I think one can conclude that Judge Sotomayor is a competent judge, but not an exceptional one. She has made a couple misstatements of the law but I can't imagine that one could be grilled for three days without a few. What she hasn't done is demonstrate a particularly strong legal mind. Part of the reason may be strategic. Commentators on the left and right are fairly unanimous that she has been playing not to lose, refusing to engage the Senators and offering herself as an exemplar of a caricatured view of judicial restraint. She can't possibly believe the latter since even conservative jurists, scholars and lawyers don't think that the interpretive process is as determined as she has suggested it is.
When you go into a shell, it's hard to impress people. And she hasn't been impressive. But, at the same time, she hasn't shown herself to be unqualified or done anything that would make it tough for Democrats to support her.
As others have noted, it says something that a judge who no one really believes is restraintist feels she must pretend to be one even when the Democrats have 60 votes and the President remains popular. If, as some have said, we are all legal realists, we sure don't want to admit it.
11 comments:
The Supreme Court is the top of the legal profession. It takes top people to be on the top in any profession. The best leaders in any profession have obvious traits that are not obvious here.
I think the Democrats are also scratching their heads as to why Obama chose her. Perhaps, it is Obama’s inexperience that we are seeing.
"She has made a couple misstatements of the law ..."
Those being?
She mistated Kelo twice. Your suggestion that blight is equivalent to distress is wrong as Stevens himself recognized in the majority opinion ("Those who govern the City were not confronted with the need to remove blight in the Fort Trumbull area, but their determination that the area was sufficiently distressed to justify a program of economic rejuvenation is entitled to our deference.")He recognizes that blight is a term of art.
More fundamentally, it is not clear that any particular level of distress is required to make condemnation and conveyance to a private party a "public purpose." The majority spoke in terms of economic development.
Additionally, it is hardly accurate to say that the issue in Kelo was whether you could contract with a private party to fufill a public purpose. The question was whether taking from A to give to B who we think will do something more upscale is a public purpose.
Ricci was not compelled by precedent. I don't claim that the panel decision was a ridiculous outcome or one that can only be explained by bias (although I think it was wrong), but I can't see the repeated suggestion that what SCOTUS did amounted to some kind of revolution.
Nor is it quite right to say that Supreme Court precedent had determined that the right to bear arms is not fundamental as that term is properly used.
It's not clear, however, that she was using it properly. Notwithstanding your suggestion that Randy Barnett, a nationally recognized legal scholar holding a chair at one of the most prestigous law schools in the country, is somehow unworthy of your respect, he had a valid point on Judge Sotomayor's discussion of fundamental rights - both in her description of Maloney and in her answers (or lack thereof)as to what modern incorporation doctrine is. She made the same statement as to what constitutes a "fundamental right" the day after you sought to defend her. While I'm sure that she knows there is someway to determine which rights are fundamental, she offered no illumination on that point during the questioning he refers to, even telling Senator Hatch that she didn't know whether he had accurately described the Court's method.
Having said that - and I'm sure that you'll ignore this - I don't think (as I said) that these things are alarming. She doesn't come across as someone who is of Supreme Court caliber (as Ginsburg and Breyer did), but I do not claim that she is incompetent or unqualified. Anyone is going to slip a few times given enough talk. But people like Kathleen Sullivan, Elena Kagan, Diane Wood, Cass Sunstein, etc., would have been much stronger nominees.
I removed the anonymous comment at 8:39 because I am sick and tired of idiotic and nonsubstantive remarks by people without the courage to put their little insults next to their names.
And Dubya had TONS of experience when he selected Roberts and Alito. And Daddy Bush had tons of experience when he selected Clarence Thomas.
Prof. Rick:
"Your suggestion that blight is equivalent to distress is wrong [quoting exactly the portion of the Kelo majority opinion as I had] ..."
I didn't say that. I said that in evaluating Sotomayor's remark, the appropriate distinction wasn't between the bare, unqualified terms of art "blight" and "distress" but rather between the area targeted for redevelopment and the individual properties that the City of London condemned. In that sense it seems to me that Prof. Somin was either being disingenuous or didn't know what he was talking about (to borrow a recently popular false dichotomy).
Whatever distinction you're claiming as "wrong" I framed as between the qualified terms of art "sufficiently distressed" and "economically blighted." That was the distinction I said was "essentially non-existent under the circumstances."
"[Stevens] recognizes that blight is a term of art."
As did I.
"The majority spoke in terms of economic development."
As did Sotomayor: "economically blighted area," a.k.a. urban deterioration. Hardly a "misstatement" of the case. Nevertheless, Prof. Somin's observation was seized upon by the usual right-wing vultures (e.g., Townhall.com) so the usual gang of uncritical rubes can perpetuate the groundless conservative meme that Sotomayor is "a mediocrity" (see Patrick McIlheran) and is "dim" (see Leah Vukmir).
Moreover, not only does Prof. Somin not deploy this charge against Sotomayor in his remarks to the committee, he actually makes reference to, quote: "'blight' condemnations of the sort licensed by Kelo and previous Supreme Court decisions," citing to his own 2006 Legal Times article!
So perhaps Judge Sotomayor had in mind Somin's own scholarship? In any event, Somin's characterization appears subject to exactly the same criticism he made of Judge Sotomayor — or worse: there was no such "blight condemnation" in Kelo.
"Additionally, it is hardly accurate to say that the issue in Kelo was whether you could contract with a private party to fulfill a public purpose. The question was whether taking from A to give to B who we think will do something more upscale is a public purpose."
But Sotomayor went beyond reiterating the threshold determination of whether the taking fulfilled a public purpose and therefore "public use" and, arguably, reiterated the concerns expressed by Justice O'Connor in her dissent. Here's what Sotomayor told Charles Grassley:
"The issue in Kelo, as I understand it, is whether or not a state who had determined that there was a public purpose to the takings under the takings clause of the Constitution that requires the payment of just compensation when something is condemned for use by the government, whether the takings clause permitted the State, once it's made a proper determination of public purpose and use — according to the law — whether the state could then have a private developer do that public act, in essence. Could they contract with a private developer to effect the public purpose?"
continued ...
If it's the case that what Sotomayor qualified as her understanding "misstated" the issue in Kelo, then so did Justice O'Connor's, who makes much of the New London Development Corporation's status as a private entity, stressing that its directors are not publicly elected but rather appointed privately. O'Connor concludes:
"Today the Court abandons [a] long-held, basic limitation on government power. Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded — i.e., given to an owner who will use it in a way that the legislature deems more beneficial to the public — in the process."
I would submit that, rather than "ankle biting" — to coin a phrase — at Sotomayor's understanding of Kelo, conservatives should take heart with it, as she apparently was more affected by Justice O'Connor's (and Rehnquist, Scalia, and Thomas's) concerns than with the majority's rationale:
"To reason, as the Court does, that the incidental public benefits resulting from the subsequent ordinary use of private property render economic development takings 'for public use' is to wash out any distinction between private and public use of property, and thereby effectively to delete the words 'for public use' from the Takings Clause of the Fifth Amendment."
So while it may be that the Kelo majority was unconcerned with private actors "in essence" performing public functions, it's not the case that the dissenters were similarly unconcerned. And in fact Justice O'Connor's predictions of the evils which may flow from the disposition in Kelo are reflected by Sotomayor's self-described "understanding" of the case.
Has any conservative observer picked up on this eminently defensible interpretation, an interpretation that might give indication of Sotomayor's sympathy with O'Connor's view of the case? Not that I've noticed. Probably because they're more concerned with semantic nitpicking in order to affirm their, shall we say, "confirmation biases."
"Ricci was not compelled by precedent."
Is this an example of Sotomayor "misstating" a case? I can't tell. In the meantime I think I'll defer to Judge Sotomayor's 17-year immersion in Second Circuit precedent.
"I don't claim that the panel decision was a ridiculous outcome or one that can only be explained by bias (although I think it was wrong), but I can't see the repeated suggestion that what SCOTUS did amounted to some kind of revolution."
Who said it was a revolution? Sotomayor only said, at most, that SCOTUS applied a different standard to the facts in Ricci. Isn't that the case?
"Nor is it quite right to say that Supreme Court precedent had determined that the right to bear arms is not fundamental as that term is properly used."
Sotomayor told Orrin Hatch that she "understood Justice Scalia to be recognizing that the court's precedent had held it was not." I don't know what your "proper understanding" is, but Scalia noted that Cruikshank had held that the right to keep and bear arms was not a constitutional right at all. So how could it be a "fundamental right" as that term is properly used if it isn't even a constitutional right?
"It's not clear, however, that she was using it properly."
Well this is hardly an indictment leading to "misstatement."
continued ...
"Notwithstanding your suggestion that Randy Barnett, a nationally recognized legal scholar holding a chair at one of the most prestigious law schools in the country, is somehow unworthy of your respect ... "
Rick, you have to be aware by now that I occasionally phrase things to affect a posture of deliberate insolence, which amuses me, if nobody else. Nevertheless allow me to affirm that my baseline assumption (pre-insolence-affect) is that Prof. Barnett is eminently worthy of my respect and he most certainly has it, as does most of the academy.
That's why I attended Marquette's recent criminal appeals seminar (and I didn't see you there! Where were you, hanging out with Phyllis Schlafly?): to get intellectually stimulated by the academy.
However, even you must acknowledge that his suggestion Sotomayor doesn't know whether a finding of "fundamental right" precedes incorporation is pretty silly, and his proffered evidence is not only barely ambiguous, but it ignores all of her other clear statements that indicate that she obviously does know how it works.
"[Barnett] had a valid point on Judge Sotomayor's discussion of fundamental rights — both in her description of Maloney and in her answers (or lack thereof) as to what modern incorporation doctrine is."
Which is a question separate from the one I was addressing. I don't know what she knows about it. But I would hazard a guess that she, unlike the Ninth Circuit, which has suddenly become heroic to gun owners (while Frank Easterbrook is now the 2A pariah — yet more evidence that "judicial activism" refers to "results I prefer') doesn't believe that the circuit courts have the authority to incorporate Bill of Rights provisions against the States.
So why not congratulate her on her restraint in that regard?
"She made the same statement as to what constitutes a 'fundamental right' the day after you sought to defend her. While I'm sure that she knows there is someway to determine which rights are fundamental, she offered no illumination on that point during the questioning he refers to, even telling Senator Hatch that she didn't know whether he had accurately described the Court's method.
"Having said that - and I'm sure that you'll ignore this ..."
Haha. Careful: "sure" is a term of art suggesting confidence approaching 100%.
"But people like Kathleen Sullivan, Elena Kagan, Diane Wood, Cass Sunstein, etc., would have been much stronger nominees."
Measured by standards more in keeping with the desires of the academic community, I don't dispute that.
But obviously you're well aware of the political component to these nominations. I doubt anyone would dispute the observation that Sotomayor had a leg up on some other potential nominees by virtue of her ethnicity (and another, at least in Sunstein's case, by virtue of her gender).
Personally I don't have a problem with that in the sense that there are compelling reasons why even the judiciary should reflect the diversity in the community. As a matter of fact the qualifications we've come to debate when it comes to Supreme Court nominees are in no way compelled by Article III, which doesn't even require a law degree. Elections have consequences, quoth your man McCain. Indeed they do.
Anyway, thanks for the reply. It's been real.
Me: "To get intellectually stimulated by the academy."
Full disclosure: And to score CLE credits.
I stand by my statement. The reason that she misstated Kelo is that she left to impression that the case about taking property when it or the area it is in is blighted and not simply less prosperous than some other desired use. To put it this way is to miss why the case became so notorious.
You're misreading O'Connor. Sotomayor said that the case was about allowing a private party to carry out a public purpose. That's wrong. It is about whether conveying property to a private party because the government prefers the private use that it would put it to can be a "public purpose."
Ricci is relevant because she said it was controlled by precedent. It wasn't. Not even close.
As to the nature of fundamental rights, I was inclined to agree with you when she only said it once. But when she said it again combined with a suggestion that Cruikshank had resolved the status of the right as "fundamental." It could not have because that concept - as it is understood today - had not yet been conceived. It is one thing to say that only SCOTUS can change the outcome of Cruilshank. It's another to say that it resolved a question that had not yet been formulated.
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