Balkinization: President Sotomayor?

Comments:

I can't recommend a person for Chief Justice of the United States Supreme Court who thinks that we need to engage in "preventive detention".

YMMV, of course.

Cheers,

P.S.: Prof. Levinson, are you just trying to stir the pot here a little? Are Prof. Tamanaha's posts getting too large a share of the comments?

# posted by

Arne Langsetmo : 8:16 PM

Or maybe not.

There's little question she'll be confirmed. So a more realistic speculation is to what extent the partisans bashing her will end up further marginalizing their own party. Since I don't care for single party states, they can stop shooting themselves in the foot any time, as far as I'm concerned.

# posted by

jpk : 8:43 PM

Clearly, as a wise Latina woman Judge Sotomayor is the most qualified person to be president. Given the awesome challenges facing the president, ie, managing the auto industry, restructuring the financial sector, ending global warming, and providing universal health care at a higher quality and lower cost, we really can’t afford second-rate talent in that position. While President Obama is a smart guy, he is obviously not a woman or Hispanic. So the only solution is for Judge Sotomayor to be elected Speaker of the House, and for Obama (and his trusty sidekick) to resign so that she can assume the powers of the presidency immediately.

Of course, if it weren’t for that damn Constitution we wouldn’t have to go through all that. . . .

# posted by

mls : 10:52 PM

Gee, MLS, you beat Bart to the partisan, over-the-top, humorless response. Way to go!

# posted by

CTS : 11:18 PM

Sandy:

Why would Sotomayor take a thankless temporary gig as a Senator or a President where she has to answer the People when she is practically assured a lifetime, unaccountable position "pushing the law in new directions" on the Supreme Court?

Who wants to be an elected representative of the People, when you can be - dare I say it- a constitutional dictator answerable to no one?

# posted by

Bart DePalma : 11:42 PM

CTS- I am sorry that you did not enjoy my comment. Perhaps you would have found it funnier if you had considered that my initials can also stand for "multiple listing service."

# posted by

mls : 11:48 PM

MLS:

Clearly, as a wise Latina woman Judge Sotomayor is the most qualified person to be president. Given the awesome challenges facing the president, ie, managing the auto industry, restructuring the financial sector, ending global warming, and providing universal health care at a higher quality and lower cost, we really can’t afford second-rate talent in that position.

I agree. A summa cum laude from Princeton has to be better than gentleman's-C student from Yale. And that's unfortunately where some folks set the bar.

Cheers,

# posted by

Arne Langsetmo : 12:14 AM

Good news: mls* finally got a sense of humor transplant.

Bad news: he got the transplant from our resident LLB**.

*Not aka multiple listing service (at least while the real estate market is down)

**Little Lisa's bro

# posted by

Shag from Brookline : 4:15 AM

May I clarify the hypothetical as to what happened to Chief Justice Roberts after President Sotomayor's inauguration? Did he try to mess up HER Oath too? Did the Constitution get amended in the meantime to "appoint" federal judiciary and bypass Senate confirmation?

# posted by

Charles : 7:12 AM

Stranger things have happened. Who would have guessed that the alcoholic son of a mediocre president who wasn’t even that popular with his own party would end up in the White House?

# posted by

Hank Gillette : 9:13 AM

Supreme Court justices do have some degree of power with regard to a variety of sometimes important issues. But no serious person could believe that the Supreme Court is really that relevant with regard to most of the issues that Americans genuinely care about. This was shown definitively in Fred Schauer's foreword to the Harvard Law Review's November issue a couple of years ago. A pathology that law professors and practicing lawyers share is either delusions of grandeur or paranoia about the Supreme Court and its justices.

# posted by

Sandy Levinson : 12:29 PM

Sandy:

No serious person could believe that the Supreme Court is really that relevant with regard to most of the issues that Americans genuinely care about?

Are you kidding?

The federal regulatory bureacracy: The New Deal cases

Separate but equal: Plessy & Brown

Government racial preferences: Bakke, Adarand, Gruttner

Abortion: Roe

Contraception: Griswold

Government seizure of your home: Kelo

The military detention of terrorists as POWs: Boumediene

Keep and bear arms: Heller

Incorporation of the 2d Amendment?

Same sex marriage?

The abuse of the bankruptcy system to nationalize Chrysler and GM?

This obviously incomplete list demonstrates that a new Supreme Court justice will have numerous opportunities to dictatorially determine the law that millions of Americans care deeply about.

# posted by

Bart DePalma : 1:45 PM

The military detention of terrorists, that's sure a classic kitchen-table issue right there.

# posted by

Steve M : 3:05 PM

has she got a birth certificate??

that's what i want to know ..

# posted by

Jkat : 4:09 PM

Our resident LLB*'s "obviously incomplete" list (he lists 11) in response to Sandy raises the question of why, with all these important areas of law impacting SCOTUS, our resident LLB* primarily focuses upon his DUI specialty.

*Little Lisa's bro

# posted by

Shag from Brookline : 4:43 PM

Steve M said...

The military detention of terrorists, that's sure a classic kitchen-table issue right there.

Note the polling where respondents weigh in nearly 3-1 against releasing these terrorists into the United States.

# posted by

Bart DePalma : 5:38 PM

For what it is worth, the latest CNN poll, conducted in April, available at http://www.pollingreport.com/prioriti.htm, indicates that only 6% of the public considers terrorism to be our "most important" problem. It lags not only behind the economy (duh), but also the federal budget deficit (10%), health care (9%), the wars in Afghanistan and Iraq (9%); and is tied with education (6%). Of these, the only ones in which the Supreme Court might play even a semi-significant role are terrorism (with regard, especially with regard to the rights of alleged terrorists, and certain aspects of education. Everything else is really up to Congress and the White House.

# posted by

Sandy Levinson : 5:52 PM

Bart:

It's almost identically the same speech. Greg Sargent points out that this didn't cause a stir back then. So why, all of a sudden, is the RW up in arms?

Well, the answer's obvious: They're the Party Of Nooooo!!!!!.

Of course, this comment never was objectionable. And certainly not compared to ... say, someone who's worried that Dem Darkies Are Gonna Outbreed Us.....

So lose this "She's a racist!, Racist!!!, I tellya" schtick. It's getting wearisome.

Cheers,

# posted by

Arne Langsetmo : 6:13 PM

Note the polling where respondents weigh in nearly 3-1 against releasing these terrorists into the United States.

Setting aside the laughable suggestion that we "release" terrorists by imprisoning them, your point really has nothing to do whatsoever with the question of whether most Americans care deeply about the issue.

I'm sure you noticed the utter failure of Republican demagoguery on national security issues in the last two elections. It's not that the Republican positions don't command a majority, in fact they often do, but that most Americans have better things to worry about.

The Supreme Court may get to determine the circumstances under which the government gets to take your house (actually, those circumstances are determined by state and local governments, but let's not be picky), but that doesn't mean that most Americans sit around fretting about whether the government will take their house. For the most part, they are much more concerned about everyday issues that are not really within the Supreme Court's bailiwick.

# posted by

Steve M : 6:22 PM

Sandy:

The really interesting and important under the radar issue working its way through the courts that applies to the economy is whether the Government can (ab)use the bankruptcy process to strip secured creditors of their bankruptcy rights to compensation in order to finance the nationalization and/or gift to the UAW of Chrysler and soon GM.

Monday's bankruptcy court decision to allow the government to give all the worthwhile assets of Chrysler to the UAW, Fiat and itself while stiffing the secured creditors was appalling to say the least.

Despite Mr. Obama's claims that he does not want to run the auto industry, the bankruptcy judge's factual determinations found that the Obama auto task force strong armed every substantial element of the bankruptcy deal including deciding which vehicles Chrysler would be allowed to manufacture and which plants and dealerships would be closed.

Of the secured creditors, the major banks had been effectively nationalized through the TARP program. The government compelled them to abandon their fiduciary duties to their shareholders and their claims against Chrsyler.

The smaller secured lenders protested, but most joined the TARP banks in surrendering their rights after the auto task force threatened to publicly destroy their reputations and Obama did just that in a speech the next day slandering them as "speculators."

Finally, the only secured creditors left standing were the Indiana state teacher retirement fund, police pension fund and the state capital improvements fund. The Obama Adminstration then abused the bankruptcy process to strip these teachers and police officers of portions of their retirements.

Chrysler brought a government bankruptcy deal to the court where the government and Fiat threatened to withdraw if the court did not immediately approve the sale of all useful assets to New Chrysler and leave the secured creditors with closed plants.

This ultimatum blackmailed the court into giving the Indiana funds about a week to conduct discovery and engage experts. As a point of comparison, discovery in a case this size usually goes on for years. Chrysler literally dumped several hundred thousand documents on the funds a couple days before the hearings to approve the transfer of assets.

Of course, the Indiana funds could not accomplish much under these conditions, so the only expert the court heard from was a Chrysler bean counter who claimed without any particular evidence that the secured creditors would receive more money under the Government deal than if Chrysler's divisions like the highly profitable Jeep line would be sold separately.

This was the entire basis for the bankruptcy court's decision to strip the retirement funds of their rights as secured creditors. Worse still, the judge approved the sale under a bankruptcy code provision that will make the sale impossible to reverse by an appeals court once the transfer occurs. Finally, the bankruptcy court held in a separate decision that the funds lacked standing to argue that the Obama Administration was acting without any authority under TARP, which was expressly limited to the financial industry.

The Indiana funds immediately appealed to the Circuit seeking to stop this fait accompli and the Circuit is going to hear arguments later this week.

Sandy, you have often held the Bushies to task for their "constitutional dictatorship." The Obama nationalization of the auto industry makes everything Bush did look like chump change in comparison. This is the kind of thing you expect in Castro's Cuba or Chavista Venezuela, not the United States.

# posted by

Bart DePalma : 7:08 PM

But, Bart, they APPROVE of this Constitutional dictatorship . . .

# posted by

Charles : 7:46 PM

Of course, it's only been a hundred odd days, but so far we know pretty much completely what the allegedly dictatorial and allegedly extra-legal activities of our executive branch have been, while we still do not have anything like complete information about those of the previous 8 years. If this continues, at least the legality and constitutionality can be subjected to court review.

Perhaps the administration can get these suits thrown out on national security grounds.

I think the only lasting result of the current onslaught against Sotomayor will be a decrease in respect for the authority of the SCOTUS.

Since one of the long-term trends over the last thirty years has been the decline of Congress, a decline in the judicial branch is only going to further exacerbate the decline of this country into a constitutional dictatorship. This is a result that should be attractive only to the authoritarian followers, in my opinion.

A real power-seeker would eschew the SC and aim for the executive branch, like Dick Cheney. If Sotomayor holds on for confirmation it will be the clearest evidence possible that she does, in fact, prefer the law to making policy.

# posted by

C2H50H : 9:35 PM

If former Justice O’Connor really believes that “a wise old man and wise old woman will reach the same conclusion in deciding cases”, then it is ironic that she was the swing vote on so many 5-4 SCOTUS rulings.

# posted by

Hank Gillette : 9:55 PM

"but so far we know pretty much completely what the allegedly dictatorial and allegedly extra-legal activities of our executive branch have been"

Why in the world would you assume that? You think the Obama administration is incapable of hiding anything, is dedicated to perfect transparency?

Wait until this administration has been gone from the White house a few years before totaling up the score. At this point we've got no idea at all what Obama might be doing that he doesn't want publicly known.

# posted by

Brett : 6:26 AM

Brett,

Why should Obama, or those in his administration, bother with secrecy? After all, even in the rare case he takes a position counter to popular support, it appears not to harm his standing.

It becomes clearer with every shred of evidence that comes to light that Cheney was the driving force behind the Bush administration's secretive nature.

Wake me up when you have evidence that Biden, or someone of equivalent power in the Obama administration, can keep a secret -- or even keep their mouth closed. Until then, I'm going to suspect that your secrecy concerns are based on nothing but paranoia.

# posted by

C2H50H : 9:41 AM

Wake me when Obama actually gives the public a week to read the text of any bill that's the least bit contraversial before signing it.

He's a politician, that's reason enough right there to assume he's not honest, until proven otherwise.

# posted by

Brett : 12:11 PM

Brett,

As long as the bills and executive orders aren't classified secret, we'll still be far better informed about what our CD (Constitutional Dictatorship) is doing than we were under the Cheney administration.

# posted by

C2H50H : 12:19 PM

He's a politician, that's reason enough right there to assume he's not honest, until proven otherwise.

I take this statement as clear evidence of gross negligence on your part, Brett. Politicians are--remarkably!--sort of like people, they can be more or less honest and more or less dishonest. Why don't you make your judgements based upon paying careful attention as opposed to mindless prejudice?

# posted by

mattski : 2:20 PM

"As long as the bills and executive orders aren't classified secret,"

And, of course, if some of his executive orders are classified secret, he'll go to the trouble to notify you about it.

Mattski, it's a heuristic, and since politicians are not, in fact, on average the same as average people, it's a fairly useful one.

# posted by

Brett : 7:44 PM

Brett,

Actually, those of us who were paying attention knew not long after the secret orders and memos that they existed -- just not the details that were in them.

It's a lot more difficult to keep secret the very existence of a secret than you appear to imagine. For example, we knew almost immediately that Cheney had had meetings with someone in formulating the "Bush administration energy policy". We still don't know who those people were.

# posted by

C2H50H : 8:07 PM

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# posted by

Anonymous : 4:11 AM

Judge Sotomayor's released documents indicate that her "wise Latinas are better judges than white guys" schtick is actually a repeated theme of her speeches. This is no offhand mistake. Apparently, Latina superiority is a rather significant part in Sotomayor's thinking.

# posted by

Bart DePalma : 10:38 AM

Bart: You make the reference to Sotomayor's 'schtick' twice. Did you not get the response you wanted the first time?

On O'Connor: She gave a speech at Emory Law years back, after she was on the Court, and I can addure you she made it very clear that she did not think men and women [old or wise or not] would reach the same conclusions in all cases.

# posted by

CTS : 5:42 PM

Bart lies once again:

Judge Sotomayor's released documents indicate that her "wise Latinas are better judges than white guys" schtick....

Problem for Bart here is she never said that. Putting it in quotes is even more reprehensible.

But I'd say that, on the evidence, Sotomayor would make a far better judge that white male Harold "Bart" DePalma. And further worries for Bart's ego: The demographics are that Sotomayor's demographic group will outnumber his shrinking ... ummm, "demographic" ... both in Colorado and in the U.S. Dem Latinos Are Gonna Outnumber You, Bart! Boo!

Cheers,

# posted by

Arne Langsetmo : 6:34 PM

Douglas W. Kmiec's Find.Law article "Sotomayor as a Student: Her Experience Illuminates Her Views of Race" available at:

http://writ.news.findlaw.com/commentary/20090605_kmiec.html

includes a suggested connection to CJ Taney's Dred Scott opinion to Puerto Ricans as citizens that might reflect the views of those opposing this talented Latina.

# posted by

Shag from Brookline : 6:27 AM

Arne says:

"But I'd say that, on the evidence, Sotomayor would make a far better judge that white male Harold 'Bart' DePalma. And further worries for Bart's ego: The demographics are that Sotomayor's demographic group will outnumber his shrinking ... ummm, "demographic" ... both in Colorado and in the U.S."

"Harold" as in "Harold be thy name"?

"Shrinking ... 'demographic'" aka shooting blanks? Perhaps our resident LLB* fears a future CJ Taney opinion in a reversal of racial roles on citizen status of white males.

*Little Lisa's bro

# posted by

Shag from Brookline : 7:07 AM

Shag/Arne:

Are you actually the racists you portray here?

There is no monolithic latin demographic any more than there is an Italian demographic in the US. Immigrants from Mexico and Venezuela have about as much in common as my Italian ancestors and immigrants from Greece.

Immigration usually takes three generations.

In the first generation, the people are from the old country, but living in the US.

The second generation, like Sotomayor, have their cultural feet in both the old country and America, but are trying to be like other Americans. Sotomayor is an unusual case in that she appeared to be a raging Puerto Rican nationalist as a youth. See her university and law school writings.

The third generation are completely American and have generally intermarried. The old country has no particular hold on them. See all the young intermarried Cuban Americans in Florida who voted for the pro Castro Obama.

Dude, my family is interracial. Our members are white, black, brown and yellow, and their kids are of the various hues in between. It is no big deal because we are all family and Americans.

A word of advice. Get over whatever race hang ups you are carrying. They are ugly and so 1960s.

# posted by

Bart DePalma : 10:52 AM

This advice from our resident LLB* is like coals from Newcastle:

"A word of advice. Get over whatever race hang ups you are carrying. They are ugly and so 1960s."

I was in my 30s during the '60s. Any ugliness during those years came from resistance to equality, much of it from the right wing. Our resident LLB* recently lauded the decision (unanimous) in Brown v. Board of Education as long overdue. That decision came down in 1954, the year I finished law school and was admitted to the MA Bar. Brown was the first major decision of the Warren Court. As I started practicing law, I handled some criminal cases. I began to understand that individual rights had long been ignored in the justice system. Slowly but surely under the direction of a former prosecutor who perhaps observed in that capacity injustices in the justice systemm the Warren Court came down with long neglected assistance of counsel decisions. Brown's proceeding with deliberate speed was much too slow, resulting in Civil Rights legislation in the mid 1960s. Still the right resisted. Nixon developed his Southern Strategy, which was code for race. The same for law and order, code for race. Yes, the 1960s were ugly, and if our resident LLB* were mature at that time (I am not conceding he is currently mature), based up the venom he has spewed at this site, he would have been one with those groups that brought about and fostered the ugliness of the '60s.

Our resident LLB*'s rainbow coalition of relatives is not under attack from me - nor, I presume from Arne - but I wonder if they are aware of the vileness of our resident LLB*'s attacks on a Latina.

The only hang-up I have is with bigotry. I've lived my 78+ years in the Boston area. I've seen bigotry in action. I've seen clashes between Irish and Italians, between Catholics and Protestants, between Gentiles and Jews, between whites and blacks, bigotries of all kinds. Peace is not fully at hand but because of the '60s, it has become less ugly. But now that an African-American is President, we have once again the venom of racial division fueled by the right because of the loss of the right's power, being demonstrated against a Latina. The right is seeking its base with this racial attack and it is really base. But America has changed, the world has changed. We're not going back to pre-Brown v. Board of Education. Even our resident LLB*'s Rainbow Relatives will not let this happen.

*Little Lisa's bro

# posted by

Shag from Brookline : 11:55 AM

Bart,

It's beginning to sound like you are unaware that Puerto Ricans have been citizens of this country for a very long time.

That means they have no need to "immigrate" -- they're as much here already as someone from Florida, for example, who moves to Colorado.

Support for Puerto Rican independence through legal means is far less a problem, in my opinion, than support for secession by Alaska, yet I recall distinctly you were a huge fan of Palin despite her close ties to such a movement.

# posted by

C2H50H : 12:09 PM

A word of advice. Get over whatever race hang ups you are carrying. They are ugly and so 1960s.

# posted by Bart DePalma : 10:52 AM

You need to look in a mirror, asshole.

# posted by

Bartbuster : 6:51 PM

Seriously, I find it a little puzzling that Sotomayor not only thinks that wise Latinas make better decisions than white men (as at least one could defend that by arguing that Latinas/Latinos get racial discrimination better than whites do), but also thinks that wise women make better, more compassionate decisions than wise men.

# posted by

Asher : 11:22 PM

Referring to the claim that a female justice would be
more likely to make a wise decision, has there ever
been a case before the court in which the female
was the only dissent?

# posted by

Farris W : 6:30 AM

"Seriously, I find it a little puzzling that . . . " so much emphasis is placed on a passing statement in a speech or two that many have taken out of context. Consider the full person, the person's entire life in making a judgment. Should Rehnquist not have been confirmed because of his efforts at Arizona polling places to challenge minorities trying to vote? Was Rehnquist less than subtly making a statement of his superiority as a white male over these minorities? Oh, should Rehnquist not have been confirmed because of the memo he prepared as a clerk for Justice Jackson for Brown v. Board of Education stating that Plessy was correctly decided? Should Roberts have been confirmed with his silly confirmation hearing statement that the role of a Justice is like an umpire calling balls and strikes, safe or out, when the Justices DO NOT make instantaneous decision - as umpires do - on appeals they hear? Sift through the records of any individual and surely there are occasional statements made that may not be appropriate.

Perhaps Tray should put himself (I'm making an assumption that Tray is a white male) in spike heels for a moment and think of the secondary role of women in the US that even the Civil War did not resolve; that took many decades more before women were constitutionally allowed to vote. Were the white males in control up to that time proclaiming their superiority over women, not with reasoning, but by constitutional means? Did the right to vote immediately result in women being elected to office or appointed as judges? No, it took decades.

Perhaps Tray should put himself into the lead role in the movie Watermelon Man to consider that it took a Civil War to recognize African Americans as persons, citizens, not merely 3/5th of a person solely for determining congressional seats for white males? That even after the Civil War, it took almost 100 years for Brown v. Board of Education to take a major step in the implementation of the Civil War Amendments, and even then all deliberate speed was snail-pace until the Civil Rights legislation in the 1960s.

Tray, African Americans and women have come a long way, baby, and there's still a long way to go. So instead of being puzzled, perhaps you might look at all this historically, and ask why it took so long for white males to finally accept African Americans and women fully as persons, citizens, assuming that white males have truly accepted them. Consider walking in their shoes. And consider during all those years of deprivation, despite the deprivations, women continued to bear and mother their children, male and female alike. So perhaps women do have a perspective that might differ from white males, including being more nurturing to their children, regardless of gender or race.

Perhaps in time Tray will look back at his puzzlement statement and be puzzled as to why he was so puzzled. (Perhaps Tray should take a look at Charles Blows' OpEd in yesterday's NYTimes portraying the many 2nd Circuit decisions she was involved in that addressed issues of discrimination in assessing her judicial qualifications.)

# posted by

Shag from Brookline : 7:02 AM

Today's NYTimes features on its front page "For Sotomayor and Thomas, Paths Fork at Race and Identity" by Jodi Kantor and David Gonzalez, with an interesting comparison between the tracks of Sotomayor and Thomas. (No Yogi Berra jokes about when you come to a fork in the road, take it, PLEASE!)

By the Bybee, I just watched George Stephanopolos' This Week on ABC and learned that Sotomayor on occasion didn't hestitate to use her fists to protect her brother. Presumably this was before her Princeton/Yale days. I'd like her at my back on the Court.

# posted by

Shag from Brookline : 10:11 AM

This comment has been removed by the author.

# posted by

Bart DePalma : 2:59 PM

Adam Liptak over at the NYT wrote an interesting article discussing the Sotomayor's rather revealing and disturbingly biased colloquy during oral argument's for the Ricci case:

“Race on some level was a part of this discussion” when New Haven’s civil service board decided to throw out the test, Judge Sotomayor told Ms. Torre, [the lawyer for the plaintiff firefighters whom were denied promotions]

“The entire discussion before the board was, ‘Was there an adverse impact on the minority candidates by this testing procedure?’ ” Judge Sotomayor said.

“You can’t have a racially neutral policy that adversely affects minorities,” Judge Sotomayor said, “unless there is a business necessity.”

[So the firefighters' attorney provides a rather compelling business necessity, which leads the article out of sequence:]

“Firefighters die every week in this country,” the lawyer, Karen Lee Torre said. Using the test, she said, could save lives.

“Counsel,” Judge Sotomayor responded, “we’re not suggesting that unqualified people be hired. The city’s not suggesting that. All right?”

We? As in Sotomayor and her client the fire department?

Someone needs to remind Judge Sotomayor that she has sworn an oath to be impartial and is not an attorney for the fire department in particular or an advocate for racial preferences in general.

Sotomayor does not hide her biases very well. This colloquy reminds me of her 2006 talk with Duke law students when she told them that appellate courts are where policy is made and then lamely tried to play it off. Likewise, in this colloquy, Sotomayor began by acting as if she were the attorney for the fire department and then caught herself at the very end by correcting "we" to "the city."

Even the Obama cheerleading NYT caught this blatant bias and led the article off with Sotomayor's money quote.

This nomination keeps looking worse and worse. No wonder Mr. Obama wants the confirmation process to be the kind of bum's rush his nationalization of Chrysler was in the bankruptcy court.

# posted by

Bart DePalma : 3:01 PM

Is our resident LLB* suggesting with this that Sotomayor has something in common with him?

"Sotomayor does not hide her biases very well."

And our resident LLB* seems to intentionally misread this:

"'Counsel,' Judge Sotomayor responded, 'we’re not suggesting that unqualified people be hired. The city’s not suggesting that. All right?'”

in stating that the "we're" is referring to the firefighters, whereas she is clearly referring to the Circuit Panel or herself with the editorial "we." The first sentence is distinct from the second sentence.

Later in his screed, our resident LLB* seems to recognize this by coming up with this lame excuse:

"Likewise, in this colloquy, Sotomayor began by acting as if she were the attorney for the fire department and then caught herself at the very end by correcting 'we' to 'the city.'" Once again our resident LLB* has this "Bart-asswards."

By the Bybee, did the city suggest that unqualified people be hired? Can our resident LLB* provide a cite?

And then our resident LLB* brings Chrysler into the mix out of left field. Our resident LLB*'s views are truly a candidate for a Chapter 7 bankruptcy.

*Little Lisa's bro

# posted by

Shag from Brookline : 4:12 PM

Shag:

"'Counsel,' Judge Sotomayor responded, 'we’re not suggesting that unqualified people be hired. The city’s not suggesting that. All right?'”

in stating that the "we're" is referring to the firefighters, whereas she is clearly referring to the Circuit Panel or herself with the editorial "we." The first sentence is distinct from the second sentence.

While I would not put it past the self proclaimed superior Wise Latina judge to be speaking in the royal we, it is doubtful that she was speaking on behalf of the rest of the panel in making this remark.

Ricci had nothing at all to do with racially discriminatory hiring. The case alleges that the department improperly discarded a promotion exam for racial reasons. Thus, the issue of whether or not the city supported hiring unqualified firefighters would not have come up in pre argument meetings of the panel and Sotomayor was not referring to a position shared by the panel.

It is pretty clear from the colloquy that Sotomayor was providing argument on behalf of the city rather than asking questions of the firefighters' attorney. When the firefighters' attorney scored a particularly strong point concerning the business necessity of the saving lives, Sotomayor apparently lost her temper and lashed out without thinking.

Which suggests that the reported criticisms of Sotomayor's temperament may have some merit after all.

# posted by

Bart DePalma : 10:04 PM

Our resident LLB* is panning for venom with this:

"Ricci had nothing at all to do with racially discriminatory hiring. The case alleges that the department improperly discarded a promotion exam for racial reasons. Thus, the issue of whether or not the city supported hiring unqualified firefighters would not have come up in pre argument meetings of the panel and Sotomayor was not referring to a position shared by the panel.

"It is pretty clear from the colloquy that Sotomayor was providing argument on behalf of the city rather than asking questions of the firefighters' attorney. When the firefighters' attorney scored a particularly strong point concerning the business necessity of the saving lives, Sotomayor apparently lost her temper and lashed out without thinking."

It is tempting to say our resident LLB* is losing it - that happened long ago for him with his one note attack upon a Latina. Just how did the firefighters' attorney support that the test would save firefighters' lives? This was an emotional appeal by the attorney. Did the attorney empirically demonstrate that the test in issue would save firefighters' lives? For some reason the attorney did not focus, at least in oral argument, upon the lives of others that might be saved. This was strictly an emotional appeal by the attorney during oral argument. Perhaps our resident LLB* can point to empirical support in the firefighters' brief rather than opining on a riff during oral argument. Would our resident LLB* similarly highlight some of the wise-ass cracks of his gumba Scalia during oral arguments?

Perhaps our resident LLB* learned as I and other young attorneys did starting out: When you've got the law on your side, pound on the law. When you've got the facts on your side, pound on the facts. When you don't have the law or the facts on your side, then pound on the table. Our resident LLB* has been a percussionist, pounding on statements out of context.

I don't know how SCOTUS will rule on Ricci but suspect that it may be 5-4, with perhaps a replay of Bush v. Gore, a purely political decision, perhaps giving Roberts, Scalia, Thomas and Alito an opportunity to express their opinions of President Obama, not really focusing on the statutory law involved or Sotomayor (who was only one member of the majority). We don't have a colorblind society in the US at this time as well demonstrated by the reaction of the Republican base with its Republican white male Pillsbury Doughboys leading the party's base base.

Perhaps Kennedy may take the position that politically, racially, this is too hot a potato and send Ricci back for further consideration by the trial court.

By the Bybee, was the test in issue possibly tilted towards favoring white males over minorities? Remediation is not something that results overnight as well demonstrated by the battles of civil rights and women's rights that continue to this day. Why sometimes it can take four generations to break out as our resident LLB* eloquently has informed us.

With the continuing rant of Republican white males with their thumbs on the scale, reaching the dream of a colorblind society will be further delayed.

*Little Lisa's bro

# posted by

Shag from Brookline : 4:30 AM

Our resident LLB* has been a percussionist

Though not a very good one. You know what Sonny Liston said,

My dog can play drums better than that guy

# posted by

mattski : 7:01 AM

Mattski-

I was tempted to say "woodpecker" in lieu of "percussionist" but was concerned with accusations of gender discrimination. Now how did that song go:

"Ha, Ha, Ha, Ha, Ha ...." as Woody would say.

# posted by

Shag from Brookline : 7:16 AM

OOPS! Should be:

"Ho, Ho, Ho, Ho, Ho . . . ." And that may get me definitely into gender troubles.

Aside: What protects the brain of the woodpecker from concussions?

# posted by

Shag from Brookline : 7:38 AM

Shag:

1) Newsflash! Firefighters are engaged in the business of risking their lives to save the lives of others. Any test that correctly measures their competence in doing so by definition saves lives.

2) The firefighters' attorney did not bring up the subject of the business necessity of the test (which was self evident and not at issue), the transcript shows that Sotomayor did in an effort to find a defense for her client, er... the respondent City. The firefighters' attorney simply and easily dealt with the Wise Latine judge's meandering.

3) The firefighters' attorney could not ignore Sotomayor's comment posing as a question during appellate oral argument. As you should know, the attorney's job here is to answer the court's questions, not to ignore them and pound home your own legal arguments. In this case, the attorney was being responsive to Sotomayor's concern, not initiating her own point.

4) We do agree that the Supremes could come down 5-4 and that the dissent will likely be a politically inspired Sotomayor-like defense of racial preferences. However, I suspect that the dissent will make far more credible on point arguments than did Sotomayor.

5) Any objective observer would conclude that Sotomayor's oral colloquy and her summary written dismissal without addressing any of the issues were embarrassments. Ricci presented important issues of first impression that deserved considered and intelligent inquiry and a detailed opinion. Compare Sotomayor's meandering off subject with the extensive and to the point questioning by the Supremes during a lengthy oral argument. Compare Sotomayor's summary written dismissal with what will probably be 40 pages of dissent attempting to justify denying the firefighters their day in court.

This begs the question of whether Sotomayor has passed her own promotion exam.

# posted by

Bart DePalma : 9:46 AM

Is our resident LLB* suggesting he fits in this category:

" Any objective observer would conclude ...."

Is he applying a reasonable man/woman test? Or is he just pecking away - rat-tat-tat - Latina no?

And our resident LLB* states:

"Newsflash! Firefighters are engaged in the business of risking their lives to save the lives of others. Any test that correctly measures their competence in doing so by definition saves lives."

but fails to show how the test in question "correctly measures their competence" to save lives. Tests have been used over the years to prevent minorities from obtaining certain positions. Just think of "No Irish Need Apply" and then when the Irish got political might, the Italians were looked down upon by the former as ditchdiggers. Perhaps our resident LLB* will demonstrate to us just how the test involved here "correctly measures their competence."

*Little Lisa's bro

# posted by

Shag from Brookline : 11:09 AM

Bart:

Shag/Arne:

Are you actually the racists you portray here?

We're not the ones approvingly posting Mark Steyn's racist crapola on our own blogs. We don't care ... you're the one who does.

There is no monolithic latin demographic any more than there is an Italian demographic in the US. Immigrants from Mexico and Venezuela have about as much in common as my Italian ancestors and immigrants from Greece.

Outside of racist (typically) RW azos that can't tell the difference, you're right. It's people like the execrable Tancredo (and Steyn) that see them as all the same: In two words, "Not Us."

But then the question comes up: Why do you cite Steyn et al. approvingly?

Immigration usually takes three generations.

In the first generation, the people are from the old country, but living in the US.

The second generation, like Sotomayor, have their cultural feet in both the old country and America, but are trying to be like other Americans. Sotomayor is an unusual case in that she appeared to be a raging Puerto Rican nationalist as a youth. See her university and law school writings.

The third generation are completely American and have generally intermarried. The old country has no particular hold on them. See all the young intermarried Cuban Americans in Florida who voted for the pro Castro Obama.

What a Pile'O'Crap™....

I'd suggest you not try and tell me about how many generations it takes for immigrants to achieve the proper degree of whitene... -- umm, sorry, "Mur'kan-ness".... Doing this just shows your own stereotypy....

Cheers,

# posted by

Arne Langsetmo : 12:37 PM

I don't know why I waste my time on this stuff, but for those interested:

The exchange occurred in Ricci's Counsel's rebuttal. Here is the whole thing:

32:22:

Judge Pooler: You have reserved four minutes. I'm going to try and keep you to the four minutes.

Counsel: Since the 1980's case law on which defendant relies, Congress amended Title VII to prevent the very type of race norming and alteration of results that this Court once approved – you can't do that anymore because Congress specifically prohibited it, but with that aside, um-

Judge Pooler: But did you hear counsel um, allude to Hayden v County of Nassau -

Counsel: Hayden -

Judge Pooler: – Why isn't that dispositive in this case?

Counsel: Hayden has- so- it is the most fraught[?] set of facts in this case, Judge. Hayden, Hayden didn't – One of the reasons this Court reached its conclusion in Hayden was because they said well, nobody lost anything, they had - nobody had taken the test yet. That was a bizarre set of facts where not-minorities sued to stop the city from even developing a test. It bears no resemblance to this case, in fact, the Court pled[?] the equal protection analysis that no one was hurt here, no one was burdened, no one lost an opportunity, there were [inaudible]

Judge Pooler: [interrupting] So did Judge Arterton here, so did Judge Arterton, she said no one was hurt here either.

# posted by

nerpzillicus : 1:57 PM

Counsel: No one was hurt? [Laughing] What would it - For heaven's sake, Judge, if they didn't refuse to fill the vacancies, these men would be lieutenants and captains. How can you say they weren't hurt? They're out a thousand dollars a piece, half of their marriages were strained by this, they spent three months of their lives holed up in a room like I was and you were when we took the bar exam, I – with all due respect to Judge Arterton, I think a fundamental failure is the application of these concepts to this job as if these men were garbage collectors. This is a command position of a First Responder agency. The books you see piled on my desk are fire science books. These men face life threatening circumstances every time they go out. [inaudible] agreed with me. Please look at the examinations. .. You need to know: this is not an aptitude test. This is a high-level command position in a post-9/11 era no less. They are tested for their knowledge of fire, behavior, combustion principles, building collapse, truss roofs, building construction, confined space rescue, dirty bomb response, anthrax, metallurgy, and I opened my district court brief with a plea to the court to not treat these men in this profession as if it were unskilled labor. We don’t do this to lawyers or doctors or nurses or accountants or even real estate brokers. But somehow we treat firefighters as if it doesn’t require any knowledge to do the job. Firefighters die every week in this country, and when I opened up my brief, I told Judge Arterton of a case, right a few miles away where young father and firefighter Eddie Ramos died after a truss roof collapsed in a warehouse fire because the person in command at the scene decided to send men into an unoccupied house with no people to save, on Thanksgiving day, with a truss roof, known to collapse early in a fire because of the nature of the pins that hold the trusses together. Well, it collapsed, and for twenty minutes he couldn't find any air and he suffocated to death, and the fire chief had to go tell a six year old his father wasn't coming home. I'm not being histrionic, that happens all the time. And if you can't pass a competency exam, and answer substantive job knowledge questions, I think the only compelling governmental interest or Title VII interest I see-

JUDGE SOTOMAYOR: Counsel

Counsel: yes?

JUDGE SOTOMAYOR: I...ah, eh, eh, eh... we’re not suggesting that unqualified people be hired. The city’s not suggesting that. All right? But there is a difference between where you score on the test and how many openings you have. And to the extent that there’s an adverse impact on one group over the other, so that the first seven who are going to be hired only because of the vagrancies [sic] of the - vacancies at that moment, not because you’re unqualified–the pass rate is the pass rate–all right? But if your test is always going to put a certain group at the bottom of the pass rate so they’re never ever going to be promoted, and there is a fair test that could be devised that measures knowledge in a more substantive way, then why shouldn’t the city have an opportunity to try and look and see if it can develop that?

http://online.wsj.com/public/resources/media/052909usca.mp3

You can hear the frustration in Sotomayor's voice. Ricci's counsel goes off on a ridiculous tangent, and tells the Court how we don't do this to lawyers, or how we treat firefighters this way or that. Sotomayor, exasperated, says that's not what we are saying, nor is it what the city is saying. No one asserted the people who didn't pass should be promoted - that wasn't the question. The question was whether the city could consider the race implications of filling positions, when there were qualified individuals of color, but the non-minorities had scored the highest. Sotomayor says what she says because, as we see every friggin day on this blog, some people insist on making strawman arguments to "defeat" their opponents.

# posted by

nerpzillicus : 1:58 PM

p.s. what's up with this character limit?

# posted by

nerpzillicus : 1:58 PM

This comment has been removed by the author.

# posted by

nerpzillicus : 5:41 PM

Also, with regards to the other "controversial" Sotomayor comments, everybody (esp. "conservatives") should read Eugene Volokh's take on judges "making policy."

http://volokh.com/posts/1244220709.shtml

# posted by

nerpzillicus : 5:42 PM

Nerp (can I call you Nerp?) the straw man has been the good friend of the right wing for some time now. Shrub was famous for it. It dovetailed with his "echo chamber" strategy: get the straw man repeated dozens of times by others, make it look as if the straw man were actually someone's serious proposal. Works even better if you have absolutely no regard for the truth. "Why do you hate America?" and so on.

# posted by

jpk : 1:15 PM