Tuesday, June 2, 2009

Sotomayor's Diverse Former Law Clerks Give Her Strong Endorsement

Sotomayor's former law clerks have written a letter to Senators Harry Reid, Mitch McConnell, Patrick Leahy, and Jeff Sessions. The diverse group of former law clerks strongly strongly endorses the Supreme Court nominee. Here's my favorite passage:
As former law clerks to Judge Sotomayor, each of us can attest to her intellectual prowess, extraordinary work ethic, and commitment to the rule of law. Working for Judge Sotomayor is an awe-inspiring experience. . . .Judge Sotomayor approaches each case with an open mind and arrives at her decision only after carefully considering all of the pertinent facts and applicable rules of law. She brings to each case not only her formidable intellect, but also her practical judgment, honed from years of real-world law practice and experience solving difficult problems as a federal district court and appellate judge. Numerous commentators have remarked upon Judge Sotomayor’s wealth of judicial experience. This experience is clear whenever she takes the bench. Judge Sotomayor is thoughtful, engaged, and well-prepared during oral argument, showing an extraordinary grasp of the factual details and legal nuances of her cases. She is a judge who is tough and fair, yet highly respectful of her colleagues in the judiciary (including those with whom she sometimes disagrees) and the litigants appearing before her. . . .Our view of Judge Sotomayor mirrors her reputation among her colleagues on the bench and among members of the bar who have practiced before her, who widely respect her intellectual dynamism, collegiality, and balanced, fair jurisprudence.
Great stuff!

For links to all of my essays on Sonia Sotomayor see: Sonia Sotomayor on Dissenting Justice


Kansas City said...

I hate to be so negative, but again, come on. Law clerks at all levels almost always strongly support their judges and, with the possibility of your judge becoming a Supreme Court justice, no former law clerk in his/her right mind would say anything negative on the record.

PS - I happen to think Sotomayer should be confirmed and is about as moderate a judge as one could reasonably expect Obama to appoint, although I do not like judges who are abusive to attorneys during oral argument.

Her performance in the Connecticut reverse discrimination case was an embarassment, but perhaps she will learn from that mistake and perhaps the appointment process will help her grow some out of her racial perspective mindset.

Anonymous said...

KansasCity -- First, law clerks don't have to write a letter supporting their judge. They can just sit back and see what happens -- and in this case, it is quite likely that Judge Sotomayor will be confirmed, so they can bask in her reflected glory without lifting a finger to support her. The fact that so many of clerks took the time to sign on to this letter says something about their esteem for her.

As for the substance of your remarks, what is her "racial perspective mindset?" That she recognizes that her upbringing has shaped her outlook? This seems to be a relatively uncontroversial point -- Clarence Thomas goes on ad nauseum about his upbringing in the segregated South and the way in which it has shaped his views. Sandra Day O'Connor's upbringing on a Western ranch certainly shaped her views on property rights, and we all know that her experience as a woman in the legal profession shaped her views of gender discrimination. I'm actually impressed that Judge Sotomayor has been honest about it, and more importantly, has insisted that, as a judge, she must transcend her own experiences in order to understand where her colleagues, and the litigants who appear before her, are coming from.

As for the Ricci case, she was one of three judges on the panel that decided the case by a per curiam summary order. It was not her decision alone. And the summary order basically said that the issues raised were resolved by existing circuit precedents (and 6 of her colleagues agreed when denying the request for a rehearing en banc).

Kansas City said...

My point is that, of course, former clerks almost always have esteem for their former judge. Also, Sotomayer and most other federal judges are generally worthy of the esteem. But the letter is no big deal and, as to your point, how many former clerks do you think would say no to the letter even if they had reservations about a person about to become a supreme court judge. She will read who signed on and who did not sign on.

I don't have the summary order in front of me, but I do recall that it had little, if any, citation of existing Second Circuit precedents. In fact, there were not on point existing authority, as recognized by Judge Cabranes [sp?] calling it a case of first impression.

The per curiam order was pretty obviously an attempt to bury a case that raised significant anti-affirmative action issues and arguments without anyone noticing. She and her two colleagues got caught and now they are going to be embarassingly reversed by the Supreme Court.

The Second Circuit is notoriously liberal, so that fact that 6 or 13 actually voted to grant rehearing in banc reveals much more about the problem in Sotomayer's handling of the case than the fact that she got 6 (presumably only 4 if the other two judges on her original panel were active non-senior judges - I don't think senior status judges get a vote on en banc matters) to vote to deny en banc rehearing.

Darren Lenard Hutchinson said...

KC - Read her ABA ratings! Also, I completely disagree with your description of the Ricci decision. First, even the SCT has issued per curiam decisions in important issues -- like abortion. The Supreme Court issued a memorandum decision -- even worse -- in a sodomy ruling once. Conservatives who describe the ruling never place it into context. I have taught hundreds of Supreme Court decisions and read thousands of lower court decisions. That provides an accurate context for looking at the ruling.

Also, conservatives rarely talk about the law in this area. First, it is abundantly clear to anyone with knowledge of Title VII that the statute allows for "disparate impact" claims. Also, Justice Kennedy and Justice Scalia have both argued that as a substitute for "affirmative action" governments can use "race neutral" measures to achieve the same goals. Combined, these two arguments support the panel's decision. I suspect that the SCT ruling will split 5-4. So, let's say the ruling is overturned -- then 12 judges (including the district judge and the Second Circuit en banc judges, plus the SCT dissenters) will have voted in favor of the City, while 13 will have voted against the City. Efforts to villify Sotomayor based on this decision are groundless. At most, it is a close case, and the closeness of the votes demonstrates that.

Alito, by contrast, was reversed by the SCT 6-3 in the Casey decision. The specific part of the ruling found that it was unconstitutional to require women to notify their husbands before an abortion. Alito said it was not. Of course, this does not make Alito unqualified for the bench. But again, context and perspective seem to matter very little.

Finally, you contend that she has a "racial perspective mindset" that she will hopefully "grow out of," but you cite to nothing indicating that this perspective has done anything to cloud her decisions. The SCOTUS blog has analyzed all of the race cases she decided, and the "kneejerk" conservative view that tries to portray her as some racially biased judge is completely ludicrous. The fact that the GOP "might" want the fight her nomination proves that it is in suicide mode.

Darren Lenard Hutchinson said...

PS: The Second Circuit "notoriously liberal"? I guess that's a matter of perspective. Some Republicans say Bush was a liberal. Interesting. Please name the "notoriously liberal" rulings by the Second Circuit in the last five years.

Anonymous said...

a letter from former clerks... Big deal?! The clerkship is one of their main accomplishments on their CVs. So what do you expect, of course they will sing praises to her.

As far as the SCOTUS's assessment of her. I wonder if the blog affiliated with a firm with the heavy Supreme practice would dare to say,if true, that some of the future Justice's opinions were influenced by race consideration complicating her confirmation.

in my view, she should be confirmed. Though this nomination shows that Obama is not a true leader but a run of the mill politician. Why would he choose a mediocre circuit judge. If her skin color wou be white or black, her nmination would raise a lot of eyebrows.

Kansas City said...

Anon is correct.


You attempt to switch the subject to her ABA ratings.

On Ricci, sure, the split will continue to be pro-affirmative action judges versus color blind judges. But you are disingenuous in not acknowledging that the per curiam approach was an attempt to quietly dispose of a case that raised significant issues. Courts issue per curiam decisions regularly, but not often on significant issues such as the ones raised in this case. I assume you read the opinion. It was a duck of the issues. I don't think it cited more than one case and, as Judge Cabranes said, it ignored a significant issue of first impression.

As to disparate impact, it is an available theory and, in this case, the purported fear of a disparate impact claim was a stated reason for denying the promotions to persons who had done well on the test. If accepted as a valid summary judgment defense, it would be available in a broad range of reverse discrimination cases and would only be used as a reason to deny employment opportunities to whites. That sound okay to you?

What if there was a reason for denying opportunities that only applied to African Americans? Would that still be okay with you?

In the Ricci case, the city designed the test carefully to avoid any disparte impact, then still used the fear of disparte impact to deny promotions to whites. Then they came up with the further dodge of not promoting anyone. You would be howling if such tactics were used to deny promotions to African Americans.

Finally, as you probably know, disparte impact cases are normally hard to prove, e.g., in this case, the plaintiffs would need to prove that the test actually had a statistically significant disparate impact on African Americans. There was no such proof presented to the City and there likely never would have been. If there had been down the road, then the situation could have been looked at and addressed at that point.

Darren Lenard Hutchinson said...

KC - I mentioned that the SCT issued a per curiam decision in an abortion case and a memorandum opinion in an fundamental rights/sodomy ruling. But, rather than engaging that fact, you ignore it and simply restate the same argument. Restating it does not make it valid.

Actually, if Kennedy rules for the the plaintiffs, that will not make him "colorblind." He has said that "race neutral" policies that are founded upon a desire to create racial equality (i.e., are "race conscious") are legitimate. I mentioned this in my prior post as well. See Parents Involved.

As for the disparate impact theory - I actually embrace it. First, Congress has mandated it -- not Justice Sotomayor. Second, it helps to root out discriminatory policies that are facially neutral. White have relied upon these types of arguments too. And while disparate impact cases are hard to prove, they are not impossible. Title VII does not require that an employer actually lose a case before altering its policies. The case is clearly a close call. You have not made any argument that demonstrates it was not.

Matt said...

You know, if these comments were written by strong latina women, they would probably make sense. As it stands, it's just a bunch of honkey jibber jabber.

Darren Lenard Hutchinson said...

Anonymous....calls Sotomayor mediocre and "wonders" -- without reading --whether the SCOTUS blog is "biased." Wrong on both counts! The SCOTUS blog presents great analysis. One writer disagreed with the race article, and nothing in her record says that Sotomayor is mediocre. Only conservatives and Jeff Rosen have made anything close to this assertion. But of course, they are "unbiased."

Darren Lenard Hutchinson said...

Matt -- applying his own standard -- proves he is not a Latina!

Matt said...

I reserve the right to exercise my first amendment rights to jibber jabber meaninglessly until I'm blue in the face . . . at which point, coincidentally, I will no longer be a middle-aged white guy but rather a blue one, and my opinion will have to be subject to interpretation.

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