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.


Unknown said...

I am not a legal or anykind of scholar. I like facts but don't mind conjecture, but like it identified. Your statement is full of conjecture supposedly based based on her record.

You are struck by the percentage of her cases overturned by the SCOTUS? Me, too! If she was overturned 66% on cases that went to the court, that is BELOW average. SCOTUS typically overturn 75% of cases it hears. The High Court typically takes cases t it is inclined to impact. Justice Alito's appellate rulings were overturned 100% (2 for 2), does that mean he is askew? In fact both judges made rulings on many cases that were never heard. Over 90%, (an estimate). By your argument, she is a very qualified judge using your primary CNN source since very few of her cases have been over turned.

(On the Other hand, if one was not familiar with baseball and they were told the Latino shortstop didn't get a hit 600 of 1000 times one could conclude that this was a player who was a FAILURE -- but in context of baseball knowledge this player has a GREAT average. On the other hand if the player only bat 10 times with 4 hits for a career -- there might not be enough evidence to conclude if the player was significant at all. I really don't think it is significant point of evaluation..The court cases for Sotomayor or Alito or anyone, although the information in these and all the cases she ruled on are significant. After All the Supreme Court sometimes overturns its own decsisons) I know CJ Roberts won 25/39 cases he argued before the Supreme Court -- I don't know if that is significant.

You are surprised that she was selected on judicial terms, why? Is it her long service as a judge, longer than any nominee in 100 years. That she was previously nominated by two other Presidents? That she was second at her class at Princeton and editor of the Yale Law Review (C. Justice Roberts was editor of Harvard Law Review). [If you really want diversity on court maybe someone not educated at Harvard of Yale could be found.) Who would you have not been surprised by?

Obviously, their are political considerations in naming judges. In the early days of the court geographic diversity was used, eventually the court named a Catholic, Jew and (as said at the time) a Negro. Eventually a woman was named then a second. Was Sandra Day O' Connor a token or extremely qualified? Surely Sotomayor is a Latino woman, but to imply her career is unremarkable seems odd to me.]

Whose nomination would not have surprised you? disappointed you?

Now the activist charge…If you wish to stick to facts… What policy has she made as an appellate court judge that is bothersome? She has a long record and I don't know why you charge her as some one who makes policy without stating a fact as to policy that she has made?

If her career is unremarkable, then she has not made any policy changing judicial choices. What fact, what from her career is "law making". The Duke clip has been interpreted by you that she favors making policy (even though she also said she didn't believe in it). Justice Scalia has said the same thing about the appellate court. I think looking at their records is more important than these statements. What in her judicial record alarms you? Her comment at the Duke forum was a comparison about District and Appellate courts? Appellate courts do tend to get cases that make policy. Find a jurist who wouldn't make the same conclusion. Yet, you don't site any case of hers that alarms you? If you believe the record matters ..why are you ignoring the record?

Unknown said...

Additional comments...

As to the inspiring life story, I think Lincoln and his log cabin campaign story are the origins for that in DC. Everyone in DC will exploit a good story. Justice Thomas from humble Pinpoint, GA was introduced to the nation by Bush (41) as a champion for empathy.

She may satisfy all your fears, but there seems to be no judicial evidence. I fear you will only seek evidence to satisfy your fears. Perhaps Justice Roberts should be judged by his most famous youtube moment -- flubbing the Presidential Oath at the most watched inauguration ever. I don't think he is that careless in his judicial work. Don't judge Sotomayor on her youtube moments, but rather her legal work. Seems to take the conjecture out of the equation.

Again I ask, what in her judicial history worries you? There might be much, but can't you agree this is the "place" to evaluate any nominee?

As to Blind Justice -- "Because when a case comes before me involving, let's say, someone who is an immigrant -- and we get an awful lot of immigration cases and naturalization cases -- I can't help but think of my own ancestors, because it wasn't that long ago when they were in that position," Nominee Alito testified that his families immigrant history would influence his thinking on cases regarding immigration. Do I think he will not apply the law? No? After all, it was said, "I am reminded each day that I render decisions that affect people concretely and that I owe them constant and complete vigilance in checking my assumptions, presumptions and perspectives... ," Judge Sotomayor