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.
Monday, June 29, 2009
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.
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