Thursday, May 28, 2009

Discussing Judge Sotomayor's Nomination, Part II

I am not a legal scholar, but I want to base my remarks and arguments on facts rather than conjecture. To do this, I must depend on the reliability of others' reporting. I am including a link to the CNN review of her record which I am using as my primary source of information for this purpose. Note that this article somewhat confusingly lists her cases which have been reviewed by SCOTUS twice each.

My initial reaction to Judge Sotomayor's nomination is probably best described as a resigned disappointment. After this limited amount of investigation, I am mildly surprised at her selection on judicial terms. I remain convinced that she has been chosen because she is a capable judge who is a woman and is of Latino descent - and the President wanted to nominate a Justice who met both of those criteria - and because her inspiring life story will assist her popularity through the confirmation process.

Per my 'judicial terms selection surprise', as I review the list of cases she's had reviewed by the SCOTUS (and I have done no investigation to speak of beyond this article and others like it which cite largely the same facts), I am struck by the percentage of her cases which are overturned. I do understand that she's replacing Justice Souter - and that he has frequently sided with her - and that Conservatives won't agree with her on some issues.

But of the seven cases cited here, (only six of which have finished their review) four times she was overturned, once she was unanimously overturned, and even in one of the times she was upheld they unanimously rejected her reasoning. I wonder how common it is for a judge to twice have been corrected unanimously... and then be promoted to the SCOTUS.

One reason I chose the CNN article was the paragraph quoting more fully Sotomayor's discourse at Duke. It also discusses the comments at Cal-Berkeley which are probably the basis for Gov. Huckabee's remark about "taking the blindfold off" of Lady Justice. The Berkeley remarks are another can of worms alotgether.

When I read the quote of her Duke remarks I have mild concerns about her beliefs. But I saw the video of those remarks and I am alarmed that her excitement about being part of the Appellate Court system comes from her assent to the "policy-making" role she sees the Court system having. I know she qualified the remarks after she remembered that she was being taped, but I can't stop being troubled by what I heard.

As stated before in the FB dialogue, when justices and judges step away from interpretation and into making policy, that's where I believe the system goes astray. That's why I'm alarmed.

Discussing Judge Sotomayor's Nomination, Part I

This is the beginning of a recent discussion from my Facebook page. It started with my snide remark in reaction to Judge Sotomayor's nomination and my having seen her comments to a Duke University forum. I've edited the transcript only to provide easier reading, but have not removed any content from the remarks.

The initial post was my FB status:
Alan Johnson thought that policy was to be "made" by legislatures, not appellate courts. I guess that was part of the "Change".

Audrey Mae DeNeui at 8:36pm May 26
And a friend of mine says she's a Yankee's fan, to boot!

Frank R Kennedy III at 9:26pm May 26
She has been photograhed in a Red Sox hat. She wrote in a dissenting opinion that her colleagues were legislating. Which"opinions" offend you on an activist level?

Audrey Mae DeNeui at 9:42pm May 26
This other guy's a White Sox fan, I guess. It's not like we can actually do anything about it, other than satirize.

Audrey Mae DeNeui at 9:43pm May 26

She may be a very nice lady.

Alan Johnson at 8:38am May 27
The primary opinion which offends me is the one she expressed at Duke University that "appeals courts which is where policy is made". That is expressly the attitude which has blurred the separation of powers and led to the legislation from the bench such as Roe v Wade.

Frank R Kennedy III at 9:27am May 27 via Facebook Mobile
At the same conference she said she didn't agree with that, but she did recognise it happens. What on her judicial record is activist?

Audrey Mae DeNeui at 9:54am May 27
There's that captain's test for the fire department thing...You know, when someone gets nominated for anything, people start examining his/her life with electron microscopes. Not that we shouldn't examine folks who will be our leaders, but it is impossible to please everyone. It would be werid to expect, given the current admin's political bent, ... Read Morethat a strict conservative constitutionalist would be appointed, wouldn't it, now? Which is why I'm not upset about this or anything else, political-wise. Look at what just happened yesterday out here in California.

Alan Johnson at 10:59am May 27
My discomfort remains in the opinion she expressed at Duke... and I heard her qualification and attempt to backtrack upon remembering that she was being taped. I didn't accuse her of having written activist decisions. I am concerned that she really holds the perspective that the courts are where policies are made... since that's what she expressed. I expect her nomination to be confirmed. I don't expect to ever believe that she was the best choice. She was the politically expedient choice.

Audrey Mae DeNeui at 11:27am May 27

I saw that tape, too. I laughed. By the way, how's your ankle?

Frank R Kennedy III at 2:53pm May 27 via Facebook Mobile
So there is no opinion feom the bench that offends you? She ruled in favor of the abortion gag rule. She has been quoted as saying that she doesn' t believe appeals court should make policy...more than once. Have you seen more that 'Duke' clip?

Frank R Kennedy III at 2:56pm May 27 via Facebook Mobile
She agrees with you that policy is made in courts, she like you doesn't condone it.

Frank R Kennedy III at 6:25pm May 27
If I said I know that people speed on the highway and its dangerous....does it mean I condone it. Perhaps? If I had speeding tickets, that would be evidence. She made over 3000 court opinions -- that seems to be a good point of attack not a statement of observation (Duke comment).

Alan Johnson at 9:43am May 28
Frank, Let's take this to my blog ( where we can deal with it in a better format than FB wall posts. I'll copy the discussion to date there and publish your posts as written. Interested parties can follow from there.