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The Sotomayor Nomination, Part II

Online Debate

On May 26, President Obama nominated Sonia Sotomayor to replace David Souter as an Associate Justice of the Supreme Court of the United States. Judge Sotomayor's Senate Judiciary Committee hearing on her nomination began on July 13th. In this installment ofOriginally SpeakingMatthew J. FranckThomas C. GoldsteinWendy LongScott MossLouis Michael SeidmanDavid Stras, and M. Edward Whelan III discuss issues that are arising during the confirmation hearing.

To read Part I of this debate, please click here.

To read Part III of this debate, please click here.

Questions and Answers:

Day 1, July 13, 2009

Day 2, July 14, 2009

Day 3, July 15, 2009

Day 4, July 16, 2009

Nomination to the Supreme Court (2009)

Nomination to the Court of Appeals for the Second Circuit (1997-1998)

Nomination to the District Court for the Southern District of New York (1991-1992)

Other

Wendy Long: I am now up on Capitol Hill for the hearings. I'll try to keep up with debate via blackberry.

Mike, I don't think I have said anything about ethnic bias in the context of Ricci. I think the personal bias Sotomayor has spoken of manifests itself in a racial quota policy commitment. That policy preference she has to quotas overrode the law in this case. And it led her, as a procedural matter apart from substantive law, to engage in judicial malpractice by trying to bury claims with no legal analysis.

I think it is interesting, and heartening, that the Hispanic firefighters don't buy into the quota mentality. I think the cynical Obama calculation that Hispanics don't want colorblind and even-handed enforcement of the law, and employment decisions based on merit, is misplaced.

Thomas C. Goldstein: Hi everyone. Sorry to have missed a bunch of the party while out of town and during the morning of the hearings. I thought I might offer some thoughts on Wendy's take on Judge Sotomayor from closer to the political center.

The idea that there is a presumption that Judge Sotomayor cannot decide cases without personal bias runs head-long into every study of her decision-making. So some of this debate, when you dig down into her record, would involve cutting and pasting big chunks of those studies.

You certainly can't equate the Second Circuit's ruling in Ricci with bias, any more than you can the votes of the conservative and overwhelmingly white majority on the Supreme Court. And the debate over whether the Second Circuit should have issued a full opinion rather than issuing a summary affirmance agreeing with the district judge on the basis of the court of appeals' prior precedent is dancing on the head of a pin. With decades of decisions under her belt, the fact that opponents are reduced to drawing inferences from snippets in her speeches is really the best evidence that the critique lacks considerable force.

The claim that Sotomayor's defense has been "conclusory" is ironic. And the assertion that this nominee should be subjected to a higher standard in answering questions than were the Chief Justice and Justice Alito really is just terrifically convenient.

I just wonder if committed opponents are able to think back to how they believed people would react to Nan Aron's attacks on Roberts and Alito, and think that they sound any different. Someone who "know[s] from the outset that she's not even going to try and be impartial" comes across to me at least (and maybe me alone) as playing a role, rather than trying to objectively study the record.

Everyone participating in this debate, and every single person reading it, knows that parallel assaults would have been made on any nominee of President Obama, just as they were against Roberts and Alito.

Louis Michael Seidman: You certainly have to credit Wendy Long's energy. It would take a small amy to answer all the charges she keeps leveling at Judge Sotomayor. I'm not sure that I can keep up. Here's a response to two of her new claims:

1. Wendy chides Judge Sotomayor for expressing puzzlement as to why the abortion records of individual women, subpoenaed by the Bush administration, were relevant to the case before her. Here are the facts: At the time the case was decided, Supreme Court precedent, which Judge Sotomayor was bound to follow, provided that regulations of late term abortions were facially unconstitutional unless there was a exception permitting the abortion technique if it was necessary to preserve the health of the mother. It strains credulity to believe that individual medical records would have reaveled whether there was a health need for those particular abortions. But here is the crucial point: Even if every one of these individual records did show that the abortions were unnecessary, the government would still not have met its burden of proof. Under the law as it existed at that time, the government was required to show that the abortion technique was NEVER necessary, and showing that it was unnecessary in a few particular cases did nothing to meet this burden. Thus, Judge Sotomayor was absolutely right in thinking that the records were irrelevant. Incidentally, after several other courts rebuffed Bush efforts to subpoena records, and after a national uproar about the subpoenas, the Bush administration quietly dropped them.

2. Wendy accuses Judge Sotomayor of "personal bias" because she supported a "racial quota policy" in the New Haven Firefighters case. This statement is unfortunate in at least two respects. First, the Firefighters case did not involve racial quotas. No one, not even Judge Cabranes, who dissented in the Second Circuit, or the Supreme Court majority that overruled the Second Circuit has said anything to the contrary. Second, it is really too bad that Wendy is intent on elevating good faith disagreement to "personal bias." A majority of the Second Circuit and four Justices on the United States Supreme Court agreed with the result that Judge Sotomayor reached. Does Wendy think that all these jurists are guilty of "personal bias"? I think that the Supreme Court majority opinion in Ricci is deeply flawed, but I would never accuse the Justices in the majority of racism or bias. Doesn't Wendy owe Judge Sotomayor similar respect?

David Stras: I agree with Tom and respectfully disagree with Wendy that Judge Sotomayor has a greater obligation than other nominees to answer questions about her views on particular areas of law. As I said, I think that it was a mistake for President Obama to use the term "empathy" in describing his nominee and for her to make the "wise Latina" comment, but I do not think that requires her to be any more forthcoming than any other Supreme Court nominee.

But I again disagree with Tom that the Ricci line of inquiry is fruitless or is otherwise "dancing on the head of a pin." If the argument is characterized or explained as simply a decision as to whether to publish an opinion, then I think Tom is right that the objection will go nowhere. But if the objection is that Judge Sotomayor's consideration of cases is not nearly as careful or complete as her proponents claim, then I think the argument has merit (and it is a wonderful line of inquiry in that it targets exactly what judges are paid to do). All litigants that file lawsuits hope that the judges will give their claims careful and thorough consideration, particularly where the issues are difficult or controversial. I am absolutely convinced (as were six other circuit judges) that the issues in Ricci were extremely difficult and were not directly covered by Second Circuit precedent. I find it to be a very poor decision on the panel's part (including Judge Sotomayor) not to write a carefully reasoned opinion addressing the issues in that case. Is there a reasonable basis for disagreement on this question? Probably, but I do find it significant that nearly half of the judges in the circuit called out the panel in Ricci and that the Supreme Court dedicated over 90 pages to its disposition of the Ricci case. Although I am less familiar with Maloney and Didden, those cases also seem to me to warrant more analysis than the panels gave them. In particular, the question of incorporation of the Second Amendment against the states seems to me to be a difficult question, one that is by no means settled at this point. (Incidentally, the presiding judge does not control the disposition for the panel. My experience clerking in two different circuits is that, while it is true that the presiding judge leads the discussion on the disposition, any member of the panel may object to a summary disposition and push for a published opinion. I would be surprised if the Second Circuit were any different.)

None of this is disqualifying, of course, as I have said before. The best way to describe my view of the nomination is to say that I am agnostic at this point. Judge Sotomayor was about what I expected from President Obama given his sixty votes in the Senate, and elections do have consequences. I think President Obama could have done much better, but he also could have done worse (for instance, by nominating a politician with little to no legal experience). It really disappoints me, however, that there has not been more discussion of cases like Ricci,Didden, and Maloney. After all, I do think that an argument that Judge Sotomayor (or a panel in which she has participated) has not been careful in explaining her (their) reasoning in difficult cases would resonate with Senators and the American people (call it the "summary justice" argument). But that argument has not been made consistently or persuasively by opposition groups in my opinion, so we are unlikely to see a reasoned discussion of the issue, in part because the Democrats have probably successfully framed the debate by pervasively (but not persuasively in my opinion) claiming that Judge Sotomayor is a careful, thorough judge (arguing at times that she may even be too thorough).

Matthew J. Franck: The line between the Democrats and the Republicans on the first day of the hearings might be called the "umpathy" line. Republicans embraced the "umpire" model of judging advanced by Chief Justice Roberts in his own hearings four years ago, while most Democrats rejected that notion as simplistic or naïve. Democrats for their part embraced President Obama's "empathy" model of judging, holding that in the important cases the "heart" decides matters, while all the Republicans rejected this as an alarming guarantee of lawless judging.

In her very brief opening statement, Judge Sotomayor appeared to take sides with the Republican model of judging, against the Democratic one, saying that "the law always command[ed] the result in every case" she has decided as a judge. So where does that leave the Democrats? Whose notion of judging are they now defending? The nominee doesn't even appear now to be agreeing with the president who nominated her.

Scott Moss: There's a key fact missing from the argument that it was improper forRicci to be an unreported summary opinion rather than a reported decision: how common are unreported versus reported decisions? I was a lawyer in the Second Circuit for six years, mostly as an employment discrimination lawyer, and I had a vague recollection that summary orders were a fairly common way for the Second Circuit to dispose of a Title VII case. So I just looked it up: in 2008, there were 99 Second Circuit decisions other than Ricci that referenced Title VII or the other two major employment discrimination laws (the ADA and the ADEA). Before I tell you, take a mental guess as to how many were unreported decisions and how many were reported decisions. I can't say the stats bore out my vague recollection, because I was very surprised at just how many were unreported: only 28% (28 of 99) were reported decisions; 71% (71 of 99) were unreported.

So was it odd that Ricci was unreported? On the one hand, I agree with David that Ricci was a more complex case than the usual, which would make it the sort of decision typically more likely to be reported. But on the other hand, Ricci was a loss for a plaintiff claiming intentional discrimination, which I believe is the most likely sort of decision to be unreported; I admit I didn't break down the statistics to prove this last point, but I know that plaintiffs' win rates in employment discrimination appeals are so low (under 20%) that appellate decisions affirming discrimination plaintiffs' losses are a dime a dozen.

These statistics don't prove Ricci should have been unreported. But what they do show is this: the argument that Ricci should've been reported isn't (a) an argument that the panel did something unusual; it's (b) an argument that the panel failed to make Ricci one of the small minority of discrimination plaintiffs' losses to become a reported decision. In this light, the unreported nature of the Ricci decision wasn't quite "judicial malpractice," as Wendy argued it was.

Scott Moss:

Let me pose a question to both Wendy and Ed about a point they made in a National Law Journal article that quoted them. I suppose I'm posing the question a bit more to Wendy, because she made the point in a much less nuanced way than Ed did:

Only five of the 232 opinions Sotomayor has written in her 11 years as a 2d Circuit judge have been reviewed by the Supreme Court. Of those five, justices overturned three—including one environmental and one prison abuse case that are drawing attention. With a fourth, the Supreme Court upheld her bottom line judgment, but repudiated her reasoning. The fifth case was upheld.

"The poor quality of Sotomayor's decisions is reflected in her terrible record of reversals by the Supreme Court," Wendy Long of the conservative Judicial Confirmation Network said soon after President Obama announced his pick on May 26. Ed Whelan of the conservative Ethics and Public Policy Center said, "Although I'm wary of relying on statistics alone, the lopsided margins against her ought to provide a warning signal about the quality of her work." In the five cases overall, her decisions won 12 votes from the high court, with 32 votes against.

Really? Three reversals out of five cert grants out of 232 opinions is a "terrible record"? Let's even add Ricci (which came after that article's stats) to make it 4 reversals of 233+ opinions; is that bad? Do either of you have comparative stats for Judge Roberts or Judge Alito? Actually, I'm pretty sure I know the answer for Judge Roberts: one reversal (Hamdan v. Rumsfeld, one of the war on terror detention cases) out of I believe 43 opinions (I could have that number slightly wrong but not by a lot). That's actually a worse reversal rate for Roberts than for Sotomayor; was that a more "terrible" record? Of course not: as Ed conceded, we have to be "wary of relying on statistics alone"—especially where, as here, we're talking about very low numbers—one reversal in two years (Roberts) versus four reversals in (Sotomayor) versus whatever Alito had that I'm sure would be equally unilluminating.

The fact is that with such small numbers, there's no reason to think reversal rate is determined more by (a) "judging quality" than by (b) whether the Supreme Court shares your judicial philosophy (which would hurt Sotomayor's rate but would help Roberts's and Alito's), (c) whether you're (un)lucky enough to have fall into your lap a case like Ricci(Sotomayor) or Hamdan (Roberts), or (d) whether you tend to write more or fewer opinions in a hot field of law like Title VII (in one quick study I did, for example, Judge Diane Wood wrote over 50 employment discrimination opinions in the same time period when Judge Kim Wardlaw wrote zero).

Wendy Long: I'll try not to monopolize the debate. (I want to hit the ball back over the net, but maybe it's getting us off the Sotomayor subject.)

1. The partial birth abortion records were pertinent to the abortion providers' unsubstantiated assertion that partial birth abortion was the "safest" method of abortion, not to whether the abortions qualified under the expansive (and bogus, I might add) loophole-that-swallows-the-rule of a "woman's health" from Roe's companion case Doe v. Bolton. I am not the medical expert, but I think that a physician examining the records could not only offer an expert opinion that the method was not the "safest" in these cases but also that it is not "necessary." Anyway, I was trying to provide some questions, the answers to which, would illuminate Sotomayor's legal thinking—particularly interesting given her experience as a trial as well as appellate judge.

2. By "personal bias," I meant the Obama Standard that judges should apply their own personal "core concerns," "deepest values," "heart," and "empathy," and Judge Sotomayor's statements that that her "experiences will affect the facts that I choose to see as a judge" and that her "opinions, sympathies, and prejudices" are appropriate to use in deciding cases. Her statement today that her "judicial philosophy" is "fidelity to the law" answers nothing, and I think is actually misleading because it sounds like fidelity to the written law, and not the "law" in her heart. I don't doubt that she, and President Obama, for that matter, have a good-faith disagreement about the role of a judge, and what the proper sources of "law" are; part of what they endorse is the application of personal views, which I think is properly labeled "bias." But, as Senator Sessions said, you can call it empathy, sympathy, prejudice, or whatever you like, but we disagree (in good faith) over whether it is "law."

3. Judge Cabranes said that one of the questions raised in the case was whether "a municipal employer . . . discarding examination results on the ground that 'too many' applicants of one race received high scores and in the hope that a future test would yield more high-scoring applicants of other races . . . constitute[s] an unconstitutional racial quota or set-aside?" The Supreme Court in analyzing the case also referred to its precedents referring to "quotas." (I understand the Supreme Court did not reach the constitutional issue, but I thought that the term applied to the Title VII facts as well.)

New question: Do you agree with Senator Graham's statement today that it's fine for a Supreme Court Justice to have, as Judge Sotomayor does, a background as a far-left activist with the PRLDEF (which during her tenure filed briefs taking extreme positions on abortion, advanced quotas at the NYC police department, and attacked Mayor Dinkins for his criticism of Puerto Rican terrorists, for example)? If so, are you fine with lawyers who serve in leadership positions at organizations (far more mainstream than the PRLDEF) such as Americans United for Life and the National Rifle Association also becoming Supreme Court Justices, as Senator Graham said?

M. Edward Whelan III: Scott:

Before you delve into the fog of statistics, I'd suggest that there are a few prior points worth addressing about the initial use by Judge Sotomayor and her panel colleagues of an unpublished summary order to deal with the claims of the New Haven firefighters in Ricci:

1. In his blistering dissent from the denial of rehearing en banc(available here, beginning on the ninth page), Judge José Cabranes—Sotomayor's longtime mentor and fellow Clinton appointee—says that the appeal "raises important questions of first impression in our Circuit—and indeed, in the nation—regarding the application of the Fourteenth Amendment's Equal Protection Clause and Title VII's prohibition on discriminatory employment practices." He finds remarkable that the district court's "path-breaking opinion" was "nevertheless unpublished" and complains that the Second Circuit panel initially "affirmed in a summary order containing a single substantive paragraph" and then converted its summary order into a per curiam opinion. As he puts it in killer understatement, "This perfunctory disposition rests uneasily with the weighty issues presented by this appeal."

(It's true, of course, that the Second Circuit divided 7-6 against en banc rehearing, with five judges joining Cabranes's dissent. But two judges were in the majority only because of the circuit's "tradition of general deference to panel adjudication—a tradition which holds whether or not the judges of the Court agree with the panel's disposition of the matter before it." Of the five others in the majority, three (including Sotomayor) were the panel members. In other words, of the ten judges not on the panel, only two expressed disagreement with Cabranes's criticisms.)

2. The panel itself abandoned its use of an unpublished summary order just three days before Cabranes filed his dissent (and obviously with the knowledge that Cabranes would be filing his dissent). Why would it do so if its initial use was proper?

3. Reporting by Adam Liptak of the New York Times and Stuart Taylor of National Journal indicates that the panel violated circuit rules on use of an unpublished summary order. (Taylor's post also explains how the panel's use of an unpublished summary order would ordinarily have ensured that the case escaped further scrutiny.)

4. I fully concur with David Stras's assessment that Second Circuit precedents did not clearly and directly cover the issues in Ricci.

5. Even the Obama Department of Justice said in its Supreme Court amicus brief that the district court and the Second Circuit panel were wrong to award summary judgment to the city (even as it defended their broader legal approach).

Sotomayor's entire handling of this case raises serious questions, questions that cannot just be brushed aside.

Wendy Long: Ed's points here are all correct.

And statistics about the percentage of cases on the Second Circuit disposed of by summary order are irrelevant if the case disposed of does not fit the run-of-the-mill Social Security appeal or the other great bulk of cases that are disposed of under Local Rule 32.1, where the decision of the panel must not only be unanimous, but "each judge of the panel believes that no jurisprudential purpose would be served by an opinion (i.e., a ruling having precedential effect)."

I clerked on the Second Circuit and I can tell you, there is no way this was a summary order case. There is a certain level of trust that exists among the judges that cases are being disposed of according to the Circuit rules, to prevent the great burden of every judge having to read every summary order (the quality of jurisprudence in more difficult cases thereby suffering).

That Judge Cabranes had to find out about this case by reading The New Haven Registershould concern and shock anyone who cares about the integrity of our federal courts.

The Second Circuit precedents (and, as Judge Cabranes noted, even the Supreme Court precedents) simply did not address the issues raised in this case.

I stand by my characterization of Judge Sotomayor's behavior as judicial malpractice. As for her fellow members of the panel, yes, they did the same. I don't know their reasons—but whether it was carelessness, lack of attention, the desire to make a difficult and controversial case go away, a desire to implement race preferences without the scrutiny of a proper legal analysis, it was judicial malpractice.

But I do know that Sonia Sotomayor is the only panel member being proposed for the lifetime job promotion to the U.S. Supreme Court. Accordingly, it is her defense of this behavior that the American people should hear.

Louis Michael Seidman: I remain puzzled by the claim that "empathic" judging is somehow in tension with impartiality. Empathy is actually a necessary adjunct to impartiality. Here's an example: Wendy and I disagree about almost everything. But if I try to be empathetic toward Wendy, I say to myself something like this: "Obviously, Wendy is a smart and decent person. How did it come about that she believes the wacky things that she says? Could it possibly be that there's something to her position?" (I know, I haven't made much progress in empathizing with Wendy—I'm working on it!) In other words, empathy leads to open mindedness—a key virtue for a judge. That's why, when he testified in favor of his own nomination, Clarence Thomas went out of his way to tell the Senators that he empathized with the prisoners that he saw being herded into court every day. Does valuing empathy for the poor, powerless, and dispossessed demonstrate bias? Not at all. Most federal judges come from relatively privileged backgrounds. They have to work harder to be open minded toward those with backgrounds very different from their own. It's just this hard work that shields judges against the lazy dismissal of arguments that, at first, seem implausible. In other words, working hard to be empathetic helps to guarantee impartiality.

Scott Moss: Dittos to Louis, and I think one case is just devastating to the notion that Judge Sotomayor doesn't even believe in impartiality or try to be impartial, but instead rules based on bias for or against parties. (Full disclosure: some of the below paragraphs are from a blog post I just did on the below three cases.) In Pappas v Guiliani, Judge Sotomayor, alone among four judges (the district judge and three appellate judges), voted not to dismiss a fired police officer's First Amendment claim. Officer Pappas had been fired for responding to another police force's charitable solicitation with a tirade about how (among other racist views) the "Negro wolf" is "destroying American civilization with rape, robbery, and murder." Judge Sotomayor took the very clinical view that even hateful speech on public issues may be protected against retaliation. If Judge Sotomayor were so prone to ruling based on racial sympathies, she never would have gone out on a limb for someone like Pappas. Agree or disagree with her Pappas ruling, clearly Judge Sotomayor showed an excellent ability to issue a purely legal ruling divorced from her subjective view of the individual.

Two other Sotomayor cases show a key role in judging for life experience, empathy, and practicalities (things that Senator Sessions thinks "are not law"): Raniola v. Bratton (a 2001 decision cited by almost 200 other judicial opinions); and Cruz v. Coach Stores (a 2000 decision cited by almost 900 other opinions).

  • In Cruz, Judge Sotomayor reinstated a dismissed claim of hostile work environment harassment, on two important rationales. First, a hostile environment can be based on biased actions against multiple different minority groups, not just the plaintiff's group: "Because the crucial inquiry focuses on . . . the workplace environment as a whole . . . Remarks targeting members of other minorities . . . may contribute to the overall hostility of the working environment for a minority." Second, while "the district court apparently considered the instances of sexual harassment in this case too vague or isolated to support a hostile work environment claim," Judge Sotomayor explained that "[g]iven the evidence of both race-based and sex-based hostility, a jury could find that Bloom's racial harassment exacerbated the effect of his sexually threatening behavior." With these holdings, Judge Sotomayor displayed a perspective on the realities of being a workplace minority that the district judge, a respected and talented legal thinker, had failed to see himself.
  • In Raniola, Judge Sotomayor similarly reinstated a female police officer's dismissed claim of hostile work environment harassment and workplace retaliation. The district court's dismissal was based partly on a finding that the gender-based hostility wasn't necessarily offensive enough. Judge Sotomayor explained that the claim should not have been dismissed before a full trial, because a jury could have found a sufficiently hostile environment in (among other forms of hostility) the Captain referring to domestic violence victims as "bitches" and in multiple sexist epithets ("cunt," etc.) and in sexual insults being written about Officer Raniola on the police ledger as well as on posted flyers in the precinct. The district judge had depicted these as "barnyard street expletives," displaying how a lack of life experience, empathy, and understanding of workplace practicalities can lead to less-than-wise judging.

Cases like Cruz and Raniola are why I've never liked Chief Justice Roberts's "umpire" metaphor depicting a judge's job as merely calling balls and strikes. A ball/strike determination is whether a thrown baseball passed through a defined rectangle—an objective determination completely unlike the judgment whether Ms. Cruz's or Officer Raniola's years of harassment were abusive enough, or sufficiently sex-based, to be actionable as discrimination. There certainly are "ball/strike" calls judges make, like whether a defect is within the "strike zone" of a printed warranty; tens of thousands of such cases predominate in the nation's small claims courts but almost never reach the U.S. Supreme Court, which hears fewer than 100 cases a year that it chooses in order to resolve issues on which lower courts, or other branches of government, have reached inconsistent conclusions.

I think part of what's going on is that those fond of the "judge as umpire" metaphor have a distaste for the fact that judges regularly must undertake "reasonableness" and other subjective inquiries under various federal laws: harassment law (elements include (a) whether the harassment was "highly offensive" to a "reasonable person," and (b) whether it actually was perceived as "highly offensive" by this plaintiff herself); First Amendment retaliation law (retaliation is illegal if it's severe enough to deter a reasonable person from speaking freely); etc. With these legal inquiries forced on judges, you just can't draw the clean, bright line Senator Sessions and others would like to exist between "things that are law" (text and perhaps drafter's intent) and "things that are not law" (conclusions based on an empathetic understanding of a party, life experiences about what does and doesn't make a workplace hostile, etc.).

Matthew J. Franck: Does anyone think it significant that Sen. Kyl got Judge Sotomayor to explicitly disagree with Pres. Obama about the role of empathy or "the heart" in judicial decision-making? And does anyone seriously believe her contemporary reinterpretation of her notorious and repeated speeches on the role of gender and ethnicity in judging, in which she seemed to ordinary readers to be on the same page as Obama? My answers are yes, and no, respectively.

Louis Michael Seidman: Speaking only for myself (I guess that's obvious), I was completely disgusted by Judge Sotomayor's testimony today. If she was not perjuring herself, she is intellectually unqualified to be on the Supreme Court. If she was perjuring herself, she is morally unqualified. How could someone who has been on the bench for seventeen years possibly believe that judging in hard cases involves no more than applying the law to the facts? First year law students understand within a month that many areas of the law are open textured and indeterminate—that the legal material frequently (actually, I would say always) must be supplemented by contestable presuppositions, empirical assumptions, and moral judgments. To claim otherwise—to claim that fidelity to uncontested legal principles dictates results—is to claim that whenever Justices disagree among themselves, someone is either a fool or acting in bad faith. What does it say about our legal system that in order to get confirmed Judge Sotomayor must tell the lies that she told today? That judges and justices must live these lies throughout their professional carers?

Perhaps Justice Sotomayor should be excused because our official ideology about judging is so degraded that she would sacrifice a position on the Supreme Court if she told the truth. Legal academics who defend what she did today have no such excuse. They should be ashamed of themselves.

David Stras: We have dedicated an enormous amount of space debating the Ricci,Didden, and Maloney opinions, not to mention the "wise Latina" comment from which Judge Sotomayor has now distanced herself. In line with Matt's observation, I do find it incredibly interesting that Judge Sotomayor elected to distance herself so much from her prior statements. I thought she might advance an interpretation similar to Mike's, which we debated last week, or indicate that her speeches were meant to be aspirational rather than evaluative. She advanced a variation of the latter interpretation by stating that she was trying to inspire young Latina women to achieve success in the law, but she went further by stating that she did not believe that racial or ethnic background, standing alone, really makes a difference in the quality of a judge. I have not seen the transcript, but that is how I interpreted her remarks after seeing them live on television. So my apologies if I am misrepresenting her answers from today.

I do not want to dilute our lively discussion on these matters, but I do want to raise and discuss Judge Sotomayor's opinion in In Re Subpoena Issued to Dennis Friedman, 350 F.3d 65 (2d Cir. 2003), which was highlighted in Senator Cornyn's second daily question for Judge Sotomayor. As a federal courts instructor who revised an entire chapter of a casebook on justiciability, I find her opinion in the case quite remarkable (and not in a good way). TheFriedman case involved an appeal from an order of the district court quashing a deposition subpoena for Mr. Friedman, who was an attorney who had served previously as counsel to directors of a bankrupt corporation who were being sued in federal court. The plaintiffs in the case tried to depose Mr. Friedman, but the district court quashed the subpoena. Before the Second Circuit issued its opinion, Mr. Friedman agreed to the deposition and all three members of the panel (including Judge Sotomayor) agreed that the case was moot.

Nonetheless, Judge Sotomayor then dedicated more than half of the opinion to discussing the merits of the question before her: when and whether attorney depositions should be permitted under the Federal Rules of Civil Procedure. In doing so, she went to great lengths to conclude that, although attorney depositions are disfavored, the court would not adopt the reasoning of an Eighth Circuit opinion on which the district court relied and which her own circuit had cited approvingly in a 1991 case. In other words, the panel opinion arguably articulated new law in the Second Circuit, but Judge Sotomayor then admitted that her own opinion was dicta because the appeal was moot. Her justification for reaching the former merits was that two district judges had relied on the Eighth Circuit standard and that "a non-binding discussion of the merits will hopefully serve the useful purpose of cautioning about the limits of our prior rulings on a frequently litigated issue and perhaps avoid some needless appeals."

Wow. As a federal courts professor, I do not think I have ever read a similar case from a federal circuit court, at least not one from the past 20 or so years. The appropriate function of an appellate court faced with a moot appeal based on a voluntary settlement or an analogous situation is to dismiss the appeal and leave the lower court decision intact. See, e.g., Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18 (1994). Indeed, Judge Wesley wrote the following in his concurring opinion in Friedman:

This appeal has been properly dismissed as moot and therefore no adjudication of the rights of the parties is necessary or proper. The majority produces an odd result—a careful discussion of an issue that would have resolved a dispute but for the fact that it no longer exists. . . . I cannot agree that this now-mooted appeal warrants a writing on its former merits.

This is only one opinion and it can be dangerous to make broad generalizations about a judge's jurisprudence based on a single opinion. But if all I had was this opinion from her record, I would say that this is not a judge that understands the role of the federal judiciary. A court without subject matter jurisdiction should not decide the merits of an appeal; it is the very definition of an advisory opinion. What I find ironic is that there are a number of difficult cases where the panel in which Judge Sotomayor participated did not write a reasoned opinion (DiddenMaloney, and especially Ricci), but she wrote a lengthy, reasoned opinion over an issue in which the court had no jurisdiction. Go figure.

Wendy Long: Well, we've gotten to the point where Mike can speak for me, too.

I was disgusted by Judge Sotomayor's testimony (and some of the questioning by Senators).

I agree that she either perjured herself or is intellectually unqualified to sit on the Court.

It has to be one or the other.

A Larry Tribe or a Mike Seidman would never have answered questions this way.

Our Court needs smart, honest Justices.

There can be no honest debate about the two schools of thought on the role of a judge and the role of the Court in our constitutional republic when this kind of dishonesty, or intellectual vacuity, is on one side of the debate.

And the American people are being deprived of the promised transparency on this issue so that they can decide what mode of judging they support.

Louis Michael Seidman: I want to elaborate on some of the (perhaps intemperate) comments I made last night. There's no denying that Republicans on the committee put Judge Sotomayor in a difficult moral position, and I need not elaborate on their own culpability for doing so. Either Judge Sotomayor had to misrepresent what she knows judges (all judges, conservative and liberal) do in hard cases, or she had to risk defeat. I'm willing to concede that this is not an easy choice, but I nonetheless think that she made a serious mistake. To his tremendous credit, President Obama has made an effort in his public statements to shift the official ideology of judging so that it has some contact with reality. Yesterday, Judge Sotomayor explicitly repudiated the President. Here are some of the consequences of this kind of unilateral disarmament:

1. It means that the only people who end up on the Supreme Court are either naïfs or cynics.

2. It means that every official act that a justice takes deepens the corrosive cognitive dissonance between what she pretends to do and what she actually does. This kind of deep hypocrisy imposes psychic costs that, at some point, are bound to have an effect on decision-making.

3. Anyone who knows anything about law knows that the official version is a lie, but many Americans don't know anything about law. To them, the official version sounds plausible. Reinforcing that version has a terrible effect on the possibility of serious public deliberation about constitutional law.

The pity is that all of this was probably unnecessary. The Democrats have sixty votes in the Senate. It would have taken some courage for Judge Sotomayor to have told the truth, but not much. She said yesterday that judges should never decide cases out of fear. Yesterday, she testified out of fear. We have a right to expect better of her.

Matthew J. Franck: Mike,

For my part I find the president's account of the role of "empathy" in judging to be alarming, and I would welcome Judge Sotomayor's repudiation of his arguments—if I believed her. Frankly, I don't.

I think I know what you mean by the "official version" of what judges do. I agree with you that "applying law to facts" is too simplistic to capture the nuances of what Felix Frankfurter called "judicial judgment." But if it's not where I would stop, it's not a bad place to start. And if you mean to say that the political convictions of judges are either a) inevitably a part of their legal judgments or b) desirable elements of the same, then I disagree. Certainly their political convictions are not desirable elements in judicial judgment, and to the extent that they inevitably creep in, they should be minimized as close to the vanishing point as possible by every conscious effort a judge can muster.

Judge Sotomayor, in the speeches from which she now flees unconvincingly—sorry, I mean which she now assures us were misunderstood—takes the view that gender and ethnicity influence the convictions of the judge, which in turn influence legal outcomes. Like the president, she celebrated this rather than worrying about it. Now she sings a different tune.

Is she a cynic? Perhaps so. Bill Bennett said to me on his radio show this morning that at least we can take comfort from the fact that views like the president's and Judge Sotomayor's (before this week) are understood to be unacceptable to the American people when a bright light is shone upon them. I think that's right.

Scott Moss: I understand Mike's point but don't quite understand Wendy's agreement with it.

I thought Mike's key point was that Judge Sotomayor disingenuously purported to agree with the too-simplistic conservative sound bites on judging—the Roberts "a Justice is just an umpire making decisions as simple and objective as calling balls and strikes" metaphor, the Thomas "a Justice is a runner who discards all baggage of prior beliefs" metaphor, etc. That is, I understood Mike to have levied two related but distinct criticisms: (a) the runner/umpire view of a Justice's role is too simplistic; and (b) Judge Sotomayor was being disingenuous in purporting to agree with that view.

But if one agrees with those Roberts/Thomas views on a Justice's proper role, as Wendy does, then it's hard to see how she can agree with Mike's point "(a)". How can Wendy say Judge Sotomayor is "intellectually unqualified" or "vacuous" for agreeing with Wendy's view on the role of a Justice? I think Wendy's real criticism, one Senator Kyl (I believe) mirrored, is Mike's point "(b)": that Judge Sotomayor is being disingenuous in purporting to believe that judging is an objective task requiring only the application of law to facts, etc.

The bigger picture here, really, is this point that Mike noted:

What does it say about our legal system that in order to get confirmed Judge Sotomayor must tell the lies that she told today? . . . [O]ur official ideology about judging is so degraded that she would sacrifice a position on the Supreme Court if she told the truth.

Exactly, but this phenomenon—having to profess the opposite to get the job—is more a problem with our politics than with our ideology about judging in particular. Democratic political candidates have to portray themselves as "tough" (on crime, terrorism, etc.) to get elected; Republicans have to portray themselves as "compassionate" (on civil rights, education for the poor, etc.) to get elected. Identically, judicial nominees similarly have to pay homage to the other side's credos. Justice Thomas at his confirmation hearing had to profess empathy for prisoners—in order to get confirmed and become the Justice least likely to rule in favor of a prisoner (at least by my non-empirical recollection of the case law, including one dissent in which he took an extremely limited view of prisoners' Eighth Amendment rights). Similarly, Judge Sotomayor has to profess objectivity in her judging—even though she probably would, as a Justice, rule for civil rights plaintiffs, etc., more often than other Justices because she uses more than 1700s and 1800s original intent to interpret the Constitution.

David Stras: Senator Cornyn questioned Judge Sotomayor about the Ricci case this morning. Yesterday, Judge Sotomayor indicated that the order was unpublished because it was controlled by prior Second Circuit precedent, a point with which I disagree but it is an explanation for which I will give her credit. Today, she went further by indicating that there was no intent by any of the judges on the Ricci panel to hide or dodge the issues presented by the case. I will also take that comment at face value and give her credit for it. But then as evidence for that fact, Judge Sotomayor indicated that any losing litigant may bring a petition for rehearing en banc before the Second Circuit or a petition for certiorari before the Supreme Court, so it would have been difficult, if not impossible, to "hide" the case from her colleagues. I think that her statement, while technically correct, was misleading.

While it is surely true that any losing litigant may bring a petition for rehearing en banc in any case before a circuit court, Judge Sotomayor had to know that her colleagues generally pay little or no attention to petitions filed in cases involving unpublished opinions, much less unpublished summary orders. The U.S. Courts of Appeals hear approximately 60,000 cases per year, a six-fold increase from the 1960s. Many of the cases coming before the Courts of Appeals are now disposed of by unpublished opinion because of the crushing caseload. Circuit judges generally pay very little attention to petitions for rehearing en banc in cases involving unpublished dispositions precisely because such dispositions have no binding effect on the law of the Circuit. That probably explains why Judge Cabranes discovered the Ricci opinion by reading the New Haven Register and not by reading the petition for rehearing en banc. Although I do not have the statistics in front of me, I cannot recall a case where a circuit took an unpublished opinion en banc. And there is an implicit trust among colleagues on a collegial court like the Second Circuit that judges will not decide important and pressing issues in unpublished dispositions, which was alluded to by both Ed and Wendy yesterday in their discussions of the Second Circuit rules for unpublished opinions. In addition, the Supreme Court rarely grants certiorari in cases involving unpublished opinions, much less summary dispositions. The number of unpublished opinions reviewed by the Court in a single Term is often just two or three, and that generally only occurs when there is a square circuit split on the issue. Thus, I find it very weak to claim that the presence of procedures for rehearing en banc and for petitions for certiorari are somehow evidence that the panel was not trying to "hide" the disposition of Ricci. If there was no intent to hide it, that's fine, but I find it disingenuous to hide behind the procedures for review by the whole circuit or the Supreme Court. Not only is it passing the buck, but it is somewhat misleading.

I am, to be sure, more sensitive to these issues because a good portion of my scholarship studies the dockets of the federal courts. I am co-authoring a book on the Supreme Court's docket with two political scientists, and presenting a speech in October on the Fourth Circuit's docket at a conference in South Carolina. But I do want to point out that I thought her response to Senator Cornyn on Ricci was at best weak, and at worst misleading.

Wendy Long: I had posted this earlier at National Review's Bench Memos blog, but because it pertains to something I raised earlier in this debate and because it pertains to David's post just now, I would like to add these thoughts to this debate.

I think Judge Sotomayor's responses this morning to Senator Cornyn on the procedural treatment of the Ricci case were very disturbing.

It goes to whether, as Mike has raised and David says as well, her testimony is honest and straightforward, or, shall we say, deceptive.

Here is what I said on NRO:

This goes to whether she is telling the truth today, and it goes to her integrity as a judge in her handling of the case a year ago.

What she said this morning is NOT what happened, and it is NOT the way things happen on the Second Circuit, or at the Supreme Court.

Here is what she said to Cornyn this morning:

SOTOMAYOR: Senator, I can't speak to what brought this case to Judge Cabranes' attention. I can say the following, however. When parties are dissatisfied with a panel decision, they can file a petition for rehearing en banc. And, in fact, that's what happened in the Ricci case.

. . .

Similarly, parties, when they're dissatisfied with what a circuit has done, file petitions for certiorari, which is a request for the Supreme Court to review a case. And so the court looks at that as well. And so regardless of how a circuit decide a case, it's not a question of hiding it from others.

With respect to the broader question that you're raising, which is why do you do it by summary order or why do you do it in a published opinion or in a per curium, the question or the practice is that about 75 percent of circuit court decisions are decided by summary order, in part, because we can't handle the volume of our work if we were writing long decisions in every case. But, more importantly, because not every case requires a long opinion if a district court opinion has been clear and thorough on an issue.

Several points to make here:

1. The fact that about 75 percent of cases are disposed of by summary order has nothing to do with this; those cases are all routine, run of the mill cases like Social Security appeals that can be disposed of based upon law that is absolutely clear; they are NOT controversial cases raising unsettled questions of federal employment discrimination or constitutional law. It is absurd to act like this case falls into the summary order category.

2. The Supreme Court gets about 10,000 petitions for certiorari every year and hears fewer than 100 cases. It usually grants cert petitions when an unsettled legal issue has been thoroughly dealt with and analyzed by the Circuit Courts of Appeal, and when there is a disagreement among them; surely the Judge knows that the Court she thinks she is about to join does not engage in error correction of the courts below.

3. The Ricci plaintiffs did NOT file a petition for rehearing en banc; Judge Cabranes read about the case in the local newspaper and it is he who brought the whole matter back before the court's attention.

4. It is NOT always true that the losing party files a petition for rehearing; and in the Second Circuit in particular, often people don't bother because rehearing is almost never granted. It is granted exceedingly rarely, and usually only when the whole court already knows about a case of extreme importance and has been watching what the panel was doing, or where the government or amicus comes in and asks for rehearing.

5. If you look at the docket sheet, you will see that the summary order did not come out immediately. Usually, I recall from clerking there, summary orders come out right away. It is obvious even before oral argument, and when the clerks meet with their judges right after argument it is confirmed.

Here is what I conclude from this: there must have been an internal dispute about how to handle this case. They realized it was going to be very messy. It has been long known on the Second Circuit (and elsewhere) that Sotomayor was a likely Supreme Court nominee by a Democratic president. By last summer it was looking even more likely. Any disposition of the case that involved an airing of the disagreements on the merits or even dealt substantively with the issues at hand was likely to create problems for Sotomayor in her quest for the Supreme Court. And so to protect her viability as a Supreme Court nominee, the panel finally decided to bury the case with a summary order and just make it go away.

This procedural irregularity is what is most disturbing about this case. It is what Judge Cabranes was shocked by. It is what Adam Liptak of the New York Times described as "baffling." It is what Stuart Taylor exposed in his National Journal story, "How RicciAlmost Disappeared."

Putting aside the merits of the case, putting aside judicial philosophy, putting aside whether anybody got the law right or wrong: there is no good explanation as to why this happened, leaving me to conclude that parties who came before a court seeking justice were sacrificed on the altar of Sonia Sotomayor's Supreme Court ambitions.

David Stras: As Ed, Wendy, and Jonathan Adler have pointed out to me, no petition for rehearing en banc was apparently filed in the Ricci case. I took Judge Sotomayor's word for it in response to her questioning by Senator Cornyn, and apparently she was mistaken. According to the transcript, she said the following in response to Senator Cornyn:

When parties are dissatisfied with a panel decision, they can file a petition for rehearing en banc. And, in fact, that's what happened in theRicci case. . . .

But my point still stands even if no petition for rehearing en banc was filed. It seems very disingenuous to defend the panel's decision not to publish the order on the basis that a losing party might file a petition for rehearing en banc or a petition for certiorari. I apologize for the error in my original post.

To continue to Part III of the debate, click here.

Comments:

[Peter Shawhan] 

One of the comments repeated most frequently during discussion of Judge Sotomayor's nomination is the assertion that judges should only apply the law and not make law. It is often advanced in figurative terms to the effect that judges should be like umpires who merely call balls and strikes within the existing rules of the game without interpreting any of the existing rules or making up any new ones. 

This stale comment, having all the effervescence of champagne dregs the morning after, is generally offered up as though it were a self-evident truth invulnerable to any conceivable challenge, rather than a crabbed and highly selective viewpoint reflecting a deeply ahistorical view both of the Anglo-American legal tradition in general and of the constitutional authority of our judiciary in particular.

While we are accustomed to dealing with statutes and their application and interpretation, by no means all of our law is legislatively enacted. Most of the law of torts, a great deal of the law of contracts and a significant portion of the law of real property, for example, have been developed through and depend upon the accretion of judicial precedent over long periods of time. This is referred to as the common law. It forms a major part of the heritage of our judicial system, and a major portion of the law that currently governs us. 

The principal characteristic of the common law is that it is judge-made law. The common law aspects of our current legal system do not involve judges deciding whatever they want, whenever they want to, based on whim and personal bias. They involve judges considering carefully how to understand, interpret and apply existing judicial precedent when confronted by novel fact patterns that pose issues of first impression. 

While the Constitution governs all cases, and while statutes must be given the deference to which they are entitled consistent with the Constitution, it also remains the case that, in the judiciary's exercise of its powers under Article III, "It is emphatically the province and duty of the Judicial Department to say what the law is." That remains as true now as it was when Marbury v. Madison was decided in 1803. 

The essential roles of the common law, and of the judicial function of articulating such law through precedent, are implicitly recognized by the brevity of the provisions in Article III of our Constitution concerning the authority and limitations of our judiciary, as compared with the Constitution's much more detailed and prescriptive provisions concerning the powers and limitations of the executive and legislative branches. The framers of the Constitution recognized and respected the common-law roots not only of much of our law but of our judiciary, and trod lightly in defining its powers in order to avoid circumscribing them unduly. 

It is instructive that Article III of the Constitution recognizes the judicial power of the United States, as exercised by the U.S. Supreme Court, expressly in terms of "jurisdiction" -- which, translated, literally means the power to enunciate the law, the power which the judicial branch of our government has asserted and exercised since Marbury was handed down in 1803.

There are those who argue that the sole role of judges is to apply statutes crafted by legislators. They take the view that judges act as humble mechanics who merely lubricate the intricate machinery of the law as designed by the superior engineering genius of legislators. They cling with near religious fervor to the credo that judges neither possess, nor should be allowed to possess, any power to make law through judicial precedent. Those who do so. however, advance this position in derogation of the "judicial Power" and "jurisdiction" recognized by Article III of our Constitution, in derogation of the status of our Supreme Court and our judiciary as a coequal branch of our government, and with willful disregard for the deep roots of the role and functions of our courts in the common law and in Anglo-American legal history.

It is worth remembering that one of the leading authorities on the existence and meaning of the common law in our judicial tradition, and on the precedential powers of our judiciary, was the late Oliver Wendell Holmes, Jr., who served as an Associate Justice of the U.S. Supreme Court from 1902 to 1932. Holmes was hardly the image of an ivory-tower liberal inclined to disregard the importance or meaning of the Constitution. Repeatedly wounded in action at Ball's Bluff, Antietam and Fredericksburg as an officer in the Twentieth Massachusetts Volunteer Infantry during the Civil War, while defending the Constitution at the risk of his life against those who had betrayed and levied war against it, he later served on the U.S. Supreme Court until he was 90. He was interred in Arlington National Cemetery, and whether one agrees with his judicial reasoning or not, few others could lay any greater claim of entitlement to the honor of resting there. 

It is highly doubtful that Justice Holmes would have argued that judges can simply make things up as they go along based upon whim and bias. He clearly recognized the role of common law in the development of legal principle through judicial precedent, however, including some of the most important principles in our Constitution. He would likely have taken the view that courts and judges do possess the power to say what the law is by interpreting its meaning, and to establish judicial precedent, when presented with issues of first impression.

So if you wish to argue that judges should only apply the law as made by legislators, and should never make the law, you are free to do so. It is an unpersuasive argument, one not supported by our history, our Constitution, or long established judicial interpretation of our Constitution, but you are free to assert it if you wish. If you consider it to be a persuasive reason to consider Judge Sotomayor unfit to serve on the U.S. Supreme Court, however, you are only deluding yourself.

[Interested Viewer] 

You are lawyers, so you look at this in a certain way. To me it appears much more simply explained through psychology. Sotomayor is an ambitious person of ordinary abilities who enjoys attention, praise, and a feeling of importance. She waved the race flag and made racist comments at the point in her career in which they brought her approval (and therefore power)from her race group's organizatons. Now, she wants a better job and a place in history, so she is changing her tune for the hearings.

Which is the real Sotomayor who will make decisions on the bench? I suspect her Supreme Court career will involve lots of appearances at Latino functions because she needs to be praised as the achieving queen bee. And socializing in those situations will tend to make the racist Sotomayor reappear.

Or she may choose the Supreme Court and its history as her new peer group and rise to her new status as best she can. 

Only time will tell, but I think there must be less psychologically conflicted and more intellectual people out there who would be a better choice for such a powerful position.