The outcome was never in doubt. Judge Sonia Sotomayor was confirmed by the full US Senate 68-31. She will be sworn in with more than enough time to start the October session of the Court.
Congratulations to Justice Sotomayor and my only hope is that she follows the law and the US Constitution and doesn't freelance policy into her decisions.
The GOP that voted for her confirmation may not be in the good graces with the conservative elements within the party, but they did do the right thing by confirming a candidate who was qualified for the position, even if you can disagree with her policy positions and judicial philosophy.
That was the quandary faced by the Senate Republicans, and while some pursued the political angle to denounce her policy choices and preferences, the job of the US Senate is to weigh the qualifications, not the policy choices.
I know that's now how this process has been handled, but that's how it should be done. The Democrats repeatedly did this to eminently qualified GOP nominees, including Chief Justice Roberts and Justice Alito.
What this does is lay the groundwork for the next confirmation when that eventually occurs.
Showing posts with label Sonia Sotomayor. Show all posts
Showing posts with label Sonia Sotomayor. Show all posts
Thursday, August 06, 2009
Tuesday, July 14, 2009
Sotomayor Confirmation Hearings Day 2
Today we get into the meat and potatoes of the confirmation, where members of the Senate Judiciary Committee ask Supreme Court nominee Sonia Sotomayor questions about her judicial philosophy. The Times and Scotusblog are live blogging the hearings.
Don't expect much in the way of fireworks or new details to emerge from the hearings. I do hope that the Committee asks her about her procedural treatment of Ricci, a decision in which all nine members of the US Supreme Court found wanting, even if four members agreed with the ultimate decision of the Second Circuit. The four dissenting members found that while they may have agreed with the outcome of the case, Sotomayor used the wrong standard to reach that end, and if it was a summary judgment, why did they grant it to New Haven.
Don't expect much in the way of fireworks or new details to emerge from the hearings. I do hope that the Committee asks her about her procedural treatment of Ricci, a decision in which all nine members of the US Supreme Court found wanting, even if four members agreed with the ultimate decision of the Second Circuit. The four dissenting members found that while they may have agreed with the outcome of the case, Sotomayor used the wrong standard to reach that end, and if it was a summary judgment, why did they grant it to New Haven.
Monday, July 13, 2009
Supreme Court Nominee Sonia Sotomayor's Confirmation Underway
You can follow along with video coverage here.
Without Senator Joe Biden present, I expect the discourse to be somewhat improved. That said, these confirmations are more about having the Senators expound relentlessly so that they can hear their own voices, rather than get the nominee to opine on their judicial philosophy.
Watch the GOP attempt to get a clearer understanding of Sotomayor's position on Ricci, and why she reached the decision she did and which was lambasted by all nine members on the Court.
Today's hearings will lay the groundwork for her eventual confirmation (Democrats hold the numbers to make this happen regardless of GOP opposition).
UPDATE:
Scotusblog has running updates and is liveblogging. Also, here are some questions that a range of law professors and experts would like to see asked (though don't expect any substantive answers).
Without Senator Joe Biden present, I expect the discourse to be somewhat improved. That said, these confirmations are more about having the Senators expound relentlessly so that they can hear their own voices, rather than get the nominee to opine on their judicial philosophy.
Watch the GOP attempt to get a clearer understanding of Sotomayor's position on Ricci, and why she reached the decision she did and which was lambasted by all nine members on the Court.
Today's hearings will lay the groundwork for her eventual confirmation (Democrats hold the numbers to make this happen regardless of GOP opposition).
UPDATE:
Scotusblog has running updates and is liveblogging. Also, here are some questions that a range of law professors and experts would like to see asked (though don't expect any substantive answers).
Monday, June 08, 2009
I Can Sympathize
Having broken my own ankle at the end of March, I can truly sympathize with Sonia Sotomayor today. She broke her ankle after taking a tumble at LaGuardia Airport to catch a flight to Washington, DC to meet with Senators on Capitol Hill.
Like Sotomayor, I was able to get around and run errands while hobbling around. Expect Sotomayor to be hobbling around on crutches for a couple of days before she starts hobbling around on an orthopedic boot. She'll be back to her normal routine in about six weeks, which is the typical healing time, although I feel a twinge every now and then.
UPDATE:
Looks like she had a more significant fracture than I first thought (see the photo added). They've put her in a fiberglass cast, which suggests that it required more stabilization than a walking boot could provide.
Wednesday, June 03, 2009
A Disturbing Trend Continues
Congress didn't bother to read the porkfest they passed. Now, Sen. Harry Reid is on the record as saying he doesn't intend to read any of the opinions written by Judge Sonia Sotomayor in preparation for the confirmation hearings that will be taking place during the summer.
Is he not the slightest bit interested in knowing whether Sotomayor might turn out to be something that the Democrats don't want to happen? Is he that sure what someone who will spend the rest of their life (or at least until they retire) is thinking about on the key issues of the day - and on her legal approach to handling cases going forward based on incomplete news reports and captions of various legal decisions?
I have no doubt that if it was a GOP nominee, he would be searching tooth and nail for any dicta that might be cause for concern and he and his staff would be burning the midnight oil looking for that gotcha moment for use in the hearings.
In any event, confirmation isn't a rubber stamping procedure, but one that is supposed to make sure that the candidate is qualified. Reid makes a mockery of that process.
Virtually every Senator who's asked about Sonia Sotomayor defaults to a riff about how they're withholding judgment until they have an opportunity to nest in leather-bound chairs read to her writings in scholarly solitude for hours and hours.Aren't you glad we send these guys to Washington to look after the affairs of the nation?
Not Harry, he's good to go.
"I understand that during her career, she's written hundreds and hundreds of opinions. I haven't read a single one of them, and if I'm fortunate before we end this, I won't have to read one of them,” the majority leader told reporters at the Capitol on Tuesday.
Is he not the slightest bit interested in knowing whether Sotomayor might turn out to be something that the Democrats don't want to happen? Is he that sure what someone who will spend the rest of their life (or at least until they retire) is thinking about on the key issues of the day - and on her legal approach to handling cases going forward based on incomplete news reports and captions of various legal decisions?
I have no doubt that if it was a GOP nominee, he would be searching tooth and nail for any dicta that might be cause for concern and he and his staff would be burning the midnight oil looking for that gotcha moment for use in the hearings.
In any event, confirmation isn't a rubber stamping procedure, but one that is supposed to make sure that the candidate is qualified. Reid makes a mockery of that process.
Thursday, May 28, 2009
Expect Few Fireworks For Sotomayor's Confirmation
I didn't expect there to be much in the way of fireworks since Judge Sonia Sotomayor's record is pretty lengthy and there aren't any glaring reasons to find her unacceptable for confirmation to the US Supreme Court. Apparently, the Senate GOP agrees.
While there's a cottage industry set up by support and opposition groups to every judicial nominee and some cute statistics have been thrown out for general consumption, the record is what it is.
Claiming that 60% of her authored opinions were reversed by the Supreme Court is misleading. There are two ways to read that - the Supreme Court overruled 60% (3 of 5) of those cases brought before with Sotomayor being the author of the opinion, or that less than 1% of her cases were overturned (3 out of 380 opinions) (which is how Obama will spin it).
The truth is actually somewhere in the middle since there were several written opinions at the District Court level that went on to be overturned and upheld by the US Supreme Court (Tasani comes to mind).
Even if you consider that 3 of 5 cases were overturned, that actually is the norm given the Court's overall reversal rates. More often than not, the Supreme Court overrules cases brought up on appeal, and the reason that these cases are heard is that the justices believe that there's a possibility for reversal on appeal when they decide to hear the case based on the rule of four.
The 60% figure is a easily bandied about statistic that opponents use to make a far more complicated point stick, just as those claiming that less than 1% of her cases were reversed claim that she's in line with the Court's reasoning. Soundbites may make for great television shouting points, but they do little to inform the public about Sotomayor's legal reasoning and why she authored opinions as she did.
There are the real questions that have to be asked at confirmation. We don't know how she's going to on multiple areas of law, including on abortion, death penalty, and gay marriage (the current hot button topics), but we might get an idea based on questions about her judicial philosophy. We know that she's going to be a liberal justice; the question is just how liberal and there are signs pointing in both directions on that - some of her authored opinions are in line with the conservative members of the Court.
UPDATE:
Jules Crittenden considers the possibility that Sotomayor's judicial philosophy turns her into Souter with a salsa beat. It's an intriguing possibility, and it surely would drive the left nuts. I don't see much chance of that happening, but there are unknowables about how any nominee would respond to the issues presented. The best any President can do when nominating a jurist for the Supreme Court is that their philosophy remains consistent with their previous record. It isn't always the case.
UPDATE:
John at Powerline makes a similar case about the 60% reversal statistic.
While there's a cottage industry set up by support and opposition groups to every judicial nominee and some cute statistics have been thrown out for general consumption, the record is what it is.
Claiming that 60% of her authored opinions were reversed by the Supreme Court is misleading. There are two ways to read that - the Supreme Court overruled 60% (3 of 5) of those cases brought before with Sotomayor being the author of the opinion, or that less than 1% of her cases were overturned (3 out of 380 opinions) (which is how Obama will spin it).
The truth is actually somewhere in the middle since there were several written opinions at the District Court level that went on to be overturned and upheld by the US Supreme Court (Tasani comes to mind).
Even if you consider that 3 of 5 cases were overturned, that actually is the norm given the Court's overall reversal rates. More often than not, the Supreme Court overrules cases brought up on appeal, and the reason that these cases are heard is that the justices believe that there's a possibility for reversal on appeal when they decide to hear the case based on the rule of four.
The 60% figure is a easily bandied about statistic that opponents use to make a far more complicated point stick, just as those claiming that less than 1% of her cases were reversed claim that she's in line with the Court's reasoning. Soundbites may make for great television shouting points, but they do little to inform the public about Sotomayor's legal reasoning and why she authored opinions as she did.
There are the real questions that have to be asked at confirmation. We don't know how she's going to on multiple areas of law, including on abortion, death penalty, and gay marriage (the current hot button topics), but we might get an idea based on questions about her judicial philosophy. We know that she's going to be a liberal justice; the question is just how liberal and there are signs pointing in both directions on that - some of her authored opinions are in line with the conservative members of the Court.
UPDATE:
Jules Crittenden considers the possibility that Sotomayor's judicial philosophy turns her into Souter with a salsa beat. It's an intriguing possibility, and it surely would drive the left nuts. I don't see much chance of that happening, but there are unknowables about how any nominee would respond to the issues presented. The best any President can do when nominating a jurist for the Supreme Court is that their philosophy remains consistent with their previous record. It isn't always the case.
UPDATE:
John at Powerline makes a similar case about the 60% reversal statistic.
Tuesday, May 26, 2009
Obama To Pick Sonia Sotomayor To Replace Souter
Sonia Sotomayor was widely considered a front runner for replacing retiring Justice David Souter. She's a New Yorker, and is on the Second Circuit Court of Appeals.
And now, she's going to be nominated to be on the US Supreme Court. Sotomayor fits the kind of approach that President Obama seeks - a liberal interpretation of the US Constitution where the Constitution is a living breathing document. The case against her is pretty persuasive, but there is nothing that the GOP can do to derail this nomination.
The only way this nomination gets derailed is if the Obama Administration didn't pick up on details that will embarrass and suggest that Sotomayor is an inappropriate candidate for the Supreme Court. That's not all that far fetched given the way that the Obama Administration has repeatedly botched nominations for a host of positions, repeatedly selecting tax cheats and those with ethical flaps.
Still, even a tax problem would not likely derail matters as the Democrats have control of the Senate, and Sotomayor is a qualified jurist albeit one that I would not agree with. As I've previously pointed out, Obama's replacement of Souter would not change the ideological makeup of the bench, as Sotomayor would replace a liberal justice in Souter. It would take a shakeup among the conservative members of the court to have a fundamental shift on the bench.
It will be interesting to see how the confirmation procedure progresses and whether any skeletons are revealed.
UPDATE:
Stop the ACLU has video of Sotomayor ruminating on the role of judges on the bench.
She's an activist judge, but this isn't going to derail her confirmation. It should, however, be a rallying call for the GOP to realize that they've got to come up with a way to start winning back seats lost in Congress so that they can thwart future nominations and block Obama's domestic policy agenda.
UPDATE:
She ruled against a high school student's right to free speech based on statements made off school grounds - claiming that it was acceptable for the school to limit speech based on proper respect for authority. That's a bad decision, and undermines the right to free speech.
Other decisions of interest include upholding warrantless searches for ferry users to thwart terrorism.
Her reasoning on a major intellectual property case involving the New York Times was reversed. In 1997, she ruled that newspaper publishers did not violated copyright law by transferring the work of freelance authors to electronic databases (972 F. Supp. 804 (1997)). The Second Circuit later reversed her decision, and the US Supreme Court upheld the Second Circuit in a 7-2 decision against Sotomayor's position (Stevens and Breyer dissenting). (Tasini vs. New York Times, 533 U.S. 483 (2001).) Ginsberg wrote the majority decision.
That particular case was argued by two of the top IP lawyers in the nation:
Laurence H. Tribe (Argued the cause for the petitioners) and Laurence E. Gold (Argued the cause for the respondents).
Additional cases can be found here.
UPDATE:
Ilya Somin isn't impressed with Sotomayor, primarily because she hasn't developed an area of law in the way that other potential nominees were at the forefront of law such as Diane Wood and Elena Kagan. She's got the qualifications, as she's been on the Second Circuit for a decade, but it's not up to the same level of jurisprudence as Roberts, Alito, or even Ginsberg.
UPDATE:
Much is being made of the fact that this would be a historic pick. Nonsense. Every pick is historic. That's the role of the Supreme Court. What exactly is Sotomayor bringing to the table in terms of jurisprudence? Some are claiming that she's the first Hispanic on the Court, but that's not exactly true. Benjamin Cardozo was Hispanic (but the key demographic/ethnic classification for him was that he was the first Jewish member on the Supreme Court). She wouldn't be the first woman on the Court, but would be the first Hispanic woman. Frankly, the demographics/ethnic games on the Bench are troubling - and should be troubling to anyone who wants to make sure that the best qualified jurists are on the high court.
Her merits should be decided based on how she's ruled, and not that she considers herself a Newyorrican (a mashup of New York and Puerto Rican). Of course, even President Obama voted against a qualified jurist when he cast his vote against Sam Alito. He just wants the right kind of jurist on the bench. That's his right as President. It doesn't mean that the GOP has to play nice. Aggressive questioning should be the name of the game, just as the Democrats did to President Bush's nominees.
UPDATE:
Don Surber notes a rumor that Sotomayor doesn't have backing of nine Democrats in the Senate, and that this is likely to result in a second name being proffered. Until I see more specific reporting on this, I would discount such rumor mongering.
And now, she's going to be nominated to be on the US Supreme Court. Sotomayor fits the kind of approach that President Obama seeks - a liberal interpretation of the US Constitution where the Constitution is a living breathing document. The case against her is pretty persuasive, but there is nothing that the GOP can do to derail this nomination.
The only way this nomination gets derailed is if the Obama Administration didn't pick up on details that will embarrass and suggest that Sotomayor is an inappropriate candidate for the Supreme Court. That's not all that far fetched given the way that the Obama Administration has repeatedly botched nominations for a host of positions, repeatedly selecting tax cheats and those with ethical flaps.
Still, even a tax problem would not likely derail matters as the Democrats have control of the Senate, and Sotomayor is a qualified jurist albeit one that I would not agree with. As I've previously pointed out, Obama's replacement of Souter would not change the ideological makeup of the bench, as Sotomayor would replace a liberal justice in Souter. It would take a shakeup among the conservative members of the court to have a fundamental shift on the bench.
It will be interesting to see how the confirmation procedure progresses and whether any skeletons are revealed.
UPDATE:
Stop the ACLU has video of Sotomayor ruminating on the role of judges on the bench.
She's an activist judge, but this isn't going to derail her confirmation. It should, however, be a rallying call for the GOP to realize that they've got to come up with a way to start winning back seats lost in Congress so that they can thwart future nominations and block Obama's domestic policy agenda.
UPDATE:
She ruled against a high school student's right to free speech based on statements made off school grounds - claiming that it was acceptable for the school to limit speech based on proper respect for authority. That's a bad decision, and undermines the right to free speech.
Other decisions of interest include upholding warrantless searches for ferry users to thwart terrorism.
Her reasoning on a major intellectual property case involving the New York Times was reversed. In 1997, she ruled that newspaper publishers did not violated copyright law by transferring the work of freelance authors to electronic databases (972 F. Supp. 804 (1997)). The Second Circuit later reversed her decision, and the US Supreme Court upheld the Second Circuit in a 7-2 decision against Sotomayor's position (Stevens and Breyer dissenting). (Tasini vs. New York Times, 533 U.S. 483 (2001).) Ginsberg wrote the majority decision.
That particular case was argued by two of the top IP lawyers in the nation:
Laurence H. Tribe (Argued the cause for the petitioners) and Laurence E. Gold (Argued the cause for the respondents).
Additional cases can be found here.
UPDATE:
Ilya Somin isn't impressed with Sotomayor, primarily because she hasn't developed an area of law in the way that other potential nominees were at the forefront of law such as Diane Wood and Elena Kagan. She's got the qualifications, as she's been on the Second Circuit for a decade, but it's not up to the same level of jurisprudence as Roberts, Alito, or even Ginsberg.
UPDATE:
Much is being made of the fact that this would be a historic pick. Nonsense. Every pick is historic. That's the role of the Supreme Court. What exactly is Sotomayor bringing to the table in terms of jurisprudence? Some are claiming that she's the first Hispanic on the Court, but that's not exactly true. Benjamin Cardozo was Hispanic (but the key demographic/ethnic classification for him was that he was the first Jewish member on the Supreme Court). She wouldn't be the first woman on the Court, but would be the first Hispanic woman. Frankly, the demographics/ethnic games on the Bench are troubling - and should be troubling to anyone who wants to make sure that the best qualified jurists are on the high court.
Her merits should be decided based on how she's ruled, and not that she considers herself a Newyorrican (a mashup of New York and Puerto Rican). Of course, even President Obama voted against a qualified jurist when he cast his vote against Sam Alito. He just wants the right kind of jurist on the bench. That's his right as President. It doesn't mean that the GOP has to play nice. Aggressive questioning should be the name of the game, just as the Democrats did to President Bush's nominees.
UPDATE:
Don Surber notes a rumor that Sotomayor doesn't have backing of nine Democrats in the Senate, and that this is likely to result in a second name being proffered. Until I see more specific reporting on this, I would discount such rumor mongering.
Friday, May 01, 2009
The Souter Retirement
The announcement yesterday at Justice David Souter is retiring shouldn't surprise anyone. It had been expected that he would retire at some point during President Obama's term.
This just provides an early glimpse in to Obama's choice and direction for the Supreme Court. Expect him to replace Souter with another liberal on the court.
In other words, don't expect the court's direction to change. Souter was already on the liberal side of the court and his retirement doesn't change that calculus.
Clarence Thomas, Chief Justice Roberts, or Sam Alito in order for the balance of the court to tip to the left. Right now, Kennedy is the swing vote on most issues.
MSNBC also floats possible choices for Souter's replacement:
It will be interesting to see how the Obama Administration vets candidates given all their woes in handling the nomination process for all the other positions in government (including all those that remain unfilled, including Surgeon General and those at the Department of Treasury), to say nothing of the ethical, legal, and tax woes that have followed many of those nominees who actually were supposedly vetted.
UPDATE:
President Obama wants to find someone with an "independent" mind. That's his prerogative as President of the US, but that does not exactly warm the cockles of my heart given that independent means that whoever he selects will likely consider the US Constitution to be a living and breathing document that can be suitably altered to suit the political needs of those in charge. It means that those GOPers questioning the prospective nominees must ask questions about whether the nominee seeks economic justice on a variety of issues, even where the legislative branch has ruled to not allow such things (think slave reparations and economic redistribution).
Souter will retire at the end of the session, which means that this summer will be entertaining for those covering the Court and the nomination process.
It's also curious how many people expect Souter's replacement will be a woman. Why a woman? Why not the best qualified for the job? As noted in both the comments and above, there are distinguished jurists who could be nominated - the candidates' gender (or race or religion) shouldn't be a factor. Their legal qualifications should be paramount.
This just provides an early glimpse in to Obama's choice and direction for the Supreme Court. Expect him to replace Souter with another liberal on the court.
In other words, don't expect the court's direction to change. Souter was already on the liberal side of the court and his retirement doesn't change that calculus.
Neither the Supreme Court nor the White House would confirm the likely opening on the bench. "The president has not received a formal communication from Justice Souter, who deserves the right to make his own announcement," a White House aide said Friday.Even should Ginsberg or Stevens retire, the ideological split on the bench wouldn't change. It would take the retirement of Anthony Kennedy or something unexpected from Antonin Scalia,
Souter's retirement is unlikely to alter the ideological balance on the closely divided court because Obama is almost certain to replace the liberal-leaning justice with someone with similar views.
But the vacancy could lead to another woman on the bench to join Justice Ruth Bader Ginsburg, currently the court's only woman.
Souter has indicated in the past that he wanted to leave Washington and return to his native New Hampshire.
At 69, Souter is much younger than either Ginsburg, 76, or Justice John Paul Stevens, 89, the other two liberal justices whose names have been mentioned as possible retirees. Yet those justices have given no indication they intend to retire soon and Ginsburg said she plans to serve into her 80s despite her recent surgery for pancreatic cancer.
Clarence Thomas, Chief Justice Roberts, or Sam Alito in order for the balance of the court to tip to the left. Right now, Kennedy is the swing vote on most issues.
MSNBC also floats possible choices for Souter's replacement:
The Associated Press reported that potential replacements include recently confirmed Solicitor General Elena Kagan; U.S. Appeals Court Judges Sonya Sotomayor, Kim McLane Wardlaw, Sandra Lea Lynch and Diane Pamela Wood; and Leah Ward Sears, chief justice of the Georgia Supreme Court. The AP said men who have been mentioned as potential nominees include Massachusetts Gov. Deval Patrick, Harvard Law professor Cass Sunstein and U.S. District Judge Ruben Castillo of Chicago.Sotomayor is a 2d Circuit Justice and she enjoys the support of Sen. Chuck Schumer and others as a possible replacement.
It will be interesting to see how the Obama Administration vets candidates given all their woes in handling the nomination process for all the other positions in government (including all those that remain unfilled, including Surgeon General and those at the Department of Treasury), to say nothing of the ethical, legal, and tax woes that have followed many of those nominees who actually were supposedly vetted.
UPDATE:
President Obama wants to find someone with an "independent" mind. That's his prerogative as President of the US, but that does not exactly warm the cockles of my heart given that independent means that whoever he selects will likely consider the US Constitution to be a living and breathing document that can be suitably altered to suit the political needs of those in charge. It means that those GOPers questioning the prospective nominees must ask questions about whether the nominee seeks economic justice on a variety of issues, even where the legislative branch has ruled to not allow such things (think slave reparations and economic redistribution).
Souter will retire at the end of the session, which means that this summer will be entertaining for those covering the Court and the nomination process.
It's also curious how many people expect Souter's replacement will be a woman. Why a woman? Why not the best qualified for the job? As noted in both the comments and above, there are distinguished jurists who could be nominated - the candidates' gender (or race or religion) shouldn't be a factor. Their legal qualifications should be paramount.
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