The Wonk Room

Kyl Falsely Accuses Sotomayor Of Perjury

During Judge Sotomayor’s confirmation hearing, conservatives repeatly made the false claim that she believes that U.S. law is governed by foreign courts.  In a Senate floor speech yesterday, however, Senator Jon Kyl (R-AZ) doubled down on this lie, audaciously accusing Sotomayor of perjuring herself before the Judiciary Committee:

“Later in her hearing, Judge Sotomayor gave the following testimony: ‘I will not use foreign law to interpret the Constitution or American statues. I will use American law, constitutional law to interpret those laws except in the situations where American law directs the court.’ While this kind of declarative statement would normally provide some measure of comfort, it is belied by words Judge Sotomayor uttered less than three months ago, that judges were ‘commanded’ to look to ‘persuasive’ sources, including foreign law, in interpreting our own law. And it is even inconsistent with an exchange Judge Sotomayor had with Senator Schumer earlier in the hearing, in which she agreed that foreign law could be used for the same purposes as traditional interpretive tools, such as dictionaries.

“It gives me great pause that Judge Sotomayor could say one thing at a public speech earlier this year and say the opposite while under oath before the Judiciary Committee, especially since she never repudiated her speech.

No one, including Judge Sotomayor, actually believes that an American judge is bound by foreign decisions, and Kyl is simply lying when he claims that she does believe this.  One of the first things that any lawyer learns in law school is that not all citations are created equal, and so when a judge cites to one source or another they are not necessarily saying that this source is controlling law.  Conservative Justice Antonin Scalia recently cited to the Talmud in a judicial opinion, and a Seventh Circuit judge once cited hip hop artist Ludacris, but no one thinks that Scalia believes we should be ruled by unelected Rabbis, or that Seventh Circuit Judge Terence Evans believes that U.S. law is governed by unelected rappers.

As a general rule, citations to binding case law, statutes, regulations and the like are generally referred to as cites to “mandatory” authority, because they rely on legally binding materials that judges have no choice but to follow.  Other citations, to law review articles or holy texts or non-binding caselaw, are known as “persuasive” authority.  So when Sotomayor referred to foreign law as “persuasive” she was saying the exact opposite of what Kyl accuses her of.  “Persuasive” is the legal word for a citation to something that is not controlling law, and when Judge Sotomayor states that she relies on persuasive authority, she is endorsing a practice used by literally every member of the United States Supreme Court and taught to every single lawyer in the country.

Indeed, the difference between mandatory and persuasive authority is so basic, most law students are taught this distinction in their first few weeks of law school.  In light of the fact that Senator Kyl spent many years as a litigator before entering politics, it simply defies belief that he would not be aware of this distinction.  If Kyl actually believed that a judge’s citation to a persuasive source like foreign law indicates that they believe foreign law is binding, mandatory authority, it is unlikely he would have made it this far in his career without being disbarred.

Sadly, however, there is a narrow band of Kyl’s conservative base that gets charged up by false claims that liberals can’t wait to transform America into France.  In Kyl’s world, keeping these nuts fired up is apparently much more important than the truth.

NRA Loses Its Best Argument Against Sotomayor

Recently, the NRA announced that it would “score” the Sotomayor vote in determining where each lawmaker stands on the NRA’s pro-gun agenda, a curious decision since Judge Sotomayor’s entire record on the Second Amendment is consistent with mandatory Supreme Court precedent.  Since then, the NRA launched a smear campaign against the judge, accusing her of “deliberately misread[ing] Supreme Court precedent” in order to undermine the NRA’s pet issue.

The reality, of course, couldn’t be further from the truth.  Even a Seventh Circuit panel, which was dominated by ultra-conservative Judges Richard Posner and Frank Easterbrook, sided with Sotomayor–agreeing that only the Supreme Court has the power to overrule its longstanding precedent holding that the Second Amendment does not apply to the states.

Nevertheless, there was one outlier court, the Ninth Circuit, which had disagreed with Sotomayor’s decision and claimed that it possessed the unilateral authority to act contrary to the Supreme Court’s longstanding rule.  That case, Nordyke v. King, was the centerpiece of the NRA’s claim that Sotomayor somehow misread the law.  There’s only one problem for the NRA, as of today Nordyke no longer exists.

This is because the Ninth Circuit announced that they will hear Nordyke “en banc,” meaning that the case will be reheared by a larger panel of judges than the original three-judge panel which initally decided that case.  En banc rehearings also have the automatic effect of vacating the original panel’s decision–casting that panel opinion aside as if it no longer existed.

Of course, it’s impossible to know for certain what the en banc panel will do after it hears the case, especially because the Ninth Circuit’s own rules add a bit of a chaos factor to the analysis.  Typically, when a court of appeals agrees to hear a case en banc, every active judge on the court participates in the decsision.  Because the Ninth Circuit has more than two dozen active judges, however, en banc panels in that circuit normally only include eleven randomly selected judges.  Accordingly, even if only six of the Court’s twenty-seven judges agree with the NRA, it is mathematically possible for an en banc panel to take the NRA’s view of Nordyke.

Nevertheless, because an en banc panel is only called when a majority of the court’s active judges agree to reconsider a case, the overwhelming majority of en banc decisions disagree with those of the three judge panel.  In other words, it is more likely than not that the Ninth Circuit will reach the exact same result Judge Sotomayor did; and the NRA’s case against Sotomayor will lose it’s only half-decent argument forever.

What Skip The Professor Teaches Us About Frank The Firefighter

Despite a week of race-baiting assaults by conservatives on the Senate Judiciary Committee, Judge Sotomayor emerged more-or-less unscathed from her confirmation hearings–even picking up several Republican votes in the immediate aftermath.  For all of their claims that Sotomayor thumbed her nose at white firefighters like Frank Ricci, the only thing to emerge from Sotomayor’s hearing is that she follows the law–as she did in the Ricci case–even when that law isn’t particularly popular.

Yet, even as the American people warmed to Sotomayor last week, the fact remains that her court’s decision in Ricci is unpopular.  Conservatives failed to convince the country that Sotomayor should have ignored a binding precedent in Ricci simply because they don’t like that precedent, but the tale of a dyslexic firefighter studying hard to earn a promotion resonated with many Americans.  So while Ricci’s story won’t hurt Sotomayor, many on the right–including the Judiciary Committee’s Ranking Member and much of the Supreme Court–are taking the long view, convinced that they can use this story to fulfill their decades-long quest to dismantle civil rights law.

This is why the recent, unjustified arrest of Professor Henry Louis Gates is such a huge blow to the right-wing agenda.  The right’s narative on Ricci fails if people simply believe that Frank Ricci was mistreated.  To succeed, the right must convince the country that Ricci’s tale is part of a pattern, that white men are routinely left with the short end of the stick, and that federal civil rights law is responsible for such perceived injustices.  The centerpiece of their narative is a belief that racism no longer exists, so laws designed to correct racism do nothing more than take potshots at white folks.

Professor Gates’ story gives this narative the lie.  White Americans–especially affulent white Americans–hear Gates’ story and they can’t imagine being arrested for breaking into their own home after giving police an ID card proving that they live there.  Such an arrest is so beyond the experience of American white men that we are forced to wonder whether a well-to-do, internationally-respected scholar could possibly have been treated the same way if he happened to be white.

Once one accepts that racism still plagues this country, the right-wing attack on civil rights law breaks down.  Contrary to the right’s claims, nothing in federal law requires employers to prefer mediocre minorities over qualified whites–indeed, such a law would unquestionably violate a long line of Supreme Court precedents interpreting the Constitution’s guarentee of Equal Protection.

What federal law does forbid is racism which pretends to be something else, such as a hiring test designed to disadvantage minority applicants or a screening process that “coincidentally” preferences applicants from predominantly white schools or communities.  Under existing law, employers may use hiring practices that have an adverse impact on minorities so long as minority applicants are screened because of their fitness for the job.  Only employers who base their hiring decisions on arbitrary or irrelevant traits can be liable for discrimination.

So civil rights law stands for the bizarre idea that people should actually be hired because of their fitness for a job, a principle which is so eminently sensible that it can only be attacked by selling America on the lie that racism no longer exists.  Professor Gates’ arrest reveals that lie for what it is, the latest interation of the right’s discomfort with civil rights.

Sotomayor Hearing Live-Blog, Day 4 »

This week, the Wonk Room will live blog Judge Sonia Sotomayor’s confirmation hearings.  Yesterday, Senate conservatives mostly repeated the same tired attacks that failed to gain traction earlier in the week, apparently thinking they could do the same thing over and over again and expect a different result.  As Sotomayor’s time in the hotseat comes to an end today, we’ll see if her opponents have actually figured out something new to say.  We will be updating this thread throughout the day.

6:37: Apparently, while your humble blogger was prepping for a radio interview, John McGinnis, a right-wing law professor railed against citing foreign law because it is just as unacceptable as citing the Bible or the Koran in an opinion.  Do we really need to make the same joke about Scalia, the Talmud and unelected Rabbis again?

4:07: Your humble blogger needs to step away for a moment.  Let him know what he misses.

4:01: Interesting exchange between Specter and the firefighters.  Specter asks the firefighters if they doubt Sotomayor’s good faith, both say that they are not lawyers and have no insight into that question, they simply testified because they were invited to tell their stories and they wanted to tell them.

3:58: Hatch is dwelling on the dead horse claim that all nine justices disagreed with Sotomayor in Ricci.

3:43: Klobuchar and Specter get in a politeness war over

3:40: Graham to Ricci: we are one generation removed from a time when the color of your skin and your last name were the only thing that mattered when you tried to get a job.  Now we are trying to find balance.

3:37: Lindsay Graham (!) pushes back against Chavez’s claim that Sotomayor has a record of racial politics, noting that the ABA reached a different conclusion.  Also notes that Republicans frequently pick people for political jobs because they are minorities, adding that doing so is just “good politics.”

3:32: Morgenthau (who is white) notes that he was a founding board member of PRLDEF.

3:24: CBS: “Sotomayor Confirmation a Done Deal“

3:22: Sessions: “It’s not like anyone is opposed to the Voting Rights Act, I voted for it.”  Sessions hasn’t always felt that way.  He once called the VRA a “piece of intrusive legislation.”

3:21: Sessions: “We’re going to do that crack cocaine thing we talked about.”  After laughter breaks out, he corrects himself, saying that he meant that he will support reducing the crack/powder disparity.

3:09: Peter Kirsanow, who just testified as a Republican witness, has some interesting views about internment camps for Arab-Americans.

3:06: Linda Chavez, a leading opponent of civil rights laws and Fox News commentator, opens her testimony with “I testify today not as a wise Latina woman.”  Keep it classy, Ms. Chavez.

2:58: Ben Vargas, the other firefighter, is now testifying.  Like Ricci, he emphasizes the essential role that firefighters play in protecting people’s lives, and his belief that he was judged on the basis of his race.  Like Ricci, we agree that Vargas is an heroic man who was caught up in circumstances he could not control.  He lost his case because of a binding precedent, not because of any verdict on his character.

2:50: Ricci’s remarks focus on the great deal of specialized knowledge that firefighters must have, his belief that the test that he took did a fine job of testing this knowledge, and how hard he worked to pass the test.  To be clear, no one doubts that Ricci, a man who spent his entire career running into burning buildings to save people’s lives, is a dedicated and heroic firefighter.  As a judge, Sotomayor’s job was not to decide whether Frank Ricci is sympathetic–he would have won that case in a walk–the issue is what the law requires.  In this case, Second Circuit precedent simply wasn’t on Ricci’s side.

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Sotomayor Hearing Live-Blog, Day 3 »

This week, the Wonk Room will live blog Judge Sonia Sotomayor’s confirmation hearings.  Yesterday, Jefferson Beauregard Sessions III attacked Sotomayor for not behaving like other Puerto Ricans, and the right-wing Committee for Justice released an ad claiming that Sotomayor led a terrorist organization.  This morning features questioning by Senators Cornyn and Coburn, we’ll see if they can clear the low bar set by Sessions and the CFJ.  We will be updating this thread throughout the day.

5:49: And that’s a wrap . . . for today.

5:45: Cardin highlights one of Sotomayor’s major religious liberty cases, Ford v. McGinnis, in which she held that a prison could not deny Muslim inmates their First Amendment right to participate in the traditional meal celebrating the conclusion of Ramadan merely because prison officials determine that this traditional celebration was not sufficiently important to Muslims.

5:38: Cardin’s up, then recess for the day.

5:36: Broken Record Watch: Grassley still thinks that land developers are immune from statutes of limitations.  And, for the record, Mr. Didden made an enormous profit on this land because it was seized by eminent domain.  The only question in Didden’s lawsuit was whether he would get a massive windfall, or an awesomely massive windfall.

5:27: Sotomayor says that she has “no quarrel” regarding certain principles governing judicial neutrality, then cuts herself off, says “no quarrel sounds equivocal,” and fully endorses the principles.  This may be a subtle dig at Roberts and Thomas, who routinely said that they have “no quarrel” with decisions that they stridently opposed once they were confirmed to the Court.

5:22: Ok, Grassley is making the utterly insane argument that a case called Baker v. Nelson is a Supreme Court precedent that forbids the Court from mandating marriage equality.  Here is the entire text of Baker v. Nelson:

Appeal from Sup. Ct. Minn. dismissed for want of substantial federal question.

5:20: Your humble blogger is back.  Just in time to get hit with a fistful of crazy by Chuck Grassley, it seems.

4:28: Your humble blogger has to duck into a meeting.  No one say anything crazy while he’s gone.

4:24: Sessions doesn’t remember the Roberts and Alito hearings very well:

4:18: SCOTUSBlog makes a funny.  Sotomayor references a British study on the use of precedent.  SCOTUSBlog: Sessions “probably not happy with the reference to international law.”

4:11: Sessions doesn’t know what a board of directors does.  He again claims that Sotomayor authorized an organization she sat on the board of to take positions that he disapproves of, but the New York Times reports that she had virtually no role in shaping the organization’s litigation, and ABA rules forbid the board members of legal organizations from supervising an attorney/client relationship.

4:09: Shorter Broken Record Watch: Foreign Law.  Talmud.  Scalia.  Unelected Rabbis.

4:04: Irony Watch: Sessions complains about people who try to “promote agendas through the law.”

4:01: Broken Record Watch, Part II: Now Sessions is attacking Sotomayor for following a binding Supreme Court precedent regarding the Second Amendment.  Federalist Society darling Judge Frank Easterbrook disagrees with with Sessions.

3:55: Broken Record Watch: Sessions goes right to “wise Latina.”

3:52: Leahy makes an important point, a right means nothing if it cannot be enforced.  Sotomayor agrees.  Sadly, many of her future colleagues do not.

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Sotomayor Hearing Live-Blog, Day 2 »

This week, the Wonk Room will live blog Judge Sonia Sotomayor’s confirmation hearings.  As expected, conservatives spent yesterday’s session claiming that Sotomayor is incapable of “impartiality,” especially in matters related to race.  We’re still waiting for them to cite an actual case suggesting that this claim is true, however.  We will be updating this thread throughout the day.

5:30: CAPAF’s statement on day two is up.  Here is a taste:

Today, at Judge Sonia Sotomayor’s confirmation hearing, Sessions wondered aloud how Sotomayor could have voted differently than another judge of “Puerto Rican ancestry.”

So it is very odd that conservatives would choose Sessions as their point person on the Sotomayor nomination. At best this choice is laughably tone deaf. At worst it shows that Senate conservatives wholeheartedly embrace Sessions’ views on race.

It is crystal clear, however, that Sessions is the architect of the conservative strategy against Sotomayor. In a campaign that echoes Lee Atwater’s infamous Willie Horton ad and Jesse Helms’ “white hands” ad, today’s attacks on Sotomayor have focused almost exclusively on race. Nevermind that conservatives have only uncovered one case in Sotomayor’s record, Ricci v. DeStefano, which supposedly supports their claim that Sotomayor is biased against white men. And nevermind that Sotomayor simply followed a 1984 precedent which is nearly identical to Ricci when she decided that case. Apparently conservatives believe the facts must take a backseat to race-baiting.

5:27: Hearing now in recess until tomorrow @ 9:30.

5:24: Leahy announces that questions will resume in the morning.  After every Senator has gone, the committee will go into a closed session to discuss Sotomayor’s FBI background check and similar information, and your humble blogger will take a much needed break.

5:11: Durbin quotes an unnamed SCOTUS justice who told him that “our system of correction and incarceration . . . has to be the worst” (Senator Webb has made similar statements about the need to fix America’s overincarceration problem).  Also takes aim at the crack/powder disparity, which one federal judge said “makes the war on drugs look like a ‘war on minorities.’ “  As originally enacted, the crack/powder disparity causes 5 grams of crack to be punished exactly the same as 500 grams of powder cocaine.

5:03: Durbin highlights case where Sotomayor upheld the death penalty against a constitutional challenge.  Apparently, even if she does disagree with the death penalty personally, as Graham claims, she also understands how to follow the law.

4:52: Graham hitting Sotomayor on a letter she signed in 1981.  Does he want to ask her about her sixth grade book reports as well?

4:50: Shhhhhh . . . Senator Grassley is sleeping.

4:47: Graham is now playing guilt by association, asking her about briefs written by attorneys at an organization she was on the board of.  Sotomayor responds, “I never read those briefs.”  Her primary duty as a board member was fundraising; she did not supervise their attorneys.

4:41: Graham: America discriminates against the poor white man by not letting him claim that they are better than minorities.

4:33: Graham calls Sotomayor a “bully” on the bench, claiming that lawyers “find you difficult and challenging.”  If Graham doesn’t like judges who bully, he must have voted against CJ Roberts, and he must hate Justice Scalia, right?

4:30: Graham: the existence of the Due Process Clause proves that your speeches are bad.  Huh?  Also claims that the Constitution contains “no written prohibition that you can’t pray in school.”  Of course the Supreme Court has never said that children can’t pray in school.  The Supreme Court has said that the government can’t tell them how to pray, and the “written prohibition” on official government prayer is the First Amendment, which bans laws “respecting an establishment of religion.”

4:27: Graham makes a funny: “Don’t become a speech writer if this law thing doesn’t work out.”

4:19: Dissenting in the judge-for-sale case, Justice Scalia cited the Talmud.  Why does Justice Scalia want us to be ruled by unelected Rabbis?

4:15: Sotomayor rebuffs conservative claims that she thinks that foreign law governs the U.S. Constitution.  No one believes that it does, but that hasn’t stopped Sessions from spreading his made-up claim that Sotomayor wants to turn the U.S. courts over to France.

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Sotomayor Hearing Live-Blog, Day 1 »

This week, the Wonk Room will live blog Judge Sonia Sotomayor’s confirmation hearings.  As we have previously reported, Republicans are prepared to make race the focus of their attacks on Sotomayor, with foreign law, the Second Amendment, eminent domain and opposition to reproductive choice rounding out their strategy.  We will be updating this thread throughout the day.

3:53: CAPAF’s statement on the first day of the hearing is available here.  It begins “Republican attacks in today’s confirmation hearings for Judge Sonia Sotomayor focused largely on their claim that Sotomayor lacks “impartiality” and is likely to decide cases based on her personal beliefs instead of the law. This line of attack is not surprising in light of their comments prior to the hearings, yet Republicans have still been unable to cite a single case where Sotomayor put her feelings before the law.”

3:02: Hearings in recess until 9:30 tomorrow morning.

3:00: Here is the meat of Judge Sotomayor’s statement:

Throughout my seventeen years on the bench, I have witnessed the human consequences of my decisions. Those decisions have been made not to serve the interests of any one litigant, but always to serve the larger interest of impartial justice.

In the past month, many Senators have asked me about my judicial philosophy. It is simple: fidelity to the law. The task of a judge is not to make the law – it is to apply the law. And it is clear, I believe, that my record in two courts reflects my rigorous commitment to interpreting the Constitution according to its terms; interpreting statutes according to their terms and Congress’s intent; and hewing faithfully to precedents established by the Supreme Court and my Circuit Court. In each case I have heard, I have applied the law to the facts at hand.

2:54: Sotomayor sworn in; begins statement.

2:51: Gillibrand takes a nice dig at Sessions.  Sotomayor’s leadership role in a civil rights organization, just like Justices Marshall and Ginsburg’s service with similar organizations, should not be used as a “disqualifier.”

2:37: Franken: Justice Thomas votes to overturn federal laws more than Justice Stevens and Justice Breyer combined.  Indeed, Thomas votes to second-guess Congress 65.63% of the time–more than any other justice.  The only Democratic appointees on the Court, Justices Ginsburg and Breyer, are the least likely to do so.

2:32: Another “abortion is murder” protestor interrupts the hearing.  Finish your beers.

2:30: The Al Franken Decade dawns.

2:25: Specter calls out CJ Roberts for saying in his confirmation hearing that he would led Congress decide how to remedy discrimination, then deciding that he knows better than Congress once he got on the Supreme Court.

2:21: Specter: Court has time for more cases.  Worries that there is too much uncertainty in the law because the Court only decides 60-70 cases per year–as opposed to the hundreds of cases it would hear each year in the 1800s.  Calls out the Court for not considering the merits of President Bush’s warrantless wiretapping and the rights of 9/11 victims.

2:17: Kaufman calls out the Supreme Court for putting a thumb on the scale in favor of corporations, citing preemption of progressive state laws, punitive damages and other corporate immunity cases as examples.

2:10: Klobuchar attacks the Supreme Court from the right, criticizing a recent decision (by Justice Scalia) which said that criminal defendants have a constitutional right to call lab techs who prepare evidence against them to the witness stand.

2:01: Leahy gavels the hearing back into session.  Senator Klobuchar now speaking.

12:38: Committee now in recess until 2pm.

12:38: Durbin: of the 110 justices to serve on the Supreme Court, 106 have been white males.

12:32: Another “abortion is murder” protestor interrupts the hearing and is removed.

12:23: Coburn opens his statement by praising Gonzales v. Carhart, which upheld a ban on certain kinds of abortion.  Later, he says “we want the system of law to be predictable,” but Carhart overruled a Supreme Court precedent which was only seven years old.  Apparently, the law only needs to be predictably conservative.

12:22: Coburn: “I thought this was your hearing and not Chief Justice Roberts’ hearing.”  Apparently he hasn’t been paying attention, this is Miguel Estrada’s hearing.

12:12: Whitehouse: “pretense” that Republican judges are modest and Democratic judges are “activist” runs counter to recent history.  CJ Roberts’ claim that judges should behave like “umpires” is “belied” by Roberts himself.  Quotes Jeffery Toobin’s observation that “In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff. . . . Roberts has served the interests, and reflected the values, of the contemporary Republican Party.”

12:06: Cornyn spends his statement ranting against judges who rule against the elected branches, then cites D.C. v. Heller, the recent Second Amendment decision, as an ideal case.  But Heller struck down a law enacted by the elected D.C. City Council.  Apparently, judicial modesty = doing whatever conservatives want.

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What The GOP Witness List Reveals About Their Anti-Sotomayor Strategy

The Senate Judiciary Committee has released the list of witnesses who will testify at Judge Sotomayor’s confirmation hearings, thereby telegraphing much of their anti-Sotomayor strategy in the process.  Based on their lineup, it’s clear that Republicans plan to follow five lines of attack:

• Ricci

Front and center in the list of GOP witnesses is Frank Ricci himself, the New Haven firefighter whose promotion test results were set aside by that city, along with Ben Vargas, a lieutenant in the same fire department and Ricci’s co-plaintiff in his now-famous lawsuit.  The list also includes Peter N. Kirsanow, a George W. Bush appointee to the U.S. Commission on Civil Rights (and former witness in support of nominees John Roberts and Samuel Alito), and Linda Chavez, a former Reagan and Bush I Administration official and the head of a leading anti-civil rights organization.

From this list, it couldn’t be clearer that the Ricci case will be the point of the conservative spear against Sotomayor.  While Kirsanow and Chavez can be expected to testify like the GOP political operatives that they are, expect Ricci and Vargas to offer compelling statements.  By all accounts, both men were caught in unfortunate circumstances that they did not cause, and there is no indication that they are anything other than dedicated firefighters.  In other words, Republicans hope that the American people will be moved by Ricci and Vargas’ testimony and wonder why Sotomayor did not show more empathy for their circumstance.  The reason, of course, is that Sotomayor was following a binding precedent, and judges aren’t free to ignore the law simply because they are faced with compelling plaintiffs.

• Foreign Law

Recently, Senator Jeff Sessions (R-AL) gave a floor speech claiming–falsely–that some judges believe that foreign court decisions should govern U.S. law.  No one, including Judge Sotomayor, believes this.  Nevertheless, the witness list includes Neomi Rao, Nick Rosenkranz and John McGinnis, all right-wing international law professors who are likely to share Sessions’ delusion.  David Rivkin, an advocate of limitless executive power, may also testify on the subject of foreign law.

• Second Amendment

Next up are former NRA President Sandy Froman, along with David Kopel and Stephen Halbrook, both of whom work on Second Amendment issues for the right-wing Independence Institute.  All three of them will probably make the false claim that Sotomayor was hostile to the Second Amendment when she followed a binding Supreme Court precedent holding that the Second Amendment does not apply to the states.  Apparently, the law is optional when you are a conservative.

• Eminent Domain

Ilya Somin is a radical libertarian law professor who filed an amicus brief asking the Supreme Court to reverse Sotomayor’s decision holding that land developers must file their eminent domain claims within the three year statute of limitations.  The Supreme Court did not take Professor Somin up on this offer; apparently land developers have to follow the same laws as everyone else.

• Anti-Choice

Possibly the most interesting thing about the GOP’s witness list is that it only contains one anti-choice witness, Charmaine Yoest of Americans United for Life–additional evidence that cultural issues are losing their salience in American politics.

Additionally, the witness list contains one oddball, a management consultant named Tim Jeffries.  It’s unclear exactly what Jeffries has to contribute to this discussion.

Strange Washington Post Article Attacks Sotomayor As Too Meticulous

In what may be the most unusual hit on Judge Sotomayor to date, the Washington Post has a long article today attacking Sotomayor because her opinions are too detailed:

During nearly 11 years on the federal appeals court in New York, Sotomayor has made herself an expert on subjects ranging from the intricacies of automobile mechanisms to the homicide risks posed by the city’s population density. Her writings have often offered a granular analysis of every piece of evidence in criminal trials, and sometimes read as if she were retrying cases from her chambers.

Legal experts said Sotomayor’s rulings fall within the mainstream of those by Democratic-appointed judges. But some were critical of her style, saying it comes close to overstepping the traditional role of appellate judges, who give considerable deference to the judges and juries that observe testimony and are considered the primary finders of fact.

The Post’s hit on Sotomayor is ironic in light of the fact that conservatives have spent the last several weeks claiming that Sotomayor’s decisions aren’t detailed enough, but it nevertheless lacks merit.  Of course, Sotomayor should be praised, not attacked, for writing detailed and well thought out opinions; but the Post also reaches its conclusion by looking at a skewed sample of her decisions that includes the cases where a judge is most likely to be particularly detailed in drafting an opinion.

For starters, the Post only reviewed Sotomayor’s decisions in cases where at least one other judge disagreed with her and wrote a separate opinion.  But such cases are a terrible measure of how detailed a judge’s writing usually is.  When a judge is forced to defend their decision against a dissenting colleague, they virtually always flesh out their opinion considerably to rebut any claims made by the dissent.

The Post also cites a handful of cases where Sotomayor reversed a trial court because she disagreed with its findings of facts.  Although the Post is correct that appeals judges must give “considerable deference” to a trial judge’s fact finding, “considerable” does not mean “absolute.”  Rather, an appeals court is supposed to reject a trial court’s factual findings when they are “clearly erroneous.”  Moreover, it is exactly because of this high degree of deference accorded to a trial judge’s findings that appeals court decisions rejecting a trial court’s fact finding are often very long and detailed.  Because an appeals court must have a very good reason to reverse a trial court’s factfindings, a sensible appeals judge will go into great detail whenever they do so in order to explain why they are taking this unusual step.

Interestingly, the Post’s piece quotes a former law clerk to ultra-conservative Justice Clarence Thomas, who explains that Sotomayor’s opinions are “extraordinarily thorough, and a judge would ordinarily be praised for writing thorough opinions.”  Perhaps the Post should have listened to this former clerk’s advice before it published an absurd attack piece slamming Judge Sotomayor for being too good at her job.

Anti-Gay Conservatives Complain That Sotomayor Ruled In Their Favor, But Not For The Reason They Wanted

Refusing even to take “yes” for an answer, several anti-gay groups are attacking Judge Sotomayor for her decision in a case brought by an anti-gay pastor — even though Sotomayor ruled in the pastor’s favor.

In 2000, a right-wing pastor named Kristopher Okwedy paid to display this anti-gay billboard in a gay-friendly Staten Island neighborhood:

A few days after the billboard went up, Staten Island’s Borough President faxed a letter to the billboard company stating that “[a]s Borough President of Staten Island I want to inform you that this message conveys an atmosphere of intolerance which is not welcome in our Borough.”  The company took the billboard down almost immediately, and Okwedy promptly sued the Borough President, claiming that his First Amendment rights were violated.

Although a trial judge tossed the case out at the earliest stage of litigation, Sotomayor joined an opinion reinstating the case because she believed that the Borough President’s letter may have violated Okwedy’s free speech rights. Sotomayor recognized that even hate speech is protected by the First Amendment.

Instead of praising Sotomayor for ruling in their favor, however, anti-gay groups are now whining because she didn’t rule in their favor in exactly the way they would have liked best:

Tony Perkins, president of the conservative Family Research Council (FRC), slammed the appeals court’s opinion.

“The case raises troubling issues,” he said in a statement. “[T]he church was posting a purely religious message with no statements regarding public policy. The opinion suggests that Sotomayor may view the First Amendment through the lenses of political correctness.”

“Would a billboard proclaiming ‘gay pride month,’ which is offensive to many Christians, have been similarly treated?” Perkins said. “Sotomayor should be asked.”

Perkins is complaining that Sotomayor did not agree with Okwedy that his First Amendment rights were violated because the Borough President’s letter “demonstrates the City’s ‘official position of hostility toward the biblical viewpoint of homosexual practice and Okwedy’s religious beliefs.’”  Essentially, Okwedy claimed that the city cannot enact a policy which is contrary to his own religious beliefs.

But nothing in the Constitution says that people don’t have to comply with the law simply because they have a religious disagreement with it. Indeed, if Sotomayor’s court had adopted Okwedy’s theory of religious liberty, it would be unconstitutional to prosecute murders who kill out of a religious belief that God wants them to.

Tony Perkins should learn to take his court victories and enjoy them, rather than throwing a tantrum whenever judges refuse to write his own personal religious beliefs into the law.

Sessions Joins Right-Wing Crusade Against Civil Rights Law

Since 1971, federal law has prohibited both overt discrimination in employment and hidden race discrimination such as a hiring test that screens out minority applicants based on reasons unrelated to their job qualifications.  Yet, in an interview with Fox News, Senator Jeff Sessions (R-AL) suggests that Judge Sotomayor may be unfit for the bench because she once sat on the board of a civil rights organization that filed suits under this law:

Alabama Sen. Jeff Sessions told FOX News he assumes Sotomayor understood and supported the stance of a group called the Puerto Rican Legal Defense and Education Fund [PRLDEF] she advised in the 1980s that brought several race discrimination lawsuits for minorities who challenged jobs or promotions given to white employees.

“She participated in an organization or lawsuit, clearly participating actively as a supervisor of lawyers who actually litigated the cases, that is important,” said Sessions, the senior Republican on the Judiciary Committee evaluating Sotomayor’s nomination.

“There is no evidence (Sotomayor) objected the positions they were taking. The question is really — is this a philosophy that she has allowed to influence her decision making process on the bench?” he said.

It’s difficult to count how many things are wrong with Sessions’ statement.  For starters, as the New York Times reported last week, Sotomayor played little if any role in shaping on PRLDEF’s stances in litigation.  Indeed, the only example the NYT could find of a case that Sotomayor advised PRLDEF on was a single amicus brief challenging a law authorizing “preventative detention based upon a finding of undefined potential danger to the community” that was eventually struck down as unconstitutional.

Moreover, even if Sotomayor was involved in shaping PRLDEF’s litigation strategy on employment discrimination, it’s not clear why her role in enforcing a landmark civil rights law in any way undermines her fitness for the Supreme Court.  As the Wonk Room previously explained, conservatives have jumped on the sympathetic case of New Haven firefighter Frank Ricci to claim that the ban on hidden race discrimination is “a concept that invariably makes whites accountable for minority mediocrity.”  But this claim is flatly false.  No law requires employers to prefer mediocre minorities over qualified whites. To the contrary, federal law specifically permits employers to use hiring practices that have an adverse impact on minorities so long as minority applicants are screened because of their fitness for the job. Only employers who base their hiring decisions on arbitrary or irrelevant traits can be liable for discrimination.

Indeed, Sessions’ decision to embrace the right-wing attack on civil rights law says a whole lot more about Jeff Sessions than it does about Sonia Sotomayor. In 1986, Sessions’ nomination to the federal bench was rejected by the Senate because of Sessions’ deep seeded hostility to the very notion of civil rights:

• As a federal prosecutor, Sessions conducted a tenuous criminal investigation into voting rights advocates that registered African-Americans to vote–an investigation that culminated in an unsuccessful prosecution against a former aide to Dr. Martin Luther King, Jr.
• Sesssions also referred to the NAACP and the ACLU as  “un-American” and “Communist-inspired” organizations that “forced civil rights down the throats of people.”  When confronted about these statements at his confirmation hearing, Sessions reluctantly conceded that they “probably w[ere] wrong.”  Sessions, however, stood by his previous statement that the Voting Rights Act is a “piece of intrusive legislation.”
• An African-American attorney who once worked for Sessions testified that Sessions said that he “used to think [the KKK] were OK” until he found out some of them were “pot smokers.”  The same attorney also recalled being called “boy” by Sessions and being told to “be careful what you say to white folks” after Sessions overheard him chastising a white secretary.

So Sessions’ decision to embrace a new attack on civil rights law is unfortunate, but hardly surprising.  America has changed a lot since 1986, but Jefferson Beauregard Sessions III has stayed exactly the same.

The Supreme Court Term In Review, Part I: The Environment

(The following is the first in a multi-part series on the Supreme Court’s recently-concluded 2008-2009 Term)

No one fared worse before the Supreme Court this Term than the Earth.  The justices heard five environmental cases, and they sided against defenders of the environment in every single one.  Among these cases, the Court upheld a Bush-era regulation that placed costs to power plants above destruction of aquatic life; it absolved from liability a chemical company that allowed pesticides to spill into the environment for years; it erected new obstacles to environmental organizations challenging federal environmental policy; and it upheld a mining company’s plans to dump literally millions of tons of mining waste into a pristine lake.

Two of these cases in particular highlight the Court’s disregard for laws intended to protect the environment:

• A New Loophole For Polluters (Coeur Alaska v. Southeast Alaska Conservation Council)

Using a technique known as “froth-floatation,” a mining company in Alaska plans to extract new gold from a mine that has been closed for decades, but this technique would produce approximately 4.5 million tons of “slurry,” thick waste-product laced with toxic elements such as lead and mercury. Even worse, the mining company’s intends to dispose of this waste by dumping it into a nearby lake, a plan which would eventually kill all the lake’s fish and nearly all of its other aquatic life, decrease the depth of the lake by fifty feet, and flood the surrounding 40 acres of land with contaminated water.

Although federal law forbids “[t]he use of any river, lake, stream or ocean as a waste treatment system,” the Supreme Court created a massive new exception to this law. Under Justice Kennedy’s decision in Coeur Alaska, pollutants are exempt from this law so long as they have “the effect of . . . changing the bottom elevation of water.” In other words, polluters now have a free hand to dump whatever they want into pristine waters, so long as their waste products are solid and significant enough to reduce the depth of the lake, river or stream. As Justice Ginsburg wrote in dissent, such a reading of federal law “strains credulity” because it allows “[w]hole categories of regulated industries” to “gain immunity from a variety of pollution-control standards.”

• Placing Profits Before The Law (Entergy v. Riverkeeper)
  

Power plants’ cooling systems collectively remove more than 214 billion gallons of water from the nation’s waterways every day, in the process killing over 3.4 billion aquatic organisms per year. The Clean Water Act requires that EPA regulate these cooling systems based on “the best technology available for minimizing adverse environmental impact.” During the Bush administration, however, EPA ignored this direction and instead employed a skewed cost-benefit analysis in deciding how to regulate. As a result, power plants were allowed to forgo the advanced technology required by the plain language of the law in favor of cheaper but far less protective measures.

Ignoring the law’s plain language, Justice Scalia’s decision in Riverkeeper upheld the Bush administration’s action.  As Justice Stevens explained in dissent, Congress determined that the costs of requiring power plants to pay for environmentally friendly technology “are outweighed by the benefits of minimizing adverse environmental impact” when it enacted the Clean Water Act, but the Court substituted the Bush Administration’s judgment for that of the law.

Notably, Riverkeeper reversed a Second Circuit decision by Judge Sonia Sotomayor, a hopeful sign that President Obama’s nominee for the high Court does not share her future colleagues’ willingness to rewrite environmental legislation to benefit big industry.

Conservatives Attack Sotomayor For Not Having A Crystal Ball

Within minutes of today’s decision in Ricci the right-wing opened a new assault on President Obama’s nominee to the Supreme Court, claiming that all nine justices disagreed with Judge Sotomayor. The claim featured prominently in a Federalist Society press call held just over an hour after the decision was handed down; right-wing law professor Jonathan Adler made the claim on his blog; and the same claim is all over the National Review’s website. By lunch, even Senator John Cornyn (R-TX) had picked up the spin.

The basis of this claim is the fact that both Justice Kennedy’s majority opinion and Justice Ginsburg’s dissent created new legal standards which are different than the twenty-five year old rule Sotomayor was required to follow in Ricci.  Under the Second Circuit’s 1984 decision in Bushey v. New York State Civil Service Commission employers have almost carte blanche authority to reconsider a hiring or promotion test if minorities underperform white applicants who take that test.  The newly-announced rule created by today’s majority opinion says that employers must have a “strong basis in evidence” showing that the test was in fact illegal before they can throw out a promotion test.  Justice Ginsburg’s dissent would have carved a middle ground, allowing employers to reconsider a test when they have “good cause to believe” that the test was illegal.

So Cornyn and his co-ideologues are right that Sotomayor failed to predict that both Kennedy and Ginsburg would create never-before-imagined legal standards in their dueling opinions in Ricci, but this is hardly a legitimate attack on Sotomayor.  As legendary Supreme Court reporter Linda Greenhouse explains, Sotomayor’s crime was that she simply followed the rules that were in place when Ricci was before her court:

This is a substantial weakening of the disparate-impact prong of Title VII. [T]he 2^nd Circuit (and the 6^th Circuit, which had handled a similar case in a nearly identical way) was playing by the old rules, and the Supreme Court changed those rules. Don’t we want our appellate judges to play by the rules they are given and to refrain from the activism that would be involved in crafting new ones? Does it seem to you, as it does to me, that Judge Sotomayor’s critics are now kind of stuck?

The lovely thing about being the nation’s highest court is that you aren’t bound by lower-court decisions, and can create new rules on the fly.  Judge Sotomayor did not have this luxury, and she shouldn’t be attacked for doing nothing more than following a binding precedent.

CRS Report Concludes Sotomayor Is No Activist

Throughout his confirmation hearings, Chief Justice Roberts compared himself to a baseball umpire whose job was simply to objectively call balls and strikes–never to impose his own preferences on the game.  “Modesty,” “humility” and “judicial restraint” were Roberts’ buzz words; fair decisions without ideology his promise.

Of course we now know that, with John Roberts as the umpire, the strike zone has moved awful far to the right, but it is not surprising that Roberts pretended to be non-ideological and restrained when he was trying to sell himself as a future Chief Justice.  The American people like their judges to follow the law; and they no doubt would have viewed him harshly if he had confessed to being an ideological crusader.

In just over two weeks, Judge Sotomayor will have her own confirmation hearings. While it remains to be seen how she will present herself in those hearings, a report by the non-partisan Congressional Research Service confirms something that should be obvious to anyone who has examined her record.   She actually is the kind of modest, non-ideological judge that Roberts claimed to be:

Overall, Judge Sotomayor’s opinions defy easy categorization along ideological lines. . . . General characteristics of her approach to the judicial role are more easily identified. Perhaps the most consistent characteristic of Judge Sotomayor’s approach as an appellate judge could be described as an adherence to the doctrine of stare decisis, i.e., the upholding of past judicial precedents. This characteristic would be in line with the judicial philosophy of Justice Souter, who often displayed special respect for upholding past precedent. Another characteristic of Judge Sotomayor’s opinions could be described as a meticulous evaluation of the particular facts at issue in a case, which may inform whether past judicial precedents from the circuit are applicable. Her approach to statutory interpretation seems similarly nuanced. She tends to adhere to the plain meaning of the text but, in the face of ambiguous language, appears willing to consider the intent and purpose of a statute. Judge Sotomayor’s opinions also display her apparent dislike for situations in which the court oversteps the role called for by the procedural posture of a case.

Amusingly, Senator Sam Brownback (R-KS) recently announced that he would oppose Sotomayor’s nomination because “I am afraid Judge Sotomayor wants to be more of a player than an umpire.”  Maybe he’s confusing her with John Roberts.

Meet The New Jeff Sessions, Same As The Old Jeff Sessions

Roll Call reports that Senator Jeff Sessions (R-AL), the Judiciary Committee’s Ranking Member, will spearhead a campaign this week to cast a shadow over Supreme Court nominee Sonia Sotomayor’s record by “questioning her involvement in a Puerto Rican civil rights group.” Sotomayor spent twelve years on the board of the Puerto Rican Legal Defense and Education Fund (PRLDEF).

Sessions, of course, is uniquely qualified to levy unwarranted attacks on a civil rights organization.  In 1986, President Reagan nominated Sessions to the federal bench, but his nomination was rejected by the Senate after a Justice Department attorney revealed that Sessions called the NAACP and the ACLU “un-American” and “Communist-inspired.” Although Sessions attempted to minimize his remarks by explaining that he really meant that the NAACP and the ACLU  could be called “un-American” when “they involve themselves in promoting un-American positions,” he eventually admitted that referring to them as “commie organizations . . . probably was wrong.”  Watch:

Twenty-three years have passed since Sessions’ comments denied him a lifetime appointment to the federal bench, but his attitudes haven’t changed a bit.  Rather than questioning the patriotism of one of the nation’s leading African-American civil rights organizations, he now thinks he can scuttle Sotomoyor’s nomination by attacking a leading Puerto Rican civil rights organization.  But Sessions has a tough row to hoe, as even the most comprehensive attacks on PRLDEF are baseless.

Last week, a right-wing organization called Judicial Watch released a report laying out the conservative case against Sotomayor and PRLDEF.  The centerpiece of this report is eleven bullet points which, Judicial Watch claims, show that PRLDEF supports a “radical legal agenda.”  But the report, and the agenda behind it, are far more damaging to conservatives than they are to PRLDEF or Sotomayor:

• Obsession With English Language Purity: Three of the report’s bullet points reveal a strange obsession with keeping America free of any languages other than the Queen’s English.  One bullet attacks PRLDEF for advocating on behalf of bilingual education for students who speak a dialect that combines English and Spanish.  Another bullet claims that PRLDEF advanced a “radical legal agenda” by complaining about an Elizabeth, N.J. policy that forbade city hall employees from conducting private conversations in Spanish; and a third slams PRLDEF for opposing proposed legislation that would have forced foreign language speaking business owners to display English language signs at their storefronts.  It is not clear why conservatives are so terrified that somewhere in America, someone might speak Spanish.

• Strident Opposition to Civil Rights Laws:  Two of the report’s bullet points slam PRLDEF for successful efforts to press employers to redesign promotion tests that adversely impacted minority applicants.  A federal law intended to “smoke[] out hidden bigotry” by employers prohibits the use of racially discriminatory tests that rely on irrelevant or arbitrary criteria to sort applicants.  Another bullet point claims that PRLDEF supports a “radical legal agenda” because it supported an affirmative action program which was upheld by the Supreme Court.

• Grasping At Straws: One bullet point repeats the debunked claim that Sotomayor tried to hide her opposition to reinstating the death penalty in New York State in 1981.  A second bullet claims that PRLDEF is “radical” because it supported the creation of more low income housing; and two more criticize PRLDEF because they filed two race discrimination claims in 1983 which were ultimately rejected by the courts.  It is especially unclear what conservatives hope to accomplish with this last attack, since Judge Sotomayor herself has rejected 78 claims of race discrimination since she became a federal appeals judge.  What is absolutely clear, however, is that every single one of the report’s bullet points are grasping at straws.

The PRLDEF is nothing more than a mainstream civil rights organization, and no sensible person could possibly believe that Sotomayor was wrong to associate with them.  Unfortunately for Senate Republicans, however, their #1 guy on the Judiciary Committee is still living in the past.

Voting Rights Act Lives To Fight Another Day

In an unexpectedly narrow 8-1 decision today, the Supreme Court chose not to heed right-wing voices calling upon them to strike down a key provision of the Voting Rights Act.  Today’s decision in NAMUDNO v. Holder preserves–at least for now–Section 5 of the Act, which requires voting districts who have historically engaged in discrimination to “preclear” any new voting rules with a federal court or the Department of Justice.

Under today’s decision, Section 5 will remain in effect, but voting districts are allowed to “bail out” of its requirements if they can show that they have not recently engaged in race discrimination and are not likely to do so in the future:

[The district] must show that for the previous 10 years it has not used any forbidden voting test, has not been subject to any valid objection under § 5, and has not been found liable for other voting rights violations; it must also show that it has “engaged in constructive efforts to eliminate intimidation and harassment” of voters, and similar measures.

It’s not entirely clear what today’s decision means for the Act’s future.  Tom Goldstein predicts that the Court is simply giving Congress a brief window to amend Section 5 themselves before the Court takes the hatchet to it; “[i]f the statute remains the same by the time the next case arrives,” Goldstein warns, “the Court will invalidate the statute.”

Goldstein may be right–he’s been right before–but the Roberts Court has hardly shown the kind of judicial restraint that Goldstein suggests it engaged in today.  Just last week, for example, the Supreme Court ignored both precedent and its own internal rules to eliminiate a particular kind of suit brought by victims of age discrimination.  Justice Thomas’ opinion in that case, made no bones about the fact that the Court’s conservatives were at peace with ignoring precedent because “it is far from clear that the Court would have the same approach were it to consider the question today in the first instance.  In other words, when the conservative bloc has five votes, they feel no compunctions about doing whatever they please–so today’s modest opinion may be a sign that Chief Justice Roberts and his co-ideologues lack the fifth vote necessary to toss out Section 5.

One thing that is absolutely clear, however, is that the Section 5 remains absolutely necessary to American democracy, no matter what Chief Justice Roberts may think.  The Department of Justice has blocked literally hundreds of new voting procedures since the Voting Rights Act was last reauthorized in the 1980s, each time determining that the new procedure discriminated on the basis of race.  Moreover, some of the states’ attempts to discriminate against their own voters have been quite audacious.  As voting rights attorney Nina Perales explained at a recent American Constitution Society panel, for example, Texas’ governor recently tried to sway a Congressional race away from Mexican-American voters’ preferred candidate by scheduling the election during a Mexican religious festival:

America dodged a bullet today.  Hopefully, the Court’s conservatives will keep their guns holstered in the future.

Bork: There’s Nothing Alarming About Sotomayor’s Record, But I Still Oppose Her

In an interview with conservative columnist Stuart Taylor, Jr., failed Reagan Supreme Court nominee Robert Bork claims that the nomination of Judge Sonia Sotomayor to the Supreme Court is a “bad mistake” because it is “unusual to nominate somebody who states flatly that she was the beneficiary of affirmative action.” Strangely, however, Bork admits that he cannot cite a single decision by Sotomayor, a summa cum laude graduate of Princeton University, which suggests she is inadequate to the task of serving on the Supreme Court:

Any particular issues or cases come to mind?

No. I’ve read them, but I no longer worry about those things, because I don’t teach it anymore. In fact I refuse to teach constitutional law, because it’s so obviously politics and not law. The incoherence of some of those opinions is astounding. If you want to know what the constitution means, you will not learn it from the court.

Although many conservatives continue to hold up Bork as someone who was unfairly denied confirmation, Bork has made a number of statements confirming that the Senate made the right choice in doing so. In a 1997 book, Bork warned that a decline in America’s sexual “morality” would transform the country into “‘a degenerate society,’ ‘enfeebled, hedonistic,’ ’subpagan,’ and headed for ‘ultimate degradation’ in ‘the coming of a new Dark Ages.’” In 1999, Bork called President Clinton a “sociopath.”

His interview with Stuart Taylor is no exception. Indeed, Bork admits to asking God to exact an violent form of vengeance against his critics:

[My confirmation hearing] was really quite harrowing. It got to the point where I could not read the paper because every reference to the proceedings was really adverse to me. So I quit reading everything but the sports section. And then one of the sportswriters took a crack at me. [Laughs.] This kind of stuff was new to my wife, and so she wanted us to read a psalm every morning. I finally came to one about praying to God to break the teeth of my enemies. That seemed to be an adequate sentiment.

Bork can’t seem to let his anger go.

On Detainees, Sotomayor Stood To The Right Of Souter

A 2003 guest lecture Judge Sonia Sotomayor delivered to Indiana University law students suggests that she takes a narrower view of the rights of U.S. citizens designated as “enemy combatants” than Justice David Souter, who she has been nominated to replace.  The speech, delivered more than a year before the Supreme Court’s first Bush-era detainee decision in Hamdi v. Rumsfeld, describes the lower court proceedings in Hamdi and a similar case, Rumsfeld v. Padilla, both of which involved U.S. citizens declared enemy combatants by the Bush Administration.  According to Sotomayor’s speech, such detention of so-called enemy combatants did not necessarily violate the law:

So we have suspected enemy combatants detained in secret and given different process than criminals. One can certainly justify that type of detention under precedents and current law.

Nothing in Sotomayor’s speech suggests that she accepted the Bush Administration’s position on detainee treatment–that persons designated enemy-combatants could be detained forever on the President’s word.  Indeed, if anything, Sotomayor’s views appear to closely track those of Justice Sandra Day O’Connor’s controlling opinion in Hamdi, which held that “although Congress authorized the detention of combatants in the narrow circumstances alleged here, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decision maker.”  O’Connor believed that, while a suspected enemy combatant may be entitled to less procedural protections than a criminal defendant, their detention could not be immune from any meaningful process whatsoever.

Justice Souter, however, took a significantly more protective view of detainee rights than Justice O’Connor.  In response to the mass-detentions of Japanese-Americans during World War II, Congress enacted the Non-Detention Act, which prohibits the detention of U.S. citizens “except pursuant to an Act of Congress.”  O’Connor felt that the post-9/11 Authorization for Use of Military Force was such an “Act of Congress,” but Souter believed that the AUMF was too “vague” to permit detention of a citizen.  Had Souter’s view prevailed, it is likely that Hamdi would have simply been released.

To be fair, the unprecedented nature of President Bush’s detention policies make it difficult to predict how Sotomayor would have voted if she had sat on the Supreme Court as it was considering Hamdi.  The Non-Detention Act is, to say the least, not the kind of commonly-invoked statute that a judge or justice would normally be familar with.  It is entirely possible that, had Sotomayor read the same briefs that Souter did while considering Hamdi, she would have applied the Non-Detention Act in the same way.  Moreover, the Court in Hamdi didn’t exactly break down on traditional ideological lines.  In a somewhat surprising opinion, ultra-conservative Justice Antonin Scalia argued that U.S. citizens cannot be simply classified as enemy combatants and detained; they must either be prosecuted for treason or set free.  Only Justice Clarence Thomas took the Bush Administration’s view of the case, and there is no evidence linking Sotomayor to Thomas’ extreme views.

It is also worth note that Sotomayor has a number of decisions recognizing the basic humanity of people detained in run-of-the-mill criminal prisons, including a decision holding that a prison could not deny Muslim inmates their First Amendment right to participate in the traditional meal celebrating the conclusion of Ramadan merely because prison officials believe that this celebration was not sufficiently important to Muslims.  Nevertheless, one of the few datapoints informing how Sotomayor views detainee cases, her 2003 speech, suggests her views are to the right of the justice she will replace.

How Not To Report On The Supreme Court

Land Developer Bart Didden

This morning’s New York Times piece on one of Judge Sotomayor’s eminent domain decisions quotes three sources:  Bart Didden, the land developer who Sotomayor ruled against, Ilya Somin, a libertarian law professor who filed a brief supporting Didden, and Richard Epstein, a radical libertarian who thinks that the minimum wage and child labor laws are unconstitutional.  Not one progressive, or even an interested party on the other side of the case is used as a source.  So guess what kind of picture the NYT paints of Sotomayor’s decision?

“This is the worst federal court takings decision since Kelo,” said Ilya Somin, who teaches property law at George Mason University and helped write the brief. “It’s very extreme, and it is significant as a window into Judge Sotomayor’s attitudes toward private property.” . . .

The case arose from a meeting in 2003 between Mr. Didden, who owned property in Port Chester, N.Y., and an executive of a company that had been designated by the village to develop a 27-acre urban renewal area that included part of the property. What happened at that meeting, Mr. Didden said, amounted to extortion.

Mr. Didden had made arrangements to put a CVS drug store on his lot. At the meeting, the executive, Gregg Wasser, demanded $800,000 as the price for permission to proceed with that project, Mr. Didden said in court papers. The alternative, Mr. Wasser said, according to the papers, was to have the village condemn Mr. Didden’s property so that Mr. Wasser’s company could put a Walgreen’s in the same place.

Had the NYT bothered to speak with someone on the other side of the case, however, they might have learned that Didden’s story doesn’t hold water.

The truth is this:  Didden lost his case because he waited too long to file his lawsuit.  He learned that his property was subject to eminent domain in 1999, but waited until 2004 to file suit–two years after the three year statute of limitations had expired.  So Sotomayor’s decision is hardly “extreme;” it simply held that land developers have to follow the same statute of limitations rules as everyone else in the country.

Moreover, the NYT’s claim that Didden was some kind of victim in this case is absurd.  As Text and History explains, “Bart Didden was a commercial developer who owned property in the blighted area that he had been trying for years, without success, to develop into a CVS pharmacy.”  Once Port Chester included his lot in the urban renewal area, however, the value of Didden’s land skyrocketed.  Suddenly, what was worth close to nothing was worth $800,000 or more; but Didden was not satified with this enormous increase in his land’s value, so he tried to hold out for more.

In other words, the only question in Didden’s lawsuit was whether he would get a massive windfall, or an awesomely massive windfall.

Given the real facts of this case, it’s easy to understand why Judges Reena Raggi and Peter Hall, both George W. Bush appointees, joined Judge Sotomayor in unanimously rejecting Didden’s claim.  Maybe next time, the New York Times will bother to check its facts before it goes to print with a story that was virtually dictated to it by the right.

Washington Times Demands More Activism From Sotomayor

An editorial in today’s Washington Times accuses Judge Sotomayor of being unwilling “to provide more reasoning than a few hundred words for controversial cases in which the public clearly sides against [her] position.” Citing four cases in which Sotomayor handed down a short dissenting opinion or a brief unpublished order, the editorial claims that she is “dismissive[] when ruling against individual weapons rights, property rights and the employment rights of white firefighters and against a state’s traditional authority to prohibit currently imprisoned felons from voting.”

This editorial, however, reveals far more about the ignorance of the Washington Times‘ editorial board than it does about Sotomayor. The overwhelming majority of federal appeals are resolved by a brief unpublished order–Tom Goldstein’s seminal study on Sotomayor’s race cases, for example, found that her court published a decision in only 5 of 55 decisions affirming a district court’s decision. Lengthy published opinions are rare, not because judges are “dismissive,” but because their use is reserved to groundbreaking decisions that resolve previously unresolved questions of law. Yet, according to research compiled by The Wonk Room, each of the four decisions cited by the Washington Times, did nothing more than follow well-established law:

• The Second Amendment: Last year, the Supreme Court held for the first time that the Second Amendment protects an individual right to bear arms. But another Supreme Court decision, which has never been overruled, held that the Second Amendment does not apply to state laws. So, in Sotomayor’s decision upholding a New York State ban on nunchaku, she did nothing more than recognize that only the Supreme Court has the “prerogative of overruling its own decisions.”

• Property Rights: In 1999, two developers learned that their land was part of a “redevelopment zone” and subject to seizure by eminent domain. Yet the developers waited until 2004 to file suit–two years after the three year statute of limitations had expired. Sotomayor’s decision held simply that land developers cannot wait forever to file a claim, just like everyone else.

• White Firefighters: In her now-famous Ricci decision, Judge Sotomayor held that an employer could decide not to certify the results of a promotion test that had an adverse impact on minorities. In 1984, eight years before Sotomayor became a judge, her court decided a virtually identical case called Bushey v. New York State Civil Service Commission, and it reached exactly the same result. So Sotomayor simply followed the binding precedent established by Bushey, which has never been overruled.

• Felony Disenfranchisement: Bizarrely, the Washington Times lumps Sotomayor’s published dissent in Hayden v. Pataki together with the other cases on this list as an example of her “dismissive approach.” Although Sotomayor’s dissent in Hayden was brief, she also joined a 32-page dissent by George W. Bush appointee Barrington Parker–judges frequently join the opinion of another judge that they agree with rather than waste effort repeating what has already been said. Moreover, Sotomayor’s dissent in Hayden rejected the majority’s claim that they could invent an exception to the Voting Rights Act which does not exist in the text of that law. Sotomayor thought that Congress gets to decide what the law says, a majority of her colleagues thought that they knew better than Congress.

In the end, we can either live in Judge Sotomayor’s world, a world where judges follow the law, or we can live in the Washington Times‘ world, where the law must take a backseat to whatever is popular.