Further Reflections on the Nomination of Judge Sotomayor to the U.S. Supreme Court

First published by BlogCritics on 28 May 2009

I hope that were I in President Obama's position, I would not allow questions of gender or ethnicity to sway my decision on whom to nominate to the Supreme Court. Fortunately for all concerned, I am not in his position and never shall be. This is not the first, and will most likely not be the last, instance in which gender and ethnicity were or will be significant factors. That does not make it right, but that's the way it is. Nor does past practice mean that a President must consider gender or ethnicity; that is a political question, an area in which he, ultimately, is the boss. Whether the Senate confirms or rejects a nominee is also a political question, and in that area the Senate is the boss.

Something quite different is true of judicial precedents.  As noted below, they demand adherence, and those established by superior courts must not be brushed off by inferior courts.

There are legitimate concerns about the nomination of Judge Sotomayor, and some which I consider ill considered. It seems unwise for those who oppose her to focus on grounds easily rejected. It would be far more useful to focus on questions of her judicial philosophy in a non-case-specific context, and on how that philosophy may affect her conduct as a Supreme Court justice.

I am particularly troubled by her unfortunate comment a few years ago that

"I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion . . . than a white male who hasn't lived that life."

I don't have any unique insight into what she may have meant, and I hope that she will be questioned during the Senate confirmation hearing until what she meant, and how it might affect her conduct as a Supreme Court justice, are clear. I doubt that she was merely saying that she hoped that a "wise Latina" would more often than not reach a better conclusion than a "white male" who had not been raised as an Hispanic on how best to prepare pollo asado. In the unlikely event that that is all she meant, her hope has been confirmed by my personal experiences; I can't prepare pollo asado worth a hoot.  However, it seems very likely that Judge Sotomayor meant a lot more there and in other statements, and I hope to find out what. Depending on what what is, it may well impact unfavorably (or favorably) on whether she should be confirmed.

Beyond that La Raza speech, there has some "buzz" about two Second Circuit decisions in which she joined her two colleagues on the panels but which she did not write. One is said to suggest that she does not value freedom of speech highly, and the other that she opposes the right to bear arms. My take is rather different. Both cases, regardless of whether she was involved in writing the opinions, show a steadfast adherence to precedent, which in my view is not only acceptable but absolutely necessary for a judge.  I shall attempt to support this thesis below, even though it involves unfortunately lengthy quotations from legal opinions which are, necessarily, somewhat complex.

In a per curiam (unsigned) opinion in Maloney v. Cuomo, (2d Cir. 2008) it was held that the Fourteenth Amendment to the United States Constitution could not, consistently with express Supreme Court decisions on the matter, be used to render a New York State Statute prohibiting the possession of nunchakus violative of the Second Amendment. The opinion notes,

The Second Amendment provides: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." U.S. Const. amend. II. The Supreme Court recently held that this confers an individual right on citizens to keep and bear arms. See District of Columbia v. Heller, 128 S. Ct. 2783, 2799 (2008). It is settled law, however, that the Second Amendment applies only to limitations the federal government seeks to impose on this right. See, e.g., Presser v. Illinois, 116 U.S. 252, 265 (1886) (stating that the Second Amendment "is a limitation only upon the power of congress and the national government, and not upon that of the state"); Bach v. Pataki, 408 F.3d 75, 84, 86 (2d Cir. 2005) (holding "that the Second Amendment's 'right to keep and bear arms' imposes a limitation on only federal, not state, legislative efforts" and noting that this outcome was compelled by Presser), cert. denied, 546 U.S. 1174 (2006).

Heller, a case involving a challenge to the District of Columbia’s general prohibition on handguns, does not invalidate this longstanding principle. See Heller, 128 S. Ct. at 2813 n.23 (noting that the case did not present the question of whether the Second Amendment applies to the states). And to the extent that Heller might be read to question the continuing validity of this principle, we "must follow Presser" because "[w]here, as here, a Supreme Court precedent 'has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to the Supreme Court the prerogative of overruling its own decisions.'" Bach, 408 F.3d at 86 (quoting Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989)) (alteration marks omitted); see also State Oil Co. v. Khan, 522 U.S. 3, 20 (1997). (emphasis added)

Hence, the Second Circuit per curiam opinion faithfully applied precedent established by an earlier Second Circuit decision as well as by the Supreme Court, properly leaving it to the Supreme Court itself to clean up whatever pig's breakfast the Supreme Court may have made of the Second - Fourteenth Amendment interaction in Heller.

Doninger v. Niehoff is a Second Circuit decision in which Judge Sotomayor participated as a member of the three judge panel. The opinion was written by another judge. There, it was held that the trial judge had acted within his discretion in refusing injunctive relief against a school district where a student had been denied an opportunity to become class secretary on account of unseemly language (referring to a school administrator as a "douchbag" and asking others to communicate on the subject with the administrator so as to "piss her off more") in a blog commenting on the actions taken by her school in delaying or canceling a concert, as well as due to other alleged misbehavior.

It has long been held that public school students have less in the way of First Amendment rights than do adults, and that their speech can be constricted where necessary or appropriate to preserve decorum and a proper learning atmosphere in those schools. Here, the trial judge decided that the student's conduct did disrupt, or could have disrupted, school activities.

Although I think the trial judge may have gone overboard, that does not mean that he abused his discretion. The Second Circuit opinion set forth the standard as follows:

We review the denial of a preliminary injunction for abuse of discretion. Id. at 24. Because Doninger seeks the vindication of First Amendment rights, however, "subject to the provision of Federal Rule of Civil Procedure 52(a) that '[f]indings of fact . . . shall not be set aside unless clearly erroneous,' we . . . make a fresh examination of crucial facts" and independently examine the record to do so.

During that process, the Second Circuit

assume[d] for the purposes of this appeal that Doninger met her burden of showing irreparable harm and proceed[ed] to address whether she also demonstrated a clear or substantial likelihood of success on the merits.

Then, the Court recited the substantive standards mandated by precedent:

[C]onstitutional rights of students in public school "are not automatically coextensive with the rights of adults in other settings," Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 682 (1986), but must instead be applied in a manner consistent with the “special characteristics of the school environment," Tinker, 393 U.S. at 506. Thus, school administrators may prohibit student expression that will "materially and substantially disrupt the work and discipline of the school." Id. at 513. Vulgar or offensive speech — speech that an adult making a political point might have a constitutional right to employ — may legitimately give rise to disciplinary action by a school, given the school’s responsibility for "teaching students the boundaries of socially appropriate behavior." Fraser, 478 U.S. at 681. Similarly, so long as their actions are "reasonably related to legitimate pedagogical concerns," educators are entitled to exercise editorial control over school-sponsored expressive activities such as school publications or theatrical productions. Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988). Such controls "assure that participants learn whatever lessons the activity is designed to teach, that readers or listeners are not exposed to material that may be inappropriate for their level of maturity, and that the views of the individual speaker are not erroneously attributed to the school." Id. at 271. Finally, given the special nature of the school environment and the “serious and palpable” dangers posed by student drug abuse, public schools may also "take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use." Morse v. Frederick, 551 U.S. —, 127 S. Ct. 2618, 2622, 2629 (2007).

However, some of the student's relevant activities were via an internet connection at her home, from which she posted the offending blog. This was somewhat troubling to the Second Circuit, but in reliance on prior cases, it decided that

Applying the framework set forth in Wisniewski, the record amply supports the district court’s conclusion that it was reasonably foreseeable that Avery’s posting would reach school
property. Indeed, the district court found that her posting, although created off-campus, "was purposely designed by Avery to come onto the campus." Doninger, 514 F. Supp. 2d at 216. The blog posting directly pertained to events at LMHS, and Avery’s intent in writing it was specifically "to encourage her fellow students to read and respond." Id. at 206. As the district court found, "Avery knew other LMHS community members were likely to read [her posting]." Id. at 217. Several . . .[did] reach school administrators. See Wisniewski, 494 F.3d at 39. The district court thus correctly determined that in these circumstances, "it was reasonably foreseeable that other LMHS students would view the blog and that school administrators would become aware of it." Doninger, 515 F. Supp. 2d at 217.

In affirming the lower court's opinion, the Second Circuit noted:

Avery, by all reports, is a respected and accomplished student at LMHS. We are sympathetic to her disappointment at being disqualified from running for Senior Class Secretary and acknowledge her belief that in this case, "the punishment did not fit the crime." Doninger, 514 F. Supp. 2d at 202 (internal quotation marks omitted). We are not called upon, however, to decide whether the school officials in this case exercised their discretion wisely. Local school authorities have the difficult task
of teaching "the shared values of a civilized social order" — values that include our veneration of free expression and civility, the importance we place on the right of dissent and on proper respect for authority. Fraser, 478 U.S. at 683. Educators will inevitably make mistakes in carrying out this delicate responsibility. Nevertheless, as the Supreme Court cautioned years ago, "[t]he system of public education that has evolved in this Nation relies necessarily upon the discretion and judgment of school administrators and school board members," and we are not authorized to intervene absent “violations of specific constitutional guarantees." Wood v. Strickland, 420 U.S. 308, 326 (1975).

The decision followed precedent, and the judges did what they had to do; they may not have been overjoyed with the result, but could not legitimately change it.

There are aspects of Judge Sotomayor's judicial persona which concern me. The beliefs which she expressed in the La Raza speech are among those concerns. However, I have thus far found no case in which she allowed her emotions, or her "empathy," to prevail over the law or the facts. It strikes me that her judicial persona, as suggested by these two Second Circuit opinions, has not been successfully diminished.