Tuesday, May 26, 2009

Sotomayor = Supreme Court Pick! Plus: Anti-Conservative Talking Points

[Latest Sotomayor Update: The Audacity of Hypocrisy: Mike Huckabee Says Appointing "Maria" Sotomayor Will Lead to an "Extreme Court"]

Well, it looks like the smackdown against the smackdown worked. Obama has shown courage in the face of conservative distortion and apparently chosen Sonia Sotomayor for the bench.

Source: CNN

Anti-Conservative Talking Points
Conservatives and so-called liberals launched an effort to discredit Sotomayor as soon as Justice Souter announced his retirement. Nothing in Sotomayor's background substantiate the claims that her detractors have made.Here are some great talking points to deal with the inevitable conservative meltdown over the prospect of Sotomayor's appointment.

Jeffrey Rosen started this narrative with his unbalanced analysis of Sotomayor. Several sources have persuasively rebutted his flawed analysis.

Leftwing Ideologue
Conservatives are doing their best to depict Sotomayor as an unthinking leftist. But the SCOTUS blog has published a 4-part series analyzing her body of cases as an appellate judge. Her record speaks more persuasively than the conservative rhetoric.

Ideology and Judging Are Mutually Inconsistent
Both parties advance this bizarre rhetoric -- but only when the opposite party has the power to make the appointment. Decrying "ideology," liberals went after Bush's nominees, and conservatives are poised to battle Obama's choices. Both sides, however, are absolutely deceitful on this issue. Ideology is perfectly consistent with judging, and politicians throughout American history have recognized this fact. Ideology, however, does not necessarily prevent an individual judge from engaging in debate, adhering to precedent, or making reasonable conclusions about the law.

Driven by Identity
Several commentators have extracted sentences out of a speech Sotomayor delivered at the University of California at Berkeley in order to portray her as a judge governed by identity politics, rather than logic. That argument, however, severely distorts the substance of her speech, and it also ignores the extent to which identity actually matters within law. Justices from O'Connor to Scalia have made the same argument.

Lacks Judicial Temperament
Rosen, selectively drawing from reviews in the Almanac of the Federal Judiciary, depicted Sotomayor as a domineering fireball. But a comparison of the Almanac's review of Scalia reveals that the two judges both seem to have a tough and highly engaging style at oral arguments. Nevertheless, the book portrays this as a negative quality in Sotomayor and a positive one in Scalia. The disparity corresponds with negative stereotypes about strong and intelligent women.

Given the many ways in which opponents of Sotomayor have attempted to prevent her nomination, I am surprised that Obama followed through with it. In fact, I thought Elena Kagan would get the nod. But a lot of advocacy and responses to the distorted analysis seem to have worked. Also, Obama skillfully waited until debate had taken place before moving on her candidacy. Kudos!

Update: The White House has more extensive (and definitely better) talking points: White House Armed With Talking Points For Sotomayor Fight--Evoke Her "Empathy"


Hank Gillette said...

Most of what I read in the last couple of days seemed to indicate that it was down to Kagan or Woods, with Kagan having an edge due to her youth and position on executive power.

I did not have a favorite in this, but was kind of rooting for Sotomayor after the clearly unfair remarks about her were spread around.

Landru said...

Not that Judge Sotomayor's (or President Obama's) opponents will give up:


Mark G said...

As always, the public debate will be carried out by folks on both sides who have little grasp of what a good judge looks like, or what Sotomayor's past work says about her judging.

Just between us lawyers, though, the Ricci thing does not smell right. When I worked for an appellate judge, a short non-published decision on a contentious issue was a good sign the author knew she was bending the rules to reach the right result. Absent a silver-bullet defense, it is almost never appropriate to enter summary judgment against a plaintiff, without a trial. But that's what Sotomayor upheld in Ricci, with no discussion of the evidence.

SCOTUS talks about how the spinners on either side will handle Ricci. I would like to see an even-handed discussion of whether or not the judge's ruling in Ricci can be justified in light of her duty to assume that all of the firefighters' evidence was true, and all of the City's testimony untrue. What do you say, Professor?

Darren Lenard Hutchinson said...

Hank Gillette: I actually thought it was leaning Kagan too. And, like you, I did not begin the process favoring any of the "shortlist" candidates.

Landru: I agree. They will fight.

Mark G: Hi. I almost gave the Ricci scenario as a final exam question this year. I think the issues are more complicated than the media discussion (and you agree).

Summary judgment is frequently granted in discrimination cases. Most fail to get past a motion to dismiss. Also, summary judgment means that the parties do not dispute the material facts. The City conceded that it took race into account, but that it was justifiable. Accordingly, the issue reduces to a legal analysis of the justification.

I predict a 5-4 ruling, which would mirror the 2-1 panel split and the 7-6 decision to deny en banc reargument by the 2nd Circuit.

Here are the basic sides from my perspective (and I reached these conclusions before I read the District Court ruling).

THE LIBERALS: The City's test created a very stark racial pattern benefitting whites. Under Title VII, statistical patterns of discrimination can give rise to liability. Title VII requires employment criteria (like tests) to be validated as serving a legitimate business interest -- and that they are not overly discriminatory. The City could have been subject to liablity. So it withdrew the test.

Many of the conservatives on the Court (most recently, Justice Kennedy) have argued that state actors can reform their policy choices to minimize racial disparities without the resort to affirmative action. Scalia said that rather than using a "set aside," cities could use "race neutral measures." Kennedy made similar arguments in Parents Involved. He even said that these measures would not violate the constitution -- even if they are race conscious.

Accordingly, the City has argued that it withdrew the test in order to come up with new criteria in order to avoid litigation, among other things. Also, because no one received a promotion, the City questions the "injury" to plaintiffs.

The 4 extreme conservatives equate any race consciousness with Jim Crow. So there is no need to analyze them.

Kennedy, the right-leaning moderate, says that covert usage of race is ok. He tends not to like race-based decisions that are discernable by the impacted individuals. For this reason, I suspect the he will vote with the majority - despite his recent opinion that seems to validate the City's actions.

PS: Due to a lack of time, I did not proofread this post. I apologize for any errors.

Mark G said...

Professor -- I don't know anything about discrimination actions. But let me get this straight -- if the City's test had focused solely on the rudiments of how to use firefighting equipment, and the whites who took the test all passed, and the minorities took it all failed, do you mean to tell me the City could be subject to liability for promoting competent firefighters over incompetent ones?

As for Judge Sotomayor, my question is not whether she applied an expansive but arguable interpretation of the law, but whether she ignored evidence of actual discriminatory intent to reach her preferred outcome -- which in my view would make her a bad judge. The Supreme Court may or may shed light on that question, in the process of debating the applicable rule of law.

Darren Lenard Hutchinson said...

Mark G - the test you describe sound like its "tailored" to the position. Basically, the law in the area looks for a "nexus" between the job criteria and the job. A classic line of cases in this area involved challenges to height and weight criteria in law enforcement and fire fighting positions that excluded women.

On your second point, it does not matter whether the City discriminated, but whether it could pass the requisite test for justifying its discrimination (strict scrutiny). Remember, all rights are subject to a "means-end" analysis, i.e., they are not "absolute." The issue of discrimination -- or more precisely, taking race into account -- is not in dispute. There is absolutely no way that the City could or would deny taking race into account. The City's defense is that it took race into account to avoid Title VII liablity and (I believe) to maintain diversity. So - no. She's not a "bad" judge for this case. Remember, 7 judges (including Sotomayor) on the Second Circuit refused to grant reargument, and 1 other judge on the panel joined in the per curiam ruling, and the District Court voted for the City as well. That's 8 judges voting for the City. Unless they are all bad or corrupt, then this case is a lot closer than the media depictions of it. Again, I predict a 5-4 ruling either way. So, either 12 or 13 judges will likely vote for the City by the conclusion of the case.

Mark G said...

You are kind to suggest that I would "remember" the principles of discrimination law. Honestly, I don't know beans about it. I know plenty about summary judgment, however, and if the firefighters had even a shred of evidence that the City's claim that it acted from fear of litigation was a pretext, and that the decision maker acted from racial prejudice, the firefighthers were entitled to a trial.

Maybe I will slog through the District Court's opinion to see if it makes sense to me.

Mark G said...

OK. Read the darn thing. Here is the key graph:

Defendants' motivation to avoid making promotions based on a test with a racially disparate impact, even in a political context, does not, as a matter of law, constitute discriminatory intent, and therefore such evidence is insufficient for plaintiffs to prevail on their Title VII claim. Accordingly, the Court will grant defendants' motion and deny plaintiffs' motion for summary judgment on this claim.This is a bit of slight of hand. The Court was bound to view the evidence in the light most favorable to the Plaintiffs. A reasonable juror could have found that the City was motivated, not by a desire "to avoid making promotions based on a test with a racially disparate impact" or to promote diversity, but rather by a determination that only black firefighters would get promotions, because the administration's political supporters were black. Now, again, I don't know discrimination law -- but wouldn't the plaintiffs have a case if the City's motive was to benefit its preferred racial group, leaving the Plaintiffs out in the cold?

Mark G said...

I omitted by conclusion from all the reading -- without access to the actual evidence I hesitate to accuse Sotomayor of result-oriented judging. But I think the short shrift she gives to what clearly are weighty factual and legal issues is very unimpressive.

My rule of thumb for intellectual honesty is, does the writer "give the devil his due," and acknowledge the other side's points. In this one case, I don't see Sotomayor doing that.

Of course, it's only one case.

Darren Lenard Hutchinson said...

Your most important words, Mark: "It's only one case." The SCT issued a per curiam decision in an important abortion case. This is not the first time this has happened. As an appeals judge, she has authored 150 civil opinions, and I am not sure how many she authored as a district judge. If this is the only CASE people can cite against her, then the case is extremely weak.

Anonymous said...

[From Mark G] Sorry. I've been around appellate courts for 25 years, and this per curiam decision is highly unusual.

As I recall, the D's made much of one or two of Alito's decisions on hot button issues, even though he had authored plenty of competent, unremarkable opinions on politically uninteresting topics.

Anonymous said...

Dear Mr. Hutchinson: Elections have consequences. Sotomayor is going on the Supreme Court, short of an asteroid wiping out the planet. Do you have any second thoughts about your comment that a "script" was being followed by various Senators to push for a nominee

She's still a bad choice. Mark G., plainly more learned in the law than I, made a case against her, doing what you said, looking at an opinion she may have written, certainly approved in any event. You said quite a few words refuting him, many of which dismay me. He came back. Now you've retreated to "It's only one case," i.e. "I admit she was wrong, but it doesn't really count." You might be right. But this leads to another question: how many cases have to be "wrong" before Sotomayor suddenly becomes less than well qualified. Two cases? Six? Eighteen? I don't expect an answer from you on this, because of this other sentence you wrote:

"The 4 extreme conservatives equate any race consciousness with Jim Crow. So there is no need to analyze them."

For someone who decries the Right's not reading Sotomayor's opinions for nuance, that's a hell of a thing to write.

As I said, elections have consequences. Sotomayor is going upstairs. I can't get too agitated because a) it isn't going to change the balance on the Court that much. A mushy liberal will be replaced by a fanatic. I use "fanatic" based on her Berkeley speech. All the "nuance" you attribute to it is bunkum. Had any of "the 4 extreme conservatives" used Sotomayor's words, switching "white" and "Latina", you denounce them as bigots. You'd be right to do so. I don't buy the notion that minorities can't be racist. If as has been said, it is hard enough, to rise above our varous experiences, Sotomayor's speech merely makes a "What's the use?" point. I can't see how that enhances her stature.

b) the foreign situation is extremely dangerous at the moment. The North Korean nuclear test, the Iranian saliva bath to Obama's attempts to reach out, the continuing deterioration of Pakistan, Obama's coldness to Israel, leaving them prone to desperation---all add up to a devil's cauldron that makes the Supreme Court seem small.

Sincerely yours,
Gregory Koster
(not of CUNY)

Darren Lenard Hutchinson said...

Greg - no second thoughts at all. As late as last week, I believed Kagan would get it (short of making a prediction). Also, the NYT has a great play-by-play of the selection process. Apparently, Obama only decided over the weekend to pick Sotomayor. So, the script might not have been completely off base.

As for your reading of Mark's and my discussion - you are entitled to your opinion even if it's completely wrong and unsubstantiated. Mark and I had several exchanges, and frankly I had other things to do.

Also - you're always looking for something sinister, but there was absoltely nothing to say about the conservatives. It is very easy to predict how they will rule. In the most recent affirmative action case they compared it to Jim Crow (go look it up). Neither of them has voted to uphold an affirmative action plan. Besides, I -- unlike the commentators who have referenced Sotomayor -- have written many blog posts and over a dozen law review articles specifically analzying the content of judicial opinions. Any effort to say I run away from arguments is absolutely ridiculous.

But so that Mark will feel no slight: Is the language you cite from the DCT opinion? The panel issued a very short per curiam decision.

Darren Lenard Hutchinson said...

Anonymous: The "D's" focused on his abortion ruling on the Third Circuit. I tend to view this as something presidents just get to do. The Framers gave this to the presidents for a reason. Today, we pretend that the process is not about ideology and end up wasting a bunch of time going through the charade.

Mark G said...

Professor -- Don't feel slighted at all. The quote was from the D.Ct. opinion, which the Circuit Court adopted as its own. My goal was to form my own opinion whether the trial court and circuit court decided the case correctly. Of course, both courts were obliged to apply the same standard of review.

Interestingly, I understand that the current solicitor general filed a brief stating far better) the same conclusion I reached -- the trial court failed to look at the evidence in the light most favorable to the Plaintiffs.

The last anonymous post was from me. I meant to respond to your suggestion that it is unfair to evaluate Sotomayor based on one or two questionable decisions, given that she has authored hundreds that are unobjectionable. Maybe I am missing your point -- are you saying that it was likewise unfair to pillory Alito over his abortion ruling?

Darren Lenard Hutchinson said...

Mark G: Thanks for the clarification. I am saying that the ideology warfare misses the point of the judicial appointments process. The Framers placed the matter in the political branches recognizing that it is a political decision. Presumably, the Court could hire its own members -- just as the justices hire their own legal staff (clerks, etc.). Making it an issue of presidential and senate politics means that the process will reflect the public will. The election of Bush II two times, Reagan twice, and Bush I resulted in conservative justices. I cannot get angry that conservative presidents nominate conservative justices. Instead, I have to try to get liberals elected. It goes both ways!

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