President Obama has selected Judge Sonia Sotomayor of United States Court of Appeals for the Second Circuit. She has an inspiring life story and gave a moving speech at the White House. She is not the intellectual powerhouse that many academics had hoped for. However, many nominees did not find their voices until after years of service on the Court. I discussed the nomination on this segment of Countdown. [For an update on debunking conservative and liberal attacks in this debate, click here]
The Supreme Court sweepstakes has been raging for weeks. My prediction on the day of Souter’s resignation was Judge Diane Wood of the Seventh Circuit, who I still believe would have been the wisest choice. Judge Sonia Sotomayor will be much more controversial and divisive for confirmation in my view. This was the highest risk nomination that Obama could pick.
The key in these fights is the first 48 hours and whether the GOP can take control of the debate. It will be the first real test for the new GOP leadership. As I mentioned on Countdown, the primary attacks on Sotomayor have no basis in my view. She is not a liberal activist and her opinions do not show blind ideological tendencies. Indeed, if she votes on the Court the way that she voted on the Second Circuit, liberals will lose ground on the Court in areas of free speech, police abuse, and student rights. Her opinion in the Jocks case is cited as an example of her generally pro-law enforcement emphasis in cases. The focus will likely be on a few of the more controversial decisions in her past.
Sotomayor’s participation in the controversial ruling in Ricci v. DeStefano, the firefighters case, will be a lightening rod. I have serious reservations about the case and the way that the panel handled it. The Republicans will have a field day with it. In the case, the New Haven Fire Department administered written and oral examinations in 2003 for promotion to Lieutenant and Captain. Seven whites and two hispanics qualified for promotion. Since no black firefighters succeeded, the city attorney and board refused to accept the results. The opinion was largely conclusory and notably falls to address the difficult constitutional questions raised by the firefighters:
Nothing in the record in this case suggests that the City defendants or CSB acted “because of” discriminatory animus toward plaintiffs or other non-minority applicants for promotion. Rather, they acted based on the following concerns: that the test had a statistically adverse impact on African-American and Hispanic examinees; that promoting off of this list would undermine their goal of diversity in the Fire Department and would fail to develop managerial role models for aspiring firefighters; that it would subject the City to public criticism; and that it would likely subject the City to Title VII lawsuits from minority applicants that, for political reasons, the City did not want to defend. “[T]he intent to remedy the disparate impact of [the tests] is not equivalent to an intent to discriminate against non-minority applicants.” Hayden, 180 F.3d at51. None of the defendants’ expressed motives could suggest to a reasonable juror that defendants acted “because of” animus against non-minority firefighters who took the Lieutenant and Captain exams.
While expressing sympathy for the firefighters, the panel gives their claims short shrift. The odds favor a reversal in the case, which could come in the midst of Sotomayor’s confirmation process.
While Sotomayor gives Obama a “twofer” with the first hispanic and a new female justice, Wood in my view has more intellectual firepower and would have been a better addition to the Court. One of the concerns from many is that Sotomayor, who is given bad marks on temperament, will be replaced one of the most easy going and civil justices on the Court. As I have mentioned on air, I am less concerned with this criticism. She is being selected as a justice, not a close friend or house pet. It is the weight of her opinions and writings that dictate the focus of our review. Even after this criticism, advocates have struggled to cite a single opinion that could be viewed as a brilliant or extraordinary treatment of the law. There are clearly important decisions in their result, such as the much cited baseball decision. However, unlike some of her colleagues, she was not cited as the intellectual powerhouse on that court. Does this mean that she may not prove to be such a powerhouse? Of course not. The question is the current record and the basis for the nomination.
A few other cases are likely to draw equal attention and possible criticism. It is surprising that some liberals assume that she is a strong liberal voice. She has not been a strong liberal voice on the Second Circuit, often voting against such interests. Police reform advocates might be uncomfortable with her vote in Jocks v. Tavernier where she reversed a jury decision against a police officer for an abusive arrest. Open government advocates might be uncomfortable with her involvement in Tigue v. DOJ and Wood v. FBI. Both cases narrowly construed the Freedom of Information Act (FOIA). Another flash point is likely to be Gant v. Wallingford Board of Education she ruled in favor of Ray Gant, who was transferred from the First Grade to Kindergarten due to his poor performance. Sotomayor wrote a dissent that such a decision was racial discrimination, a view that was obviously not shared by her colleagues.
Sotomayor’s two second amendment rulings follow a familiar panel. She voted on the panel in favor of the majority ruling that dismisses the right to bear arms as a fundamental right. In the first case, United States v. Sanchez-Villar (2004), the court states “the right to possess a gun is clearly not a fundamental right.” This case is less notable than the later ruling in Maloney v. Cuomo, a 2009 per curiam opinion, where she again joins a panel in rejecting the notion that the right to bear arms is a fundamental right. The panel relies on Presser v. Illinois (1886) that preceded the incorporation of rights through the due process clause — making its application more problematic. As with the New Haven firefighters case, any claim is largely dismissed without full analysis — leaving us again wondering about Sotomayor’s vision of the law. This is not some arcane question for gun rights owners. While the Court held that the Second Amendment contains an individual right, it is not applied or incorporated to the states unless it is fundamental. The short shrift given the issue could legitimately raised concerns over Sotomayor’s views.
My main concern is the lack of intellectual depth in her past opinions. Objecting to the intellectual content of opinions is not the same as objecting to the intellect of an individual. Smart people can have little vision in the law or other fields. No one would suggest that Sotomayor is not incredibly bright. It is her legal vision and the depth of her legal philosophy that is at issue in confirmation debates.
I have now read dozens of her opinions and focused on the most significant rulings. They do not support the view that she is a natural pick for the Court. She is without question a historic pick. Her defenders have rightfully likened her to Marshall (who is one of my personal heroes). I consider her life as inspiring and I believe that it will give her an added insight into cases. The concern is her view of the law is a bit insular and narrow — at least as reflected in these opinions. The fact is that few people list Marshall as someone who has had a lasting intellectual influence on the Court. He helped change the law, but few opinions reached a lasting level. That does not mean that he was not smart (which he certainly was) or that his selection was a mistake (he was a brilliant choice). Sotomayor will be a very good justice and her life’s story will be an inspiration. She has obviously very intelligent. However, liberals openly called for a liberal version of Scalia. I am not confident that they found it in this nominee despite her powerful personal story.
Looking objectively at the body of opinions by Judge Sotomayor, one is not overwhelmed by their depth. There is nothing in this body of work that would scream out for the elevation of the author to the Court. Personally, I would have loved to see an opinion by her in Ricci, which presented sweeping questions of constitutional law and values. Instead, she rejected the case with her panel in a cursory fashion without substantive analysis. The opinion expresses sympathy without substantive analysis:
We affirm, substantially for the reasons stated in the thorough, thoughtful, and well-reasoned opinion of the court below. In this case, the Civil Service Board found itself in the unfortunate position of having no good alternatives. We are not unsympathetic to the plaintiffs’ expression of frustration. Mr. Ricci, for example, who is dyslexic, made intensive efforts that appear to have resulted in his scoring highly on one of the exams, only to have it invalidated. But it simply does not follow that he has a viable Title VII claim. To the contrary, because the Board, in refusing to validate the exams, was simply trying to fulfill its obligations under Title VII when confronted with test results that had a disproportionate racial impact, its actions were protected.
This statement is understandably maddening for the firefighters who had plenty of “good alternatives” to suggest like honoring the test results. At least Judge Calabresi offered a concurrence with a bit more substance and explanation. Conversely, “major decisions” cited by supporters are very brief-like and narrow in their analysis, as in her opinion in Amnesty America v. West Hartford .
There is no question that she is very smart — as shown by her impressive work at Princeton and Yale. However, all of these candidates are smart. You can be smart and not hold particularly profound ideas about the law. Regardless of the understandable short term elevation over this historic moment, I do not see her moving the intellectual center of gravity on the Court. While people have demanded that I show evidence that she has not been particularly impressive in her decision, it is rather difficult to point to the absence of something. Her opinions tend to lack of a broader historical or theoretical view. It is easier to point to opinions that show a broader vision of the law. For example, while I disagreed with the decision, her colleague Guido Calabresi showed such gravitas in his ruling in Boy Scouts v. Wyman. Another comparison is between the recent ruling by the Seventh Circuit on the Second Amendment supporting Sotomayor’s view on the right to bear arms, here. Two of the authors, Frank Easterbrook and Richard Posner, are leading conservative intellectuals and often offer such broader treatments of the law. Their decision reaches the same result as Sotomayor’s panel but does so with a more fulsome discussion of the rivaling issues and underlying principles. The two opinions show the difference between rendering decisions and rendering opinions connected to a deeper jurisprudential understanding. These liberal and conservative judges — Calabresi, Posner, and Easterbrook — do not render such decisions routinely. There are many fairly straight-forward cases that do not warrant such treatment. In fact, most cases can be addressed in a fairly limited fashion. However, in eighteen years, such decisions occasionally come along and justify a deeper analysis. The total absence of such decisions in Sotomayor’s body of work is surprising and disappointing.
Sotomayor’s decisions and dissents tend to be abbreviated and limited in scope. Once again, that could reflect a certain deference to her appellate status or a lack of broader vision. It is certainly true, as she stated in a prior interview, that “95 percent of the cases before most judges are fairly mundane.” She used this observation to explain why she does not write grand opinions: “I’m not going to be able to spend much time on lofty ideals.” However, after 18 years, such cases do come along and warrant a fuller treatment with a glimpse at a deeper judicial philosophy. For example, her dissent in Pappas v. Guiliani presents an opportunity to gain a view of her broader view of free speech. Instead, it offered a narrow brief-like presentation and no hint of a vision of how this case fit into the wider context of free speech. I also have great reservations about her ruling in a recent school case that was featured earlier on our blog. In the Second Circuit she ruled against high school student Avery Doninger who contested her punishment for posting an objectionable message on an Internet site about Lewis Mills High School. When she objected to the cancellation of a school event in vulgar terms, school officials barred her from running for Senior Class secretary. In Doninger v. Niehoff, the Second Circuit upheld the right of school officials to punish students for out-of–school speech in a major blow to both the first amendment and student rights.
While federal courts routinely state that students do not “shed their
constitutional rights to freedom of speech or expression at the schoolhouse gate,” Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969), they honor that rule primarily in the breach. There has been a steady reduction of student rights from mandatory drug testing to school searches to punishment for writings in newspapers and out-of-school activities. Circuit judges Sotomayor, Livingston, and district judge Preska (sitting by designation) followed this troubling trend. They rely on the equally wrong-decided case of Morse v. Frederick (2007), the “Bong Hits 4 Jesus case. In that case, the Supreme Court allowed officials to punish a student for a statement that he made when he was neither in school nor on school grounds. The Supreme Court brushed over those facts and found that the conduct was within the school jurisdiction. The Second Circuit builds on this precedent:
The Supreme Court has yet to speak on the scope of a school’s authority to regulate expression that, like Avery’s, does not occur on school grounds or at a school-sponsored event. We have determined, however, that a student may be disciplined for expressive conduct, even conduct occurring off school grounds, when this conduct “would foreseeably create a risk of substantial disruption within the school environment,” at least when it was similarly foreseeable that the off- campus expression might also reach campus. Wisniewski v. Bd. of Educ., 494 F.3d 34, 40 (2d Cir. 2007), cert. denied, 128 S. Ct. — (2008). We are acutely attentive in this context to the need to draw a clear line between student activity that “affects matter of legitimate concern to the school community,” and activity that does not. Thomas v. Bd. of Educ., 607 F.2d 1043, 1058 n.13 (2d Cir. 1979) (Newman, J., concurring in the result). But as Judge Newman accurately observed some years ago, “territoriality is not necessarily a useful concept in determining the limit of [school administrators’] authority.” Id.
She was not the author of the opinion but supported the opinion, which cut deeply into student rights.
Sotomayor may indeed have felt constrained by her position on a lower court. Yet, when I raise such concerns, supporters seem to immediately cite her inspiring life. My point is simply that, looking at this body of work, there is nothing that distinguishes her opinions or past writings. My review also does not support the view of many conservatives that she is a wild-eyed activist judge. To the contrary, her opinions fall on both sides of the political spectrum.
Many of her controversial votes occur in cases where she joined the opinion, but did not write them. Some have the same cursory quality as Ricci. For example, she joined in the decision in Didden v. Village of Port Chester where the Second Circuit in 2006 supported the same result as in the Supreme Court’s decision in Kelo v. City of New London (2005). I have previously criticized the Kelo decision and its use of public use theories to allow a city to take the property of citizens to give to a private company. The case was not identical to Kelo and deserved full consideration, but the panel with Sotomayor simply issued one line: ” “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.” This case may also be raised during the hearings.
One of the complaints in my Supreme Court class is how often opinions lack a depth of history or theory — creating a unifying body of work in areas of the free speech or privacy. Instead, we often have a series of unconnected and unsatisfying insular decisions. I do not agree with Scalia on many things, but he has been able to maintain a coherent philosophy. This may indeed be a case of a judge who took a minimalist view of her appellate role and will speak more fully as a justice. I believe she should be given that chance despite the fact that I favored Wood and Koh. I prefer not to take the chance and would go with a proven demonstration of deep philosophical and legal reasoning. I raised the same concerns over Alito’s decisions. In his case, I opposed the nomination because I believed that his decisions were not only unremarkable but showed a certain bias to the government. I do not see the bias here. However, we should be able to objectively discuss this record of opinions without the fear of being labeled racists or sexist. Indeed, I expect the judge would be the first to insist on being reviewed according to her own work. Instead, liberals are reacting to his nomination in precisely the blind fashion as conservatives reacted to the Alito nomination: not allowing for any criticism. One can support this nomination while insisting that there were better candidates like Judge Wood or questioning the intellectual depth of past decisions. Since my first review of her opinions, other professors and commentators, including the recent New York Times review of her opinion, have reached the same conclusion that they are narrow, limited, and lack historical or theoretical foundation.
The opinions remind me of John Paul Stevens’ appellate decision, which gives reason to hope. However, we will not likely know until she is on the Court — much like Alito and Steven