The Sotomayor Hearings
Nothing has changed in the six short weeks since Sonia Sotomayor was nominated to the Supreme Court: she remains a symbol of the racial politics she embraces. While we celebrate her story and professional achievements, we must realize that she — an average federal judge with a passel of unimpressive decisions — would not even be part of the conversation if she weren’t a Hispanic woman.
As Americans increasingly call for the abolition of affirmative action, Sotomayor supports racial preferences. As poll after poll shows that Americans demand that judges apply the law as written, the “wise Latina” denies that this is ever an objective exercise and urges judges to view cases through ethnic and gender lenses.
At next week’s hearings, Sotomayor will have to answer substantively for these and other controversial views — and for outrageous rulings on employment discrimination, property rights, and the Second Amendment. To earn confirmation, she must satisfy the American people that, despite her speeches and writings, she plans to be a judge, not a post-modern ethnic activist. After all, a jurisprudence of empathy is the antithesis of the rule of law.
The Ricci Ruling: A Victory for Merit over Racial Politics
Ricci is a victory for merit over racial politics—which is appropriate given that the ruling overturns a lower court panel that included Sonia Sotomayor.
In the blockbuster decision we’d been awaiting all term, the Court reached the correct result: The government can’t make employment decisions based on race. While the city’s desire to get more blacks into leadership positions at the fire department is commendable, it cannot pursue this goal by denying promotions simply because those who earned them happen to have an inconvenient skin color.
This ruling is the latest in a series of steps the Court has taken to strike down race-conscious actions that violate individual rights—and thus is a blow both to the Obama administration (which sided with the city in Ricci) and to the nomination of Judge Sotomayor. Those who bring cases before the courts deserve much more than empathy or even “sympathy”—the word Justice Ginsburg uses in her dissent—they deserve equal treatment under the law.
Supreme Court Rules on Ricci v. DeStefano
In its opinion today in Ricci v. DeStefano, the Supreme Court came down solidly for upholding the equal protection of the law.
The political implications of this decision for the Sotomayor nomination are several, but her refusal to wrestle with the important issues at stake and to side summarily with the city, together with her many statements off the bench about “identity politics,” should make for very interesting confirmation hearings just two weeks ahead.
The Court reversed the decision of the Second Circuit panel on which Judge Sonya Sotomayor sat, which had upheld, summarily, the lower court’s decision to allow the city of New Haven to throw out the results of a racially neutral promotion exam for city firefighters after whites did better than blacks on the exam.
As the Court said, all the evidence suggests that the city rejected the test results because the higher scoring candidates were white. The city’s rationale for engaging in this intentional discrimination was to avoid a suit by black firefighters. But the city could take the position it did only if there were strong evidence that its test was racially biased or not job related or that there was some other equally valid non-discriminatory test that the city refused to administer. There was no such evidence, the Court concluded. Had the city been sued by the black firefighters, it would have won.
Thus, it’s rationale for throwing out the test results will not withstand scrutiny. The city engaged in outright intentional discrimination.
One Year After Heller
One year ago today, the Supreme Court handed down its decision in District of Columbia et al. v. Heller. The decision affirmed the Second Amendment as protecting an individual right to keep and bear arms and invalidated the District of Columbia’s draconian gun control regime.
The case generated a storm of media attention. The Cato Institute filed an amicus brief, one of nearly four dozen in the case.
The Cato Institute held a forum for Brian Doherty’s book chronicling this victory for liberty, Gun Control on Trial: Inside the Supreme Court Battle Over the Second Amendment. The Heller case also figured prominently in Cato multimedia from Robert A. Levy and Clark Neily.
Heller did not settle all of the questions related to the right to keep and bear arms. The incorporation of the Second Amendment against state bans and regulations is currently being litigated across the country. A three-judge panel in the Court of Appeals for the Ninth Circuit held that the Second Amendment is incorporated against the states. The Seventh Circuit and Second Circuit disagreed. Supreme Court nominee Sonia Sotomayor was on the Second Circuit panel that declined to incorporate the Second Amendment, and Roger Pilon notes that this may play into her confirmation hearings. The circuit split on incorporation sets the stage for a further appeal to the Supreme Court, and Alan Gura and the National Rifle Association have both filed petitions for a writ of certiorari. Robert A. Levy discusses this in his recent Cato podcast.
It will be interesting to see what the next year brings for the Second Amendment.
Should Judges ‘Have the Back’ of Police Officers?
Vice-president Joe Biden says we should rally behind the Supreme Court nomination of Sotomayor because she will “have the back” of the police. Biden is a lawyer, a senator, and former chairman of the Senate’s Judiciary Committee, so he should know better than to pull a political stunt like that to curry favor with law enforcement groups. The Constitution places limits on the power of the police to search, detain, wiretap, imprison, and interrogate. The separation of powers principle means that judges must maintain their impartiality and “check” the police whenever they overstep their authority. To abdicate that responsibility and to “go along with the police” is to do away with our system of checks and balances.
As it happens, The New York Times has a story today about one Jeffrey Deskovic. He got caught up in a police investigation because he was “too distraught” over the rape and murder of his classmate. When there was no DNA match, prosecutors told the jury it didn’t really matter. Does Biden really want Supreme Court justices to come to the support of the state when habeas corpus petitions arrive on their desks and the police work is sloppy, weak, or worse?
On a related note, Cato adjunct scholar Harvey Silverglate fights another miscarriage of justice in Massachusetts.
More on Sotomayor
Cato adjunct scholars on Judge Sotomayor:
- Harvey Silverglate looks at the Supreme Court nominee’s free speech record.
- Richard Epstein compares the libertarian and conservative criteria for Supreme Court nominees.
Today’s Wall Street Journal reports that Sotomayor’s record on criminal justice issues put her to the right of David Souter. Good grief — that would mean that for Sotomayer just about all the barriers on state power come tumbling down: structural safeguards like enumerated powers, non-delegation, separation of powers and the limits pertaining to police and prosecutorial powers.
Who’s Blogging about Cato
Here’s your weekly roundup of bloggers who are writing about Cato research and commentary:
- Liberty Maven blogger Mike Miller cites Jim Harper in a post about the effort to impose a national ID card on American citizens.
- W.E. Messamore, AKA The Humble Libertarian, interviews Cato health analyst Michael D. Tanner about Obama’s plan to overhaul the health care system.
- Insider Online blogger Alex Adrianson covers Cato’s standoff with Hugo Chavez supporters and government agents during a pro-free market conference in Venezuela.
- Writing for Real Clear World’s Compass blog,
- At Red State, Ryan Ellis uses Michael Cannon’s research in a post about a market-based alternative to government-run health care.
- Blogging for Young Americans for Liberty, Jeff Hubbard and Elliot Engstrom write about Cato University and Ilya Shapiro’s CNN commentary on Sonia Sotomayor.
- Blogger David Kirkpatrick cites Daniel J. Ikenson’s analysis of the GM bankruptcy.
Let us know if you’re blogging about Cato via email or Twitter.
Responses to My Comments About Sotomayor
As might be expected, I have received much email responding to my CNN.com commentary about Obama’s Supreme Court pick. Some of it has been favorable, some less so (and some simply incoherent). One particular email covered most if not all concerns — and quite thoughtfully at that — so I thought I would share this exchange with a reader who emailed me his comments:
I read your piece “Sotomayor Pick Not Based on Merit”, where you write, “in over 10 years on the Second Circuit, she has not issued any important decisions”.
Granted that I’m a layman, not a legal scholar or anything – this list seems quite impressive, and, as a whole, pretty non-ideological.
In reviewing this list, I found myself disagreeing with her here and there, but I couldn’t find something that really irked me. Can you?
According to the authors, “Since joining the Second Circuit in 1998, Sotomayor has authored over 150 opinions, addressing a wide range of issues, in civil cases.” And that “To date, two of these decisions have been overturned by the Supreme Court; a third is under review and likely to be reversed.” 2 out of over 150, is not a bad record at all.
You also write that she’s “far less qualified for a seat on the Supreme Court than Judges Diane Wood and Merrick Garland or Solicitor General Elena Kagan.”
I did a bit of research on them, and I’m not sure why you reached that conclusion. They are all qualified, in some respects Wood and Kagan are a bit more impressive, but you give the impression that she’s not highly qualified, and I don’t see evidence for that. On the contrary, she seems highly qualified – she has a long judicial and academic record, she has dealt with a myriad of issues, and has authored a vast amount of rulings, which, as far as I’ve seen, don’t appear to be ideological or particularly “activist.” She strikes me as someone balanced and sensible, with a slight tilt to the left.
You also write, “this does not a mean that Sotomayor is unqualified to be a judge — or less qualified to be a Supreme Court justice than, say, Harriet Miers” – but, c’mon, how can you even compare her to Miers? Miers was truly unqualified. She’s hardly intellectually impressive in any way, to put it mildly, and nothing about her record was impressive or even remotely suggesting she’s qualified to serve as a Justice. She was basically a manager of a law firm, with zero qualifications to serve as a SC justice. By even mentioning her name while discussing Sotomayor, you’re giving the impression there’s an analogy there, where there’s really none. Sotomayor is light-years ahead of Miers. You can’t be serious.
You also make a big issue over Ricci v. DeStefano. Well, I personally would side with the firemen, and it’s unfortunate that Sotomayor hasn’t, but to be fair, she hasn’t even written a decision about that.
We don’t know what her reasoning was. She merely signed, along with the rest of the panel, to uphold the lower court’s decision. It’s hard to build an entire case against her based on something like that. She has written over 150 other decisions, why not focus on them? Why pick one, that doesn’t even have any arguments in it, and make it the central issue, when there are over 150 reasoned decisions to analyze?
Why not review them, and give the public a deeper assessment, rather than focusing on ONE, which doesn’t even have any arguments or reasoning in it?I’m generally a Cato fan, I get the mailings every day, I’m a moderate libertarian by philosophy, I’m just not sure why Cato is opposing her nomination. I like to think of Cato as non-partisan, just as I am, but on this issue your and Pilon’s opposition/criticism smacks from political partisanship and is not based on the evidence. So it seems to me.
Thanks for reading.
Here is my response:
Thanks for writing and for the thoughtful comments. A few points:
1. My argument is explicitly NOT that her opinions are disagreeable. I’ve waded through a fair number and read every public report on them produced thus far (including the very helpful SCOTUSblog summary you cite). Like you, some I agree with — most, actually, because most cases at this intermediate appellate level are not controversial (legally or politically), even if complex — some I don’t. But there’s just not much “there” there — intellectual depth, scholarly merit, etc. — at least by the elevated standards for elevation to the Supreme Court and in comparison to more accomplished jurists like Wood and Garland. She’s a competent judge, but we have 500 of those in the federal judiciary alone. (And none of this is to disparage her tremendous personal story; I write this from Princeton, where she had a truly impressive four years.)
2. Her reversal rate (I think there are six cases now) is a non-issue. The Supreme Court reverses over 60% of cases it hears and hears fewer than 2% of cases it is asked to review. So, statistically, we can say nothing about Sotomayor in that sense. A couple of her reversals are a bit strange, but on technical issues that, again, don’t lend much to the overall debate.
3. Yes, she’s much more qualified than Miers (though it’s a little unfair to say Miers was a mere “law firm manager” — she was White House counsel and apparently a decent lawyer in private practice). I threw that line in there to show I can pick on Republican nominees too.
4. While Roger, whom I copy here, has discussed suspicions of Sotomayor’s activism or radicalness — and I think it’s clear she has more of those tendencies than Wood or Kagan — this is not the thrust of the my CNN commentary. We just can’t tell from her opinions, which are all over the map — other than the speeches at Berkely and Duke and then the Ricci case.
5. Ricci is important for two reasons: a) on the merits, the decision is blatant racial discrimination — and the Supreme Court looks likely to overturn Sotomayor’s panel; b) perhaps more importantly, the failure to grapple with the complex constitutional and statutory issues is a serious dereliction of judicial duty — as pointed out by Jose Cabranes in his dissent from denial of en banc rehearing. Regardless of the merits of the case, the way it was handled — as a per curiam summary affirmance released late on a Friday, meant to sweep the case under the rug — is outrageous. Sotomayor was 100% complicit in that.
6. In no way are my (or Roger’s) comments partisan. Cato’s interest here isn’t in any particular personality but rather: 1) that official appointments be made irrespective of racial/ethnic/identity politics, and 2) even more importantly, that the Supreme Court interpret the Constitution in a way that treats the judicial enterprise not as one of enforcing social justice or otherwise rewriting the law it when a result is inconvenient. The talk of “empathy” is disturbing precisely because it is the antithesis of the rule of law. And this is why Republican Judiciary Committee members must generate a public debate on judicial philosophy and not merely attempt to tear down this nominee. If they don’t demand substantive answers on serious constitutional questions, they will be complicit in the deterioration of our confirmation processes.
All the best,
Ilya
I look forward to following and commenting further as the confirmation process plays itself out.
Week in Review: Sotomayor, North Korean Nukes and The Fairness Doctrine
Obama Picks Sotomayor for Supreme Court
President Obama chose federal Judge Sonia Sotomayor on Tuesday as his nominee for the U.S. Supreme Court, the first Hispanic Latina to serve on the bench.
On Cato’s blog, constitutional law scholar Roger Pilon wrote, “President Obama chose the most radical of all the frequently mentioned candidates before him.”
Cato Supreme Court Review editor and senior fellow Ilya Shapiro weighed in, saying, “In picking Sonia Sotomayor, President Obama has confirmed that identity politics matter to him more than merit. While Judge Sotomayor exemplifies the American Dream, she would not have even been on the short list if she were not Hispanic.”
Shapiro expands his claim that Sotomayor was not chosen based on merit at CNN.com:
In over 10 years on the Second Circuit, she has not issued any important decisions or made a name for herself as a legal scholar or particularly respected jurist. In picking a case to highlight during his introduction of the nominee, President Obama had to go back to her days as a trial judge and a technical ruling that ended the 1994-95 baseball strike.
Pilon led a live-chat on The Politico’s Web site, answering questions from readers about Sotomayor’s record and history.
And at The Wall Street Journal, Cato senior fellow John Hasnas asks whether “compassion and empathy” are really characteristics we want in a judge:
Paraphrasing Bastiat, if the difference between the bad judge and the good judge is that the bad judge focuses on the visible effects of his or her decisions while the good judge takes into account both the effects that can be seen and those that are unseen, then the compassionate, empathetic judge is very likely to be a bad judge. For this reason, let us hope that Judge Sotomayor proves to be a disappointment to her sponsor.
North Korea Tests Nukes
The Washington Post reports, “North Korea reportedly fired two more short-range missiles into waters off its east coast Tuesday, undeterred by the strong international condemnation that followed its detonation of a nuclear device and test-firing of three missiles a day earlier.”
Writing in the National Interest online, Cato scholar Doug Bandow discusses how the United States should react:
Washington has few options. The U.S. military could flatten every building in the Democratic People’s Republic of Korea (DPRK), but even a short war would be a humanitarian catastrophe and likely would wreck Seoul, South Korea’s industrial and political heart. America’s top objective should be to avoid, not trigger, a conflict. Today’s North Korean regime seems bound to disappear eventually. Better to wait it out, if possible.
On Cato’s blog, Bandow expands on his analysis on the best way to handle North Korea:
The U.S. should not reward “Dear Leader” Kim Jong-Il with a plethora of statements beseeching the regime to cooperate and threatening dire consequences for its bad behavior. Rather, the Obama administration should explain, perhaps through China, that the U.S. is interested in forging a more positive relationship with [the] North, but that no improvement will be possible so long as North Korea acts provocatively. Washington should encourage South Korea and Japan to take a similar stance.
Moreover, the U.S. should step back and suggest that China, Seoul, and Tokyo take the lead in dealing with Pyongyang. North Korea’s activities more threaten its neighbors than America. Even Beijing, the North’s long-time ally, long ago lost patience with Kim’s belligerent behavior and might be willing to support tougher sanctions.
Cato Media Quick Hits
Here are a few highlights of Cato media appearances now up on Cato’s YouTube channel:
- Ted Galen Carpenter discuss the North Korean missile tests on WOR radio.
- On Fox News, Chris Edwards disputes the idea of a federal sales tax.
- Gene Healy comments on the future of Guantanamo detainees on BBC.
- On CNBC, Dan Mitchell explains why California is like the “France of America.”
- In Friday’s Cato Daily Podcast, John Samples discusses how at least three presidents used the Fairness Doctrine to squelch dissenting speech.
Richard Epstein on Sotomayor
Cato adjunct scholar Richard Epstein of the University of Chicago and New York University, finds much to worry about in Judge Sonia Sotomayor’s nomination to the Supreme Court:
The treatment of the compensation packages of key AIG executives (which eventually led to the indecorous resignation of Edward Liddy), and the massive insinuation of the executive branch into the (current) Chrysler and (looming) General Motors bankruptcies are sure to generate many a spirited struggle over two issues that are likely to define our future Supreme Court’s jurisprudence. The level of property rights protection against government intervention on the one hand, and the permissible scope of unilateral action by the president in a system that is (or at least should be) characterized by a system of separation of powers and checks and balances on the other.
Here is one straw in the wind that does not bode well for a Sotomayor appointment. Justice Stevens of the current court came in for a fair share of criticism (all justified in my view) for his expansive reading in Kelo v. City of New London (2005) of the “public use language.” Of course, the takings clause of the Fifth Amendment is as complex as it is short: “Nor shall private property be taken for public use, without just compensation.” But he was surely done one better in the Summary Order in Didden v. Village of Port Chester issued by the Second Circuit in 2006. Judge Sotomayor was on the panel that issued the unsigned opinion–one that makes Justice Stevens look like a paradigmatic defender of strong property rights.
I have written about Didden in Forbes. The case involved about as naked an abuse of government power as could be imagined. Bart Didden came up with an idea to build a pharmacy on land he owned in a redevelopment district in Port Chester over which the town of Port Chester had given Greg Wasser control. Wasser told Didden that he would approve the project only if Didden paid him $800,000 or gave him a partnership interest. The “or else” was that the land would be promptly condemned by the village, and Wasser would put up a pharmacy himself. Just that came to pass. But the Second Circuit panel on which Sotomayor sat did not raise an eyebrow. Its entire analysis reads as follows: “We agree with the district court that [Wasser's] voluntary attempt to resolve appellants’ demands was neither an unconstitutional exaction in the form of extortion nor an equal protection violation.”
Maybe I am missing something, but American business should shudder in its boots if Judge Sotomayor takes this attitude to the Supreme Court.
Obama’s Sotomayor Nomination: Identity Politics over Merit
In picking Sonia Sotomayor, President Obama has confirmed that identity politics matter to him more than merit.
Judge Sotomayor is not one of the leading lights of the federal judiciary and would not even have been on the shortlist if she were not Hispanic.
She has a mixed reputation, with a questionable temperament and no particularly important opinions in over 10 years on the Second Circuit. Most notably, she was part of the panel that summarily affirmed the dismissal of Ricci v. DeStefano, where the City of New Haven denied firefighter promotions based on an admittedly race-neutral exam whose results did not yield the “correct” racial mix of successful candidates. Sotomayor’s colleague José Cabranes—a liberal Democrat—excoriated the panel’s actions and the Supreme Court will likely reverse the ruling next month.
If this is the kind of “empathy” the president wants from his judges, we are in for a long summer—and more bitter confirmation battles in the future.
Cato on Facebook
Cato on Twitter
Cato on Google+
Cato on YouTube
