The Envelope, Please . . . The Supreme Court Nominee is. . . Good Grief!

First published by BlogCritics on 26 May 2009

It was announced today (26 May 2009) that President Obama's nominee for the U.S. Supreme Court is Judge Sonia Sotomayor, who has been a judge on the prestigious U.S. Court of Appeals for the Second Circuit since 1998 (nominated by President Clinton). Before that, she had been a judge on the also prestigious U.S. District Court for the Southern District of New York since 1992 (nominated by President Bush the elder). Judge Sotomayor is an Hispanic, from the Bronx, and appears to be a "moderate" -- whatever that word means. She is, in any event, Constitutionally qualified (there being no Constitutional qualifications whatever), has ample judicial experience, and whether I or anyone else may agree or disagree with some of the opinions she wrote while on the Court of Appeals, her nomination to the Court should be accepted by the Senate, unless something unforeseen comes to light. The question for the Senate to answer is not whether someone else would have been a superior nominee. There are quite likely many others with whom I personally would feel a greater affinity (or, perhaps, "empathy"). Senate Republicans have said that they intend to deal with her nomination fairly, and I anticipate that they will do so. I trust that the Democratic Senators will do so as well.

According to an opinion piece in the New Republic, picked up by NPR, Judge Sotomayor is not the brightest star in the firmament. The author of that article states,

Over the past few weeks, I've been talking to a range of people who have worked with her, nearly all of them former law clerks for other judges on the Second Circuit or former federal prosecutors in New York. Most are Democrats and all of them want President Obama to appoint a judicial star of the highest intellectual caliber who has the potential to change the direction of the court. Nearly all of them acknowledged that Sotomayor is a presumptive front-runner, but nearly none of them raved about her. They expressed questions about her temperament, her judicial craftsmanship, and most of all, her ability to provide an intellectual counterweight to the conservative justices, as well as a clear liberal alternative.

The most consistent concern was that Sotomayor, although an able lawyer, was "not that smart and kind of a bully on the bench," as one former Second Circuit clerk for another judge put it. "She has an inflated opinion of herself, and is domineering during oral arguments, but her questions aren't penetrating and don't get to the heart of the issue." (During one argument, an elderly judicial colleague is said to have leaned over and said, "Will you please stop talking and let them talk?") Second Circuit judge Jose Cabranes, who would later become her colleague, put this point more charitably in a 1995 interview with The New York Times: "She is not intimidated or overwhelmed by the eminence or power or prestige of any party, or indeed of the media."

Her opinions, although competent, are viewed by former prosecutors as not especially clean or tight, and sometimes miss the forest for the trees.

Perhaps I am so pleased with the nomination to the Supreme Court of a judge with a reasonable amount of experience both as an appellate court judge and as a trial court judge that I am overly tempted to overlook these perceived flaws. I am, quite frankly, delighted that President Obama rejected the advice of some in his party to select a candidate from

outside the judicial monastery, somebody who has had some real-life experience, not just as a judge," said Vermont Sen. Patrick Leahy, chairman of the Senate Judiciary Committee. . . .

Sen. Arlen Specter of Pennsylvania, a Judiciary Committee member who last week switched from the Republican to the Democratic Party, suggested someone in the mold of a statesman or stateswoman, and said he could imagine a nominee who was not a lawyer, if that person had the right credentials.

I too can imagine the sort of candidate apparently favored by Senator Specter, and it gives me the willies. In any event, I am not very impressed by the perceived flaws of Judge Sotomayor, and see no basis in them for her rejection by the Senate.

Although I never had an opportunity to argue before the Supreme Court, I did argue a number of cases before the Court of Appeals for the D.C. Circuit and, prior to that, before the U.S. Court of Military Appeals. I had no problem with judges who were aggressive in asking questions, and indeed found their questions more often than not to be quite helpful: they let me know their specific concerns, and hence to focus on them. It is far better to know what matters concern the judges, and to address them specifically, than to waste the short time allotted for oral argument (normally fifteen or twenty minutes) by regurgitating arguments already presented in written briefs. It is not much fun to argue a case before a judge who gives no reason to assume that he is awake.  It was not unusual for some of the questions asked during oral argument to become a focus of an opinion.

True, many years of experience in doing the wrong things is not good experience. However, I see no overwhelming basis for concluding that Judge Sotomayer frequently did the wrong things.

In the recent Second Circuit decision, Ricci v. DeStefano, Judge Sotomayer appears to have written nothing. The context is adequately summarized in Wikipedia:

Eighteen white test takers who would have qualified for consideration for the promotions, including one who is part Hispanic, sued the city, alleging reverse discrimination. The federal district court ruled for the city (DeStefano). Upon appeal, the Second Circuit Court of Appeals initially affirmed the district court's ruling, but then added a per curiam opinion which recommended review by the US Supreme Court. The US Supreme Court agreed to hear the case.

Judge Sotomayor was on the Second Circuit panel which had initially affirmed the decision of the District Court; there is no reason to assume that she wrote the Second Circuit panel's unsigned opinion.

In an unusual short and unsigned opinion, a panel of three judges, including Sotomayor, adopted the district court judge's ruling without adding their own analysis.

Shortly thereafter, she agreed with the per curiam resolution noted above, that the matter should be bucked up to the Supreme Court.

This case has generated lots of debate, raising questions as to why Judge Sotomayor initially voted with two other Second Circuit judges to affirm the District Court decision, and why she did not then or thereafter grapple with the tough issues it presented. In the context of that proceeding, I think that the per curiam resolution in which she concurred was proper. In any event, avoidance of issues is not an opportunity she is likely to have as a Supreme Court justice.

In short, little insight into what Judge Sotomayor may have thought in Ricci v. DeStefano can be gleaned from either of the concurring opinions in which she joined or, indeed, from the panel's unsigned opinion in which she joined and from which she did not dissent. During her confirmation hearing, she may (or may not) be questioned about these things; she may (or may not) answer those questions. Since the Ricci case will more than likely have been decided before she is elevated to the Supreme Court bench, she more than likely will not be in a position to participate in the decision there, from which she in any event would most likely be obliged to recuse herself. Whatever the Supreme Court's decision may be, she will be bound by it.

In Correctional Services Corp. v. Malesko, (2001), the Supreme Court unanimously held that one of her decisions as an appellate judge had erroneously extended precedent to allow recovery against a private corporation operating a halfway house under contract with the Bureau of Prisons. As noted by Chief Justice Rehnquist,

respondent is not a plaintiff in search of a remedy as in Bivens and Davis. Nor does he seek a cause of action against an individual officer, otherwise lacking, as in Carlson. Respondent instead seeks a marked extension of Bivens, to contexts that would not advance Bivens' core purpose of deterring individual officers from engaging in unconstitutional wrongdoing. The caution toward extending Bivens remedies into any new context, a caution consistently and repeatedly recognized for three decades, forecloses such an extension here.

All judges are occasionally "wrong" (i.e., disagreed with by a higher court) in their analyses of the law and/or of the factual record below, even the very best of them, and an admittedly cursory review of some of the opinions authored by Judge Sotomayor gives me no real cause for alarm. That I may agree with some of them and disagree with others does not set off any alarm bells; I can't off hand think of any judge with all of whose opinions I have agreed -- or, for that matter, disagreed -- even justices on the Supreme Court.

Another point to keep in mind is that as Justice Sotomayor, she will be in an excellent position to participate in the formulation of well reasoned analyses, for at least a couple of reasons. By the time that cases reach the Supreme Court, the arguments tend to be more focused than below. By then, the issues generally have been substantially narrowed and revolve about the question of whether the appellate court below screwed up by misapprehending the law or the facts of record, and accordingly whether it properly affirmed or reversed the trial court. These issues, more often than not, are reasonably well briefed by quite competent counsel accustomed to arguing cases in the rarefied atmosphere of the Supreme Court. Also, since selection as a law clerk to a Supreme Court justice is a bit of a plum, greatly sought by the best and the brightest, there is some comfort in thinking that Justice Sotomayor may have better assistance than she may have had even as a judge on the well regarded Second Circuit. And, of course, as one of nine Justices on the Supreme Court, the opportunities for collegial discussion of cases with brother (and, of course, sister) justices is likely to be a plus.

Supreme Court justices sometimes surprise both those who favored and those who opposed their appointments. Some have been viewed as too "liberal" and others as too "conservative," and as having all or some or none of the baggage associated with those labels.  Whether soon-to-be-Justice Sotomayor will turn out to be a surprise, and if so to whom, is anybody's guess.