The other Judge Sotomayor thread

[rockymtn devil]

I did not want to post this in Tilly's thread on what she has in common with the SCOTUS nominee, but thought it could be a decent discussion.

In the other thread, a reference was made to a post in the DBR regarding Judge Sotomayor being a wonderful policy maker. Now, this post could've been made tongue-in-cheek but given that that criticism is the most used in the GOP Judicial-Obstruction playbook, I'm guessing there is some truth behind it.

So, to Shamm, what exactly did you mean? I would suggest that any belief that appellate judges do not make policy shows a fundamental misunderstanding of our judicial and legislative systems. It's that misunderstanding that colors much--if not all--of the criticisms by the right on this issue. But, before I go on, I want to provide an opportunity for those who hold that belief to better explain it so that I'm not rushing to judgment.

Obviously, let's keep it civil (although that shouldn't be an issue).

Perhaps we can also this thread for any discussion of the nomination outside of what Judge Sotomayor has in common with Tilly.

[TillyGalore]

I wasn't making fun of Judge Sotomayor. I thought it was kind of cool that she and I both read Nancy Drew.

RMD, in your opinion, what are her qualifications to be a member of the SCOTUS? Obviously the D's are going to talk about how great she has been and will be, and the R's are going to highlight what she hasn't done or her blunders. Somewhere in between all that is the truth.

[rockymtn devil]

I didn't think you were making fun at all. I just didn't think this thread was appropriate for your thread, which was much more light-hearted. And you had requested politics be kept out of your thread. And yes, it's very cool that a Supreme Court Justice is a fan of Nancy Drew.

In terms of qualifications, Judge Sotomayor brings more judicial experience to her nomination than any current member of the SCOTUS at the time he/she was nominated. This provides a long paper trail which can be used to assure that her ideology on the bench will likely be in line with the President's (this is never a sure thing, though). She's also served on the 2nd Circuit Court of Appeals, which, behind only the D.C. Circuit Court, is the most prestigious of the Courts of Appeals because of the complexity of cases before it on a consistent basis. Finally--pin being pulled--her gender and ethnicity are qualifications. I always wince when I hear people discuss the "most" qualified individual (as if such a thing exists) followed by a statement about how she isn't the "most" qualified and was only selected because of her ethnicity. There are literally hundreds (if not thousands) of qualified nominees to the Supreme Court. If the President decides that he wants a female or a hispanic, he's likely to find one among the group of qualified individuals. In addition, her demographics do bring a different perspective to a Court which currently has 7 white males, a black male, and a white female. "Empathy" has become a dirty word, but every Judge--no matter their judicial or political ideology--utilizes it by bringing their own backgrounds and experiences and emotions to their work.

[CathyCA]

Finally--pin being pulled--her gender and ethnicity are qualifications. I always wince when I hear people discuss the "most" qualified individual (as if such a thing exists) followed by a statement about how she isn't the "most" qualified and was only selected because of her ethnicity. There are literally hundreds (if not thousands) of qualified nominees to the Supreme Court. If the President decides that he wants a female or a hispanic, he's likely to find one among the group of qualified individuals. In addition, her demographics do bring a different perspective to a Court which currently has 7 white males, a black male, and a white female. "Empathy" has become a dirty word, but every Judge--no matter their judicial or political ideology--utilizes it by bringing their own backgrounds and experiences and emotions to their work.

Gender and ethnicity are absolutely qualifications for sitting on the SCOTUS. Having a court comprised of "people who look like us" lends credibility to the court. We have a rich tapestry of ethnicity in our country. The court should reflect what our country looks like. Not everyone looks at legal issues through the eyes of 70 year old white men, who, if they were in the private practice of law, would have retired or become "of counsel" a few years ago. (And YAY for Justice Souter who decided to retire at a decent age and who will hopefully have many years to enjoy his time away from the Court.) A little gender and ethnic diversity only helps to strengthen the Court, but more importantly, it serves to strengthen the public's perception of and confidence in the Court.

Sotomayor has had broad bipartisan support in the past. Bush I nominated her to the federal bench in '91, I believe. Clinton nominated her to the 2d Circuit, and even Jesse Helms voted to confirm her to the 2d Circuit in 1998. I don't think that she should have any trouble being confirmed this summer. I've spent the morning doing some random reading of some of her opinions (I've found 255 of them) and her analysis of the law is thorough and her opinions are amazingly clear to read and to understand. I've decided that she's not "policy making," but is sticking to looking at the evidence presented at the hearing below, examining the Judge's findings of fact, determining whether they supported the conclusions of law, and whether the conclusions of law supported the order. Her opinions look good to me. I say she ought to be confirmed.

[cl15876]

Finally--pin being pulled--her gender and ethnicity are qualifications. I always wince when I hear people discuss the "most" qualified individual (as if such a thing exists) followed by a statement about how she isn't the "most" qualified and was only selected because of her ethnicity. There are literally hundreds (if not thousands) of qualified nominees to the Supreme Court. If the President decides that he wants a female or a hispanic, he's likely to find one among the group of qualified individuals. In addition, her demographics do bring a different perspective to a Court which currently has 7 white males, a black male, and a white female. "Empathy" has become a dirty word, but every Judge--no matter their judicial or political ideology--utilizes it by bringing their own backgrounds and experiences and emotions to their work.

Gender and ethnicity are absolutely qualifications for sitting on the SCOTUS. Having a court comprised of "people who look like us" lends credibility to the court. We have a rich tapestry of ethnicity in our country. The court should reflect what our country looks like. Not everyone looks at legal issues through the eyes of 70 year old white men, who, if they were in the private practice of law, would have retired or become "of counsel" a few years ago. (And YAY for Justice Souter who decided to retire at a decent age and who will hopefully have many years to enjoy his time away from the Court.) A little gender and ethnic diversity only helps to strengthen the Court, but more importantly, it serves to strengthen the public's perception of and confidence in the Court.

Sotomayor has had broad bipartisan support in the past. Bush I nominated her to the federal bench in '91, I believe. Clinton nominated her to the 2d Circuit, and even Jesse Helms voted to confirm her to the 2d Circuit in 1998. I don't think that she should have any trouble being confirmed this summer. I've spent the morning doing some random reading of some of her opinions (I've found 255 of them) and her analysis of the law is thorough and her opinions are amazingly clear to read and to understand. I've decided that she's not "policy making," but is sticking to looking at the evidence presented at the hearing below, examining the Judge's findings of fact, determining whether they supported the conclusions of law, and whether the conclusions of law supported the order. Her opinions look good to me. I say she ought to be confirmed.

Nicely articulated CathyCA! I was going to post something about this yesterday, but wasn't sure what I wanted to say precisely other than I didn't think she would have a problem either and she is going to be great! BTW - Tilly - I read Nancy Drew also, under the covers with flash lights along with the Hardy Boys!

[rockymtn devil]

Gender and ethnicity are absolutely qualifications for sitting on the SCOTUS. Having a court comprised of "people who look like us" lends credibility to the court. We have a rich tapestry of ethnicity in our country. The court should reflect what our country looks like. Not everyone looks at legal issues through the eyes of 70 year old white men, who, if they were in the private practice of law, would have retired or become "of counsel" a few years ago. (And YAY for Justice Souter who decided to retire at a decent age and who will hopefully have many years to enjoy his time away from the Court.) A little gender and ethnic diversity only helps to strengthen the Court, but more importantly, it serves to strengthen the public's perception of and confidence in the Court.

Sotomayor has had broad bipartisan support in the past. Bush I nominated her to the federal bench in '91, I believe. Clinton nominated her to the 2d Circuit, and even Jesse Helms voted to confirm her to the 2d Circuit in 1998. I don't think that she should have any trouble being confirmed this summer. I've spent the morning doing some random reading of some of her opinions (I've found 255 of them) and her analysis of the law is thorough and her opinions are amazingly clear to read and to understand. I've decided that she's not "policy making," but is sticking to looking at the evidence presented at the hearing below, examining the Judge's findings of fact, determining whether they supported the conclusions of law, and whether the conclusions of law supported the order. Her opinions look good to me. I say she ought to be confirmed.

Yes. All of it.

And, even if she were "policy" making, that's what common law judges do. They flesh out poorly written legislation (pardon me, ambiguous legislation) and, in a common law system, appellate opinions become addendum to codified policy. You will rarely, if ever, find a judge who is quite literally creating law from thin air on the bench. The "liberal activist judge" is a myth. The bogeyman, so to speak. Instead, common law opinions are almost always grounded in an interpretation of vague statutory language. As someone with a background in policy (both development and advocacy) I can attest to legislators purposefully writing vague law to avoid answering the tough questions. This serves two purposes. First, it means they can't be blamed if the public disagrees. Second, it allows them to grandstand on television about "activist judges" who, of course, only had to flesh out the legislation because the politicians refused to do so.

[wilson]

The "liberal activist judge" is a myth. The bogeyman, so to speak. Instead, common law opinions are almost always grounded in an interpretation of vague statutory language. As someone with a background in policy (both development and advocacy) I can attest to legislators purposefully writing vague law to avoid answering the tough questions. This serves two purposes. First, it means they can't be blamed if the public disagrees. Second, it allows them to grandstand on television about "activist judges" who, of course, only had to flesh out the legislation because the politicians refused to do so.

God, THANK YOU. I wish that fat toad piece of [crap] Limbaugh would just go home and take pills.
Oops, one too many Peebers...

[rockymtn devil]

Gender and ethnicity are absolutely qualifications for sitting on the SCOTUS. Having a court comprised of "people who look like us" lends credibility to the court. We have a rich tapestry of ethnicity in our country. The court should reflect what our country looks like. Not everyone looks at legal issues through the eyes of 70 year old white men, who, if they were in the private practice of law, would have retired or become "of counsel" a few years ago. (And YAY for Justice Souter who decided to retire at a decent age and who will hopefully have many years to enjoy his time away from the Court.) A little gender and ethnic diversity only helps to strengthen the Court, but more importantly, it serves to strengthen the public's perception of and confidence in the Court.

Just to add something to this:

When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account.

The above passage was not uttered by Judge Sotomayor or some other "liberal activist judge". It came directly from the mouth of Justice Samuel Alito during his confirmation hearings back in 2005. "Empathy" is not the sole domain of the left.

[cl15876]

The "liberal activist judge" is a myth. The bogeyman, so to speak. Instead, common law opinions are almost always grounded in an interpretation of vague statutory language. As someone with a background in policy (both development and advocacy) I can attest to legislators purposefully writing vague law to avoid answering the tough questions. This serves two purposes. First, it means they can't be blamed if the public disagrees. Second, it allows them to grandstand on television about "activist judges" who, of course, only had to flesh out the legislation because the politicians refused to do so.

God, THANK YOU. I wish that fat toad piece of [crap] Limbaugh would just go home and take pills.
Oops, one too many Peebers...

Wilson, I am with YOU ON THIS! I COULDN'T BELIEVE WHAT I HEARD!!!!

[rockymtn devil]

Well...the Supreme Court made up facts (or just greatly expanded the definition of "adverse employment action") in order to neuter Title VII and write a blank check for disparate impact discrimination.

It's hard to imagine how so-called "judicial minimalists" could agree with the Ricci opinion. Either the conservative block will come to regret today's opinion when it's potentially expansive view of discrimination is alleged by a minority, or it will have to be inconsistent in applying this precedent when such a case comes.

Hopefully Congress will abrogate the law created today.

[rockymtn devil]

And for those curious about what impact today's opinion could/should have on Judge Sotomayor's confirmation, I think the answer is: absolutely no impact.

Consider:
1. It was a 5-4 split. That means that reasonable minds can--and do--differ (although I stand by my earlier comment that this opinion is grounded in a fallacy)

2. The person Judge Sotomayor has been nominated to replace voted to uphold her ruling.

3. The Supreme Court reverses about 70% of Courts of Appeals cases; prior to today, Judge Sotomayor had a 60% reversal rate (that number has undoubtedly gone up)

4. The most junior Justice on the current Supreme Court--Justice Samuel Alito--had a 100% reversal rate from his time on the 3rd Circuit. In addition, the most controversial opinion he ever wrote (the dissent in Planned Parenthood v. Casey) was absolutely eviscerated by Justice O'Connor in her majority opinion. He later replaced Justice O'Connor on the bench.

[Shammrog]

I don't have any particular problem with Judge Sotomayor, other than her being a liberal.

Which, of course, is to be expected. The American people elected a liberal President, and it is his prerogative to choose an ideologically similar nominee, so long as he/she is qualified. Which I believe Judge Sotomayor is.

I only hope that she is treated with more dignity during her confirmation hearings than Justice Roberts and (especially) Justice Alito.

[TillyGalore]

Well...the Supreme Court made up facts (or just greatly expanded the definition of "adverse employment action") in order to neuter Title VII and write a blank check for disparate impact discrimination.

It's hard to imagine how so-called "judicial minimalists" could agree with the Ricci opinion. Either the conservative block will come to regret today's opinion when it's potentially expansive view of discrimination is alleged by a minority, or it will have to be inconsistent in applying this precedent when such a case comes.

Hopefully Congress will abrogate the law created today.

Can you explain, in layman's terms, why this is a bad thing? It did appear that the white men were discriminated against as there weren't enough minorities who passed the exam, thus the town decided no one would get promoted. It's sort of like that punishment handed down to kids, if there is one bad egg in the class, the whole class suffers. How is this not reverse discrimination?

[rockymtn devil]

Can you explain, in layman's terms, why this is a bad thing? It did appear that the white men were discriminated against as there weren't enough minorities who passed the exam, thus the town decided no one would get promoted. It's sort of like that punishment handed down to kids, if there is one bad egg in the class, the whole class suffers. How is this not reverse discrimination?

Sure--and I'll try and keep it brief.

As a backdrop, the conservative block of the Court has spent the last thirty years making it difficult for plaintiffs to succeed in employment discrimination cases. Also, so you understand the framework, Title VII operates in two ways. First, there are disparate treatment cases (Joe was fired because he was a man; Carlos didn't get a promotion because he was Hispanic, etc.). Second, there are disparate impact cases which deal with a facially benign employment action that has a disproportionate impact on a particular protected class (race, gender, ethnicity, etc.).

New Haven's tests for determining promotions created a set of statistics that, under the rules of the EEOC, showed a disparate impact (there's a mathematical formula that gets used). Given the city's history of fighting employment discrimination cases brought by African-American firefighters, it decided that, in order to avoid another such suit, it would throw out the test and develop a new method for promotions. No promotions were given or denied based on the decision to throw out the test results.

The white firefighters (and one hispanic) that were set for promotion based on the test results sued claiming a disparate treatment violation (and a 14th Amendment, but the Court refused to rule on that).

The Court did two things yesterday. First, it effectively eliminated disparate impact suits (which were specifically codified by Congress in 1991) cases by stating that when a city creates a disparate impact, it has to allow it to proceed or else risk being sued for disparate treatment (talk about a Catch-22). In so doing, the Court stated that disparate treatment trumps disparate impact.

The second part of the ruling is a little more cryptic in light of the conservative's quest to neuter Title VII over the last few decades. Elements one and two of any disparate treatment case are 1) an adverse employment action 2) that is enacted because of the protected class status of the plaintiff. Here, there was no employment action. Putting aside the test results did not promote anyone nor did it prevent anyone from being promoted. It was a facially neutral administrative decision. So element one is not met. Next, even if we assume that it is an adverse employment action, it was clearly not made for discriminatory reasons. The City of New Haven stated--and no one disputes this--that it made its decision in order to avoid a disparate impact suit from the black and hispanic firefighters. That's not a discriminatory intent. Put differently, they weren't trying to harm the white firefighters because they were white.

So, did the Court expand the applicability of Title VII disparate treatment cases? If not, how will it consistently apply the new precedent when a black employee brings a non-legitimate Title VII action that is in-line with the one handled here?

[rockymtn devil]

I don't have any particular problem with Judge Sotomayor, other than her being a liberal.

Which, of course, is to be expected. The American people elected a liberal President, and it is his prerogative to choose an ideologically similar nominee, so long as he/she is qualified. Which I believe Judge Sotomayor is.

I only hope that she is treated with more dignity during her confirmation hearings than Justice Roberts and (especially) Justice Alito.

John Roberts was treated like a rock star. Democrats praised him before and after the confirmation hearings. Perhaps you can refresh my memory on how he was poorly treated? Alito, justifiably, had some tough questions to answer (as Judge Sotomayor will). He penned a controversial opinion that was later ripped apart by the person he was replacing. He also was a member (apparently a proud member) of an organization at Princeton whose goal was to limit women and minority admissions to the school. He boasted about his membership in the organization when applying for jobs with the Reagan administration. Asking questions about that is not treating someone with a lack of dignity. Those questions needed to be asked (and similar questions need to be asked of Judge Sotomayor) And it should be noted that his wife cried at a question from Senator Graham (R-S.C.).

[Shammrog]

Honestly, I don't remember offhand all the details. It could well be that I am confounding Roberts with Alito.

Alito, however, was clearly not treated well. Among the "highlights" was Senator Kennedy in essence calling Alito a racist (on highly dubious grounds.) It was so bad that Kennedy (apparently in addition to Lindsey Graham) put Alito's wife in tears. All because, in the final analysis, Kennedy did not like Alito's politics and was determined to get his "voice" out there even though he didn't have any really legitimate misgivings about Alito's qualifications.

[TillyGalore]

Can you explain, in layman's terms, why this is a bad thing? It did appear that the white men were discriminated against as there weren't enough minorities who passed the exam, thus the town decided no one would get promoted. It's sort of like that punishment handed down to kids, if there is one bad egg in the class, the whole class suffers. How is this not reverse discrimination?

Sure--and I'll try and keep it brief.

As a backdrop, the conservative block of the Court has spent the last thirty years making it difficult for plaintiffs to succeed in employment discrimination cases. Also, so you understand the framework, Title VII operates in two ways. First, there are disparate treatment cases (Joe was fired because he was a man; Carlos didn't get a promotion because he was Hispanic, etc.). Second, there are disparate impact cases which deal with a facially benign employment action that has a disproportionate impact on a particular protected class (race, gender, ethnicity, etc.).

New Haven's tests for determining promotions created a set of statistics that, under the rules of the EEOC, showed a disparate impact (there's a mathematical formula that gets used). Given the city's history of fighting employment discrimination cases brought by African-American firefighters, it decided that, in order to avoid another such suit, it would throw out the test and develop a new method for promotions. No promotions were given or denied based on the decision to throw out the test results.

The white firefighters (and one hispanic) that were set for promotion based on the test results sued claiming a disparate treatment violation (and a 14th Amendment, but the Court refused to rule on that).

The Court did two things yesterday. First, it effectively eliminated disparate impact suits (which were specifically codified by Congress in 1991) cases by stating that when a city creates a disparate impact, it has to allow it to proceed or else risk being sued for disparate treatment (talk about a Catch-22). In so doing, the Court stated that disparate treatment trumps disparate impact.

The second part of the ruling is a little more cryptic in light of the conservative's quest to neuter Title VII over the last few decades. Elements one and two of any disparate treatment case are 1) an adverse employment action 2) that is enacted because of the protected class status of the plaintiff. Here, there was no employment action. Putting aside the test results did not promote anyone nor did it prevent anyone from being promoted. It was a facially neutral administrative decision. So element one is not met. Next, even if we assume that it is an adverse employment action, it was clearly not made for discriminatory reasons. The City of New Haven stated--and no one disputes this--that it made its decision in order to avoid a disparate impact suit from the black and hispanic firefighters. That's not a discriminatory intent. Put differently, they weren't trying to harm the white firefighters because they were white.

So, did the Court expand the applicability of Title VII disparate treatment cases? If not, how will it consistently apply the new precedent when a black employee brings a non-legitimate Title VII action that is in-line with the one handled here?

Thank you, RMD. Will probably need to read a few more times to fully grasp this.

[DukieInKansas]

My question is strictly from a non-lawyer point of view (I didn't even stay in a Holiday Inn Express last night). If the test was designed to have no racial bias (I heard some of the questioning on NPR and this is what I recall) and the people taking the test expected the results to lead to promotions, how is it fair to all taking the test to toss the results out because they didn't provide the desired racial mix in the successful test takers?

[TillyGalore]

My question is strictly from a non-lawyer point of view (I didn't even stay in a Holiday Inn Express last night). If the test was designed to have no racial bias (I heard some of the questioning on NPR and this is what I recall) and the people taking the test expected the results to lead to promotions, how is it fair to all taking the test to toss the results out because they didn't provide the desired racial mix in the successful test takers?

How do your write a non-racially biased test? On the flip side, how do you write a test that is racially biased? Shouldn't the test have fact based questions that anyone could answer regardless of their race? I'm getting tripped up on this part too.

[DukieInKansas]

My question is strictly from a non-lawyer point of view (I didn't even stay in a Holiday Inn Express last night). If the test was designed to have no racial bias (I heard some of the questioning on NPR and this is what I recall) and the people taking the test expected the results to lead to promotions, how is it fair to all taking the test to toss the results out because they didn't provide the desired racial mix in the successful test takers?

How do your write a non-racially biased test? On the flip side, how do you write a test that is racially biased? Shouldn't the test have fact based questions that anyone could answer regardless of their race? I'm getting tripped up on this part too.

Since I don't design tests, I have no idea. I have heard racial bias discussed in relation to many standardized tests but I never understood it. (But I'm not in a group that would be subject to the racial bias, so I recognize it is harder for me to see it.) I could see where it might come into play on essay questions - both in the question and how the answer is graded - but not in a fact based question.

I actually feel a bit sorry for the city, because they were really in a case of damned if you do and damned if you don't.