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.
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.
Week in Review: The War on Drugs, SCOTUS Prospects and Credit Card Regulation
White House Official Says Government Will Stop Using Term ‘War on Drugs’
The Wall Street Journal reports that White House Drug Czar Gil Kerlikowske is calling for a new strategy on federal drug policy and is putting a stop to the term “War on Drugs.”
The Obama administration’s new drug czar says he wants to banish the idea that the U.S. is fighting ‘a war on drugs,’ a move that would underscore a shift favoring treatment over incarceration in trying to reduce illicit drug use…. The Obama administration is likely to deal with drugs as a matter of public health rather than criminal justice alone, with treatment’s role growing relative to incarceration, Mr. Kerlikowske said.
Will Kerlikowske’s words actually translate to an actual shift in policy? Cato scholar Ted Galen Carpenter calls it a step in the right direction, but remains skeptical about a true change in direction. “A change in terminology won’t mean much if the authorities still routinely throw people in jail for violating drug laws,” he says.
Cato scholar Tim Lynch channels Nike and says when it comes to ending the drug war, “Let’s just do it.” In a Cato Daily Podcast, Lynch explained why the war on drugs should end:
Cato scholars have long argued that our current drug policies have failed, and that Congress should deal with drug prohibition the way it dealt with alcohol prohibition. With the door seemingly open for change, Cato research shows the best way to proceed.
In a recent Cato study, Glenn Greenwald examined Portugal’s successful implementation of a drug decriminalization program, in which drug users are offered treatment instead of jail time. Drug use has actually dropped since the program began in 2001.
In the 2009 Cato Handbook for Policymakers, David Boaz and Tim Lynch outline a clear plan for ending the drug war once and for all in the United States.
Help Wanted: Supreme Court Justice
Justice David Souter announced his retirement from the Supreme Court at the end of last month, sparking national speculation about his replacement.
Calling Souter’s retirement “the end of an error,” Cato senior fellow Ilya Shapiro makes some early predictions as to whom President Obama will choose to fill the seat in October. Naturally, there will be a pushback regardless of who he picks. Shapiro and Cato scholar Roger Pilon weigh in on how the opposition should react to his appointment.
Shapiro: “Instead of shrilly opposing whomever Obama nominates on partisan grounds, now is the time to show the American people the stark differences between the two parties on one of the few issues on which the stated Republican view continues to command strong and steady support nationwide. If the party is serious about constitutionalism and the rule of law, it should use this opportunity for education, not grandstanding.”
Obama Pushing for Credit Card Regulation
President Obama has called for tighter regulation of credit card companies, a move that “would prohibit so-called double-cycle billing and retroactive rate hikes and would prevent companies from giving credit cards to anyone under 18,” according to CBSNews.com.
But Cato analyst Mark Calabria argues that this is no time to be reducing access to credit:
We are in the midst of a recession, which will not turn around until consumer spending turns around — so why reduce the availability of consumer credit now?
Congress should keep in mind that credit cards have been a significant source of consumer liquidity during this downturn. While few of us want to have to cover our basic living expenses on our credit card, that option is certainly better than going without those basic needs. The wide availability of credit cards has helped to significantly maintain some level of consumer purchasing, even while confidence and other indicators have nosedived.
In a Cato Daily Podcast, Calabria explains how credit card companies have been a major source of liquidity for a population that is strapped for cash to pay for everyday goods.
Filed under: Cato Publications; General; Law and Civil Liberties; Regulatory Studies
The Jurisprudence of Detention: Definitions and Cases
Almost a year has passed since the Supreme Court’s decision to extend habeas rights to Guantanamo in Boumediene. Detention policy is currently under review by interagency task forces; it is worth looking at what the developing body of detention rulings say about the future of detention.
Taking prisoners is an unavoidable part of military action. Telling our troops that they can engage identified enemies with lethal force but cannot detain them puts them in an impossible position.
But who can we hold? The Taliban foot soldier is an easy case, but as we move away from the battlefield things get a little fuzzy. A chronological review of the decisions regarding detainee status gives some insight.
New Doherty Book Review
There is a new review of Brian Doherty‘s book, Gun Control on Trial: Inside the Supreme Court Battle over the Second Amendment, over at The American Spectator.
The review captures the uphill battle that the Heller litigants faced in the District of Columbia:
When an employee on the Taxicab Commission once suggested that taxicab drivers be able to arm themselves for self- defense, a spokesman for then mayor Anthony Williams said, “The proposal is nutty, and obviously, it would not be entertained seriously by any thinking person.” After D.C. readjusted its laws in the wake of Heller so that guns were no longer prohibited but regulated to the point of making ownership exceedingly difficult, Mayor Adrian Fenty justified it thusly: “I don’t think [the people of D.C.] intended that anybody who had a vague notion of a threat should have access to a gun.” Apparently the mayor doesn’t know or doesn’t care that once a threat is real, it’s probably too late to go through all of the city’s regulatory hoops.
Cato held a book forum for the event, which is available here. Also check out Reason TV’s videos of Brian discussing this historic legal battle, both before and after the decision came down.
Justice Souter and the Lost Liberty Inn
This article on Justice Souter’s eagerness to get back to his farmhouse in Weare, New Hampshire, briefly mentions the campaign of Logan Darrow Clements after the Kelo decision to use eminent domain to take Souter’s house and turn it into an inn. After all, he reasoned, Souter voted to uphold the power of government to take property from one private owner and give it to another private owner who might produce more “public benefits” such as tax revenue. That was the reasoning that caused a fiery dissent from the departing Sandra Day O’Connor:
Who among us can say she already makes the most productive or attractive possible use of her property? The specter of condemnation hangs over all property. Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory….
Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. As for the victims, the government now has license to transfer property from those with fewer resources to those with more. The Founders cannot have intended this perverse result.
Cooler heads prevailed in Weare, though — or O’Connor’s prediction that “citizens with disproportionate influence” would not be the losers in such proceedings came true — and the citizens of Weare rejected Clements’s proposal. Voters at the town meeting instead urged New Hampshire to adopt a law that forbids seizures of the sort sanctioned by the Supreme Court.
NAMUDNO v. Holder Update
Editor’s Note: Cato scholar Ilya Shapiro is blogging about the NAMUDNO v. Holder case from the Supreme Court, and will provide dispatches throughout the Court’s session.
As I walk away from the Court, with the sounds of the NAACP rally fading in the distance, I’m no clearer on how this case will be resolved than when I went into the building early this morning.
This uncertainty mostly results from the rather technical issues surrounding the Voting Rights Act’s “bailout” provision, as well as how narrowly the Court will want to construe the municipal utility’s challenge (as-applied, facial, or some other novel formulation).
What is clear is that the “liberal” justices, especially Ginsburg and Breyer, were downright hostile to the idea of curtailing federal supervision of state voting practices, while the “conservative” justices (not including Thomas, who was characteristically silent) found disingenuous assertions that VRA violations were systemic, or any more pervasive in the covered (mostly southern) jurisdictions than in non-covered ones.
Justice Kennedy sided strongly with the latter group, but, again, that may not mean much for the final contours of the Court’s decision.
However the case comes out, it is important to remember that even a complete striking of Section 5 does not leave voters who have been discriminated against without recourse in federal court; Section 2 has and will continue to be used to remedy VRA violations on a case-by-case basis (and without Section 5′s onerous preclearance requirements).
Blogging from the Supreme Court – NAMUDNO v. Holder
I write this from the Bar Members’ line waiting to be let into the Supreme Court courtroom for the final argument of the term.
Today the Court hears Northwest Austin Municipal Utility District No.1 (“NAMUDNO”) v. Holder. This is a challenge to the controversial Section 5 of the Voting Rights Act, which requires, among other things, any change in election administration in certain states and counties to be “precleared” by the Department of Justice in Washington. This is, of course, a remnant of the Jim Crow era, and southern states’ massive resistance to attempts to enforce the 15th Amendment.
In 1965, Congress included Section 5 — which would otherwise be an unconstitutional infringement on peoples’ right to run their own elections locally — as a temporary remedy to an emergency situation. The section has been amended and extended several times (e.g., to add linguistic minorities, Pacific Islanders, etc.), most recently in 2006. But in this last renewal, Congress, despite introducing more than 15,000 pages into the record, failed to even allege the existence of the type of systemic voting discrimination as existed in the 1960s — because, of course, it doesn’t exist any more, and other parts of the VRA exist to cover specific discriminatory incidents.
Accordingly, a small utility district in Austin, Texas, contests Section 5′s continuing validity (if it cannot escape the section’s clutches via a confusing and little-used “bailout” provision). Specifically, NAMUDNO wants to change the location of its polling station to a public garage (from a less convenient location) — a move that obviously lacks discriminatory intent, and showcases the minutiae that the DOJ now has to micromanage.
Cato legal scholars support NAMUDNO’s challenge because, barring the widespread systemic unconstitutional actions of the Civil Rights Era, Section 5 violates our most basic principles of self-government and federalism, and is emblematic of governmental overreach.
New at Cato
Here are a few highlights from Cato Today, a comprehensive daily email from the Cato Institute. You can subscribe, here.
- In a new study, “NATO at 60: A Hollow Alliance,” Ted Galen Carpenter argues that NATO has outlived whatever usefulness it once had.
- Doug Bandow weighs the usefulness of NATO in the American Spectator.
- David Isenberg discusses the use of private military and security contractors in war for United Press International.
- Timothy Lynch and Ilya Shapiro take on illegal searches in a legal brief submitted to the Supreme Court.
- In Monday’s Cato Daily Podcast, Dambisa Moyo, author of Dead Aid: Why Aid Is Not Working and How There Is a Better Way for Africa, discusses the failure of government aid to Africa.
When the Government Takes Your Money, It Takes Your Property
When Daniel and Andrea McClung applied for a permit to build a small business on their property in Sumner, Washington, the city charged them nearly $50,000 to pay for improvements to the city’s entire storm drainage system.
The McClungs sued the city under the Fifth Amendment to the Constitution, whose Takings Clause prohibits the government from “taking” private property for public use without just compensation. They argue that the city cannot force them to pay fees for off-site pipes absent proof that their development would have a specific detrimental effect on the existing drainage system–and without any evidence that the impact was worth $50,000.
The Ninth Circuit ruled in favor of the city, reasoning that money is not property (so there could be no unconstitutional taking) and that because the fees were imposed by ordinance (so the city’s determination that the pipes needed upgrading was justification enough for the fees). The McClungs have now asked the Supreme Court to review their case.
Cato, joined by the Pacific Legal Foundation and the Building Industry Association of Washington, argues that this case is a perfect vehicle for the Court to revisit the scope of Fifth Amendment protections.
Our brief highlights the deep divisions among state and federal courts over several important issues, such as whether the Takings Clause applies to legislative (as opposed to bureaucratic) exactions and whether it applies to monetary exactions (not just burdens on land use). The Court should take this case to ensure that the standard for reviewing development conditions is uniform across the country and make clear that property right protections do not depend on ill-defined distinctions such as the form of property demanded by the government or the manner in which a condition is imposed.
Monday Podcast: ‘Challenging Domestic Military Detentions’
Ali Saleh Kahlah al-Marri, the exchange student from Qatar who was detained by the FBI with alleged ties to al-Qaeda, sat for years in a military brig in South Carolina as the only domestically detained enemy combatant.
The Bush Administration used al-Marri to test a legal theory aimed at keeping suspected terrorists in military prisons indefinitely.
President Obama has reversed that ruling, and has moved al-Marri into civilian courts. The Supreme Court is no longer hearing al-Marri’s appeal.
In Monday’s Cato Daily Podcast, Legal Policy Analyst David Rittgers says that there’s nothing that will stop future administrations from again reversing the policy.
This is creating this legal cul-de-sac where we can have military detention domestically…and the reason that they picked Al-Marri is, just as you would pick a sympathetic plaintiff to sue to overturn a law, if you want to keep a law…you would look for an unsympathetic defendant, and Al-Marri is as unsympathetic as you can get.
…He is the test case to keep this policy open.
The Cato Institute co-authored an amicus brief (PDF) at the Supreme Court supporting al-Marri’s challenge to the military detention.
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