Tuesday, May 26, 2009

A Hispanic judge is nominated to the Court...

...but alas not one from Florida. Sonia Sotomayor is the pick.... No real surprise here.

I was rooting for Harvard (Elena Kagan) instead of Yale, but another spot will open up soon.

Sotomayor has more courtroom experience (she was a prosecutor and a district judge) than any of the other justices and many are calling her the liberal Sam Alito (both went to Princeton and Yale, both were prosecutors, both were Circuit judges, and both were appointed by Bush I). Sotomayor would be the only Justice who was a district judge. Still no former criminal defense lawyers on the Court...

The blogosphere is unbelievable when you want instant information, especially about legal news. Tom Goldstein at ScotusBlog has a ton of stuff, including this interesting post. Jan Crawford Greenberg has this scoop about the interview process and the 4 finalists. The right already is gearing up to fight her (using videos like this) but as Goldstein explains, she easily will be confirmed. Volokh has a bunch of posts about the nomination and How Appealing has every article written about Sotomayor. And if you are a baseball fan, Judge Sotomayor is your pick.

It's amazing to me that the interest groups are claiming that she isn't smart enough to be on the Court. What else can she do to prove herself -- she finished first in her high school class, second in her college class and was the editor of the Yale Law Journal.

Even though she is being compared to Alito, I sure hope she is more intellectually honest than he is. Today, the Supreme Court, 5-4, overruled Michigan v. Jackson -- a case on the books for 23 years. Justice Scalia wrote the opinion and Justice Alito concurred. His concurrence was remarkable because just a couple of weeks ago, he dissented in Arizona v. Gant. There, Justice Scalia again wrote the majority opinion, receding from the holding in New York v. Belton. Belton had been on the books for 28 years, and Alito's dissent focused on stare decisis. So this time around, he would dissent againt, right? And find that stare decisis required a finding that Jackson was still good law, right? Forget it -- Alito joined Justice Scalia in overturning a long-standing precedent. Why? Because this time he was ruling against the criminal defendant. Unlike Scalia who often rules for criminal defendants (and is still in my view the most pro-defendant Justice -- although that theory took a hit today), Alito has never once ruled in favor of a criminal defendant. Not once! When stare decisis helps the government, he invokes it. When it's bad for the government, what's stare decisis. Bizarro world!

Anyway, back to Sotomayor -- from what I've read about her, she seems like a solid (and safe) pick. She's obviously qualified and she will get confirmed. I think at the end of the day, she'll end up very similar to Souter, so the Court won't change that much.


Anonymous said...

Sotomayor is another incredibly shrewd Obama political move.

What voting block was largely responsible for Obama's victory? Hispanics.

If republicans attack the first ever hispanic nominee during confirmation hearings, they guarantee to alienate hispanics for the next presidential election.

Unbelievably shrewd political decision, to nominate Sotomayor.

Rumpole said...

You hit your head, right? You came home late and your wife wacked you with a frying pan in the head, correct?

Scalia rules for defendants???

Have you read the opinion today?

Have you seen his support of confessions advancing "society's interests"? Have you read his analysis of the 6th amendment right to counsel, and his "logic" that there is a profound difference between asking for an attorney and merely getting one appointed for you?

Have you seen how he blithely ignores (as Steven's dissent points out) the myriad of important reasons to have a lawyer present when a defendant makes perhaps the most important decision in his life- whether to talk to the police or not?

This is a man who sees very little wrong that a police officer can do. He trusts them implicitly and feels that so long as a defendant wants to talk to them, what's the harm?

And finally- if you cannot see between the lines of this opinion what he is really after (Miranda) then you need to go back for another session with Olgletree (and tell him I said "hello"")

Sometimes you really disappoint me.

Rumpole said...

And don't even get me started on his view of Stare decisis.

He's still unwinding himself from the yogi-like position he has twisted himself into to make this decision. He's the most result oriented, emotionally charged justice since Douglas. And the only one who has less regard for stare decisis is Alito. And one wonders how he can look himself in the mirror these days after he last few opinions (Grant) and this one.

Sheesh. These guys are rank amateurs.

Anonymous said...

um , rumpole? you're a state hack. Seriously. stick to silly state court gossip. you're analysis of anything not local court is irrelevant. SHUMIE TIME!

swlip said...

The conservative lawyer-bloggers at Powerline have posted side-by-side summaries of evaluations from lawyers who practiced before both Alito and Sotomayor:


Anonymous said...

This is a fun tidbit from the dissent:

"5In his concurrence, JUSTICE ALITO assumes that my consideration of the rule of stare decisis in this case is at odds with the Court’s recent rejection of his reliance on that doctrine in his dissent in Arizona v. Gant, 556 U. S. ___ (2009). While I agree that the reasoning in his dissent supports my position in this case, I do not agree with hischaracterization of our opinion in Gant. Contrary to his representation, the Court did not overrule our precedent in New York v. Belton, 453
U. S. 454 (1981). Rather, we affirmed the narrow interpretation of Belton’s holding adopted by the Arizona Supreme Court, rejecting the broader interpretation adopted by other lower courts that had been roundly criticized by judges and scholars alike. By contrast, in this case the Court flatly overrules Jackson—a rule that has drawn virtu-ally no criticism—on its own initiative. The two cases are hardly comparable. If they were, and if JUSTICE ALITO meant what he said in Gant, I would expect him to join this opinion."

South Florida Lawyers said...

Given that she is a lock for confirmation and not particularly liberal by any objective standard, it appears partisans are seeking to tarnish or diminish her by describing her as an affirmative action pick who is intellectually "mediocre" with a fiery Latin temper (insert stereotype here).

And they wonder why the party is turning into a white male regional one with numbers hovering around 20 percent?

David Oscar Markus said...


Let's put aside the Gant case, which breathed some life back into the 4th amendment -- without Scalia, the confrontation clause is still dead (no Crawford) and the sentencing guidelines are still mandatory (no Blakely). Criminal defense lawyers were pretty happy that he didn't care about stare decisis in those cases, no? And I'm sorry, but they are much much more important than Michigan v. Jackson. I've never seen a suppression based on a Jackson motion. Have you? I certainly have seen the effects of Crawford and Blakely/Booker which affect our daily practices.

And don't sound the alarm on Miranda. First, there's Dickerson (authored by Rehnquist) -- which reaffirmed the constitutional underpinnings of Miranda. And second, if you read the most recent case, Scalia says that Jackson can be overruled because the protections of Miranda & Edwards still exist. Now, I disagree completely with Scalia on this case and his reasoning. I agree with you that Stevens' opinion is much better reasoned. But I disagree with you that Scalia is the most dangerous Justice on the Court.

Alito is much more results oriented -- always ruling for the prosecution -- and much more dangerous. I stick by my premise that Scalia is the most pro-defendant Justice on the Court. Find me one better.

Fake Ben Cardozo said...

I was the first Hispanic Justice!

swlip said...


I don't understand your last comment. Are you referring to the practitioners' survey remarks?

You accused Alito of being narrow-minded and intellectually dishonest. I thought that the survey remarks would add to the discussion. Your regression into hyperbole does not add anything, and is fairly beneath the tone of your usual remarks.

swlip said...

Sorry, my last comment was directed at S.F.L. at 9:57 a.m. Nevermind.

Anonymous said...

Let's talk about homosexual marriage now. It's disgusting. I'm glad the California Supreme Court didn't undo the ban. At the same time, though, I was saddened to hear that the California public schools have begun to indoctrinate elementary school students with homosexual learning books. Why are they trying to teach my kid to be a homosexual? Where does Sotomayor stand on this?

Anonymous said...

I agree. Does it really matter whether you graduated from Princeton, Yale or Harvard when your views and values are so screwed up?

Anonymous said...

Please remove 10:50's bigoted remarks.

Anonymous said...

God says that homosexuality is a sin and a perversion. Have you ever read about Soddom and Gomorrah, and other passages of the Bible where God speaks about homosexuality? You can call God a bigot if you want, but you will pay the price in the end. And please don't try to equate one person's race or gender with another person's sinful behavior. It's like calling a person who speaks out against murder a bigot because he or she doesn't embrace murders along with everyone else.

Anonymous said...

interesting. a homophobe and likely an idiot says something stupid on the blog, and someone (presumably a smart intellectual) responds by asking for his comment's removal? Why is that. Just do what others do: ignore it and move on, which is what we should do with most comments on most blogs.

But on the more interesting point, a smackdown between a state court hack (rumpole) and a federal court expert (Markus). Gee, who should i side with on this one??..... Markus. (and no I am not related to him or owe him money, like rump)

Anonymous said...

If God proclaims homosexuality to be a sin as you suggest he does, then God is a bigot. End of discussion.

South Florida Lawyers said...

swlip, I was referring to the comments like Krauthammer last night and others I have highlighted where her ethnicity and gender are coupled with derisive remarks about her intellect and her emotional volatility.

swlip said...


Please point to where Krauthammer said any such thing. I'm willing to bet that he did not.

Indeed, if you follow the link from your own blog side bar to The Corner on NRO, you will find a transcript of Krauthammer's remarks, last night, which began:

Well, as we heard today, she has a great American story.

And — but there is someone else here, as we just heard, who also has a great American story, and that is Frank Ricci, who is the fireman who sued because he took a promotional test, he and others, and was denied the promotion simply because of his race.

And that's a case that came to the second circuit court, and Judge Sotomayor summarily dismissed it.

Now, that is important because it tells us a lot about her judicial philosophy. And the fact that, as we heard Judge Jose Contrera, on her court, also a Clinton appointee, was upset by her dismissal of this, and not even being willing to recognize the serious constitutional issues, that tells us that she really is a believer in the racial spoils system.

She is a person who said in a speech that she would hope that a wise Latina woman would come to better conclusions as a judge than a white male.

I mean, imagine if you heard someone say the reverse. He would be run out of town as a racist and a sexist.

swlip said...

And if this quote is accurate, then I'd say that Judge Sotomayor has put her gender, ethnicity, temperament, and pretty much everything else on the table as legitimate items for discussion:

Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice [Sandra Day] O’Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases…I am also not so sure that I agree with the statement. First, as Professor [Martha] Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn’t lived that life.Does anybody have a link to the full quote, in its given context?

Faker former Alito clerk said...

Didn't Alito rule for the defendant in Abuelhawa v. U.S. issued just yesterday? Alito fans demand a retraction!

South Florida Lawyers said...

My dear friend swlip, she should be asked about her Wise Latina comment and I would demand she be asked to explain it further.

I think Krauthammer overreaches big-time however when he says she "really is a believer in the racial spoils system." To me he is suggesting she is a affirmative action beneficiary by being a woman and Hispanic. That implies that she lacks the skills necessary to get where she got on merit.

Greenwald already found comments by Alito discussing how his personal background informs his judging, and makes him more "empathetic."

I think it's fair to ask why that was noncontroversial when uttered by a white male but is a huge problem now when voiced by a nonwhite female:


swlip said...


You are completely misreading Krauthammer's comments. His remark about her being a believer in the "racial spoils system" was in reference to her decision in the Ricci case. It had nothing to do with whether she was the beneficiary of affirmative action.

South Florida Lawyers said...

swlip, he clearly was discussing Ricci specifically, but his larger discussion of "identity politics" later in the clip is a dog-whistle. The prongs work together -- the other prong being that she is dumb (see Pat Buchanan's "not that intelligent" comment), and another that she is hot-tempered (read female, or Latina). The picture that emerges is not God, America, and apple pie.

BTW, go pick apart my dumb reasoning on my own crappy blog, like you normally do!

Rumpole said...

David- I would dare say most motions in federal court are denied, 6th amendment or otherwise.

Riddle me this:
Why is Scalia dropping tidbits about Miranda "purporting" to arise from the 5th amendment. He is far too crafty a writer to just drop a phrase for the hell of it.

Doesn't the use of overlapping protections strike you as odd? Can you point to another decision reversing precedent because after second thought, other protections did the job just fine? I can't.

Are you concerned about his twisting analysis of stare decisis? Seems to me he has invented a new branch of constitutional analysis. I've never seen that reasoning in any of the federalist papers, or decisions by John Marshall. According to Scalia, shouldn't the Constitution be interpreted via the yardstick of original intent AND ONLY original intent? Apparently yes- unless he needs something else.

I cannot remember seeing a decision chock full of so much danger. You think Miranda is safe because of something Rhenquist wrote? You miss the point. The 6th Amendment was safe based on Jackson until Scalia filleted it.

The whole point of what occurred here is no constitutional right that protects the accused is safe anymore. All Scalia needs to do is glue together Alito and three other judges and decide the right is no longer needed because 1- it's duplicitous or 2- it falls within that window of 20-30 years and is "unworkable" or 3- the defendant should know enough to invoke it without anyone helping him.

Maybe I'm crazy, but I see real danger here.

swlip said...


I like meeting you here. It feels so cozy.

Anonymous said...

alito's first opinion, Homles v. South Carolina was a pro-defendant ruling.