for new recruits. The upshot, the judge concluded, was that the city had no defense for the racially disparate impact on fire department hiring.
The city says it has changed its procedures and is hiring more black firefighters. The city’s law department told the New York Times that African-Americans comprised one-third of the most recent graduating class of probationary firefighters. Still, the law department said that as of May, blacks comprised about 3 percent and Hispanics about 6 percent of the total force of 11,529 firefighters in a city where Hispanics and blacks each comprise about 27 percent of the total population.
Garaufis notes that New York City is a repeat offender in its firefighter hiring practices. A federal judge found the department guilty of racial discrimination in hiring in 1973; the decision prompted the city to contract with a firm to develop new written and physical exams, but the initiative was scrapped for budgetary reasons. In developing the tests used until 2007, Garaufis says, the city took no special steps to validate the procedures as racially neutral.
Garaufis distinguishes the Supreme Court’s ruling in Ricci by contrasting New York’s disregard of the racial-neutrality issue with the conscious effort in that regard by the firm that New Haven hired to develop the exams used in late 2003 to select firefighters for possible promotion to lieutenant and captain. Writing for the majority in Ricci, Justice Anthony M. Kennedy cited the steps the firm took to include African-Americans in developing the New Haven tests as the main reason for concluding there was no “objective, strong basis in evidence” for the New Haven civil service board to refuse to certify the results of the exam despite the racial disparity between white and black firefighters.
As Justice Ruth Bader Ginsburg pointed out in dissent, however, the main reason to question the tests’ validity was the decision to give 60 percent weight to the written portion of the exam and 40 percent to the oral. That decision was not based on modern testing methodology but on a collective bargaining agreement between New Haven and the firefighters union negotiated in 1989, when the fire department was — even more than today — overwhelmingly white.
Admittedly, the New Haven test was better designed than those in New York City that consisted exclusively of written questions. In his opinion, Kennedy said New Haven failed to show why a 30/70 formula would have been valid. At the time, the city thought that the applicable precedent permitted — and perhaps required — it to change hiring or promotion procedures based on a prima facie showing of disparate racial impact. In any event, as Ginsburg said, there was “strong reason” to think that the 60/40 formula was not likely to identify the most officer-worthy candidates.
Ginsburg and the other dissenters wanted to send the case back for more evidence under the court’s new standard; the majority decided otherwise. Despite the disagreement, the law is clear that employers, both private and government, must have hiring and promotion policies that are racially neutral in form and in practice. Perhaps the ruling will help employers focus on that obligation, but civil rights groups reasonably fear that the ruling hinders rather than helps the goal of true equal opportunity in the country’s fire halls and elsewhere.
Thanks to the Supreme Court’s decision in the case, the reasons will remain elusive. Just as in Bush v. Gore nine years ago, the court’s conservative majority short-circuited normal appellate practice by deciding on its own how to apply a brand-new legal standard in a sharply disputed factual context.
Now, only three weeks after the Supreme Court decision in Ricci v. DeStefano, comes new evidence of the importance of the testing question not only for New Haven but for fire departments throughout the country, many of them still disproportionately white. Ruling in a suit brought by the Bush administration, a federal judge in New York City has found that the city’s fire department used racially discriminatory tests for entry-level hires from 1999 through 2007. Judge Nicholas Garaufis, appointed to the bench by President Bill Clinton in 2000, blamed the tests for the stark underrepresentation of Hispanics and African-Americans in the department.
As Garaufis set out in a 93-page opinion, available here, the city admitted entry-level candidates to the fire department academy for that period based solely on written tests. The exam had no elements that tested practical performance on the job, he found, even though the city’s expert acknowledged at trial the importance of “non-cognitive abilities” for entry-level firefighters.
The pass rate on the two exams used was substantially higher for white applicants than for African-Americans: 90 percent and 97 percent for whites compared to 60 percent and 85 percent for blacks. For both exams, Garaufis noted, the pass rate was based solely on the number of openings at the academy, not on some job-related measurement of the knowledge or abilities needed for new recruits. The upshot, the judge concluded, was that the city had no defense for the racially disparate impact on fire department hiring.
The city says it has changed its procedures and is hiring more black firefighters. The city’s law department told the New York Times that African-Americans comprised one-third of the most recent graduating class of probationary firefighters. Still, the law department said that as of May, blacks comprised about 3 percent and Hispanics about 6 percent of the total force of 11,529 firefighters in a city where Hispanics and blacks each comprise about 27 percent of the total population.
Garaufis notes that New York City is a repeat offender in its firefighter hiring practices. A federal judge found the department guilty of racial discrimination in hiring in 1973; the decision prompted the city to contract with a firm to develop new written and physical exams, but the initiative was scrapped for budgetary reasons. In developing the tests used until 2007, Garaufis says, the city took no special steps to validate the procedures as racially neutral.
Garaufis distinguishes the Supreme Court’s ruling in Ricci by contrasting New York’s disregard of the racial-neutrality issue with the conscious effort in that regard by the firm that New Haven hired to develop the exams used in late 2003 to select firefighters for possible promotion to lieutenant and captain. Writing for the majority in Ricci, Justice Anthony M. Kennedy cited the steps the firm took to include African-Americans in developing the New Haven tests as the main reason for concluding there was no “objective, strong basis in evidence” for the New Haven civil service board to refuse to certify the results of the exam despite the racial disparity between white and black firefighters.
As Justice Ruth Bader Ginsburg pointed out in dissent, however, the main reason to question the tests’ validity was the decision to give 60 percent weight to the written portion of the exam and 40 percent to the oral. That decision was not based on modern testing methodology but on a collective bargaining agreement between New Haven and the firefighters union negotiated in 1989, when the fire department was — even more than today — overwhelmingly white.
Admittedly, the New Haven test was better designed than those in New York City that consisted exclusively of written questions. In his opinion, Kennedy said New Haven failed to show why a 30/70 formula would have been valid. At the time, the city thought that the applicable precedent permitted — and perhaps required — it to change hiring or promotion procedures based on a prima facie showing of disparate racial impact. In any event, as Ginsburg said, there was “strong reason” to think that the 60/40 formula was not likely to identify the most officer-worthy candidates.
Ginsburg and the other dissenters wanted to send the case back for more evidence under the court’s new standard; the majority decided otherwise. Despite the disagreement, the law is clear that employers, both private and government, must have hiring and promotion policies that are racially neutral in form and in practice. Perhaps the ruling will help employers focus on that obligation, but civil rights groups reasonably fear that the ruling hinders rather than helps the goal of true equal opportunity in the country’s fire halls and elsewhere.
Sunday, July 19, 2009
Confirmation Hearings: Poor Reviews, but Show Must Go On
The Founding Fathers did not decide that the Supreme Court would have nine justices. That goes back to 1869. They did not decide that the court would begin each term on the first Monday in October. That goes back to 1917.
The Framers also did not decide that Supreme Court nominees would appear in front of a Senate committee before a vote on their confirmation. That practice goes back only to 1925. And only since the 1960s have senators made extensive use of the procedure to try to learn the nominee’s legal views and to air their own views on the hot legal issues of the day.
So the constitutional design does not depend on the Supreme Court confirmation hearing. We would not break faith with the Framers to dispense with a practice with so much evasion and circumlocution by the nominee and so much political posturing by the senators.
Despite the bad reviews, however — and the reviews for Judge Sonia Sotomayor’s four days on the witness stand were poor at best — the show must go on. President Obama and his advisers took all the time they needed to explore the nominee’s record and views before making a selection. Both the Senate and the public were entitled to their chance to see and hear the nominee for themselves before entrusting her with lifetime appointment to the Supreme Court.
There’s no denying that, despite her impressive academic and professional qualifications, Judge Sotomayor was less than stellar on the Broadway of the political stage. She may have been “disciplined and good humored” (Jeffrey Rosen of The New Republic in The New York Times), but to many she appeared to be “over rehearsed” (David Broder, Washington Post)
Perhaps Sotomayor “accomplished her goals” (attorney Andrew Pincus in The Wall Street Journal, emphasis added). But “it is not at all clear what all this accomplished” (law dean Erwin Chemerinsky, also in the Journal). “A kabuki dance,” (Mark Shields, PBS NewsHour).
Sotomayor and her White House handlers bear principal responsibility for this lifeless performance. It was a decision born of politics, not judicial ethics, to present herself as a legal automaton who simply follows precedent as long as stare decisis says to. No wonder that one senator asked her whether judging amounts to nothing more than following a recipe in a cookbook.
Sotomayor rightly began with and returned often to her life story: a good one, to be sure. But again it was nothing but politics that led her to emphasize her early years as a prosecutor and then to claim all but complete ignorance of the legal positions that the Puerto Rican Legal Defense and Education Fund took during her 12 years with the organization, including service as chair of the litigation committee.
Senators on both sides of the dais, however, must share in the responsibility for the unedifying spectacle. Veteran Democrats Herb Kohl of Wisconsin and California’s Dianne Feinstein opened by complaining about the limited information from the most recent nominees: John Roberts and Samuel Alito. But among all the Democrats only Feinstein succeeded in eliciting a nugget of useful information: Sotomayor’s agreement that the woman’s health remains a “compelling consideration” in testing the validity of abortion regulations.
For their part, Republicans went on and on and on about the “wise Latina woman” speeches, well after the questions were yielding any useful information or perspective. One longed for Judiciary Committee Chairman Patrick Leahy to bang the gavel and say, “Asked and answered. Let’s move on.”
More substantively, no Republican senator recognized the patent inconsistency in stressing the power of elected legislators, not courts, to make laws but at the same time pressing Sotomayor to interpret the Second Amendment to limit gun control laws enacted by elected state and local governments. And no Republican senator gave Sotomayor credit for her decision in the New Haven firefighters case to follow the apparent precedent and to uphold the decision by local officials in the case.
Of course, the show lacked drama from the outset. Sotomayor’s nomination by a still popular president was assured of confirmation in a Senate with a 60-vote Democratic majority. Republicans found no smoking guns in her record apart from the “wise Latina” speeches. By the end, even her critics were conceding her to be a mainstream judge with no evident problems of temperament in this setting at least.
What kind of justice will Sonia Sotomayor be? Democrats hope and Republicans expect that she will fit in comfortably with the court’s liberal bloc — still only four strong in most instances. Perhaps. But University of Texas law professor Sanford Levinson may be quite right in his end-of-show prediction to the New York Times that Sotomayor will be the same “basically cautious person” on the bench that she was on the stand. The hearings may not have told us what we wanted to know, but they quite possibly told us all there is to know about Justice Sonia Sotomayor.
The Framers also did not decide that Supreme Court nominees would appear in front of a Senate committee before a vote on their confirmation. That practice goes back only to 1925. And only since the 1960s have senators made extensive use of the procedure to try to learn the nominee’s legal views and to air their own views on the hot legal issues of the day.
So the constitutional design does not depend on the Supreme Court confirmation hearing. We would not break faith with the Framers to dispense with a practice with so much evasion and circumlocution by the nominee and so much political posturing by the senators.
Despite the bad reviews, however — and the reviews for Judge Sonia Sotomayor’s four days on the witness stand were poor at best — the show must go on. President Obama and his advisers took all the time they needed to explore the nominee’s record and views before making a selection. Both the Senate and the public were entitled to their chance to see and hear the nominee for themselves before entrusting her with lifetime appointment to the Supreme Court.
There’s no denying that, despite her impressive academic and professional qualifications, Judge Sotomayor was less than stellar on the Broadway of the political stage. She may have been “disciplined and good humored” (Jeffrey Rosen of The New Republic in The New York Times), but to many she appeared to be “over rehearsed” (David Broder, Washington Post)
Perhaps Sotomayor “accomplished her goals” (attorney Andrew Pincus in The Wall Street Journal, emphasis added). But “it is not at all clear what all this accomplished” (law dean Erwin Chemerinsky, also in the Journal). “A kabuki dance,” (Mark Shields, PBS NewsHour).
Sotomayor and her White House handlers bear principal responsibility for this lifeless performance. It was a decision born of politics, not judicial ethics, to present herself as a legal automaton who simply follows precedent as long as stare decisis says to. No wonder that one senator asked her whether judging amounts to nothing more than following a recipe in a cookbook.
Sotomayor rightly began with and returned often to her life story: a good one, to be sure. But again it was nothing but politics that led her to emphasize her early years as a prosecutor and then to claim all but complete ignorance of the legal positions that the Puerto Rican Legal Defense and Education Fund took during her 12 years with the organization, including service as chair of the litigation committee.
Senators on both sides of the dais, however, must share in the responsibility for the unedifying spectacle. Veteran Democrats Herb Kohl of Wisconsin and California’s Dianne Feinstein opened by complaining about the limited information from the most recent nominees: John Roberts and Samuel Alito. But among all the Democrats only Feinstein succeeded in eliciting a nugget of useful information: Sotomayor’s agreement that the woman’s health remains a “compelling consideration” in testing the validity of abortion regulations.
For their part, Republicans went on and on and on about the “wise Latina woman” speeches, well after the questions were yielding any useful information or perspective. One longed for Judiciary Committee Chairman Patrick Leahy to bang the gavel and say, “Asked and answered. Let’s move on.”
More substantively, no Republican senator recognized the patent inconsistency in stressing the power of elected legislators, not courts, to make laws but at the same time pressing Sotomayor to interpret the Second Amendment to limit gun control laws enacted by elected state and local governments. And no Republican senator gave Sotomayor credit for her decision in the New Haven firefighters case to follow the apparent precedent and to uphold the decision by local officials in the case.
Of course, the show lacked drama from the outset. Sotomayor’s nomination by a still popular president was assured of confirmation in a Senate with a 60-vote Democratic majority. Republicans found no smoking guns in her record apart from the “wise Latina” speeches. By the end, even her critics were conceding her to be a mainstream judge with no evident problems of temperament in this setting at least.
What kind of justice will Sonia Sotomayor be? Democrats hope and Republicans expect that she will fit in comfortably with the court’s liberal bloc — still only four strong in most instances. Perhaps. But University of Texas law professor Sanford Levinson may be quite right in his end-of-show prediction to the New York Times that Sotomayor will be the same “basically cautious person” on the bench that she was on the stand. The hearings may not have told us what we wanted to know, but they quite possibly told us all there is to know about Justice Sonia Sotomayor.
Thursday, July 16, 2009
With Hearing Over, Sotomayor Assured of Early Confirmation
Supreme Court nominee Sonia Sotomayor now appears assured of confirmation by early August after surviving four days of Senate hearings with her qualifications acknowledged, her judicial record mostly unscathed and her personal character complimented even by Republican critics.
The Democratic-controlled Judiciary Committee scheduled a meeting on Sotomayor’s confirmation for Tuesday (July 21) some seven hours after the panel’s ranking Republican, Alabama’s Jeff Sessions, declared he would oppose any delaying tactics by the GOP and hoped for a floor vote before the Senate breaks for its August recess. Republicans may still ask for a week's delay in the committee vote, however, to allow time to review Sotomayor's written answers to questions submitted during the hearing.
With Democrats holding a 60-vote majority, Sotomayor’s confirmation has been a foregone conclusion almost since Obama chose her in late May to succeed retiring Justice David H. Souter. But Sessions’ assurance now means that Sotomayor will join the court in time for the Sept. 9 reargument of an important campaign finance case testing the constitutionality of laws restricting corporate and union expenditures on political campaigns.
Sotomayor ended more than 15 hours on the witness stand around 1 o’clock on Thursday after gaining qualified endorsements of her judicial record from two GOP senators. South Carolina’s Lindsey Graham and Texas’s John Cornyn both repeated criticisms of Sotomayor’s speeches discussing the role of race and gender in judicial decision-making, but expressly stepped away from any broad criticism of her record in 17 years on the bench, including the past decade on the Second U.S. Circuit Court of Appeals.
“Your record as a judge has not been radical,” Graham said. Later, he added, “You have as a judge been generally in the mainstream.” In his turn, Cornyn also described Sotomayor’s opinions as “mainstream.”
To a man, the committee’s seven Republicans also had nothing but praise for Sotomayor’s patience and self-control under their generally critical questioning on, among other issues, unfavorable evaluations of her temperament on the bench.
Only once did Sotomayor appear visibly to be disturbed by a question. The exchange came on Thursday when Sessions asked whether she had displayed “a lack of courage” in ruling on the New Haven firefighters’ reverse discrimination suit in a summary decision without a full written opinion by the three-judge panel.
“No, I didn’t show a lack of courage,” Sotomayor said, her voice firm and her visage stern. She called the appeals court’s decision, a one-paragraph adoption of the district court’s opinion, “a thorough, complete discussion” and then repeated: “No, I did not lack courage.”
After Sotomayor ended her testimony and left the hearing room, two of the plaintiffs in the case, Ricci v. DeStefano, criticized the appeals court’s decision as well as the procedure. Ben Vargas, the only Hispanic among the 18 white plaintiffs, said the group was “devastated” by the one-paragraph decision.
The firefighters went to court after the civil service board scrapped the results of a promotions exam because no African Americans scored high enough to qualify for immediate appointments. The suit, Frank Ricci explained, was aimed at ensuring “our right to advance in our profession based on merit regardless of race.”
The Supreme Court sustained the firefighters’ suit in a 5-4 decision on June 29. Sotomayor repeatedly told senators the appeals court’s decision was dictated by Second Circuit precedent. Republican senators continued on Thursday to challenge the point.
GOP senators also tried again, but again without success, to press Sotomayor for more specific views on abortion, gun rights and gay marriage. But Sotomayor was more emphatic than she had been on Wednesday in promising that she has an open mind on two of those issues, gun rights and gay marriage, that are likely to come before the Supreme Court in the near future.
The court is currently being asked to review a decision by the Seventh Circuit Court of Appeals that declined to apply the Second Amendment to state and local gun control laws. The Supreme Court’s 2008 decision in District of Columbia v. Heller recognized an individual right to possession of a handgun in the home, but the ruling applied only to the federal government.
Sotomayor joined a Second Circuit ruling that, like the Seventh Circuit in a Chicago case, said the issue of “incorporating” the Second Amendment right to the states was for the high court to decide. Despite the ruling, Sotomayor said she has “a completely open mind” on the question. “I understand the importance of the right,” she added, “and all I can say is I keep an open mind on the incorporation doctrine.”
Sotomayor gave similar assurance when asked about recognizing a constitutional right to marriage for same-sex couples. “I would come to that issue with a completely open mind,” she said.
More than 30 public witnesses testified before the panel, quickly marched through the paces over less than seven hours with only a few senators present at any time. The leadoff witness was Mary Boies, representing the American Bar Association’s Standing Committee on the Federal Judiciary, which voted unanimously to rate Sotomayor as “well qualified” for the Supreme Court. The committee said it found no substance to criticisms of her temperament and dismissed criticism of her opinions as “lengthy” and “less than imaginative” as focused on “writing style, not substance.”
Among other witnesses, representatives of minority bar groups, traditional civil rights organizations, and law enforcement praised Sotomayor. Critics included gun rights and victim rights advocates, an anti-abortion leader, and several opponents of racial preferences.
The Democratic-controlled Judiciary Committee scheduled a meeting on Sotomayor’s confirmation for Tuesday (July 21) some seven hours after the panel’s ranking Republican, Alabama’s Jeff Sessions, declared he would oppose any delaying tactics by the GOP and hoped for a floor vote before the Senate breaks for its August recess. Republicans may still ask for a week's delay in the committee vote, however, to allow time to review Sotomayor's written answers to questions submitted during the hearing.
With Democrats holding a 60-vote majority, Sotomayor’s confirmation has been a foregone conclusion almost since Obama chose her in late May to succeed retiring Justice David H. Souter. But Sessions’ assurance now means that Sotomayor will join the court in time for the Sept. 9 reargument of an important campaign finance case testing the constitutionality of laws restricting corporate and union expenditures on political campaigns.
Sotomayor ended more than 15 hours on the witness stand around 1 o’clock on Thursday after gaining qualified endorsements of her judicial record from two GOP senators. South Carolina’s Lindsey Graham and Texas’s John Cornyn both repeated criticisms of Sotomayor’s speeches discussing the role of race and gender in judicial decision-making, but expressly stepped away from any broad criticism of her record in 17 years on the bench, including the past decade on the Second U.S. Circuit Court of Appeals.
“Your record as a judge has not been radical,” Graham said. Later, he added, “You have as a judge been generally in the mainstream.” In his turn, Cornyn also described Sotomayor’s opinions as “mainstream.”
To a man, the committee’s seven Republicans also had nothing but praise for Sotomayor’s patience and self-control under their generally critical questioning on, among other issues, unfavorable evaluations of her temperament on the bench.
Only once did Sotomayor appear visibly to be disturbed by a question. The exchange came on Thursday when Sessions asked whether she had displayed “a lack of courage” in ruling on the New Haven firefighters’ reverse discrimination suit in a summary decision without a full written opinion by the three-judge panel.
“No, I didn’t show a lack of courage,” Sotomayor said, her voice firm and her visage stern. She called the appeals court’s decision, a one-paragraph adoption of the district court’s opinion, “a thorough, complete discussion” and then repeated: “No, I did not lack courage.”
After Sotomayor ended her testimony and left the hearing room, two of the plaintiffs in the case, Ricci v. DeStefano, criticized the appeals court’s decision as well as the procedure. Ben Vargas, the only Hispanic among the 18 white plaintiffs, said the group was “devastated” by the one-paragraph decision.
The firefighters went to court after the civil service board scrapped the results of a promotions exam because no African Americans scored high enough to qualify for immediate appointments. The suit, Frank Ricci explained, was aimed at ensuring “our right to advance in our profession based on merit regardless of race.”
The Supreme Court sustained the firefighters’ suit in a 5-4 decision on June 29. Sotomayor repeatedly told senators the appeals court’s decision was dictated by Second Circuit precedent. Republican senators continued on Thursday to challenge the point.
GOP senators also tried again, but again without success, to press Sotomayor for more specific views on abortion, gun rights and gay marriage. But Sotomayor was more emphatic than she had been on Wednesday in promising that she has an open mind on two of those issues, gun rights and gay marriage, that are likely to come before the Supreme Court in the near future.
The court is currently being asked to review a decision by the Seventh Circuit Court of Appeals that declined to apply the Second Amendment to state and local gun control laws. The Supreme Court’s 2008 decision in District of Columbia v. Heller recognized an individual right to possession of a handgun in the home, but the ruling applied only to the federal government.
Sotomayor joined a Second Circuit ruling that, like the Seventh Circuit in a Chicago case, said the issue of “incorporating” the Second Amendment right to the states was for the high court to decide. Despite the ruling, Sotomayor said she has “a completely open mind” on the question. “I understand the importance of the right,” she added, “and all I can say is I keep an open mind on the incorporation doctrine.”
Sotomayor gave similar assurance when asked about recognizing a constitutional right to marriage for same-sex couples. “I would come to that issue with a completely open mind,” she said.
More than 30 public witnesses testified before the panel, quickly marched through the paces over less than seven hours with only a few senators present at any time. The leadoff witness was Mary Boies, representing the American Bar Association’s Standing Committee on the Federal Judiciary, which voted unanimously to rate Sotomayor as “well qualified” for the Supreme Court. The committee said it found no substance to criticisms of her temperament and dismissed criticism of her opinions as “lengthy” and “less than imaginative” as focused on “writing style, not substance.”
Among other witnesses, representatives of minority bar groups, traditional civil rights organizations, and law enforcement praised Sotomayor. Critics included gun rights and victim rights advocates, an anti-abortion leader, and several opponents of racial preferences.
Wednesday, July 15, 2009
GOP Senators Step Up Criticism of Sotomayor Testimony
Supreme Court nominee Sonia Sotomayor’s second full day of reaffirming her commitment to objectivity while giving few clues about her views on disputed legal issues drew sharp criticism from Republican senators Wednesday but no complaints from Democrats.
Judiciary Committee Republicans made their sharpest criticism to date of Sotomayor after questioning her again about the “wise Latina” speech and unsuccessfully trying to pin her down on abortion and gun rights. Sen. Jeff Sessions of Alabama, the committee’s ranking Republican, told reporters that the veteran federal judge had been “muddled, confusing, backtracking on issue after issue.”
Sen. John Cornyn, R-Texas, was similarly critical after using most of his allotted time to dissecting the now infamous 2001 campus speech comparing potential decisions by a “wise Latina judge” to those of a white man. “We’re asking about speeches,” Cornyn told reporters, “and we’re not getting very good answers.”
To Cornyn, Sotomayor again backed away from her comments, insisting that they had been misunderstood. “My words failed,” Sotomayor said. “They didn’t work.” She reaffirmed her description of the remark on Tuesday as “a rhetorical flourish that fell flat.”
Both Cornyn and Sen. Tom Coburn, R-Okla., also pressed Sotomayor for views on abortion issues, but got little by way of new information. To Cornyn, Sotomayor denied telling the White House anything about her views on abortion before President Obama nominated her for the high court in late May. “I was asked no questions by anyone including the president about my views on any specific issue,” Sotomayor said.
Cornyn cited a post-nomination Washington Post story describing unidentified White House advisers as assuring advocacy groups that Sotomayor will support abortion rights on the court. The story also quoted a former partner of Sotomayor in private law practice as saying she supports abortion rights.
Sotomayor answered that she had never discussed her personal views about abortion with the colleague. She also noted that she had joined in a ruling to uphold the Bush administration’s so-called “Mexico City” policy, which denied federal funding to groups that provide abortion services overseas.
To Coburn, Sotomayor repeated a summary of the Supreme Court’s Planned Parenthood v. Casey decision as protecting a woman’s “constitutional right to terminate a pregnancy in certain circumstances” with state regulations permitted if they did not impose an “undue burden” on that right. But she declined to give a specific answer to Coburn’s question whether a woman could have an abortion in the 38th week of pregnancy if the fetus was determined to have spinal bifida. “I can’t answer that question in the abstract,” Sotomayor said.
Coburn, an obstetrician, also got no direct answer when he asked whether the definition of viability in abortion decisions should change as technology enables survival of fetuses as early as the twenty-first week of pregnancy. “That’s not a question that a court reaches out to answer,” Sotomayor said.
Sotomayor also declined to give a direct answer to Coburn’s question whether a citizen has a constitutional right to self-defense. And she again defended her part in a recent decision declining to extend the Supreme Court’s gun-rights decision, District of Columbia v. Heller, to state and local governments.
“I was applying both Supreme Court precedent and Second Circuit precedent that has said it’s not incorporated,” Sotomayor said. “It’s not what I believe,” she added. “It’s what the law has said about it.”
Outside the hearing, Sessions said he was “troubled” by the answer. “She flatly stated that [the right to bear arms] is not a fundamental right,” Sessions said.
Later, Sessions also pressed Sotomayor on her role before appointment to the bench as a board member with the group now known as LatinoJustice PRLDEF. For a second day, Sotomayor generally minimized her direct knowledge of the group’s litigation, including one case seeking to compel the state of New York to provide Medicaid funding for abortion for poor women.
Sessions was openly incredulous, telling Sotomayor that it appeared she was “more active than you suggested” in the previous day’s answer. At day’s end, Sessions said, “I remain baffled.”
Under questioning from Republican Charles Grassley of Iowa, Sotomayor cited judicial ethics rules to avoid any answer about same-sex marriage or the constitutionality of the federal Defense of Marriage Act. Grassley pointed to a 1972 Supreme Court decision, Baker v. Nelson, dismissing a same-sex marriage suit for “lack of a substantial federal question.”
When Sotomayor declined to give a view, Grassley noted that the judge had pledged support for precedent on many other issues. “Why are you hedging on this?” he asked. Sotomayor refused to budge.
Democratic senators also got no direct answers on their, friendlier questions, which covered topics ranging from privacy and criminal law to environmental and financial regulation. At the lunch break, committee chairman Patrick Leahy of Vermont acknowledged that his mind was “periodically” drifting as the junior-most of the panel’s 12 Democrats were getting their turn to question Sotomayor.
But Leahy, who has participated in confirmation hearings since Justice John Paul Stevens’ questioning in 1975, forcefully disagreed with the Republican critique of Sotomayor’s testimony. “I can’t think of any woman who has answered more questions in depth,” Leahy said.
The hearing resumes at 9:30 a.m. Thursday. “There are a lot of questions still to be asked,” Sessions told reporters.
Judiciary Committee Republicans made their sharpest criticism to date of Sotomayor after questioning her again about the “wise Latina” speech and unsuccessfully trying to pin her down on abortion and gun rights. Sen. Jeff Sessions of Alabama, the committee’s ranking Republican, told reporters that the veteran federal judge had been “muddled, confusing, backtracking on issue after issue.”
Sen. John Cornyn, R-Texas, was similarly critical after using most of his allotted time to dissecting the now infamous 2001 campus speech comparing potential decisions by a “wise Latina judge” to those of a white man. “We’re asking about speeches,” Cornyn told reporters, “and we’re not getting very good answers.”
To Cornyn, Sotomayor again backed away from her comments, insisting that they had been misunderstood. “My words failed,” Sotomayor said. “They didn’t work.” She reaffirmed her description of the remark on Tuesday as “a rhetorical flourish that fell flat.”
Both Cornyn and Sen. Tom Coburn, R-Okla., also pressed Sotomayor for views on abortion issues, but got little by way of new information. To Cornyn, Sotomayor denied telling the White House anything about her views on abortion before President Obama nominated her for the high court in late May. “I was asked no questions by anyone including the president about my views on any specific issue,” Sotomayor said.
Cornyn cited a post-nomination Washington Post story describing unidentified White House advisers as assuring advocacy groups that Sotomayor will support abortion rights on the court. The story also quoted a former partner of Sotomayor in private law practice as saying she supports abortion rights.
Sotomayor answered that she had never discussed her personal views about abortion with the colleague. She also noted that she had joined in a ruling to uphold the Bush administration’s so-called “Mexico City” policy, which denied federal funding to groups that provide abortion services overseas.
To Coburn, Sotomayor repeated a summary of the Supreme Court’s Planned Parenthood v. Casey decision as protecting a woman’s “constitutional right to terminate a pregnancy in certain circumstances” with state regulations permitted if they did not impose an “undue burden” on that right. But she declined to give a specific answer to Coburn’s question whether a woman could have an abortion in the 38th week of pregnancy if the fetus was determined to have spinal bifida. “I can’t answer that question in the abstract,” Sotomayor said.
Coburn, an obstetrician, also got no direct answer when he asked whether the definition of viability in abortion decisions should change as technology enables survival of fetuses as early as the twenty-first week of pregnancy. “That’s not a question that a court reaches out to answer,” Sotomayor said.
Sotomayor also declined to give a direct answer to Coburn’s question whether a citizen has a constitutional right to self-defense. And she again defended her part in a recent decision declining to extend the Supreme Court’s gun-rights decision, District of Columbia v. Heller, to state and local governments.
“I was applying both Supreme Court precedent and Second Circuit precedent that has said it’s not incorporated,” Sotomayor said. “It’s not what I believe,” she added. “It’s what the law has said about it.”
Outside the hearing, Sessions said he was “troubled” by the answer. “She flatly stated that [the right to bear arms] is not a fundamental right,” Sessions said.
Later, Sessions also pressed Sotomayor on her role before appointment to the bench as a board member with the group now known as LatinoJustice PRLDEF. For a second day, Sotomayor generally minimized her direct knowledge of the group’s litigation, including one case seeking to compel the state of New York to provide Medicaid funding for abortion for poor women.
Sessions was openly incredulous, telling Sotomayor that it appeared she was “more active than you suggested” in the previous day’s answer. At day’s end, Sessions said, “I remain baffled.”
Under questioning from Republican Charles Grassley of Iowa, Sotomayor cited judicial ethics rules to avoid any answer about same-sex marriage or the constitutionality of the federal Defense of Marriage Act. Grassley pointed to a 1972 Supreme Court decision, Baker v. Nelson, dismissing a same-sex marriage suit for “lack of a substantial federal question.”
When Sotomayor declined to give a view, Grassley noted that the judge had pledged support for precedent on many other issues. “Why are you hedging on this?” he asked. Sotomayor refused to budge.
Democratic senators also got no direct answers on their, friendlier questions, which covered topics ranging from privacy and criminal law to environmental and financial regulation. At the lunch break, committee chairman Patrick Leahy of Vermont acknowledged that his mind was “periodically” drifting as the junior-most of the panel’s 12 Democrats were getting their turn to question Sotomayor.
But Leahy, who has participated in confirmation hearings since Justice John Paul Stevens’ questioning in 1975, forcefully disagreed with the Republican critique of Sotomayor’s testimony. “I can’t think of any woman who has answered more questions in depth,” Leahy said.
The hearing resumes at 9:30 a.m. Thursday. “There are a lot of questions still to be asked,” Sessions told reporters.
Tuesday, July 14, 2009
Sotomayor Defends Role in Firefighters Case, Past Remarks
Supreme Court nominee Sonia Sotomayor defended her role in the New Haven firefighters case on the second day of her confirmation hearing against sharp criticism from Republican senators of the substance and the procedure of the decision.
Sotomayor said her vote as a member of an appeals court panel to reject the reverse discrimination suit by white firefighters was dictated by precedent. She also defended the three-judge panel’s decision to adopt the lower court’s opinion without an opinion of its own as in line with judicial procedure.
“We were following precedent,” Sotomayor said of the appeals court ruling under friendly questioning from Senate Judiciary Committee Chairman Patrick Leahy, D-Vt. Sotomayor said the city faced potential liability under civil rights law because African American firefighters on a promotions exam than white applicants. “The panel concluded that the city’s decision in that particular situation was lawful under established law,” she explained.
Sotomayor said the panel decided to adopt what she called the “very thoughtful, very thorough” 78-page district court opinion in the case instead of writing its own opinion. The Supreme Court later decided to review the decision and just last month reversed it in a 5-4 ruling, Ricci v. DeStefano, that found the city’s decision to scrap the results of the test violated the federal job discrimination law, Title VII.
Republican senators Jeff Sessions of Alabama and Orrin Hatch of Utah were both critical of the panel’s handling of the case as they got turns to question Sotomayor. “It did not discuss the serious legal issues that the case did raise,” said Sessions, the committee’s ranking GOP member.
“Even the district court recognized that this was an unusual case,” said Hatch, a former Judiciary Committee chairman. “One of the questions I had is why did your own panel not do its own analysis?”
Both senators also rejected Sotomayor’s claim that the appeals court was bound by precedent in its ruling. “I just can’t understand the claim that you were just sticking to longstanding clear precedent,” Hatch said.
In his questioning, Leahy elicited Sotomayor’s agreement that she would now be bound by the Supreme Court’s ruling in the case. “That is now the statement from the Supreme Court on how employers and the courts should address that situation,” Sotomayor said. During a break, Leahy told reporters he was satisfied with Sotomayor’s answers on the topic.
Along with the firefighters case, Sotomayor’s past speeches discussing the role of ethnicity and gender in judicial decision-making predictably emerged as the major points of contention between Democratic and Republican senators in three hours of questioning before a lunchtime break. Leahy again guided Sotomayor at the outset into answering criticism of her nomination by asking her to explain her remark that a “wise Latina judge” may “often” make a better decision than a white male judge.
“The words … have created a misunderstanding,” Sotomayor said. “I want to state up front unequivocally and without doubt that I do not believe that any racial, ethnic, or gender group has an advantage in sound judgment.”
Sessions, however, stuck to the criticism of Sotomayor’s past remarks that he and other Republicans have raised since President Obama nominated Sotomayor for the courft in late May. ” What you’re saying today is quite inconsistent” with past statements, Sessions said. Outside the hearing, Leahy questioned the focus on Sotomayor’s speeches. “I’m more concerned with what she’ll do as a judge,” he said.
Sen. Jon Kyl, R-Ariz., returned to the “wise Latina” speech in the afternoon, pointedly questioning Sotomayor’s characterization of her remarks as rejecting any influence of gender or ethnicity on judicial decision-making. “You seemed to be celebrating this,” Kyl said after quoting from the speech.
Sotomayor cited her record in response. “It is very clear,” she said, “that I don’t base my judgments on my personal views, my experiences, or my feelings or my biases.”
In another tense exchange, Sen. Lindsey Graham, R-S.C., read sharply critical evaluations of Sotomayor’s temperament published in the Almanac of the Federal Judiciary. After citing such comments as “terror on the bench” and “abuses lawyers,” Graham said the evaluations differed from those of Sotomayor’s colleagues on the Second Circuit Court of Appeals. “You stand out like a sore thumb,” Graham said.
Asked directly whether she has a temperament problem, Sotomayor replied firmly, “No, sir.” She added, “I believe my reputation is such that I ask the hard questions, but I do it evenly on both sides.”
Sotomayor fended off questions about her role as a board member of the group now known as LatinoJustice PRDLEF by saying she did not directly participate in a case seeking Medicaid funding of abortions and minimizing her part in the group’s opposition to reinstatement of the death penalty in New York. She also followed the path of other recent Supreme Court nominees in avoiding direct answers on legal issues event though she acknowledged at one point that the practice “must be unsatisfying” to senators.
At the end of the day, Kyl called Sotomayor’s answers about her past speeches “unsatisfying” and also accused her of misleading answers about the firefighters case and about her views on the use of foreign or international law in decisions. “There’s a lot more that she needs to address on these subjects,” he said.
In his wrap-up, Leahy disagreed. “I did not hear anything that she did not answer and answer thoroughly,” he told reporters. The hearing resumes at 9:30 Wednesday morning.
Sotomayor said her vote as a member of an appeals court panel to reject the reverse discrimination suit by white firefighters was dictated by precedent. She also defended the three-judge panel’s decision to adopt the lower court’s opinion without an opinion of its own as in line with judicial procedure.
“We were following precedent,” Sotomayor said of the appeals court ruling under friendly questioning from Senate Judiciary Committee Chairman Patrick Leahy, D-Vt. Sotomayor said the city faced potential liability under civil rights law because African American firefighters on a promotions exam than white applicants. “The panel concluded that the city’s decision in that particular situation was lawful under established law,” she explained.
Sotomayor said the panel decided to adopt what she called the “very thoughtful, very thorough” 78-page district court opinion in the case instead of writing its own opinion. The Supreme Court later decided to review the decision and just last month reversed it in a 5-4 ruling, Ricci v. DeStefano, that found the city’s decision to scrap the results of the test violated the federal job discrimination law, Title VII.
Republican senators Jeff Sessions of Alabama and Orrin Hatch of Utah were both critical of the panel’s handling of the case as they got turns to question Sotomayor. “It did not discuss the serious legal issues that the case did raise,” said Sessions, the committee’s ranking GOP member.
“Even the district court recognized that this was an unusual case,” said Hatch, a former Judiciary Committee chairman. “One of the questions I had is why did your own panel not do its own analysis?”
Both senators also rejected Sotomayor’s claim that the appeals court was bound by precedent in its ruling. “I just can’t understand the claim that you were just sticking to longstanding clear precedent,” Hatch said.
In his questioning, Leahy elicited Sotomayor’s agreement that she would now be bound by the Supreme Court’s ruling in the case. “That is now the statement from the Supreme Court on how employers and the courts should address that situation,” Sotomayor said. During a break, Leahy told reporters he was satisfied with Sotomayor’s answers on the topic.
Along with the firefighters case, Sotomayor’s past speeches discussing the role of ethnicity and gender in judicial decision-making predictably emerged as the major points of contention between Democratic and Republican senators in three hours of questioning before a lunchtime break. Leahy again guided Sotomayor at the outset into answering criticism of her nomination by asking her to explain her remark that a “wise Latina judge” may “often” make a better decision than a white male judge.
“The words … have created a misunderstanding,” Sotomayor said. “I want to state up front unequivocally and without doubt that I do not believe that any racial, ethnic, or gender group has an advantage in sound judgment.”
Sessions, however, stuck to the criticism of Sotomayor’s past remarks that he and other Republicans have raised since President Obama nominated Sotomayor for the courft in late May. ” What you’re saying today is quite inconsistent” with past statements, Sessions said. Outside the hearing, Leahy questioned the focus on Sotomayor’s speeches. “I’m more concerned with what she’ll do as a judge,” he said.
Sen. Jon Kyl, R-Ariz., returned to the “wise Latina” speech in the afternoon, pointedly questioning Sotomayor’s characterization of her remarks as rejecting any influence of gender or ethnicity on judicial decision-making. “You seemed to be celebrating this,” Kyl said after quoting from the speech.
Sotomayor cited her record in response. “It is very clear,” she said, “that I don’t base my judgments on my personal views, my experiences, or my feelings or my biases.”
In another tense exchange, Sen. Lindsey Graham, R-S.C., read sharply critical evaluations of Sotomayor’s temperament published in the Almanac of the Federal Judiciary. After citing such comments as “terror on the bench” and “abuses lawyers,” Graham said the evaluations differed from those of Sotomayor’s colleagues on the Second Circuit Court of Appeals. “You stand out like a sore thumb,” Graham said.
Asked directly whether she has a temperament problem, Sotomayor replied firmly, “No, sir.” She added, “I believe my reputation is such that I ask the hard questions, but I do it evenly on both sides.”
Sotomayor fended off questions about her role as a board member of the group now known as LatinoJustice PRDLEF by saying she did not directly participate in a case seeking Medicaid funding of abortions and minimizing her part in the group’s opposition to reinstatement of the death penalty in New York. She also followed the path of other recent Supreme Court nominees in avoiding direct answers on legal issues event though she acknowledged at one point that the practice “must be unsatisfying” to senators.
At the end of the day, Kyl called Sotomayor’s answers about her past speeches “unsatisfying” and also accused her of misleading answers about the firefighters case and about her views on the use of foreign or international law in decisions. “There’s a lot more that she needs to address on these subjects,” he said.
In his wrap-up, Leahy disagreed. “I did not hear anything that she did not answer and answer thoroughly,” he told reporters. The hearing resumes at 9:30 Wednesday morning.
Monday, July 13, 2009
Amid Doubts, Sotomayor Vows 'Fidelity to Law'
Supreme Court nominee Sonia Sotomayor moved to blunt doubts about her fairness and impartiality on the bench on Monday even as the Senate Judiciary Committee’s ranking Republican set himself up to vote against her confirmation if he remains unconvinced.
Sotomayor used her seven-minute opening statement to insist to the Democratic-controlled committee that her decisions in 17 years on the federal bench “have been made not to serve the interests of any one litigant, but to serve the larger interest of justice.” She continued by saying that her judicial philosophy “is simple: fidelity to the law.”
“The task of a judge is not to make the law — it is to apply the law,” Sotomayor said. “And it is clear, I believe, that my record in two courts reflects my rigorous commitment to interpreting the Constitution according to its terms; interpreting statutes according to their terms and congress’s intent; and hewing faithfully to precedents established by the Supreme Court and my Circuit Court.”
Sotomayor’s statement followed a full two-and-a-half hours of opening statements from the committee’s members, with praise for her record and life story from 12 Democrats and questions and concerns from the seven Republicans. In the most forceful of the GOP statements, Sen. Jeff Sessions of Alabama, the ranking Republican on the panel, sharply criticized President Obama’s use of an “empathy” standard in nominating Sotomayor.
“I will not vote for — and no senator should vote for — an individual nominated by any president who is not fully committed to fairness and impartiality towards every person who appears before them,” Sessions said. “I will not for — and no senator should vote for — an individual who believes it is acceptable for a judge to allow their own personal background, gender, prejudices, or sympathies to sway their decision in favor of, or against, parties before the court.”
Judiciary Committee Chairman Patrick Leahy, D-Vt., had anticipated the line of attack from Republicans as he opened the hearing. “She’ll be a justice for all Americans,” Leahy said of Sotomayor after criticizing what he called “ideological pressure groups” for opposing her confirmation shortly after Obama announced his selection in late May.
The senators used their opening statements to frame the issues for the questioning of Sotomayor, which begins on Tuesday morning and is expected to span three days. They also sparred among themselves over judicial philosophies and Supreme Court decisions.
Sessions criticized empathy as “another step down the road to a liberal activist, results-oriented, and relativistic world.” Much later, Democrat Sheldon Whitehouse of Rhode Island said there is “nothing wrong” with empathy, which he said has “a constitutionally proper place” in judicial decisionmaking.
Republican senators criticized Supreme Court decisions from earlier eras recognizing abortion rights, barring silent prayer in public schools and allowing local governments to seize private property for development by private interests. Democratic senators countered with criticism of decisions since Chief Justice John G. Roberts Jr. took office in 2005 that limited abortion rights, struck down the District of Columbia’s handgun ban and sided with business on antitrust and regulatory issues.
Sotomayor made no substantive comments on legal issues in her opening statement. Instead, she emphasized what she called her “uniquely American” life story life story from her childhood in a housing project in the Bronx to her education at Princeton and Yale Law School and then on to work as a prosecutor and corporate litigator before appointment to the bench in 1992.
Sotomayor appeared particularly emphatic in talking about her work as an assistant district attorney in New York. She said she had “felt” the suffering of crime victims’ families and “saw and learned the tough job law enforcement has protecting the public safety.” New York District Attorney Robert Morgenthau, who hired Sotomayor and has served as the city’s chief prosecutor for nearly 35 years, will be one of the public witnesses picked by Democrats to testify in favor of Sotomayor at the end of the week.
Witnesses on the Republican side include academics and advocates who have opposed racial preferences along with current or past leaders of gun rights and anti-abortion organizations. GOP senators set the stage for questioning on all three issues by tying them to Sotomayor’s record as a judge or before taking the bench.
Sessions noted that Sotomayor had served on the board of an advocacy group — referring to the former Puerto Rican Legal Defense and Educational Fund, now called LatinoJustice PRLDEF — that favored taxpayer funding of abortions. He also pointed to Sotomayor’s joining a recent opinion that declined to apply the new Second Amendment right to private possession of handguns to state and local governments. And along with several other GOP senators Sessions dwelt on Sotomayor’s part in the New Haven, Conn., firefighters case, rejecting a reverse discrimination suit that the Supreme Court sustained by a 5-4 vote on June 29.
Afterward, Sessions told reporters that Sotomayor “did a very nice job” and called her statement “a good start” at assuaging his concerns. “If that had been the theme of her speeches over the last 15 years,” he said, “we would have less trouble” with the nomination.
Sotomayor used her seven-minute opening statement to insist to the Democratic-controlled committee that her decisions in 17 years on the federal bench “have been made not to serve the interests of any one litigant, but to serve the larger interest of justice.” She continued by saying that her judicial philosophy “is simple: fidelity to the law.”
“The task of a judge is not to make the law — it is to apply the law,” Sotomayor said. “And it is clear, I believe, that my record in two courts reflects my rigorous commitment to interpreting the Constitution according to its terms; interpreting statutes according to their terms and congress’s intent; and hewing faithfully to precedents established by the Supreme Court and my Circuit Court.”
Sotomayor’s statement followed a full two-and-a-half hours of opening statements from the committee’s members, with praise for her record and life story from 12 Democrats and questions and concerns from the seven Republicans. In the most forceful of the GOP statements, Sen. Jeff Sessions of Alabama, the ranking Republican on the panel, sharply criticized President Obama’s use of an “empathy” standard in nominating Sotomayor.
“I will not vote for — and no senator should vote for — an individual nominated by any president who is not fully committed to fairness and impartiality towards every person who appears before them,” Sessions said. “I will not for — and no senator should vote for — an individual who believes it is acceptable for a judge to allow their own personal background, gender, prejudices, or sympathies to sway their decision in favor of, or against, parties before the court.”
Judiciary Committee Chairman Patrick Leahy, D-Vt., had anticipated the line of attack from Republicans as he opened the hearing. “She’ll be a justice for all Americans,” Leahy said of Sotomayor after criticizing what he called “ideological pressure groups” for opposing her confirmation shortly after Obama announced his selection in late May.
The senators used their opening statements to frame the issues for the questioning of Sotomayor, which begins on Tuesday morning and is expected to span three days. They also sparred among themselves over judicial philosophies and Supreme Court decisions.
Sessions criticized empathy as “another step down the road to a liberal activist, results-oriented, and relativistic world.” Much later, Democrat Sheldon Whitehouse of Rhode Island said there is “nothing wrong” with empathy, which he said has “a constitutionally proper place” in judicial decisionmaking.
Republican senators criticized Supreme Court decisions from earlier eras recognizing abortion rights, barring silent prayer in public schools and allowing local governments to seize private property for development by private interests. Democratic senators countered with criticism of decisions since Chief Justice John G. Roberts Jr. took office in 2005 that limited abortion rights, struck down the District of Columbia’s handgun ban and sided with business on antitrust and regulatory issues.
Sotomayor made no substantive comments on legal issues in her opening statement. Instead, she emphasized what she called her “uniquely American” life story life story from her childhood in a housing project in the Bronx to her education at Princeton and Yale Law School and then on to work as a prosecutor and corporate litigator before appointment to the bench in 1992.
Sotomayor appeared particularly emphatic in talking about her work as an assistant district attorney in New York. She said she had “felt” the suffering of crime victims’ families and “saw and learned the tough job law enforcement has protecting the public safety.” New York District Attorney Robert Morgenthau, who hired Sotomayor and has served as the city’s chief prosecutor for nearly 35 years, will be one of the public witnesses picked by Democrats to testify in favor of Sotomayor at the end of the week.
Witnesses on the Republican side include academics and advocates who have opposed racial preferences along with current or past leaders of gun rights and anti-abortion organizations. GOP senators set the stage for questioning on all three issues by tying them to Sotomayor’s record as a judge or before taking the bench.
Sessions noted that Sotomayor had served on the board of an advocacy group — referring to the former Puerto Rican Legal Defense and Educational Fund, now called LatinoJustice PRLDEF — that favored taxpayer funding of abortions. He also pointed to Sotomayor’s joining a recent opinion that declined to apply the new Second Amendment right to private possession of handguns to state and local governments. And along with several other GOP senators Sessions dwelt on Sotomayor’s part in the New Haven, Conn., firefighters case, rejecting a reverse discrimination suit that the Supreme Court sustained by a 5-4 vote on June 29.
Afterward, Sessions told reporters that Sotomayor “did a very nice job” and called her statement “a good start” at assuaging his concerns. “If that had been the theme of her speeches over the last 15 years,” he said, “we would have less trouble” with the nomination.
Sunday, July 12, 2009
Nomination Watch: Pols, Polls Divided as Hearings Begin
On the eve of Senate confirmation hearings for Supreme Court nominee Sonia Sotomayor, Democrats are highlighting her advance from housing project to federal bench while Republicans are promising a thorough examination of her judicial decisions and legal views.
Meanwhile, public opinion polls over the past month indicate some fluidity in attitudes toward the longtime federal judge nominated by President Obama in May to be the first Latina to serve on the court. A CNN poll, available here released on Friday (July 10) showed a narrow plurality of respondents favoring Sotomayor’s confirmation: 47 percent to 40 percent.
By contrast, a Rasmussen survey completed on June 30, available here showed a narrow plurality opposing her confirmation: 37 percent to 39 percent. That telephone poll was taken immediately after the Supreme Court reversed the high-profile ruling in the New Haven, Conn., firefighters case that Sotomayor had joined as a member of the Second U.S. Circuit Court of Appeals.
Sen. Jon Kyl, an Arizona Republican said to be helping mastermind the GOP strategy on the nomination, promised that Republicans will be thorough but fair in the hearings, which are set to begin at 10 a.m. on Monday (July 13.) “The strategy is to be as thorough as we can in examining her record, what she has said, and to conduct the hearing in a fair, impartial, and thorough way and then make our decisions,” Kyl said on ABC This Week.”. He went on to cite the Rasmussen survey as an indication that the hearings will be “very important for [Sotomayor] to demonstrate that she should be confirmed to sit on the Supreme Court.”
Appearing on the same program, Senate Majority Whip Richard Durbin of Illinois voiced confidence about the outcome. “She has a compelling life story,” Durbin said. Durbin described Sotomayor as “a moderate and restrained jurist” and “an exceptional person.” “I believe she’s going to do well,” he added.
With a 60-vote Democratic majority in the Senate, Sotomayor’s confirmation is regarded as assured, even by the conservative groups who have been waging a campaign against her. To date, three Republican senators have said they will vote against confirmation: Sam Brownback and Pat Roberts, both of Kansas, and Oklahoma’s James Inhofe, according to CQ Politics’ Legal Beat.
In the run-up to the hearings, the Senate Judiciary Committee released a witness list that begins with members of the American Bar Association’s Standing Committee on the Judiciary followed by 15 witnesses selected by Democrats and 14 by Republicans. The ABA committee gave Sotomayor its highest rating of “well qualified” in an evaluation released on June 1.
The Democratic witness list is heavy with veterans of traditional civil rights and minority groups. But it also includes law enforcement representatives, including former FBI Director Louis Freeh and Sotomayor’s former boss, the veteran New York district attorney Robert Morgenthau.
The Republican list includes advocates from gun rights, anti-abortion and conservative civil rights groups as well as several well known conservative law professors. But the witness attracting the most attention in advance is Frank Ricci, the New Haven firefighter who was the first-named plaintiff in the reverse discrimination suit filed after the city’s civil service board discarded the results of a promotions exam because white applicants outperformed African American candidates on the test.
The Supreme Court’s June 29 decision in the case, Ricci v. DeStefano, upheld the suit, finding that the city’s decision to throw out the test results amounted to intentional discrimination in violation of Title VII of the Civil Rights Act of 1964. The 5-4 decision rejected the rulings by the district court and the Second Circuit panel that the city’s action was legal because it was seeking to avoid potential liability for unintentional “disparate impact” discrimination against the black applicants.
With Ricci set to be in the national spotlight, news organizations began reporting — and liberal organizations helped to publicize — that Ricci, who has dyslexia, was hired by the New Haven Fire Department in 1995 only after filing a suit claiming he had been illegally rejected because of discrimination on the basis of his learning disability. The suit had been reported by the Hartford Courant at the time, but had gone unnoticed as the firefighters’ reverse discrimination suit moved through the courts over the past five years.
The liberal news site Talking Points Memo closed a report on the information with a sharp critique, saying Ricci’s legal views “seem to begin and end with the proposition that legal protections against discrimination are great when they work in his favor, and unconscionable when they don't.” In a sharp response on National Review Online, Jonathan Adler, a conservative law professor at Case Western Reserve University, responded, “I suppose the politics of personal destruction has become part of the 'American way.' ”
In another development, the liberal Brennan Center for Social Justice at New York University School of Law released a detailed study of Sotomayor’s rulings on constitutional issues. The study concludes that Sotomayor’s decisions show her to be a “mainstream” jurist, not a judicial activist.
Separately, a study by the Transactional Records Access Clearinghouse, a group specializing in statistical compilations of government record, reported that in her six years a federal trial judge, Sotomayor was somewhat more likely than her colleagues to sentence criminal defendants to prison. The study, available here , shows the difference was most pronounced in white-collar crime cases.
Meanwhile, public opinion polls over the past month indicate some fluidity in attitudes toward the longtime federal judge nominated by President Obama in May to be the first Latina to serve on the court. A CNN poll, available here released on Friday (July 10) showed a narrow plurality of respondents favoring Sotomayor’s confirmation: 47 percent to 40 percent.
By contrast, a Rasmussen survey completed on June 30, available here showed a narrow plurality opposing her confirmation: 37 percent to 39 percent. That telephone poll was taken immediately after the Supreme Court reversed the high-profile ruling in the New Haven, Conn., firefighters case that Sotomayor had joined as a member of the Second U.S. Circuit Court of Appeals.
Sen. Jon Kyl, an Arizona Republican said to be helping mastermind the GOP strategy on the nomination, promised that Republicans will be thorough but fair in the hearings, which are set to begin at 10 a.m. on Monday (July 13.) “The strategy is to be as thorough as we can in examining her record, what she has said, and to conduct the hearing in a fair, impartial, and thorough way and then make our decisions,” Kyl said on ABC This Week.”. He went on to cite the Rasmussen survey as an indication that the hearings will be “very important for [Sotomayor] to demonstrate that she should be confirmed to sit on the Supreme Court.”
Appearing on the same program, Senate Majority Whip Richard Durbin of Illinois voiced confidence about the outcome. “She has a compelling life story,” Durbin said. Durbin described Sotomayor as “a moderate and restrained jurist” and “an exceptional person.” “I believe she’s going to do well,” he added.
With a 60-vote Democratic majority in the Senate, Sotomayor’s confirmation is regarded as assured, even by the conservative groups who have been waging a campaign against her. To date, three Republican senators have said they will vote against confirmation: Sam Brownback and Pat Roberts, both of Kansas, and Oklahoma’s James Inhofe, according to CQ Politics’ Legal Beat.
In the run-up to the hearings, the Senate Judiciary Committee released a witness list that begins with members of the American Bar Association’s Standing Committee on the Judiciary followed by 15 witnesses selected by Democrats and 14 by Republicans. The ABA committee gave Sotomayor its highest rating of “well qualified” in an evaluation released on June 1.
The Democratic witness list is heavy with veterans of traditional civil rights and minority groups. But it also includes law enforcement representatives, including former FBI Director Louis Freeh and Sotomayor’s former boss, the veteran New York district attorney Robert Morgenthau.
The Republican list includes advocates from gun rights, anti-abortion and conservative civil rights groups as well as several well known conservative law professors. But the witness attracting the most attention in advance is Frank Ricci, the New Haven firefighter who was the first-named plaintiff in the reverse discrimination suit filed after the city’s civil service board discarded the results of a promotions exam because white applicants outperformed African American candidates on the test.
The Supreme Court’s June 29 decision in the case, Ricci v. DeStefano, upheld the suit, finding that the city’s decision to throw out the test results amounted to intentional discrimination in violation of Title VII of the Civil Rights Act of 1964. The 5-4 decision rejected the rulings by the district court and the Second Circuit panel that the city’s action was legal because it was seeking to avoid potential liability for unintentional “disparate impact” discrimination against the black applicants.
With Ricci set to be in the national spotlight, news organizations began reporting — and liberal organizations helped to publicize — that Ricci, who has dyslexia, was hired by the New Haven Fire Department in 1995 only after filing a suit claiming he had been illegally rejected because of discrimination on the basis of his learning disability. The suit had been reported by the Hartford Courant at the time, but had gone unnoticed as the firefighters’ reverse discrimination suit moved through the courts over the past five years.
The liberal news site Talking Points Memo closed a report on the information with a sharp critique, saying Ricci’s legal views “seem to begin and end with the proposition that legal protections against discrimination are great when they work in his favor, and unconscionable when they don't.” In a sharp response on National Review Online, Jonathan Adler, a conservative law professor at Case Western Reserve University, responded, “I suppose the politics of personal destruction has become part of the 'American way.' ”
In another development, the liberal Brennan Center for Social Justice at New York University School of Law released a detailed study of Sotomayor’s rulings on constitutional issues. The study concludes that Sotomayor’s decisions show her to be a “mainstream” jurist, not a judicial activist.
Separately, a study by the Transactional Records Access Clearinghouse, a group specializing in statistical compilations of government record, reported that in her six years a federal trial judge, Sotomayor was somewhat more likely than her colleagues to sentence criminal defendants to prison. The study, available here , shows the difference was most pronounced in white-collar crime cases.
Monday, June 29, 2009
Breaking News: Firefighters Backed in Reverse Bias Suit
The Supreme Court ended its term with a dramatic 5-4 ruling that makes it harder for private and government employers alike to take race into consideration in hiring or promotion decisions in order to avoid being charged with racial discrimination.
The ruling came in a closely watched reverse discrimination suit by white firefighters in New Haven, Conn., filed after the city scrapped the results of a civil service exam because no black firefighters scored high enough to qualify for promotions.
The case had political significance because Supreme Court nominee Sonia Sotomayor formed part of the three-judge panel that upheld the city’s action that the Supreme Court on Monday overturned.
Along with a second 5-4 decision in a banking regulation case, the court ended its term with a total of 23 one-vote rulings – nearly one-third of the total of 74 decisions. That is only slightly lower than the record 35 percent of one-vote rulings two years ago, in Chief Justice John G. Roberts’s second term in office. Roberts has said before confirmation and since that he wants to reduce the number of closely divided rulings from the court.
The ruling came in a closely watched reverse discrimination suit by white firefighters in New Haven, Conn., filed after the city scrapped the results of a civil service exam because no black firefighters scored high enough to qualify for promotions.
The case had political significance because Supreme Court nominee Sonia Sotomayor formed part of the three-judge panel that upheld the city’s action that the Supreme Court on Monday overturned.
Along with a second 5-4 decision in a banking regulation case, the court ended its term with a total of 23 one-vote rulings – nearly one-third of the total of 74 decisions. That is only slightly lower than the record 35 percent of one-vote rulings two years ago, in Chief Justice John G. Roberts’s second term in office. Roberts has said before confirmation and since that he wants to reduce the number of closely divided rulings from the court.
Friday, June 26, 2009
Nomination Watch: CRS Finds No Tilt in Sotomayor's Rulings
Supreme Court nominee Sonia Sotomayor’s opinions on the federal appeals court mark her as a judge who adheres to precedent, carefully applies facts to legal issues, and dislikes courts’ overstepping their judicial role.
That is the central conclusion of a 55-page report by the Congressional Research Service, an arm of the Library of Congress, that analyzes Sotomayor’s opinions subject by subject from her 17 years on the Second U.S. Circuit Court of Appeals.
The report, with separate sections written by a total of 18 CRS legislative attorneys, appears to cover no Sotomayor opinions that have not already attracted comment in the month since President Obama nominated her to succeed retiring Justice David H. Souter. But the generally favorable evaluation of her work strengthens the view of her as a mainstream judge espoused by Democrats, liberal groups and many academic expects and undermines efforts by Republicans and conservative groups to depict her as a liberal judicial activist.
“Perhaps the most consistent characteristic of Judge Sotomayor’s approach as an appellate judge has been an adherence to the doctrine of stare decisis, i.e., the upholding of past judicial precedents,” the report states in its opening summary. “Other characteristics appear to include what many would describe as a careful application of particular facts at issue in a case and a dislike for situations in which the court might be seen as overstepping its judicial role.”
The report was dated June 19 and began circulating among interest groups and others several days later. In an initial reaction, Wendy Long, general counsel of the conservative Judicial Confirmation Network and an opponent of Sotomayor’s confirmation, was sharply critical. "CRS is one-upping the White House doubletalk about Judge Sotomayor that is intended to obscure the liberal judicial activist, and frankly, the sub-par judge that she really is,” Long wrote on National Review Online.
The report finds no overall pattern in Sotomayor’s opinions in race-related cases. Sotomayor, who would be the court’s first Latina justice if confirmed, has attracted substantial criticism for speeches spanning several years discussing the influence of her gender and her ethnicity in her decision making.
Out of seven opinions she authored, Sotomayor ruled in favor of the party claiming discrimination in three and against the party claiming discrimination in four, the report states. “Her opinions seem to betray neither a particular sympathy for nor hostility toward alleged victims of discrimination,” the report concludes.
The report does, however, find Sotomayor generally supportive of civil rights claims by individuals with disabilities. In areas of international concern, Sotomayor is described as having “a tendency to make the Second Circuit available to plaintiffs unless circuit precedent or the political branches have indicated otherwise.”
Sotomayor’s role in the reverse discrimination suit by white New Haven, Conn., firefighters now pending before the Supreme Court is described in the report as “somewhat ambiguous.” Sotomayor was part of a three-judge panel that summarily affirmed a district court’s decision to permit the city of New Haven to scrap the results of a civil service exam after no African Americans scored high enough to qualify for promotions. The Supreme Court heard arguments in the case, Ricci v.DeStefano, in April and is due to issue a decision on Monday [June 29], the final day of the term.
In a second major area, criminal law, the report discounts some published comments suggesting Sotomayor may be more conservative than Souter has been. The report catalogues decisions alternately favoring or rejecting Fourth Amendment claims and alternately granting or refusing to extend qualified immunity to police officers in civil suits.
In general, the report says Sotomayor adheres to precedent in criminal cases, but notes that when she disagrees with colleagues, her stance has generally favored defendants. Among Fourth Amendment cases noted is a decision, N.G. ex rel. S.C., finding no justification for a juvenile detention facility to strip search female residents. In a press release, the liberal group People for the American Way pointed to the Supreme Court’s June 25 decision finding a constitutional violation in a strip-search of an Arizona middle school student as vindicating Sotomayor’s position on the issue.
The report finds no strong inclination in Sotomayor’s opinions in several other areas, including the First Amendment and securities and tax cases. The report notes three opinions that were reversed by the Supreme Court but not a fourth and makes no overall assessment of her reversal rate.
The report also discounts Sotomayor’s participation in a recent, unsigned decision, Maloney v. Rice, declining to extend the newly recognized Second Amendment right to individual possession of firearms to state and local governments. Out of three appeals courts to rule on the issue, two circuits — the Second and the Seventh — have both held that it is up to the Supreme Court to decide whether to overrule a 19th century decision holding the Second Amendment inapplicable to the states. The Ninth Circuit took the opposite stance in a decision striking down a local ordinance that banned gun shows at a municipal facility. The National Rifle Association has asked the Supreme Court to review the Seventh Circuit’s decision.
That is the central conclusion of a 55-page report by the Congressional Research Service, an arm of the Library of Congress, that analyzes Sotomayor’s opinions subject by subject from her 17 years on the Second U.S. Circuit Court of Appeals.
The report, with separate sections written by a total of 18 CRS legislative attorneys, appears to cover no Sotomayor opinions that have not already attracted comment in the month since President Obama nominated her to succeed retiring Justice David H. Souter. But the generally favorable evaluation of her work strengthens the view of her as a mainstream judge espoused by Democrats, liberal groups and many academic expects and undermines efforts by Republicans and conservative groups to depict her as a liberal judicial activist.
“Perhaps the most consistent characteristic of Judge Sotomayor’s approach as an appellate judge has been an adherence to the doctrine of stare decisis, i.e., the upholding of past judicial precedents,” the report states in its opening summary. “Other characteristics appear to include what many would describe as a careful application of particular facts at issue in a case and a dislike for situations in which the court might be seen as overstepping its judicial role.”
The report was dated June 19 and began circulating among interest groups and others several days later. In an initial reaction, Wendy Long, general counsel of the conservative Judicial Confirmation Network and an opponent of Sotomayor’s confirmation, was sharply critical. "CRS is one-upping the White House doubletalk about Judge Sotomayor that is intended to obscure the liberal judicial activist, and frankly, the sub-par judge that she really is,” Long wrote on National Review Online.
The report finds no overall pattern in Sotomayor’s opinions in race-related cases. Sotomayor, who would be the court’s first Latina justice if confirmed, has attracted substantial criticism for speeches spanning several years discussing the influence of her gender and her ethnicity in her decision making.
Out of seven opinions she authored, Sotomayor ruled in favor of the party claiming discrimination in three and against the party claiming discrimination in four, the report states. “Her opinions seem to betray neither a particular sympathy for nor hostility toward alleged victims of discrimination,” the report concludes.
The report does, however, find Sotomayor generally supportive of civil rights claims by individuals with disabilities. In areas of international concern, Sotomayor is described as having “a tendency to make the Second Circuit available to plaintiffs unless circuit precedent or the political branches have indicated otherwise.”
Sotomayor’s role in the reverse discrimination suit by white New Haven, Conn., firefighters now pending before the Supreme Court is described in the report as “somewhat ambiguous.” Sotomayor was part of a three-judge panel that summarily affirmed a district court’s decision to permit the city of New Haven to scrap the results of a civil service exam after no African Americans scored high enough to qualify for promotions. The Supreme Court heard arguments in the case, Ricci v.DeStefano, in April and is due to issue a decision on Monday [June 29], the final day of the term.
In a second major area, criminal law, the report discounts some published comments suggesting Sotomayor may be more conservative than Souter has been. The report catalogues decisions alternately favoring or rejecting Fourth Amendment claims and alternately granting or refusing to extend qualified immunity to police officers in civil suits.
In general, the report says Sotomayor adheres to precedent in criminal cases, but notes that when she disagrees with colleagues, her stance has generally favored defendants. Among Fourth Amendment cases noted is a decision, N.G. ex rel. S.C., finding no justification for a juvenile detention facility to strip search female residents. In a press release, the liberal group People for the American Way pointed to the Supreme Court’s June 25 decision finding a constitutional violation in a strip-search of an Arizona middle school student as vindicating Sotomayor’s position on the issue.
The report finds no strong inclination in Sotomayor’s opinions in several other areas, including the First Amendment and securities and tax cases. The report notes three opinions that were reversed by the Supreme Court but not a fourth and makes no overall assessment of her reversal rate.
The report also discounts Sotomayor’s participation in a recent, unsigned decision, Maloney v. Rice, declining to extend the newly recognized Second Amendment right to individual possession of firearms to state and local governments. Out of three appeals courts to rule on the issue, two circuits — the Second and the Seventh — have both held that it is up to the Supreme Court to decide whether to overrule a 19th century decision holding the Second Amendment inapplicable to the states. The Ninth Circuit took the opposite stance in a decision striking down a local ordinance that banned gun shows at a municipal facility. The National Rifle Association has asked the Supreme Court to review the Seventh Circuit’s decision.
Monday, June 22, 2009
Breaking News: Court Skirts Voting Rights Act Challenge
The Supreme Court made it substantially easier for many local governments to escape the requirements of the Voting Rights Act to obtain permission from the Justice Department or a federal court for any changes in voting or election procedures. In an 8-1 decision, however, the court left the so-called preclearance requirement on the books, rejecting arguments by a small utility district in Texas that the law is an unconstitutional intrusion on state and local governments.
The ruling in Northwest Austin Municipal Utility District v. Holder was an anticlimactic end to a major constitutional challenge to a law that Congress re-enacted only three years ago and extended for another 25 years. Many Supreme Court watchers had expected the court’s conservative majority to strike the law down.
Chief Justice John G. Roberts Jr. wrote the majority opinion. He acknowledged the arguments against the law, but said that expanding the availability of the law’s “bailout provision” was an adequate remedy. In a lone, partial dissent, Justice Clarence argued that the utility district was entitled to a ruling on the main issue and concluded that the act’s intrusion on state and local governments exceeded Congress’s power to enforce voting rights under the post-Civil War Fifteenth Amendment.
The ruling in Northwest Austin Municipal Utility District v. Holder was an anticlimactic end to a major constitutional challenge to a law that Congress re-enacted only three years ago and extended for another 25 years. Many Supreme Court watchers had expected the court’s conservative majority to strike the law down.
Chief Justice John G. Roberts Jr. wrote the majority opinion. He acknowledged the arguments against the law, but said that expanding the availability of the law’s “bailout provision” was an adequate remedy. In a lone, partial dissent, Justice Clarence argued that the utility district was entitled to a ruling on the main issue and concluded that the act’s intrusion on state and local governments exceeded Congress’s power to enforce voting rights under the post-Civil War Fifteenth Amendment.
Supreme Court: Time to Scrap the "Activist" Label?
With 10 decisions to go, including two potential blockbuster civil rights rulings, it is early to be writing a headline for the Roberts Court’s current term. Still, a look at some of the term’s rulings, including two released on June 18, does belie the simplistic description of the court as one that practices restraint and avoids “judicial activism.”
The difficulty of giving useful meaning to the phrase judicial activism is worth underscoring now as the Senate Judiciary Committee prepares for the July 13 opening of confirmation hearings for Supreme Court nominee Sonia Sotomayor. Some Republican senators appear likely to accuse Judge Sotomayor of judicial activism as they question her and perhaps lay the foundation for voting against her despite her unquestioned academic and professional credentials.
For political conservatives, Chief Justice John G. Roberts Jr. is the paragon of judicial restraint and his view of a judge as an umpire with no role in writing the rules of the game is the accepted metaphor to define the approach. Roberts reprised this theme in his opinion for a 5-4 majority in District Attorney’s Office v. Osborne rejecting a due process right to DNA testing for inmates in post-conviction challenges. Alaska inmate William Osborne, convicted of a brutal rape in 1993, wanted to use new, more sophisticated DNA testing to analyze evidence in the case: semen recovered from the victim. Alaska officials refused, giving a variety of reasons as the case moved along.
For the conservative majority, Roberts acknowledged that DNA testing has come to be recognized as uniquely powerful evidence in many cases. Forty-six states — but not Alaska — have enacted laws guaranteeing inmates some right to DNA testing in post-conviction proceedings. Some might see those laws as evidence of a broad consensus in favor of the right. But to Roberts and the other conservative justices, they represented an argument for staying the court’s hand. “To suddenly constitutionalize this area would short-circuit what looks to be a prompt and considered legislative response,” he wrote.
The court’s ruling leaves inmates in Alaska and three other states with no recourse if officials refuse a new round of DNA testing, even for flimsy reasons. And, as Justice John Paul Stevens argued for the dissenters, a court ruling to establish a right to DNA testing already recognized by 46 states would not be intrusive; it “could only be constructive.”
Earlier in the term, the court was less than restrained in a pair of 5-4 decisions that similarly limited the rights of the accused. In Herring v. United States, the court’s conservatives in January crafted a new rule that prohibits the use of improperly seized evidence only if police were guilty of intentional or reckless misconduct. Then late last month, the court in Montejo v. Louisiana reached out to discard a 23-year-old precedent that had forbidden police to initiate interrogation of a suspect once he or she had a lawyer.
In both cases, the court’s ruling unsettled settled law: for some, the very definition of judicial activism. Another of the June 18 rulings similarly seemed to depart from settled legal principles: in this instance, to the benefit of employers defending federal age discrimination suits.
The issue in Gross v. FBL Financial Services was what proof to require of a plaintiff employee in a suit under the Age Discrimination in Employment Act (ADEA) in a “mixed motives” case: one with evidence of both improper and arguably proper motives by an employer for an adverse employment action. In 1989, the court had established a rule for such cases brought under the main federal job discrimination law, Title VII of the Civil Rights Act of 1964. A plaintiff in, for example, a race or sex discrimination has to show that race or sex was a “motivating factor” for an employment action; the burden then shifts to the employer to show it would have taken the same action regardless of the impermissible consideration.
Congress knew of this decision as it reworked the job discrimination law over the next two years and left the ruling untouched. In the new decision, however, the court’s conservatives held that an age discrimination plaintiff must carry the entire burden of showing that an employer improperly considered age and that the employer would not have taken the same action “but for” the impermissible consideration.
Why the difference? The two laws are written differently, the conservative majority says, and the burden-shifting framework “is difficult to apply.” In fact, both laws prohibit employment actions taken “because of” an impermissible consideration. And putting the burden entirely on age discrimination plaintiffs will also be difficult to apply: simply harder for employees and easier for employers. The reasons are makeweights. Writing again for the dissenters, Stevens aptly labeled the ruling “unabashed judicial lawmaking.”
Some critics might take a cue from Stevens and accuse the Roberts Court of unacknowledged activism. The better view is to evaluate each ruling on its terms without resort to labels. Interestingly, that is the approach that Richard Epstein, a leading conservative law professor at the University of Chicago, urges in evaluating Judge Sotomayor’s rulings. The phrase judicial activism “tells you nothing,” Epstein remarked to the New York Times. “The term ought to be scrapped.”
The difficulty of giving useful meaning to the phrase judicial activism is worth underscoring now as the Senate Judiciary Committee prepares for the July 13 opening of confirmation hearings for Supreme Court nominee Sonia Sotomayor. Some Republican senators appear likely to accuse Judge Sotomayor of judicial activism as they question her and perhaps lay the foundation for voting against her despite her unquestioned academic and professional credentials.
For political conservatives, Chief Justice John G. Roberts Jr. is the paragon of judicial restraint and his view of a judge as an umpire with no role in writing the rules of the game is the accepted metaphor to define the approach. Roberts reprised this theme in his opinion for a 5-4 majority in District Attorney’s Office v. Osborne rejecting a due process right to DNA testing for inmates in post-conviction challenges. Alaska inmate William Osborne, convicted of a brutal rape in 1993, wanted to use new, more sophisticated DNA testing to analyze evidence in the case: semen recovered from the victim. Alaska officials refused, giving a variety of reasons as the case moved along.
For the conservative majority, Roberts acknowledged that DNA testing has come to be recognized as uniquely powerful evidence in many cases. Forty-six states — but not Alaska — have enacted laws guaranteeing inmates some right to DNA testing in post-conviction proceedings. Some might see those laws as evidence of a broad consensus in favor of the right. But to Roberts and the other conservative justices, they represented an argument for staying the court’s hand. “To suddenly constitutionalize this area would short-circuit what looks to be a prompt and considered legislative response,” he wrote.
The court’s ruling leaves inmates in Alaska and three other states with no recourse if officials refuse a new round of DNA testing, even for flimsy reasons. And, as Justice John Paul Stevens argued for the dissenters, a court ruling to establish a right to DNA testing already recognized by 46 states would not be intrusive; it “could only be constructive.”
Earlier in the term, the court was less than restrained in a pair of 5-4 decisions that similarly limited the rights of the accused. In Herring v. United States, the court’s conservatives in January crafted a new rule that prohibits the use of improperly seized evidence only if police were guilty of intentional or reckless misconduct. Then late last month, the court in Montejo v. Louisiana reached out to discard a 23-year-old precedent that had forbidden police to initiate interrogation of a suspect once he or she had a lawyer.
In both cases, the court’s ruling unsettled settled law: for some, the very definition of judicial activism. Another of the June 18 rulings similarly seemed to depart from settled legal principles: in this instance, to the benefit of employers defending federal age discrimination suits.
The issue in Gross v. FBL Financial Services was what proof to require of a plaintiff employee in a suit under the Age Discrimination in Employment Act (ADEA) in a “mixed motives” case: one with evidence of both improper and arguably proper motives by an employer for an adverse employment action. In 1989, the court had established a rule for such cases brought under the main federal job discrimination law, Title VII of the Civil Rights Act of 1964. A plaintiff in, for example, a race or sex discrimination has to show that race or sex was a “motivating factor” for an employment action; the burden then shifts to the employer to show it would have taken the same action regardless of the impermissible consideration.
Congress knew of this decision as it reworked the job discrimination law over the next two years and left the ruling untouched. In the new decision, however, the court’s conservatives held that an age discrimination plaintiff must carry the entire burden of showing that an employer improperly considered age and that the employer would not have taken the same action “but for” the impermissible consideration.
Why the difference? The two laws are written differently, the conservative majority says, and the burden-shifting framework “is difficult to apply.” In fact, both laws prohibit employment actions taken “because of” an impermissible consideration. And putting the burden entirely on age discrimination plaintiffs will also be difficult to apply: simply harder for employees and easier for employers. The reasons are makeweights. Writing again for the dissenters, Stevens aptly labeled the ruling “unabashed judicial lawmaking.”
Some critics might take a cue from Stevens and accuse the Roberts Court of unacknowledged activism. The better view is to evaluate each ruling on its terms without resort to labels. Interestingly, that is the approach that Richard Epstein, a leading conservative law professor at the University of Chicago, urges in evaluating Judge Sotomayor’s rulings. The phrase judicial activism “tells you nothing,” Epstein remarked to the New York Times. “The term ought to be scrapped.”
Friday, June 12, 2009
Nomination Watch: Sotomayor's Critics Dig Through Record
Republicans and conservative groups are looking hard for vulnerabilities in Supreme Court nominee Sonia Sotomayor’s record even as two independent evaluations depict her as a moderate judge attentive to detail and respectful of precedent.
The in-depth examinations of Sotomayor’s judicial decisions by the American Civil Liberties Union and a Supreme Court expert at the University of Texas Law School came as Senate Judiciary Committee Chairman Patrick J. Leahy said confirmation hearings would start on July 13.
Leahy’s decision to pick a date sooner than Republicans had been urging left GOP senators fuming and threatening parliamentary obstruction. The Judiciary Committee’s Republican minority responded with a four-page letter demanding more information about Sotomayor’s record on and before taking the bench.
The GOP letter, available here from the CBS News Web site, seconded a request made earlier by the conservative Judicial Confirmation Network for more documents pertaining to Sotomayor’s role as a board member of the Puerto Rican Legal Defense and Educational Network in the group’s opposition to capital punishment. (The group is now called LatinoJustice PRLDEF.) It also asked Sotomayor to justify her claim on her previously submitted questionnaire that her continuing membership in an all-female social organization does not violate judicial ethics.
The letter went on to ask Sotomayor for a more complete return of her speech transcripts, appellate court briefs, and even every article she had edited as an editor of two law journals at Yale Law School in the 1970s. The additional information was needed, the letter said, “to properly evaluate your record in the short time that has been provided.” The White House responded by treating the omissions as a normal part of the process and promising to provide the requested information as soon as possible.
Both Leahy, D-Vt., and Majority Leader Harry Reid, D-Nev., dismissed Republicans’ complaints about the confirmation schedule. They said the seven weeks between President Obama’s nomination of Sotomayor and the start date roughly corresponded to the time elapsed between President George W. Bush’s nomination of Chief Justice John G. Roberts Jr. and the start of confirmation hearings in 2005. Republicans said that because of Sotomayor’s extensive judicial record, the better comparison would be the three months between Bush’s selection of Justice Samuel A. Alito Jr. and the start of confirmation hearings in January 2006. “This is a confirmation process, not a confirmation race,” Sen. Jeff Sessions of Alabama, the ranking Republican on the Judiciary Committee, told reporters.
Meanwhile, the conservative Federalist Society — which played a major role in promoting the Roberts and Alito nominations — helped give reporters a glimpse into some of the strategy likely to be used in testing Sotomayor’s confirmation. In a conference call organized by the group and as reported here on National Public Radio’s Web site, the lawyers said Sotomayor will be challenged for several race-related rulings and a gun rights decision as well as her role in the Puerto Rican advocacy group’s anti-death penalty stance.
The rulings due for scrutiny include the New Haven firefighters case now before the Supreme Court. In that case, Ricci v. DeStefano, Sotomayor joined a unanimous three-judge panel in upholding a lower court’s decision to dismiss a suit by white and one Hispanic firefighter challenging the Connecticut city’s action to scrap the results of a promotions exam because no black firefighters qualified for promotion. In a second case, Sotomayor joined in arguing in dissent that police in Oneonta, N.Y., violated equal protection by rounding up African-American men for interrogation after a white woman alleged she was raped by a black man. The ruling in Brown v. Oneonta (2002) refused to rehear a panel’s unpublished decision rejecting a civil rights suit by some of those interrogated in the incident.
The conservative lawyers also said Sotomayor would face questioning for joining a decision earlier this year declining to apply the newly recognized Second Amendment right to possession of handguns to state and local governments. The unsigned ruling in Maloney v. Cuomo (2009) — which involved not guns but the martial arts weapon nunchukas — said it was up to the Supreme Court to decide the question.
Earlier, the ACLU released an 86-page report on Sotomayor’s record on civil rights and civil liberties issues. Without taking a position on the nomination, the report, available here, calls her rulings difficult to characterize as liberal or conservative and favorably depicts her judicial craftsmanship for “a detailed attention to the facts and a close regard for precedent.”
The ACLU report discounts criticism of Sotomayor’s now famous “wise Latina” speeches and says her race-related rulings “reflect a careful examination of the relevant facts and law, and a disposition to decide cases narrowly” (p. 4). The report notes that Sotomayor ruled the Bush administration’s use of national security letters unconstitutional in one case, but backed national security in a second ruling upholding suitcase searches of passengers on a cross-border ferry between the United States and Canada. In the Second Amendment case, the ACLU said Sotomayor’s vote “cannot fairly be read as any indication” of her views on the issue (p. 86).
In another independent assessment, University of Texas law professor Stefanie Lindquist is describing Sotomayor as neither liberal nor consistently activist as conservative critics have been claiming. As reported here in the National Law Journal, Lindquist, co-aauthor of a forthcoming book on measuring “judicial activism,” said her “preliminary” findings indicate that Sotomayor took liberal positions in about 40 percent of all decisions and about 50 percent of all non-criminal rulings. Sotomayor was somewhat more liberal in her dissenting opinions, according to Lindquist, taking liberal stances in 12 out of 19 cases. But Lindquist also noted that Sotomayor had invalidated a state or federal statute only once — striking down a state statute once on preemption grounds.
The in-depth examinations of Sotomayor’s judicial decisions by the American Civil Liberties Union and a Supreme Court expert at the University of Texas Law School came as Senate Judiciary Committee Chairman Patrick J. Leahy said confirmation hearings would start on July 13.
Leahy’s decision to pick a date sooner than Republicans had been urging left GOP senators fuming and threatening parliamentary obstruction. The Judiciary Committee’s Republican minority responded with a four-page letter demanding more information about Sotomayor’s record on and before taking the bench.
The GOP letter, available here from the CBS News Web site, seconded a request made earlier by the conservative Judicial Confirmation Network for more documents pertaining to Sotomayor’s role as a board member of the Puerto Rican Legal Defense and Educational Network in the group’s opposition to capital punishment. (The group is now called LatinoJustice PRLDEF.) It also asked Sotomayor to justify her claim on her previously submitted questionnaire that her continuing membership in an all-female social organization does not violate judicial ethics.
The letter went on to ask Sotomayor for a more complete return of her speech transcripts, appellate court briefs, and even every article she had edited as an editor of two law journals at Yale Law School in the 1970s. The additional information was needed, the letter said, “to properly evaluate your record in the short time that has been provided.” The White House responded by treating the omissions as a normal part of the process and promising to provide the requested information as soon as possible.
Both Leahy, D-Vt., and Majority Leader Harry Reid, D-Nev., dismissed Republicans’ complaints about the confirmation schedule. They said the seven weeks between President Obama’s nomination of Sotomayor and the start date roughly corresponded to the time elapsed between President George W. Bush’s nomination of Chief Justice John G. Roberts Jr. and the start of confirmation hearings in 2005. Republicans said that because of Sotomayor’s extensive judicial record, the better comparison would be the three months between Bush’s selection of Justice Samuel A. Alito Jr. and the start of confirmation hearings in January 2006. “This is a confirmation process, not a confirmation race,” Sen. Jeff Sessions of Alabama, the ranking Republican on the Judiciary Committee, told reporters.
Meanwhile, the conservative Federalist Society — which played a major role in promoting the Roberts and Alito nominations — helped give reporters a glimpse into some of the strategy likely to be used in testing Sotomayor’s confirmation. In a conference call organized by the group and as reported here on National Public Radio’s Web site, the lawyers said Sotomayor will be challenged for several race-related rulings and a gun rights decision as well as her role in the Puerto Rican advocacy group’s anti-death penalty stance.
The rulings due for scrutiny include the New Haven firefighters case now before the Supreme Court. In that case, Ricci v. DeStefano, Sotomayor joined a unanimous three-judge panel in upholding a lower court’s decision to dismiss a suit by white and one Hispanic firefighter challenging the Connecticut city’s action to scrap the results of a promotions exam because no black firefighters qualified for promotion. In a second case, Sotomayor joined in arguing in dissent that police in Oneonta, N.Y., violated equal protection by rounding up African-American men for interrogation after a white woman alleged she was raped by a black man. The ruling in Brown v. Oneonta (2002) refused to rehear a panel’s unpublished decision rejecting a civil rights suit by some of those interrogated in the incident.
The conservative lawyers also said Sotomayor would face questioning for joining a decision earlier this year declining to apply the newly recognized Second Amendment right to possession of handguns to state and local governments. The unsigned ruling in Maloney v. Cuomo (2009) — which involved not guns but the martial arts weapon nunchukas — said it was up to the Supreme Court to decide the question.
Earlier, the ACLU released an 86-page report on Sotomayor’s record on civil rights and civil liberties issues. Without taking a position on the nomination, the report, available here, calls her rulings difficult to characterize as liberal or conservative and favorably depicts her judicial craftsmanship for “a detailed attention to the facts and a close regard for precedent.”
The ACLU report discounts criticism of Sotomayor’s now famous “wise Latina” speeches and says her race-related rulings “reflect a careful examination of the relevant facts and law, and a disposition to decide cases narrowly” (p. 4). The report notes that Sotomayor ruled the Bush administration’s use of national security letters unconstitutional in one case, but backed national security in a second ruling upholding suitcase searches of passengers on a cross-border ferry between the United States and Canada. In the Second Amendment case, the ACLU said Sotomayor’s vote “cannot fairly be read as any indication” of her views on the issue (p. 86).
In another independent assessment, University of Texas law professor Stefanie Lindquist is describing Sotomayor as neither liberal nor consistently activist as conservative critics have been claiming. As reported here in the National Law Journal, Lindquist, co-aauthor of a forthcoming book on measuring “judicial activism,” said her “preliminary” findings indicate that Sotomayor took liberal positions in about 40 percent of all decisions and about 50 percent of all non-criminal rulings. Sotomayor was somewhat more liberal in her dissenting opinions, according to Lindquist, taking liberal stances in 12 out of 19 cases. But Lindquist also noted that Sotomayor had invalidated a state or federal statute only once — striking down a state statute once on preemption grounds.
Friday, June 5, 2009
Nomination Watch: Debate Over Sotomayor's Record Widens
The debate over Supreme Court nominee Sonia Sotomayor is taking on more substance now that the judge has begun courtesy calls at the Senate and submitted to the Senate Judiciary Committee a questionnaire that one leading critic promptly labeled as incomplete.
The White House continues to push for an early confirmation hearing even as Republican senators call for more time to examine the voluminous record of decisions, speeches, and other public statements listed in Sotomayor’s 172-page questionnaire that was turned over on Thursday (June 4).
First-day coverage of the questionnaire in, for example, the New York Times and Washington Post focused on Sotomayor’s frequent discussion of her ethnicity in her speeches. The Post described the judge as “driven by a powerful ethnic pride.” The Times noted that Sotomayor had used “on more than one occasion” the “wise Latina” phrasing that had already stirred controversy when first noted from a speech the judge delivered in 2001.
Senate Judiciary Committee Chairman Patrick J. Leahy, D-Vt., sought to defuse the controversy following his June 4 meeting with Sotomayor by quoting her as assuring him that she understands a judge must “ultimately and completely” follow the law. Two days later, Sen. Susan Collins, R-Maine, quoted Sotomayor as describing as “aspirational” the statement in the speech that she “hoped” that a “wise Latina judge” would “often” make a better decision than a white male. (The full text is here, from the Times Web site.)
A new controversy arose on Friday (June 5) when Wendy Long, general counsel of the Judicial Confirmation Network, said that Sotomayor’s questionnaire omitted any mention of position papers opposing the death penalty that she had joined in the 1980s while a leader in what was then called the Puerto Rican Legal Defense and Education Fund (now LatinoJustice PRLDEF). In a letter to Judiciary Committee members, Long acknowledges that Sotomayor cited a letter she wrote in 1981 opposing reinstatement of the death penalty in New York. But Long charges that the questionnaire is “incomplete” because Sotomayor did not also cite the group’s 1982 policy memorandum, signed by Sotomayor, criticizing the death penalty as “counterproductive” and “associated with racism.”
Earlier, Sotomayor had drawn criticism from the National Rifle Association and other gun-rights advocates for having joined in an unsigned ruling in January finding no Second Amendment restriction on state and local laws regulating handguns. The six-page opinion said that the Supreme Court’s 2008 ruling striking down a District of Columbia ban on handguns did not alter the court’s previous rulings that the Second Amendment does not apply to the states.
Criticism of the ruling was blunted somewhat by a decision to similar effect by the Seventh U.S. Circuit Court of Appeals on June 3 written by conservative Judge Frank Easterbrook and joined by fellow conservative, Richard Posner. The NRA promptly sought Supreme Court review of the nine-page ruling, which upheld a handgun ban adopted by the city of Chicago and village of Oak Park.
Meanwhile, the criticism of Sotomayor’s “wise Latina” speech has also been blunted by a detailed examination of the judge’s race-related rulings by Supreme Court advocate and SCOTUSBlog publisher Thomas Goldstein. In two postings on May 29, Goldstein said that Sotomayor had rejected discrimination claims in 78 out of 96 cases analyzed and had differed with other judges in only four of the cases. On that basis, Goldstein concluded, “it seems absurd to say that Judge Sotomayor allows race to infect her decisionmaking.”
With Republican senators still noncommittal on Sotomayor’s nomination, GOP members of the Judiciary Committee are preparing for what they say will be thorough but respectful questioning whenever the hearings are held. “I think those of us in the Senate are sure to treat this nominee fairly,” Sen. Jeff Sessions of Alabama, the ranking Republican on the panel, told Politico in advance of his meeting with Sotomayor. In apparent concession to the need for civility, former House Speaker Newt Gingrich later retracted his previous description of Sotomayor as a “racist” based on the “wise Latina” remark. In his Human Events column, Gingrich said, “The word ‘racist’ should not have been applied to Judge Sotomayor as a person, even if her words themselves are unacceptable.”
Sotomayor’s questionnaire recited dryly and exhaustively her background from her education at Princeton University and Yale Law School through her work as a prosecutor and corporate lawyer until her appointment to the federal district court by President George H.W. Bush in 1992 and her elevation to the Second Circuit by President Bill Clinton in 1998. Among the revelations in the questionnaire: the White House first contacted Sotomayor about the upcoming vacancy on April 27, three days before news of Justice David H. Souter’s planned retirement surfaced (pp. 171-172). The questionnaire also discloses that the judge, who turns 55 on June 29, is of modest financial means. She lists her net worth at just over $740,000.
The White House continues to push for an early confirmation hearing even as Republican senators call for more time to examine the voluminous record of decisions, speeches, and other public statements listed in Sotomayor’s 172-page questionnaire that was turned over on Thursday (June 4).
First-day coverage of the questionnaire in, for example, the New York Times and Washington Post focused on Sotomayor’s frequent discussion of her ethnicity in her speeches. The Post described the judge as “driven by a powerful ethnic pride.” The Times noted that Sotomayor had used “on more than one occasion” the “wise Latina” phrasing that had already stirred controversy when first noted from a speech the judge delivered in 2001.
Senate Judiciary Committee Chairman Patrick J. Leahy, D-Vt., sought to defuse the controversy following his June 4 meeting with Sotomayor by quoting her as assuring him that she understands a judge must “ultimately and completely” follow the law. Two days later, Sen. Susan Collins, R-Maine, quoted Sotomayor as describing as “aspirational” the statement in the speech that she “hoped” that a “wise Latina judge” would “often” make a better decision than a white male. (The full text is here, from the Times Web site.)
A new controversy arose on Friday (June 5) when Wendy Long, general counsel of the Judicial Confirmation Network, said that Sotomayor’s questionnaire omitted any mention of position papers opposing the death penalty that she had joined in the 1980s while a leader in what was then called the Puerto Rican Legal Defense and Education Fund (now LatinoJustice PRLDEF). In a letter to Judiciary Committee members, Long acknowledges that Sotomayor cited a letter she wrote in 1981 opposing reinstatement of the death penalty in New York. But Long charges that the questionnaire is “incomplete” because Sotomayor did not also cite the group’s 1982 policy memorandum, signed by Sotomayor, criticizing the death penalty as “counterproductive” and “associated with racism.”
Earlier, Sotomayor had drawn criticism from the National Rifle Association and other gun-rights advocates for having joined in an unsigned ruling in January finding no Second Amendment restriction on state and local laws regulating handguns. The six-page opinion said that the Supreme Court’s 2008 ruling striking down a District of Columbia ban on handguns did not alter the court’s previous rulings that the Second Amendment does not apply to the states.
Criticism of the ruling was blunted somewhat by a decision to similar effect by the Seventh U.S. Circuit Court of Appeals on June 3 written by conservative Judge Frank Easterbrook and joined by fellow conservative, Richard Posner. The NRA promptly sought Supreme Court review of the nine-page ruling, which upheld a handgun ban adopted by the city of Chicago and village of Oak Park.
Meanwhile, the criticism of Sotomayor’s “wise Latina” speech has also been blunted by a detailed examination of the judge’s race-related rulings by Supreme Court advocate and SCOTUSBlog publisher Thomas Goldstein. In two postings on May 29, Goldstein said that Sotomayor had rejected discrimination claims in 78 out of 96 cases analyzed and had differed with other judges in only four of the cases. On that basis, Goldstein concluded, “it seems absurd to say that Judge Sotomayor allows race to infect her decisionmaking.”
With Republican senators still noncommittal on Sotomayor’s nomination, GOP members of the Judiciary Committee are preparing for what they say will be thorough but respectful questioning whenever the hearings are held. “I think those of us in the Senate are sure to treat this nominee fairly,” Sen. Jeff Sessions of Alabama, the ranking Republican on the panel, told Politico in advance of his meeting with Sotomayor. In apparent concession to the need for civility, former House Speaker Newt Gingrich later retracted his previous description of Sotomayor as a “racist” based on the “wise Latina” remark. In his Human Events column, Gingrich said, “The word ‘racist’ should not have been applied to Judge Sotomayor as a person, even if her words themselves are unacceptable.”
Sotomayor’s questionnaire recited dryly and exhaustively her background from her education at Princeton University and Yale Law School through her work as a prosecutor and corporate lawyer until her appointment to the federal district court by President George H.W. Bush in 1992 and her elevation to the Second Circuit by President Bill Clinton in 1998. Among the revelations in the questionnaire: the White House first contacted Sotomayor about the upcoming vacancy on April 27, three days before news of Justice David H. Souter’s planned retirement surfaced (pp. 171-172). The questionnaire also discloses that the judge, who turns 55 on June 29, is of modest financial means. She lists her net worth at just over $740,000.
Thursday, May 28, 2009
Sotomayor: Choice Belies Critics, Confounds Opponents
Judge Sonia Sotomayor was at the top of President Obama’s short list of potential Supreme Court nominees even before Justice David H. Souter’s decision to retire. And from the start, conservative groups were denouncing her as a “liberal judicial activist.”
The ideological name-calling had little by way of substance. The three main counts consisted of a passing remark suggesting that appellate courts make policy — made in contrast to the role of trial courts; a speech voicing the “hope” that “a wise Latina judge” would “often” make a better ruling than a wise white male because of her experience and background; and her supposedly perfunctory rejection, as part of a panel of three judges, of a reverse discrimination case brought by white New Haven, Conn., firefighters.
True, at least one conservative critic — National Review Online’s Ed Whelan — examined Sotomayor’s record to document decisions in which she had been reversed by the Supreme Court. He found three: the high court's 5-4 decision rejecting an inmate’s constitutional damages claim against a private prison company; the 8-0 decision preempting state securities law suits; and a 7-2 decision favoring free-lance writers’ claims to copyright protection for works included in on-line data bases. Had Whelan updated his list, he could have added a fourth: a 5-4 decision in April allowing the Environmental Protection Agency to use cost-benefit calculations in some utility plant regulations.
To call Sotomayor’s overturned rulings in these cases the stuff of liberal judicial activism is to strip the term of any pretense of meaning. And now that Sotomayor has been chosen, a closer examination of her record is putting the lie completely to the accusation. On balance, Sotomayor falls to the left of ideological center on many legal issues, but not all. And, as SCOTUSBlog founder Thomas Goldstein aptly observed, she emerges from her 400 decisions on the Second U.S. Circuit Court of Appeals as no legal visionary but a judicial craftsperson.
The White House put its own spin on Sotomayor’s record in a fact-sheet that highlighted a handful of decisions with conservative results that judicial conservatives would have been happy to join. She refused to exclude evidence found on the basis of what proved to be an invalid arrest warrant — anticipating by a decade a position that the Supreme Court adopted in January. She backed asylum claims by Chinese women protesting their government’s one-child policy. She argued in dissent for the right of religious organizations to choose their spiritual leaders without interference from the federal government.
In a larger compilation, SCOTUSBlog found any number of decisions upholding criminal convictions, rejecting habeas corpus challenges by prison inmates or limiting civil justice remedies. Among 30 decisions included, only two stand out as arguably “activist.” In one, Sotomayor wrote the majority decision allowing merchants to bring a class action antitrust suit over credit card company fees. In another, she dissented from a decision rejecting a teenaged girl’s civil rights suit over a strip search by school officials — an issue currently before the Supreme Court in a separate case.
Sotomayor has no record on such major hot-button issues as abortion rights, capital punishment or gay rights. The White House says Obama did not discuss abortion with her in their hour-long interview. She has touched the issue only glancingly as a judge. She upheld the Bush administration’s ban on federal funding of groups that provide abortion counseling overseas. She also allowed a suit by anti-abortion protesters charging local police with excessive force in breaking up a demonstration. Those rulings may not satisfy anti-abortion groups, but they hardly give comfort to organizations that see fidelity to Roe v. Wade as the essential litmus test for any Supreme Court nominee.
Indeed, it is fair to say that Obama’s selection represents the third consecutive time that a Democratic president has avoided strict ideological litmus tests in picking a Supreme Court justice. Of the two judges Obama interviewed, Sotomayor is demonstrably less liberal than runner-up Diane Wood. In the 1990s, President Bill Clinton twice picked judges — Ruth Bader Ginsburg and Stephen G. Breyer — with reputations as moderate liberals. As justices, each has lived up to their reputations.
By contrast, President George W. Bush twice picked judges with documented records as committed conservatives. John G. Roberts Jr. and Samuel A. Alito Jr. had earned their conservative stripes in the Reagan administration and had judicial records — Alito’s longer than Roberts’ — that confirmed their generally conservative leanings. In between, Bush picked an ideological wild card, Harriet Miers, and conservative groups whacked him for it.
Obama has gained nothing from the legal ideologues for his less than ideological pick. But he has confounded them by nominating Sotomayor to be the first Latina to serve on the court. Whether or not identity politics is good for the court, it is treacherous ground for opponents. Southern Democratic senators learned that lesson in 1991 when they voted with their African American constituents to give Clarence Thomas the margin of his confirmation. Republican senators with Latinos in their states — to some degree, all of them — may buy political trouble if they give Sotomayor a less than welcoming reception as the confirmation hearings proceed.
The ideological name-calling had little by way of substance. The three main counts consisted of a passing remark suggesting that appellate courts make policy — made in contrast to the role of trial courts; a speech voicing the “hope” that “a wise Latina judge” would “often” make a better ruling than a wise white male because of her experience and background; and her supposedly perfunctory rejection, as part of a panel of three judges, of a reverse discrimination case brought by white New Haven, Conn., firefighters.
True, at least one conservative critic — National Review Online’s Ed Whelan — examined Sotomayor’s record to document decisions in which she had been reversed by the Supreme Court. He found three: the high court's 5-4 decision rejecting an inmate’s constitutional damages claim against a private prison company; the 8-0 decision preempting state securities law suits; and a 7-2 decision favoring free-lance writers’ claims to copyright protection for works included in on-line data bases. Had Whelan updated his list, he could have added a fourth: a 5-4 decision in April allowing the Environmental Protection Agency to use cost-benefit calculations in some utility plant regulations.
To call Sotomayor’s overturned rulings in these cases the stuff of liberal judicial activism is to strip the term of any pretense of meaning. And now that Sotomayor has been chosen, a closer examination of her record is putting the lie completely to the accusation. On balance, Sotomayor falls to the left of ideological center on many legal issues, but not all. And, as SCOTUSBlog founder Thomas Goldstein aptly observed, she emerges from her 400 decisions on the Second U.S. Circuit Court of Appeals as no legal visionary but a judicial craftsperson.
The White House put its own spin on Sotomayor’s record in a fact-sheet that highlighted a handful of decisions with conservative results that judicial conservatives would have been happy to join. She refused to exclude evidence found on the basis of what proved to be an invalid arrest warrant — anticipating by a decade a position that the Supreme Court adopted in January. She backed asylum claims by Chinese women protesting their government’s one-child policy. She argued in dissent for the right of religious organizations to choose their spiritual leaders without interference from the federal government.
In a larger compilation, SCOTUSBlog found any number of decisions upholding criminal convictions, rejecting habeas corpus challenges by prison inmates or limiting civil justice remedies. Among 30 decisions included, only two stand out as arguably “activist.” In one, Sotomayor wrote the majority decision allowing merchants to bring a class action antitrust suit over credit card company fees. In another, she dissented from a decision rejecting a teenaged girl’s civil rights suit over a strip search by school officials — an issue currently before the Supreme Court in a separate case.
Sotomayor has no record on such major hot-button issues as abortion rights, capital punishment or gay rights. The White House says Obama did not discuss abortion with her in their hour-long interview. She has touched the issue only glancingly as a judge. She upheld the Bush administration’s ban on federal funding of groups that provide abortion counseling overseas. She also allowed a suit by anti-abortion protesters charging local police with excessive force in breaking up a demonstration. Those rulings may not satisfy anti-abortion groups, but they hardly give comfort to organizations that see fidelity to Roe v. Wade as the essential litmus test for any Supreme Court nominee.
Indeed, it is fair to say that Obama’s selection represents the third consecutive time that a Democratic president has avoided strict ideological litmus tests in picking a Supreme Court justice. Of the two judges Obama interviewed, Sotomayor is demonstrably less liberal than runner-up Diane Wood. In the 1990s, President Bill Clinton twice picked judges — Ruth Bader Ginsburg and Stephen G. Breyer — with reputations as moderate liberals. As justices, each has lived up to their reputations.
By contrast, President George W. Bush twice picked judges with documented records as committed conservatives. John G. Roberts Jr. and Samuel A. Alito Jr. had earned their conservative stripes in the Reagan administration and had judicial records — Alito’s longer than Roberts’ — that confirmed their generally conservative leanings. In between, Bush picked an ideological wild card, Harriet Miers, and conservative groups whacked him for it.
Obama has gained nothing from the legal ideologues for his less than ideological pick. But he has confounded them by nominating Sotomayor to be the first Latina to serve on the court. Whether or not identity politics is good for the court, it is treacherous ground for opponents. Southern Democratic senators learned that lesson in 1991 when they voted with their African American constituents to give Clarence Thomas the margin of his confirmation. Republican senators with Latinos in their states — to some degree, all of them — may buy political trouble if they give Sotomayor a less than welcoming reception as the confirmation hearings proceed.
Tuesday, May 26, 2009
Nomination Watch: Obama Picks Sotomayor
President Obama’s selection of federal appeals court judge Sonia Sotomayor is a move toward ethnic and gender diversity on the Supreme Court, but sets the stage for a contentious confirmation fight with conservative Republicans, who moved quickly to label her as a liberal judicial activist.
Sotomayor, 54, brings a compelling a life story of rising from a childhood in a housing project in the Bronx to academic success at elite schools: Princeton and Yale Law School. But in her decade-plus on the federal appeals court in New York, she has also gained a reputation for liberal views and a sometimes prickly temperament.
The Democratic majority in the Senate seems sufficient to assure confirmation, but Republicans are expected to use Judiciary Committee confirmation hearings to question Sotomayor closely on her views and to help strengthen their standing with social conservatives by focusing on such issues as abortion and gay rights. Barring any unexpected obstacles, however, Sotomayor seems likely to win confirmation in ample time to take her place on the bench when the court returns from its summer recess on the traditional first Monday in October.
In the White House ceremony announcing the nomination on May 26, Obama stressed what he called Sotomayor’s “compelling life story” as the daughter of Puerto Rican parents and her “depth of experience” as a “big-city prosecutor” in New York City and a “private corporate litigator” before serving on the federal bench first as a trial judge and then an appellate judge. He noted that if confirmed Sotomayor will replace Justice David H. Souter as the only member of the Supreme Court with experience as a trial judge.
Obama mentioned only one specific decision of Sotomayor’s: her ruling as a trial judge that ended the 1994 Major League Baseball strike. He noted that as a daughter of the Bronx, Sotomayor is a lifelong Yankees fan and said he hoped that would not hurt her standing with New England senators.
A White House fact sheet cited some other rulings, including a 1999 decision, United States v. Santa, allowing the use of evidence seized from a child pornography defendant on the basis of what proved to be an invalid arrest warrant. The fact sheet noted that the Supreme Court adopted that position in a recent decision, Herring v. United States. The fact-sheet also pointed to other rulings likely to please judicial conservatives. One allowed asylum claims by Chinese women who said they were forced to practice birth control (Lin v. Gonzales)>. In another case, Sotomayor argued in dissent that the federal government should not be able to dictate to religious organizations the selection of their spiritual leaders (Hankins v. Light).
In accepting the nomination, Sotomayor similarly stressed her experience, saying that her varied positions had helped her “appreciate the variety of perspectives” and the “concerns of all litigants” in cases before her. She said she was “deeply moved” by the selection and described herself as “an ordinary person who has been blessed with extraordinary opportunities.”
Sotomayor, 54, brings a compelling a life story of rising from a childhood in a housing project in the Bronx to academic success at elite schools: Princeton and Yale Law School. But in her decade-plus on the federal appeals court in New York, she has also gained a reputation for liberal views and a sometimes prickly temperament.
The Democratic majority in the Senate seems sufficient to assure confirmation, but Republicans are expected to use Judiciary Committee confirmation hearings to question Sotomayor closely on her views and to help strengthen their standing with social conservatives by focusing on such issues as abortion and gay rights. Barring any unexpected obstacles, however, Sotomayor seems likely to win confirmation in ample time to take her place on the bench when the court returns from its summer recess on the traditional first Monday in October.
In the White House ceremony announcing the nomination on May 26, Obama stressed what he called Sotomayor’s “compelling life story” as the daughter of Puerto Rican parents and her “depth of experience” as a “big-city prosecutor” in New York City and a “private corporate litigator” before serving on the federal bench first as a trial judge and then an appellate judge. He noted that if confirmed Sotomayor will replace Justice David H. Souter as the only member of the Supreme Court with experience as a trial judge.
Obama mentioned only one specific decision of Sotomayor’s: her ruling as a trial judge that ended the 1994 Major League Baseball strike. He noted that as a daughter of the Bronx, Sotomayor is a lifelong Yankees fan and said he hoped that would not hurt her standing with New England senators.
A White House fact sheet cited some other rulings, including a 1999 decision, United States v. Santa, allowing the use of evidence seized from a child pornography defendant on the basis of what proved to be an invalid arrest warrant. The fact sheet noted that the Supreme Court adopted that position in a recent decision, Herring v. United States. The fact-sheet also pointed to other rulings likely to please judicial conservatives. One allowed asylum claims by Chinese women who said they were forced to practice birth control (Lin v. Gonzales)>. In another case, Sotomayor argued in dissent that the federal government should not be able to dictate to religious organizations the selection of their spiritual leaders (Hankins v. Light).
In accepting the nomination, Sotomayor similarly stressed her experience, saying that her varied positions had helped her “appreciate the variety of perspectives” and the “concerns of all litigants” in cases before her. She said she was “deeply moved” by the selection and described herself as “an ordinary person who has been blessed with extraordinary opportunities.”
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