36 Comments

1. POSTED BY Spiro T. Quayle  |  May 26, 2009 @ 2:23 pm

   Hannity and his friends will be trying to dig up scandals on any nominee Obama recommends.
   They’re a vindictive bunch, thirsty for blood, all the while draping themselves in the American flag.
2. POSTED BY Mrs. Martta  |  May 26, 2009 @ 2:25 pm

   WTF, California? Very unfair. Either you accept it for all or for no one. But why am I not surprised?
3. POSTED BY jerseygurl  |  May 26, 2009 @ 2:39 pm

   It would be grossly unfair to tell people who have already married that it didn’t count.
4. POSTED BY profwilliams  |  May 26, 2009 @ 2:45 pm

   Spiro,
   Just like the libs did Bush. This has always been rather dumb to me: the President gets his or her choice. Period. If you don’t like that, win the election.
   Here, like with those before him, Obama gets to enjoy the benefits of the victory.
   (But I do think this escalated with the libs and Bork. Ever since, it’s been a rather rude and unfortunate process.
   MM,
   While I disagree with those against marriage for all, here the Court followed the “you” of your statement. A majority of the people of the State voted twice I believe to limit “marriage” to hetros.
   So unless you get a Bloomberg who can go against that will legislatively (he’s such a little bully), you have what you have.
   But seemingly, this is an ugly picture of the will of the majority curbing the rights of the minority.
5. POSTED BY cranky  |  May 26, 2009 @ 2:55 pm

   …meanwhile, back at the ranch: Montclair’s budget runs amok, Council/Mgmt open warfare, Police Dept decimated. Yet the “barbell strategy” on Barista remains in place: pontificate about stuff that has no bearing on you: like California, or something with no impact over the next 3 yrs, like the Supreme Court. However, we’ll obsess about chickenshit issues like PAWs or the ice arena ad infinitum…
6. POSTED BY Mrs. Martta  |  May 26, 2009 @ 2:56 pm

   Prof: Usually I agree with you but it’s really unfair to tell some gay folks that their marriages count but that others cannot marry. Whatever your thoughts are about gay marriage, don’t you think this is cockamamie?
7. POSTED BY Generically named Mike  |  May 26, 2009 @ 3:16 pm

   But seemingly, this is an ugly picture of the will of the majority curbing the rights of the minority.
   Which is exactly why the decision they came to is wrong. If the entire country held its standards for amending the constitution to California’s, Obama would not be allowed to vote or send his children to school with white children, let alone become the president of the United States (assuming the populist agenda of the 1950s/60s held through to today).
8. POSTED BY Rick Bocker  |  May 26, 2009 @ 3:19 pm

   Jeffrey Rosen’s article in TNR is an interesting read. The link is here: http://www.tnr.com/politics/story.html?id=45d56e6f-f497-4b19-9c63-04e10199a085. The view on Sotomayor, based on interviews with law clerks and practitioners, can be summed up: (1) inspiring personal story; (2) not in the upper echelon in terms of intellect; and (3) below average judicial temperment. All in all, the choice to me smacks of political opportunism given the number of reliably liberal, more well-regarded judges out there (e.g., Judge Wood of the 7th Circuit).
   That being said, she’s almost certain to be confirmed. The most controversial thing I’ve seen so far about her is the quote below from a speech at U.C. Berkeley:
   “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”
   -Judge Sonia Sotomayor, in her Judge Mario G. Olmos Law and Cultural Diversity Lecture at the University of California (Berkeley) School of Law in 2001.
   I find the statement baffling as a principle of jurisprudence and indefensible generally (imagine if the words “wise Latina woman” were switched with “white male” (and the gender pronouns altered accordingly)).
9. POSTED BY Nellie  |  May 26, 2009 @ 3:34 pm

   Just like the libs did Bush.
   ————————–
   Bingo!
10. POSTED BY Iceman  |  May 26, 2009 @ 3:36 pm

    Based on my limited knowledge of her background…she thinks white males are evil and stupid or both – she has had the US Supreme Court reverse 3 of her written opinions because she didn’t understand the law – she believes the Court of Appeals should set policy…I believe the President should be granted his Cabinet choices and his Supreme Court appointments.
11. POSTED BY Spiro T. Quayle  |  May 26, 2009 @ 3:47 pm

    Nellie, I didn’t see any reason why the libs should have done anything different.
12. POSTED BY profwilliams  |  May 26, 2009 @ 4:18 pm

    GnM,
    Not to get to technical, but part of the answer has to do with CA’s equal protection class in its Constitution.
    So while it’s great to discuss this, the answer is not what seems right, but what is legal.
    Admittedly, I’m not done reading it, but it’s hard to really discuss the case without knowing the facts of it.
    Iceman,
    If that were true, why’d she end the Baseball Strike? If she hated white men so much, she could have let it stand longer….
13. POSTED BY Mike91  |  May 26, 2009 @ 6:27 pm

    she has had the US Supreme Court reverse 3 of her written opinions because she didn’t understand the law
    She graduated 2nd in her class at Princeton (after attending public schools in the Bronx, I might add), and edited the Yale Law Journal while she was there. So I doubt she ‘didn’t understand the law.’ Either one of those places would have exposed her as a fraud if that’s really the case.
    Rosen’s piece is notable only for using anonymous “law clerks” (not her former clerks, suprisingly) to dish dirt on her.
14. POSTED BY Iceman  |  May 26, 2009 @ 7:17 pm

    Mike91…not having any law background I can only tell you that is what is public record. The Supreme Court overturned 3 of her decisions cause she didn’t understand the law.
15. POSTED BY Pork Roll  |  May 26, 2009 @ 8:34 pm

    The Supreme Court overturned 3 of her decisions cause she didn’t understand the law.
    The reason we call judges “judges” is because the interpretation and application of the law can be a subjective thing. This is why we have a Supreme Court in the first place, to be the final arbiter of the law in cases on which lower courts often rendered conflicting decisions.
    Laws as promulgated by elected legislators are sometimes (or more often) ambiguous, imprecise, or contrary to other laws or case precedent. I would be curious to know more about the cases in which you claim Sotomayor was “overturned” by the Supremes, but to suggest that she is incompetent because of this is to suggest that every judge whose decision was ever overturned by a higher court is incompetent also. This is a rather simplistic and unrealistic view of things, if not also slanted by a bit of partisan bias.
16. POSTED BY profwilliams  |  May 26, 2009 @ 8:39 pm

    Ice,
    Decisions get overturned everyday. This does not mean, however, that the judge in those cases didn’t understand the law.
    Considering her position and how she got there, anyone who believe she doesn’t know the law is a fool.
    And Mike91 is exactly right regarding Rosen’s hit job on her– anonymous “law clerks” quoting others wouldn’t be allowed in court, but it was good enough for Rosen.
    She is a great nominee— and remember, our dear Constitution doesn’t list ANY qualifications for the job—- so all this noise about her is funny to me.
    Obama won, he gets his pick.
17. POSTED BY Mrs. Martta  |  May 26, 2009 @ 8:49 pm

    In all honesty, I need to learn more about her before I decide if she’s a Do-bee or a Don’t-bee. I AM thrilled that she’s not 90 years old like so many of the other SCJs. And not matter what you think of her, she has to go through the approval process just like any other nominee.
18. POSTED BY cathar  |  May 26, 2009 @ 8:58 pm

    It is not at all reassuring to have someone whose decisions have been overturned comparatively frequently by higher courts (more than one) sitting on America’s ultimate “Court of Last Resort.”
    Nor does finishing second in one’s graduating class at Princeton (if indeed true, I haven’t seen that one myself) guarantee a goldarned thing. One only has to point at the highly ranked West Point classmates whose military bumblings were subsequently so brilliantly outshone by those of Sam “U.S.” Grant to refute that assumption.
    And prof, if we went by your curious theory of judicial confirmation, both Robert Bork and Harriet Miers (sp.?) would be sitting on the Supreme Court. Harrold Carswell, too. But then, perhaps you also miss the sharply edged juridical minds of both Abe Fortas and Byron “Whizzer” White.
19. POSTED BY appletony  |  May 26, 2009 @ 9:03 pm

    Ice,
    Having three decisions overturned is no big deal, seriously. Anyway, the third is pending and considered likely to be overturned:
    Since joining the Second Circuit in 1998, Sotomayor has authored over 150 opinions, addressing a wide range of issues, in civil cases. To date, two of these decisions have been overturned by the Supreme Court; a third is under review and likely to be reversed. (quote from scotusblog, which has a good, and as-close-to-non-partisan as you’ll likely find, summary re Sotomayor’s appellate record
20. POSTED BY theproblemtoo  |  May 26, 2009 @ 9:33 pm

    “I didn’t see any reason why the libs should have done anything different”
    that’s cuz you’re a douchebag
21. POSTED BY Spiro T. Quayle  |  May 27, 2009 @ 6:56 am

    theproblemtoo, you confuse me with a female hygiene product. Do you work at Summer’s Eve headquarters?
    George W.Bush was so bad, neither Chris Christie or Steve Lonegan wants him showing up at fundraisers. The libs were right,your hero was a disaster.
22. POSTED BY profwilliams  |  May 27, 2009 @ 8:22 am

    cathar,
    Don’t argue with me, argue with the Constitution.
    There are plenty of reasons a person should not be confirmed, I simply point out that there are no “qualifications” for the role.
    In recent decades, Senators have offered ideas as “qualifications” of what matters to them in his or her votes– judicial temperament, judicial philosophy, etc. But to act like there is some “qualification” dictated by our Constitution is wrong.
    In that vein, I would love to see someone on the Court who has no or limited judicial background.
    That’s diversity I can get behind.
    Because as it stands now, we seem to be ruled by the same Ivy League cabal in all matters of government.
    And as someone told me a long time ago, you may enter college poor or working class– but everyone leaves middle class (in values).
23. POSTED BY Nellie  |  May 27, 2009 @ 9:34 am

    I wonder how much she owes in taxes.
24. POSTED BY Rick Bocker  |  May 27, 2009 @ 9:42 am

    Rosen’s piece is notable only for using anonymous “law clerks” (not her former clerks, suprisingly) to dish dirt on her.
    ————-
    FWIW, I’m a practicing lawyer in NYC and all my colleagues (almost to a person, liberal Democrats), share the views expressed in Rosen’s article and are very disappointed that someone with more intellectual heft was not chosen. Also FWIW, I clerked for a district judge and then a Third Circuit judge. Clerks don’t interact much with judges other than the one they clerk for. I’d bet dollars for doughnuts the views expressed by the clerks that Rosen interviewed reflect those of Sotomayor’s colleagues on the bench expressed in moments of candor in chambers.
    Bottom line: She’s a middle of the pack judge. I agree with Prof that Obama won and his pick deserves deference, but that doesn’t mean anyone should fool themselves into thinking he’s picked the next Cardozo.
    For an interesting exercise, compare the entries in the Almanac of the Federal Judiciary for Sotomayor and Alito (before he was nominated):
    Lawyers interviewed praised Alito’s legal acumen. “He is exceptional.” “He has brilliant ability.” “He is even more exceptional than Becker. He is a brilliant jurist.” “To say he is outstanding is to use understatement. He’s the best judge on the circuit, maybe the country.” “His ability is very, very, very good. Very seriously, he’s very bright.” “He’s pretty good in terms of making a coherent argument.” “He is very smart.” “He is brilliant and of unquestioned intelligence.” “He has adequate legal ability. He doesn’t say much and is harder to read.”
    Alito is measured and judicial on the bench, according to lawyers. “He has a fine, nice demeanor–he couldn’t have keener demeanor.” “He is demanding, but always courteous. He may occasionally demonstrate a little bit of impatience with lawyers that aren’t quite getting it–this can be directed at either side; it’s just a sign that his mind is working more efficiently than yours. He is never dis-courteous and never abusive.” “He has an excellent demeanor–very measured.” “He is somewhat reserved. He’s not hostile, negative or mean. He is pleasant and courte-ous.” “He is extremely polite and genteel.” “I do not have much of a sense of him as a person. He looks bored at times.”
    Alito is normally a moderately active panelist during oral argument, said attorneys. “He is fairly active and asks penetrating questions. Questions can be factual or hypothetical in nature.” “He is active. He asks intricate questions, both factual and legal. His legal questions often grasp upon the intricacies of the law that you haven’t grasped; it’s often in your favor.” “He asks very incisive questions that can be factual or legal, depending on case. He is moderately active and always in control, but always polite to counsel.” “He doesn’t always ask questions, but when he thinks a case merits reversal, he is very active. He is prone to asking questions only when he sees a problem with what the district court did. I’ve seen him ask whole series of hypotheticals, but he normally focuses on the particular issues of the case.” “He did not ask many questions, but those he did were thoughtful questions. He had clearly read the stuff that was submitted and knew what was going on.” “He asks questions that are very pointed; get right to the heart of an issue. He’s active.” “He’s quiet and not particularly active. He will generally have one or two concerns that he’ll address.”
    Lawyers indicated that Alito has a very conservative outlook. “He is conservative.” “He is conservative.” “He is conservative.” “He is conservative, but reaches honest decisions as he sees them. There is a conservative bent to his thinking.” “He’s conservative.” “He has the reputation of being conservative.” “By reputation, he is known to be one of the more conservative judges on the court, but he is forthright and fair. He tries to decide the cases in front of him in the right way.” “He is strongly conservative.” “He is conservative and on the far right wing of the court, but he is a truly decent person who believes in his heart that he is doing the right thing.”
    Attorneys remarked that Alito has exceptional writing ability and authors succinct, but thorough opinions. “His opinions are very detailed, analytical and thorough. His judgment is quite considered.” “He is pretty good in terms of his writing.” “His opinions are very well written. They are not as chatty as Becker’s opinions, but are very thorough.” “His opinions are extremely well written. There is a lot of depth. He focuses on the true issues in the case without waste.” “His opinions are brilliant. They are concise, very incisive opinions.” “His opinions are concise and well reasoned.” “He writes short, result-oriented opinions.” “His opinions are very, very conservative. He’s very ideological and carefully writes his opinions to set up the next– he plants language that moves the law further to the right. He is dogmatically conservative. His opinions are succinct, but still scholarly.”
    Most lawyers interviewed said Sotomayor has good legal ability. “She is very good. She is bright.” “She is a good judge.” “She is very smart.” “She is frighteningly smart. She is intellectually tough.” “She is very intelligent.” “She is a good judge, but not quite as smart as she thinks she is.” “She has a very good commonsense approach to the law.” “She looks at the practical issues.” “She is good. She is an exceptional judge overall.” “She is smart. She is not as intellectual as some.” “It is fair to say she has done better than many people predicted. I’d say she is in the bottom of this court –but, the competition is pretty stiff.” “She is one of the few civil rights lawyers to be appointed to the court. Sometimes I think she is at war with herself. In her heart I think she still thinks from the bottom up.
    When you argue before her you have the sense that she is waiting for you to give her a reason to win. If you don’t give it, she will rule against you.” “I am not too impressed with her. She is bright, but doesn’t always get the facts.”
    Sotomayor can be tough on lawyers, according to those interviewed. “She is a terror on the bench.” “She is very outspoken.” “She can be difficult.” “She is temperamental and excitable. She seems angry.” “She is overly aggressive –not very judicial. She does not have a very good temperament.” “She abuses lawyers.” “She really lacks judicial temperament. She behaves in an out of control manner. She makes inappropriate outbursts.” “She is nasty to lawyers. She doesn’t understand their role in the system –as adversaries who have to argue one side or the other. She will attack lawyers for making an argument she does not like.”
    Lawyers said Sotomayor is very active and well-prepared at oral argument. “She is engaged in oral argument. She is well-prepared.” “She participates actively in oral argument. She is extremely hard working and always prepared.” “She dominates oral argument. She will cut you off and cross examine you.” “She is active in oral argument. There are times when she asks questions to hear herself talk.” “She can be a bit of a bully. She is an active questioner.” “She asks questions to see you squirm. She is very active in oral argument. She takes over in oral argument, sometimes at the expense of her colleagues.” “She can be very aggressive in her questioning.” “She can get harsh in oral argument.” “She can become exasperated in oral argument. You can see the impatience.” “You need to be on top of it with her on your panel.”
    Most lawyers interviewed said Sotomayor is liberal. “She is liberal.” “She is broadly inclined in a more liberal direction, but is very careful to follow precedent.” “She tends to be liberal.” “She is on the more liberal side of things.” “She is quite liberal.” “She is not necessarily pro-government.” “She is not a government pushover. She is fair.” “She is trying to move to the right.” “She has no discernible leaning.”
    Lawyers interviewed said Sotomayor writes good opinions. “Her opinions are O.K, by and large.” “She writes very clear and careful prose in her opinions.” “Her writing is good.” “Her opinions are generally well-reasoned and well-argued.” “She writes well.” “She is a very good writer.” “Her writing is not distinguished, but is perfectly competent.”
25. POSTED BY cathar  |  May 27, 2009 @ 10:06 am

    Prof, my good prof, as quite often happens, you missed the point of my previous chiding of you. No surprise there, merely the usual dismay.
    As it happens, many Presidents have tried to appoint Supreme Court Justices with little or no real judicial experience. Some have even succeeded. Bush was the most recent to try, with Harriet Miers. Lincoln famously did something of this sort, too, and with special regard to the facilitation of his own wartime agenda. I also don’t recall that Abe Fortas had much real judicial experience before LBJ lifted him up.
    And Roosevelt was able to ram through Justice Hugo Black (who previously had a very undistinguished career mainly as the most languid and unrespojnsive of prosecutors) despite concerns (mainly from the Republicans back then, as it happens) that he’d been a Klan member. Black’s defense was that he’d been one but very “briefly” and that he’d done it simply as many used to join the Freemasons or the Odd Fellows back then, as a matter of collegial necessity. Much evidence amassed then (and much more since) shows that in fact Black lied through his teeth there about both the extent of his involvement in his local Klavern and its duration and that the President knew, but Roosevelt was also deadset on getting his compliant, craven lackey in.
    This is what I worry about most with Obama, that his general tendency already to abruptness and sheer bullyragging of political opponents will bar any genuine discussion of Sotomayor’s genuine qualifications. She is convenient because she is a woman and she is Hispanic, but she seems in no real way to wildly stand out elsewhere from any sort of judicial wolfpack. And any sane citizen should really have pause about her siding against those New Haven firefighters and, even worse, for the “state” in Kelo vs. New Haven.
    Too, anyone who recalls the incontinence and other medical problems of Justice Douglas, and how he nonetheless insisted on sitting on the bench far longer than his kidneys could take in order to remain a proponent of aggressive liberalism, should always be concerned that appointment to the Supreme Court is for one’s lifetime. (Yet we forcibly retire so many others, including FBI agents.)
    I also found Rick Bocker’s lengthy e-mail above very interesting, thank him for posting it.
26. POSTED BY Right of Center™  |  May 27, 2009 @ 10:19 am

    “Intellectual heft” ?
    It’s not about that is it? The Supreme Court?
    She’s got brown skin.
    She doesn’t have a penis.
    Isn’t that enough?
27. POSTED BY jerseygurl  |  May 27, 2009 @ 10:35 am

    She’s had more judicial experience than any of the other sitting justices did when they were nominated.
    She’s qualified. Obama gets to pick his own nominees.
28. POSTED BY Iceman  |  May 27, 2009 @ 10:40 am

    JG…just wondering…did u have a problem when Judge Bork was rejected by the Senate Judiciary Committee? Because like you, I support the idea that the President should get to appoint who they want. But hearing the Dems in Congress scream now that the Pres should get his pick smells of the worst hypocracy.
29. POSTED BY monongahela  |  May 27, 2009 @ 10:50 am

    Screams? The only screams I hear are from the right wing calling her a “racist” and an “activist judge”.
30. POSTED BY profwilliams  |  May 27, 2009 @ 10:58 am

    cathar, I’m confused and don’t think there’s any reason to have these points clarified.
    So…. moving on…
    She’ll be confirmed, the question is how bruised?
    (The Fireman and the audiotape will hurt, but the dems rule, so…)
31. POSTED BY jerseygurl  |  May 27, 2009 @ 11:07 am

    Ice, Obama gets to pick his own nominees. If the Senate rejects her, they’ll need reasons to do so.
32. POSTED BY Right of Center™  |  May 27, 2009 @ 11:10 am

    “Bruised?”
    Meaning what? She’ll have less power?
    Jersey, Yes, she IS qualified. I’d be willing to wager she is the most experienced and qualified brown, penisless, judge the country has. Which is obviously Obama’s criteria.
    And Ice,
    “I support the idea that the President should get to appoint who they want.”
    I prefer what the constitution says, which is the President gets to nominate and the Senate gets to consent.
33. POSTED BY profwilliams  |  May 27, 2009 @ 11:12 am

    Reasons?
    No.
    They can just vote “no.”
    They are not required to give “reasons.”
    (Although they can be asked, but if they said, I didn’t like her shoes— what can you do? Nothing. It’s his or her vote– ok, the folks in his or her state may not vote them again….. But they don’t need reasons because they don’t immediately account to anyone.)
34. POSTED BY jerseygurl  |  May 27, 2009 @ 11:25 am

    They may not be “required” to give reasons Prof, but if the Republicans want to block her (and it would only be conservatives who would try to block her) they will “need” to have some reason to do so to avoid the political backlash of opposing someone qualified, hispanic and sans penis.
35. POSTED BY Spiro T. Quayle  |  May 27, 2009 @ 11:45 am

    ROC, shrill and nasty as always.
36. POSTED BY theproblemtoo  |  May 28, 2009 @ 6:59 pm

    STQ douchebaggin as always. No mistake

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