The President’s Pick: A Review of Sonia Sotomator’s Rulings

200px-Sonia_SotomayorPresident 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

182 thoughts on “The President’s Pick: A Review of Sonia Sotomator’s Rulings

  1. BREAKING: President Obama will name Second District Appeals Court Judge Sonia Sotomayor as his pick for the Supreme Court at 10:15 a.m. — Mike Allen (8:28 a.m

  2. Whoever ends up being the actual seated judge (people drop out or don’t get moved along in the process) we may be sure of one thing–this person will be pro executive power. That will be their first and only true qualification for the position.

  3. I’ve been expecting that Judge Sotomayor would get the nod. Her appointment would cover a lot of political territory. Expect Sen. Sessions to have conniptions. BTW, what does “conniptions” mean anyway?

  4. Hi, Jill. I understand your position, but if Judge Sotomayor is the actual appointee, I don’t think we’ll find that she will march in lockstep with the executive branch. I would prefer a more liberal appointee, but I think there will be at least one additional opportunity during the president’s first term.

  5. Hi Mike A.,

    I agree. I read about her thanks to Glen Greenwald and the links he provided. I will do more research on her, but so far, I would much prefer Judge Sotomayor to someone like Kagan. It’s very early in this process so that’s why I said “whoever ends up being the pick”.

    conniptions are “the vapors”!

  6. 10:16 a.m. Religious right declares jihad.
    10:17 a.m. John Boenher turns green.
    10:18 a.m. Meeting of Senate secret hold club place secret hold.
    10:19 a.m. Obama is giggling, Napolitano is real choice.

  7. Jill, do you mean that Obama’s appointees will be as likely as Roberts and Alito to vote for presidential power in cases like Boumediene? My chief criticism of those appointments was precisely their deference to executive power.

  8. After reading her curriculum vitae, I think that Ms. Sotomayer is an overall fair and wise choice.

  9. rturpin,

    I am very worried about this happening. The article by Charlie Savage addresses this concern. If you have time to check it out it might be of interest. To me, this is the most important line of quesitoning and research to be done. There are many important cases on this issue in the pipeline. We could easily have our Constitution stripped out should our one last line of defense, the judiciary, also rule in favor of unchecked executive authority.

  10. Shame on you Johnathon when you challenged her academic and intellectual capacity by telling Chris Matthews “we are not picking a house pet here.” What an awful thing to say. you are the house pet – DOG !

  11. Charlie Savage was the NY Times writer who did a reality series where he was a bronc rider, played professional football and a host of other macho things. I usually turn to people like that for deep analysis of the days issues.

    “Can we text in our choice?”

    Yes we can Mespo, but only between a four hour time period each day, though we can vote as many times as we want at $0.50
    per message.

    “10:19 a.m. Obama is giggling, Napolitano is real choice.”

    whooliebacon, astute political analysis.

    To all:
    Please remember Chief Justice Earl Warren and Justice William Douglas, ex-Republican governor and ex Ku Klux Klan
    member and know that performance on SCOTUS is never easy to predict, except in the case of true Republican hacks.

  12. I have to say this is a very dissappointing post. So far there is no evidence other than anonymous sources that Judge Sotomayor doesn’t have the intellectual heft of the people skills for a swift confirmation. Not only that, Professor Turly you advance the notion that Sotomayor deserves all of the credit or blame for the Ricci decision as if she was the only judge who went against the firefighters. If you have a problem with the decision then do you also have the same reservations about the rest of the judges on the panel who agreed with Sotomayor? I understand you had someone on your wish list for this nomination but I really didn’t think you would stoop to rumor mongering to try to throw cold water on the announcment.

  13. Thanks eniobob, More information from differing viewpoints is always better! JT was just on Diane Rehm about this nomination. If anyone has other info links I’m reading/watching (thanks also FFLEO).

  14. The appointment of Sotomayor seems to be another politically motivated decision by Obama. I applaud it in any case. As a supporter of latino causes and the mother of a type I diabetic daughter, I realize the obstacles she has had to overcome to get where she is. Also she attended Princeton and Yale before affirmative action was as prevalent at the Ivies as it is now.She was Summa at Princeton and an editor of the law review at Yale. I don’t think discounting her intellectual capacities is warranted.

  15. Yes, she will only be controversial because people like you repeat false stories about her “temperament”

  16. BREAKING . . . celebrity law professor’s favorite and predicted choice to SCOTUS not selected by President. So professor wheels out anonymous (and discredited) smear campaign tagging President’s chosen candidate as uppity and uncivil.

    If your argument boils down to claim that Thurgood Marshall was “not a lasting intellectual influence on the Court,” it is, I would submit, lame.

  17. Mr. Turley,

    Your comments about Sonia Sotomayor having no intellectual depth in the case of her legal experience are regretful. You are an extremely educated man and teach at one of the nation’s best universities; however, your position that intellectual depth should be the (main) factor in the consideration of judges nominated to the Supreme Court is silly and shows your single dimensional view.

    She is clearly intelligent and not every courtcase yields or forces a groundbreaking court decision from the judges presiding over them or evokes rulings which awe those watching. However, the (main) factor should be the law and her interpretation of it and not intellectual depth. I would have expected a more educated and well-rounded response from you on this topic. Please don’t bash someone’s intellect on national television because they’re not geniuses because none of the sitting Justices are and none of them have the experience of Sotomayor as a trial court judge.

  18. Jon,

    I see you on Keith every night railing against the Obama Admininstration and its failure to go after torture prosecutions.

    Now you’re worried Sotomayor might be “divisive”?

    But a torture three ring circus wouldn’t be?!!

    These two positions couldn’t be more inconsistent.

    Sometimes I just think you disagree to get your name in the news.

  19. I’m not sure what Charlie Savage Mike Spindell is talking about, but the one who writes for the New York Times has won a Pulitzer Prize and an award from the American Bar Association for his reporting. So, even if he also does rodeo riding in his spare time, it seems as though he is considered a well-informed observer of legal politics.

  20. 2501,

    Yes, that is what he meant; since she is hispanic–and somewhat brown in color, she needs Whitening a bit.

  21. Sgwhiteinfla–
    In fairness to Mr. Turley he stated that his concerns over Sotomayor’s intellectual ability is based upon a review of her decisions.
    Having said that, I too am disappointed in Jon’s attacks on Sotomayor.

  22. there is exactly one useful comment in our host’s post: that he has stirred himself to read 30 opinions.

    given that sotomayor’s opinions are the only legitimate basis upon which to formulate an opinion about her, it’s the only legitimate note.

    but does our host bother to tell us what he found? tell us why the opinions lack intellectual heft? tell us what’s wrong, in short, with sotomayor’s jurisprudence?

    i’m afraid not, which reinforces a core point: by and large, anyone who is part of the punditocracy (and turley certainly is) no longer is worth attending to. fitting in with the punditocracy by demeaning important matters (like the actual content of sotomayor’s opinions) and instead writing about trivia (you mean, the gop might find a basis to scream and yell about an obama pick for the supreme court? you don’t say!) means that, how shall we put it, that turley lacks intellectual depth.

  23. Well, JT we can only hope that she will be as big of a surprise as Sutter was and not nearly as conservative as Bush might have thought!

  24. re: Brian’s comments:
    “These two positions couldn’t be more inconsistent.”
    Concern that the President is not only averse to investigating torture, but also makes public statements that might undermine the ability and will of the DOJ and Congress to keep THEIR oaths of allegiance to the Constitution, is not “inconsistent” with anything.

    Investigating war crimes is not a “three ring circus.”

  25. I am thrilled. After eight years of Bush populating the court with lightweights and religious wingnuts, I am really happy with this pick. Not as happy as when the Jets picked up Sanchez, but almost.

  26. Perhaps—and unless you have been a public servant—you might not understand that one of the most admirable aspects about Ms. S. is her desire to serve the public. She gave up a financially lucrative corporate-style legal practice to become a judicial public servant. That speaks volumes about her character and morals and those qualities are critical for an impartial jurist. Clearly, she is decent, smart, educated, extremely well qualified, and she will be a workaholic for the public good.

    If Ms. Sotomayor does not withdraw her name for whatever reason, she will be confirmed.

    The next SCOTUS nominee should be Kathleen Sullivan. That would put 3 highly qualified intelligent women on the ultimate court of appeals.

  27. I hate to be knee-jerk, but coming from you, I think the criticism makes me more supportive.

    John Roberts has good temperament. BFD.
    Scalia doesn’t. But its not the temperament I worry about. It’s his philosophy.

  28. Professor: Would you kindly proofread your blog post before publishing it. There are a lot of typos which make it somewhat awkward to read. You surely wouldn’t submit something to Court like that, would you?

  29. I share the surprise of other commenters with JT’s comments on Sotomayor’s lack of intellectual depth. This is similar to claims the right-wing noise machine has been making. However, since JT is not a partisan hack, I’ll give him the benefit of the doubt and wait for more evidence from him to support this.

    As far as Republicans having a field day with certain aspects of her past legal decisions, you’re giving the GOP too much credit. The most sophisticated response to her consideration for nomination so far has been ‘she’s not a white male!!!! she’s a stupid woman who talks too much!!!!’ I don’t expect a nuanced legal critique coming from the Elephants.

  30. I see you’re toting the GOP line (about lack of “intellectual depth.” I doubt this works. Alito hardly had “intellectual depth”.

  31. Well, I would hate to have a grumpy Supreme Court Judge. She would put a damper on the jolly good spirits of Clarence Thomas and Andtonio Scalia. She might stop their conversations which must surely full of good will and honest consideration of all the different interpretations of the law.

  32. Jonathan,

    If she’s a lightweight (as you suggest) then back up your claim with evidence.

    Because I’m a fan of yours (due mainly to your position on torture/war crimes) I accepted your claim without skepticism. But since learning that she graduated summa cum laude from Princeton and was editor of the Yale Law Journal I came here to learn how you arrived at your opinion.

    Instead, I read garbage like this:

    “Somomayor’s [sic] participation in the controversial ruling on Ricci v. DeStefano, the firefighters case, will be a lightening [sic] rod. It [sic] have serious reservations about the case and the way that the panel handled it. The Republicans will have a field day with it. While Sotomayer [sic] …”

    You can do better than that, Mr. Turley.

  33. For me, when a Roberts or an Alito gets nominated, that’s a “twofer”, the President gets someone who’s both male and white.

  34. I understand Professor Turley’s viewpoint, but strongly disagree with it. The defective casuistry of the likes of Roberts, Alito and Scalia is informed only by their strongly held Federalist Society beliefs and yields only narrow opinions, worded artfully to ensure that their viewpoint is upheld in case after case. Every time Scalia puts pen to paper, it is clear he knew the answer before he heard the arguments. Sotomayor’s perspective will support a much more pragmatic interpretation of the Constitution and the precedents which have accrued over two centuries.

  35. ‘Intellectual firepower….’ from where sit you got three who don’t qualify on that score…Thomas, ‘Machine Gun’ Sammy and Roberts.

    Let’s get real here, if we can get a combative Hispanic woman on the court to call out and do battle with some of the dead white guys all the better.

    Roberts and Co. are working hard to put the finishing touches on Corporate Slave State America, working hand in hand with the U.S. Chamber of Commerce. If the court does not change it’s ways it may find itself marginalized as it has in the past.

    I like this pick for the probability that we will see some actual opposition to the wave of Fascism that the GOPers have engineered.

    An uppity woman might be just what is needed.

  36. “Also she attended Princeton and Yale before affirmative action was as prevalent at the Ivies as it is now.”

    I will support her because Obama appointed her, but I take issue with this statement. I think she actually attended both schools when affirmative action was at its peak.

    Affirmative action doesn’t get you a summa cum laude, though.

  37. Clearly there is a reason why the public does not decide who shall ascend to the bench and who shall not. One only has to read some of the various posts here and watch the right wing fear mongers lining up to take their shots at this appointee.

    Whether Judge Sotomayor has the judicial cojones to participate fully, intellectually and in accordance with the Constitution has already been established. Whether the Republicans on the Senate Judiciary Comm. and the whole body of the Senate has the cojones to go through a fair confirmation process is another story.

    Judicial Review, a conservative groups has already sent their attack dogs on to the 24 hour news media largely trying to sell the American public on the notion that any Obama appointment would be one that favors liberal legislation from the bench.

    C-Span aired the GW Law School Moot Court from 2006, where Judge Sotomayor sat with Chief Justice Roberts and a colleague of hers from the 2nd Circuit whose name I just cannot retrieve right now. My kid was there that day and I’m sure that Prof. Turley was present also. It was kinda cool getting to watch something that I sorta pay for but never get a chance to see in person. Once your kids get older you really start to miss Meet The Teacher Night and parent teacher conferences.
    Anyway, Judge Sotomayor seemed to be kind of a lightweight and this is law school, not the actual bench.

    At they end of the day, what do I know? What do any of us who are not attorneys who have argued cases know? Who are we? Do any of us have experiences at this level of judicial participation other than Prof. Turley?

  38. This is from Scotusblog’s summary of opinions:

    “Privacy and Information: Sotomayor has encountered a wide variety of privacy and access-to-information issues in her time on the Second Circuit, including cases involving the Freedom of Information Act and employer searches of employee workspaces.

    In two cases involving requests under the Freedom of Information Act (FOIA), Sotomayor wrote an opinion that declined to order the release of the requested information, explaining that she did not want to “unreasonably hamper agencies in their decision-making.”

    http://www.scotusblog.com/wp/judge-sotomayors-appellate-opinions-in-civil-cases/

  39. and this whispering about her temperament? A Hispanic single woman is too mean for the predominantly White Supreme Court? Smells of subconscious racism, especially combined with the snide comments about the intellectual heft of her opinions.

    smells funny to me.

  40. I think that Jonathan Turley should lose his job as on on-air political pundit, due to the lack of intellectual depth in his past opinions.

  41. Hi everyone. I am running around today and apologize for some typos in this posting which was done in the rush of the morning’s events.

  42. I find Turley generous on opinions but weak in “depth” of analysis, a criterion he seeks. I would expect him to show where Wood has depth and Sotomayor does not . He may be right but he has not demonstrated the depth.Sending the lone black kid to kindergarten would destroy the boy psychologically which is important in a school setting and this professor thinks would be inappropriate. Turley does not point to the legal anomaly of Sotomayor decision.

  43. I am less concerned about typos–which we all make–than the speed with which you post topics.

    Any *fool* can notice and condemn typos, but the substances of the posts are the most important aspects of this blawg.

    Tiepo— okay, holler at me too.

  44. Dr. Z wrote:

    “I find Turley generous on opinions but weak in “depth” of analysis, a criterion he seeks.”
    ________

    I think that Professor Turley simply posts topics of general and sometimes unique legal interest, gives us a very small glimpse of his position—as yes, his biases—and then he lets us expound on his skeleton posts. He simply does not have time to flesh out his views for our perusal. That is certainly what others and I would like him to do; however, how the man handles his full schedule amazes us all and most of the regulars are content that he finds the time to post the many topics that he does.

  45. Wow! On the day of a historic selection for the supreme court, you have made one of the most historically stupid commentaries in history. You read 30 opinions from an 18 year career on the bench and you decide that you are now an authority to question Justice Sonia Sotomayor’s intellectual depth. And making it worse, you trampled all over the grave of Supreme Court Justice Thurgood Marshall as well by smearing him with the same mud.

    Which academics are you talking about exactly? Can you name any besides yourself? And what is it with these unnamed and anonymous critics of this woman and where have they been for the last 18 years? Where is your evidence of her “temperament”? Who are you to smear someone’s character without any evidence?

    And it’s a very interesting commentary about “temperament” considering that Justice Scalia is well-known to have the temperament of a pissed off snake, but that didn’t disqualify him from the bench. Then again, he’s a three-fer, conservative, white, and male and we all know that white males are free to act anyway they please and say anything they wish.

    It is truly amazing whenever a woman of color achieves anything, she smeared with the same poisonous brush; not smart enough, not nice enough, only picked because they were a woman of color, and of course, not qualified. Seeing these repetitive slurs leveled at Justice Sotomayor, I have a horrible sense of deja vu, but I’m no longer surprised.

    Shame on you Mr. Turley.

  46. Prof. Turley,

    Could you be more specific in your criticisms of Judge Sotomayor’s lack of “intellectual depth?” I am interested in your opinion, but so far all that I have gathered is that “when you read her opinions, you are not convinced that she is a natural fit for the Supreme Court.” What about her opinions demonstrate a lack of intellectual depth?

  47. This is typical of what we get from JT these days.
    Shallow analysis to undercut whatever the administration is doing. Today it is Sotomayor, tomorrow the legal issue of the day. Do you do this simply to get on TV?

    Time to boycott shows that seem to not understand that there are dozens of law profs in the DC area that are better than this guy.

  48. Jonathan,

    No problem. If we could all be perfect we could just use our minds to communicate ideals, something like the Altanians. The lost colony.

  49. Jill,

    Sotomayor’s FOIA rulings are of the utmost importance to me; however, those were only 2 judgments. I somewhat understand the FBI case, although some of the names could have been redacted.

    President Obama’s directive on FOIA last February should help open up the FOIA process, if he does not continue to violate the spirit of the openness he pledged as he did with the non-release of the torture photos.

  50. Prof Turley,

    I know it’s a blog post on short lead-time, but if you’re going to publish a high profile trashing of someone else’s writing (with no citations!), it would be wise to do a quick copy-edit before hitting send to make sure it’s in English. You’re generally well-spoken on your umpteen daily TV appearances so I’ll assume you’re not actually illiterate, but, seriously, read this post and tell me you’d accept that from a student.

  51. And I, Mr. Turley am under-whelmed by your essay. Where are the examples, the citations? Where was the spellcheck?
    To say:
    “that few people list Marshall as someone who has had a lasting intellectual influence on the Court.”; along with your denigrations of this well qualified, experienced Latina make me wonder just how much racism you harbor.
    Perhaps you should move your punditry to Fox.

  52. Justice Scalia’s judicial philosophy is indeed consistent with his conservative principles; on any issue supported by liberals or moderates, he’s against it. Nor does he have any particular intellectual heft, and he has never seemed to me to be a likable character on or off the bench.

    As a Type I diabetic myself, I can say with some authority that glucose levels can indeed have an effect on one’s temperament, but she wasn’t and isn’t going to be vetted on temperament alone. If that were a criterion, neither Scalia nor Thomas would be on the bench at all.

    As to the brevity and lack of broader context in her legal opinions–uh, with all due respect, Professor Turley, there are times when brevity would be a virtue in a justice. Lay people would have an easier time grasping the heart of any judicial matter if there was less verbiage surrounding it. It is possible to give historical context without writing an opinion hefty enough to use as a doorstop–and as for theory, most lay people will take brass tacks, hard information over theory, anytime.

  53. “Justice William Douglas . . . ex Ku Klux Klan
    You’re thinking of Hugo Black.”

    Rea,
    Good catch, the wires in this old brain at times get crossed.

    Patience,
    to me Pulitzer Prizes hold little weight, in that they’re popularity contests. How many did I.F.Stone win? ABA Awards also are a means to get people to buy tickets for their annual shindig. I watched this guy on TV for 6 weeks doing this macho reality show and his depth of insight was inane, even with the shallow subjects he was exploring.

    To All Those Carpers and Proofreaders,
    Look around you on this site. There are no advertisements, nor is there anyone there to share the burden of the output. I’m not sure I agree with JT on this, but then I haven’t yet researched it on my own. However, proofreading errors as criticism? Get real. The man has a busy life and a young family. I feel lucky to have a site like this to go to and I don’t always agree with the Professor, but he is someone in the public eye who I admire and whose integrity I trust. I can only say that about a few people that are well known.

  54. Perhap Judge Sotomayor is a political pick–even an affirmative action pick, but it’s not like that’s never happened before. I’m sure Sotomayor has deeper “intellectual depth” than Clarence Thomas.

  55. jon (which i hope is okay for me to use—it’s what i always hear keith call you, so i feel like we’re all friends here), you are making it very difficult for me to worship obama unconditionally. srsly.

    okay, *srsly*, i worked hard to get obama elected—the first candidate i’ve supported in that way since i campaigned for reagan in 1984. (i know, right?) but he’s had me scratching my head more than i ever thought he would. do you think he knows things that would make me agree with him if i knew them? about, say, the guantanamo thing?

    i haven’t lost faith in him, but i miss the feeling of adoration i had before.

  56. Shelley,

    Professor Turley added much more to his original essay, including more citations.

    I still like Sotomayor’s nomination; however, I am slowly understanding what the Prof is saying about the lack of depth in some of her opinions.

  57. It’s icing on the cake, when Supreme Court decisions display “a depth of history or theory — creating a unifying body of work in areas of the free speech or privacy.” But the real job of the court is not to pontificate on legal theory/philosophy; it is precisely to arrive at “a series of (possibly) unconnected and (perhaps to some) unsatisfying insular decisions,” which guide the lower courts in their work.

  58. JimBob,

    I just wrote 270 words before reading your ‘rebuttal’. We all ‘do’ have differing opinions regarding the duties of Supreme Court justices. What view is most *constitutionally* correct, yours or Tuley’s.

    Oh, and I wonder if we will ever see a JimBob (that name) as a Supreme….

  59. Lisa

    You wrote: kay, *srsly*, i worked hard to get obama elected—the first candidate i’ve supported in that way since i campaigned for reagan in 1984. (i know, right?) but he’s had me scratching my head more than i ever thought he would. do you think he knows things that would make me agree with him if i knew them? about, say, the guantanamo thing?
    i haven’t lost faith in him, but i miss the feeling of adoration i had before.

    Adoration is a tricky thing. So are crushes with movie stars and rock musicians and that guy who sat behind you in 3rd period French who did not know you were alive but hopped you up on the excitement of being so, well, close yet so far away.

    Politicians are neither adorable or precious and while the eccentricities of participation in a national campaign can make one swoon at the poetry of the well delivered stump speech, better to stick with the guy who was holding up the wall at the school dance, the smart and funny one who was maybe just as shy as you and who the guy is 3rd period French will meet again on his long road to the middle.

    Did I say the long road to the middle? Why that’s exactly where I think you will find your hero, Mr. Obama.

  60. Mr. Turley I will never forget your last sentence.

    “I do not agree with Scalia on many things, but he has been able to maintain a coherent philosophy.”

    Justice Scalia’s decisions have shown that his coherent philosophy is in direct contrast to the rule of law and The Constitution of the United States. If there was ever an “activist” judge on the Supreme Court it is Scalia and his clone Clarence Thomas. Am I missing something or are you implying that Obama should have vetted Karl Marx or maybe Frederick Engles?

    I have found your commentary on TV very informative. This comes as a surprise.

  61. Questions never asked of “Republican” General Powell by the “media”:

    General Powell, how would you define your political philosophy?

    General Powell, what, if any, government programs would you cut?

    General Powell, do you support expanding entitlement programs to include national health care, and if you do, how would you pay for it?

    General Powell, what is the highest tax rate you would accept?

    General Powell, should we give amnesty to illegal aliens?

    General Powell, how would you expand the Republican Party’s base without diminishing its principles?

    General Powell, what are your views on affirmative action?

    General Powell, what are your views on the death penalty?

    General Powell, what are your views on school vouchers?

    Funny…’cause he never gets these questions from the media. I wonder why that is……….??

  62. I am getting my popcorn ready for the Republican circus , that Sotomayor nomination is allready causing . Lets point out several attacks the right is making Lets see: According to them she does not have the intellectual background,has anyone allerted Princeton and Yale where she has two degrees from and graduated top of her class? They are attacking her experience. Has more judicial experience than any seated justice upon their nomination or any Supreme Justice nomination in100 years. Questioning her legal status; Last time I checked the Bronx is in New York where she was born and part of the United States. Her parents are from Puerto Rico and if they would pick up a history book once in a while or paid attention in elementary school they would know that Puerto Rico is a Commonwealth of the United States ceded by Spain during the Spanish – American war. meaning all Puerto Ricans are citizens and have been for over 125 years. Ms. Sotomayor has been nominated to the federal courts,
    first by President George H. W. Bush ; Are they saying President Bush was unqualified to make that choice? The Democrats and some of us Independents are going to laugh all the way to the voting booths considering that the legal Hispanic vote is the fastest growing voting block in the country. I will enjoy my popcorn while i watch this circus unfold ; Republicans happy hunting!

  63. RK – “and this whispering about her temperament? A Hispanic single woman is too mean for the predominantly White Supreme Court?”
    Let’s hear it for more uppity women!

  64. gwen,

    Parrots are good pets. You can stuff em to when they are dead. But parrots on parrot what they hear. They only speak what they are told. So you must be a good parrot.

    Polly want a cracker?

  65. Reuters
    May 26, 2009

    Sotomayor on the court: ‘Where policy is made’…

    Sotomayor being a bigot: ‘I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male’…

  66. Headlines the Messiah has brought us:

    Iran sends six warships to international waters…

    Iranian Navy incursion historically unprecedented’…

    NKOREA FIRES MORE ROCKETS; SAYS USA HOSTILE…

    THE NUKE TEST; why didn’t we know?…

    NK Widens threat as Obama says “we have limited options”…

    Obama ducks promise to delay bill signings; Pledged 5 days on web…

    Memorial Day at Arlington cemetery for Obama….then plays golf?

    Netanyahu defies Obama…

    Deputy defense minister: Israelis should be prepared for all-out war …

    POLL: Half of Israelis back immediate strike on Iran…

    Obama panders to Vegas after swiping at greed…

    Canadian TV rapped for mild Obama joke…

  67. Sotomayor is divorced and has zero children.

    Here is to hoping the details of the nasty divorce are open to public scrutiny.

  68. Tony, the job should go to the most qualified person regardless of race or sex period.

    Nobody “deserves a shot at a spot” on ANYTHING because of their race you bigot.

  69. Maddow just opened her show with an analysis of the high courts political makeup and Sotomayor’s addition to it, with a long, astute comparison to the perfect Whiskey Sour. With visual aids and a sip of the imperfect end product. It will be on UTube and bears watching.

    If the wingnuts are true to form we can look forward to questions regarding affirmative action contributing to her credentials, her illness causing some mental impairment which is just a variation on the ‘time of the month’ argument trotted out for every woman candidate or appointee and her “real” sexual preference: a single, mature, childless woman married briefly 20-something years ago. I see this nomination debate getting ugly. IMO.

  70. Tony Zirkle,

    … the hispanics deserve a shot at a spot on the Supreme Court.

    ben 1,

    … Nobody “deserves a shot at a spot” on ANYTHING because of their race you bigot.

    ***********************

    Are we not glad that Clarence Thomas is one of those that “I got mine” screw you mind set? Kinda of like the main stream Republican. You know what is ironic, the richest people in the world have traditionally been Democrat. How do you explain that?

  71. Opps I forgot to say Clarence is against Affirmative Action. No it should be interesting. But you know what, I have the feeling she is the throw down nomination. I don’t know why.

  72. well…i read mr. turley’s post here…and then listened to him on keith…

    i needed something on these cases so after a quick search came up with

    http://en.wikipedia.org/wiki/Sonia_Sotomayor

    in response to mr. turley’s suggestion that there is no “in depth” writing in mz. sotomayor’s opinions…

    i can only ask “then is that to say that mz. sotomayor’s did not take a long walk off a short pier?”

  73. Wow!
    I just finished reading what I miss when I have to work. That is one heck of a lot of comments to Prof. Turley’s article. Although I do not agree with everything that Prof. Turley wrote, he has read 18 more of her opinions then I have. I would enjoy having someone on the Court who might cause a little friction between the neocon robots, but we do not need anymore conservative decisions. If any of the neocon detractors complain about her decisions not following the Consitution, just refer them to Bush v. Gore. Prof. Turley, I for one understand the typos that can happen during a busy day. There is no need for an apology. This should be a fun confirmation because the Republicant’s will be working overtime to try to find something to hang their “NO” vote on.

  74. For what it’s worth my take on the nominee is that she is tough cookie from the Bronx with more life experience than judicial experience. She is on the young side, very bright– but not brilliant– and lacks some of the potential gravitas of some of the other mentioned names. I like one thing about her and that is her reluctance to adopt extreme positions in the admittedly few opinions of hers I have read. While I agree with JT that she does not read like Marshall (John not Thurgood) she certainly understands the issues. My hope is that she serves as a coalition builder with the less conservative members of the Court to push the 5-4 ideological split in favor of progressive jurisprudence. For my money, coalition building rates higher than the “vision thing,” and is a more reliable predictor of judicial success. To find someone with intellectual brilliance and corresponding vision is a difficult thing–difficult that is except in the thought-adorned walls of our little salon here. Mr. Justice Turley did have a nice ring to it.

  75. Mespo,
    I can agree with you on your nomination of Prof. Turley for the next opening. Sen. Sessions and Kyl would probably have a coronary, but I think he would bring an adherence to civil and privacy rights that we have been missing for a long time.

  76. Gwen

    You wrote: Sotomayer is an incompetent jerk.

    I’d like to know if you plan to stick around here for any considerable length of time, say, longer than the next 20 minutes.

    While you are certainly entitled to hold an opinion like the one you voiced above re: Judge Sotomayor, one wonders what your accomplishments, legal or otherwise, might be.
    Are you a Phi Beta Kappa? Summa Cum laude? Graduate of a top tier law school? Can you play a musical instrument? Have a knack for growing houseplants?

    I ask only because your statement seems to come from out of the blue and unless she is a neighbor who leaves the lawn unmowed or allows trash to build up in front of her house or has been rude to you personally, I wonder where the characterization of her as a jerk comes from?

    Do you perhaps, recognize something in her that you see in yourself? In those around you?

  77. I just finished reading John Yoo’s predictable take on Obama’s SCOTUS nominee entitled “Empathy Triumphs Over Excellence,” and find it incredibly ironic. Yoo argues that a Justice must be an intellectual heavyweight to turn the court in the philosophical direction he/she deems it appropriate to go. Funny, I thought the goal was to fairly decide cases, and further, that political agendas pertaining to the law was an anathema to the neo-con cause. I guess in Yoo’s mind that applies only to the “wrong” agendas.

    Yoo then takes aim at empathy itself wrapping himself in strict constructionist approach to the Constitution and the inferior laws flowing from it. I’m sure many GITMO detainees wish he would have that “Paul-on-the-road-to-Damascus” moment when he worked at OLC. If you think the literary contortions necessary to make this argument by this discredited professor of law compel that the text be delivered on a pretzel bag, you’d be right. Most appalling of all is Yoo’s utter contempt for any notion of empathy by judge for litigant. No one in their right mind argues for emotion over rational thought, but the courts are human institutions and the law is not a perfect mechanism for divining right from wrong. Failing to understand that or appreciate the human side of every case among living breathing people renders justice sterile and severs it from the interests of the citizens whose emotion-laden opinions serve as the headwaters for the statutory framework judges must apply. I suppose one should not be surprised by Yoo’s visceral recoil from anything approaching empathy. After all, a man who would advocate barbarism in the form of torture in direct contravention of the laws he claims to adore, would be a stranger to compassion in any form be it empathy or sympathy or simple humanity.

    http://blog.american.com/?p=1187

  78. I think that Jonathan Turley should lose his job as on on-air political pundit, due to the lack of intellectual depth in his past opinions.

  79. PB,

    I think that Jonathan Turley should lose his job as on on-air political pundit, due to the lack of intellectual depth in his past opinions.
    ********************************
    Are you not glad that you have a place to say what you feel?

  80. Professor Turley.

    Every time I include a hyperlink in one of my posts I press the submit button with a feeling of trepidation. Consider getting your web master to add a “Preview” button. It is valuable for checking that links have been coded correctly.

    Regards, Carlyle Moulton.

    PS Since discovering your blog, I visit almost every day. It is great work.

  81. With all the differences of opinion on this subject,I am glad that we were all able to voice our opinions,without calling one another names.

    I to saw the proffesor give his opinion on the selection,and also came away a little disapointed with his analogy.

  82. eniobob,

    That is a good thing. We are all “Apparently” adults. I have had my gravamens to deal with. I think thats a good word.

  83. if the post about property rights is correct that should be reason enough to disqualify her from the Supreme Court. Kelo was/is very bad law and for someone to uphold it says a lot about their legal philosophy-namely the state against the individual. We have enough of those types of judges already and do not need another.

    With that being said, if she is as light in the brain pan as Prof. Turley argues then she would be the ideal choice for conservatives and should be appointed. She would not be a threat to conservative principles by virtue of her less than stellar record on the bench (according to Prof. Turley) and would not be able to persuade Thomas, Roberts, Alito and Scalia to her points of view. It is win win for republicans to rubber stamp her nomination, they get a substandard liberal jurist (again Prof. Turley’s assesment) and the ability to claim sympathy with Hispanics and females.

    Should they fight her nomination it will be a loosing proposition in that they will be labeled racist and anti-woman. The president would then be free to nominate a truly outstanding liberal justice that could actually be a threat to conservative principles. I say take Judge Sotomayor, maybe Roberts and Scalia can persuade her thinking on certain cases.

  84. Bron98
    1, May 27, 2009 at 6:51 am
    if the post about property rights is correct
    *******

    The decision was unsigned and from the look of it, 1 short paragraph in length. There was no dissenting opinion.

  85. James Thomas:

    “Time to boycott shows that seem to not understand that there are dozens of law profs in the DC area that are better than this guy.”

    ****************

    I have no idea how you know that since I don’t think US News has stooped to rate law professors just yet. More importantly, I demur. As I argue above, intellectual capacity is certainly an important virtue for a legal scholar, but maybe more important is the courage to express unpopular convictions. I saw no highbrow DC profs in the lead on the torture issue which is more of a legal stain on our Nation than some wrongly decided arcane point of law. Indeed, I saw no one leading from the front on this issue except JT. A sense of right and wrong and the fortitude to say so impresses me more than some clerk assisted dissertation on the law. Maybe that’s why I am more impressed with character than reputation.

  86. In general, what mespo said. The only aside being that I’d pick someone I was more confident in their ability to take the battle to the Scalia faction. That being said, we’d simply be better off without Scalia than just about anything that could be done to SCOTUS at the moment, but you don’t send an average jurist to fight a gangster like Scalia or a Neocon hand puppet like Roberts. She had not only have better have read Machiavelli, she better have understood him.

  87. And all the judges usurper Obama has in his pocket amount to very little compared to the number of soldiers who now know they were lied into illegal wars in Iraq and Afghanistan! ‘We The People’ have the liars surrounded!

  88. I completely agree with mespo’s earlier post on Prof. Yoo’s criticism of Judge Sotomayor. We can expect the Republican propaganda machine to be pumping out the terms “empathy” and “activist judges” with mind numbing regularity between now and the confirmation vote. That Prof. Yoo does not understand the meaning of “empathy” and its role in the judicial process is not surprising. After all, his torture memos reflect that he also fails to understand the distinction between legal advocacy and legal analysis.

    In any event, it would be wise to remember that when Republicans use the word “empathy” in a derogatory sense, what they mean is the trait of recognizing that there may be defensible viewpoints other than those favoring corporate and institutional interests. Similarly, when Republicans harangue us on the evils of “judicial activism,” they mean an ability to analyze congressional intent and discern public policy beyond the narrow confines of Republican political and social values.

  89. wow, there’s some serious “projection” going on here by commentors. people, did you actually read what turley wrote? many of the criticisms here are seriously rovian…

    example, he’s TRASHED for not providing citations in his BLOG ENTRY, but then also TRAHSED for criticizing the (perceived) brevity/depth of (some of) sotomayor’s COURT DECISIONS. disconnect anyone?

    come on now everyone, loosen your undies, take a deep breath, and “argue” with people as if they weren’t, just possibily, the worst persons on earth…

  90. She can’t be real, she was appointed by one of the biggest criminals on the planet.

    You think Al Capone is going to appoint someone like Prosecutor Vincent Bugliosi? Bugliosi would blow the whistle and have Capone in handcuffs.

  91. Bron

    You wrote: f the post about property rights is correct that should be reason enough to disqualify her from the Supreme Court. Kelo was/is very bad law and for someone to uphold it says a lot about their legal philosophy-namely the state against the individual. We have enough of those types of judges already and do not need another.

    With that being said, if she is as light in the brain pan as Prof. Turley argues then she would be the ideal choice for conservatives and should be appointed. She would not be a threat to conservative principles by virtue of her less than stellar record on the bench (according to Prof. Turley) and would not be able to persuade Thomas, Roberts, Alito and Scalia to her points of view. It is win win for republicans to rubber stamp her nomination, they get a substandard liberal jurist (again Prof. Turley’s assesment) and the ability to claim sympathy with Hispanics and females.

    It seems that she went along to get along and voted with the conservative majority most of the time. I’m not sure that this is what Obama was seeking, and I don’ think she is as much a consensus builder as someone who is still unsure of her own judicial voice. I’m not an attorney and I don’t really know that much about constitutional law but here we are with an appointee who may or may not have a swift confirmation and who is certain to continue to galvanize public opinion.

  92. Again Mike A., and excellent analysis of right wing talking points.

    I see nothing to indicate that Judge Sotomayor is a fire brand liberal. I read the summary of her opinions on scotusblog so I have much research left to do, but so far, she seems like a right of center, to center justice to me.

    I remained quite concerned about presidential powers. I worry that obama has picked someone with essentially no record on this issue. It remains one of the top dangers to our Constitution and I hope many questions are asked of her about this. I would especially hope for this question: during the vetting process did anyone enquire as to your opinions and feelings on executive power? If so, what questions were asked and what was your answer?

    Her denial of FOIA requests based on them being a burden to an agency is also worrisome. This bespeaks a deference to govt. authority that we do not need on the Supreme Court. We need someone who will stand up to executive power according to our law.

  93. GWLawSchoolMom:

    I am not an attorney either, but have many opinions. Some good, some bad, some mediocre.

  94. Jill, thanks for your comments. I agree that I would prefer a more liberal appointment, but I think it was wise to propose someone whom Republicans could only oppose at great risk to themselves. I think we also need to remember that there is a difference between serving as an intermediate appellate judge and serving on the Supreme Court. For one thing, an appellate judge must be constantly aware of the prospect of reversal, which I believe operates as a constraint, albeit a necessary one. I’ve always thought that the most exciting, and humbling, aspect of sitting as a justice is the recognition that one’s decision is quite literally final. That does not mean that a justice is free to ignore precedent and respect for judicial tradition. But it does mean that a justice is able to bring his or her own insight to bear in the evolution of the law, knowing that if a majority can be fashioned in support of his or her views on a particular issue, the resulting decision becomes the law of the land. That can truly free the mind, which is why a great justice must possess not only great intellectual ability, but imagination and broad human experience as well. I know that Justice Sotomayor has the required intellectual ability; I am hopeful that her background will provide the imagination and breadth of understanding (i.e., empathy).

  95. Bron98:

    “I am not an attorney either, but have many opinions. Some good, some bad, some mediocre.”

    **************

    More the former than the later two.

  96. Given that Justice Sotomayor is well qualified in all areas and that she exceeds many qualifications, I think that her confirmation will be an inspiration to any minority that hard work and perseverance count for advancement in the USA. If a person is clearly qualified, I see no reason *not* to consider gender and/or ethnicity as a human motivational factor statement in a SCOTUS selection. Obviously, those criteria have occurred in previous selections throughout the courts and government, in general.

    Certainly, she is less liberal than at least 3 of the other potential nominees were, although from what I have read over the past 2 days, the critical votes will still likely be 5 to 4, as they were with Justice Souter.

    Since Justice Sotomayor is only 54, she still has several years to “reach her stride” and sitting on the highest Federal court can be an incentive to instill an even greater legalist work ethic than she already possesses; furthermore, wisdom does come with age to those who already possess the ability to cultivate wisdom.

    M72, thanks for that link to Mr. Yoo and for your perspective as an attorney.

    Mike Appleton: as a nonlawyer, I also look forward to your lawyerly perspectives. Legal opinions and comments from attorneys make this blawg especially relevant and educational for me and no doubt for many others.

  97. I think some of you have misinterpretated Jonathans words both in this blog and in the msnbc segmanet with Chris Matthews.

    You want someone that can influence the environment of the court and influence the others presumably by the intellectual persuasiveness in her legal arguments in addition to having good judgement herself.
    Jonathan Turley is someone which words is always very thoughtfull and worthy of much attention and consideration.

    And I think some of you people are missing the point. Turley is a pretty hard-line liberal and he wants someone who is able to argue the liberal perspective as effectively as Scalia is able to present the conservative one. His criticism with Sotomayor is that she won’t be able to shift the court to the left in the way that a Wood or a Koh would have done, thats all.

  98. foo,

    In fairness to some of the other commenters, you entered this debate very late. Professor Turley’s initial, less than stellar, post evolved into a very good essay of his opposition, once he found time–from somewhere–to collect his thoughts. You should reread his latest version, because you are still not fully correct regarding the principal ‘liberal’ issue.

    Everyone here knows of my growing distrust of Mr. Obama; however, this is a very good choice for his first selection and then Ms. Woods and/or Ms. Sullivan could be his next jurists. I certainly would prefer to see a minimum of 4 women Supreme Court justices.

  99. Foo:

    that may have been his intent but it sure read like he thought she was an intellectual light weight of average abilities (average in the sense of judges qualified for the Supreme Court).

  100. Judge Sotomayor’s written opinion on the Ricci case was as cursory and arbitrary as Mr. Obama’s selection of her as Supremem Court nominee.

  101. Tom,
    Your thinking in general seems to be too cursory and arbitrary as to be able to discuss anything with adults. I guess though that you had indulgent parents.

  102. Tom, I don’t know how familiar you are with court opinions, but I suspect not very. What you refer to as Judge Sotomayor’s opinion was not. The Second Circuit entered a per curiam affirmance with only the briefest explanation, referring the reader to the reasoning in the trial court’s summary judgment. Judge Sotomayor sat on the panel, but the opinion tells us nothing. If you are going to rely on Rush Limbaugh, Sean Hannity or scholars of equal intellectual depth to inform your views of the law, you are certainly wasting your time on this site. Indeed, you are wasting your time even thinking about the law and its application. Your opposition to Judge Sotomayor is ideological. You can say so without attempting to buttress your rationale with nonsensical references.

  103. CCD,

    You need to “View Image Source” first, copy that URL and then paste. What you’ve pasted there will just take you to Google sans search results.

  104. Mespo, ‘like buttah’… ;P

    The percurium opinion was the result of the three-member panel’s withdrawal of its summary order and subsequent to a suggestion for an en banc hearing.

    Dissenting opinion from 2nd Circuit Judge Jose Cabranes:

    “…Cabranes noted that it was highly unusual for the panel to have issued a per curiam opinion, because the questions raised on appeal were “indisputably complex and far from well-settled.” He wrote, “The core issue presented by this case – the scope of a municipal employer’s authority to disregard examination results based solely on the race of the successful applicants – is not addressed by any precedent of the Supreme Court or our Circuit. … What is not arguable … is … that this Court has failed to grapple with the questions of exceptional importance raised in this appeal.”…

    It is also important to know that Adverse Impact is not the same as Disparate Treatment. Disparate Treatment refers to the “intentional” discrimination of certain people groups during the hiring, promoting or placement process. Originally, the Uniform Guidelines on Employee Selection Procedures provided a simple “80 percent” rule for determining that a company’s selection system was having an “adverse impact” on a minority group.

    The city could just as easily been sued by a potentially ‘aggrieved’ minority, in the first instance, and have instead been sued by an aggrieved non-minority after the questionale exam was thrown out.

    The exam likely wasn’t ‘fair’ to begin with, if only on the basis of the result achieved, in my opinion, and not intentionally so on the part of the City of New Haven.

    I gather it was viewed as just a lousy overall test and not reflective of the interest against discrimination of any kind.

    Tough call…

  105. Patty C:

    “Mespo, ‘like buttah’… ;P”

    ******************

    Your palate is impeccable as always.

  106. Bridgette Nielsen

    “I am the original Red Sonia, this one is an interloper.”

    **************

    If so you might want to work on spelling your name correctly. It’s “Brigitte Nielsen!”

  107. mespo727272-

    thank you so much for brining that to my attention. Too many cocktails this evening.

    Please visit my website and drop me a line, mention the mispelling and I will send you a special autographed picture.

    Hey big boy is that a pistol in your pocket or are you just happy to see me?

    By the way you are a male are you not?

  108. Mespo is NOT Gallic and certainly not so in any remarkably true sense, if at all, whatsoever…!!!

    He is my ‘Italian Stallion’ if only by osmosis being mine, not his
    – for sure. ;)

    My ex-husband was Sicilian on his mother’s side and just plain Italian by his father’s.

    That poor, poor, poor-poor man… ;P

  109. Brigitte:

    “Hey big boy is that a pistol in your pocket or are you just happy to see me?

    By the way you are a male are you not?”

    *************

    Let’s just say I’m armed and deadly. Really enjoyed your performance in “Beverly Hills Cop II.”

  110. Mespo, I sense and then receive much occurring about and around you AND I absolutely applaud, as per my usual.

    You and I together are ‘TOTALLY HOT’… ;)

    You ARE my butt-buddy on the turlee blawg ‘for shoah’, as we say here in Maine.

    GO – UMaine Black Bears!

    Just, too, too funny…

  111. PC,

    What does your base, trash word have to do with a topic covering Justice Sonia Sotomayor?

    I suggest that you look up the meaning of the word you have used several times within this blawg.

  112. HELLOOOOOOOOO, WHAT???

    Pay attention and learn, I guess…

    You are not educated in the same manner as I have been, unfortunately or NOT.

    Not exactly my fault, sorry, AND certainly not yet again!!!

    Love,
    your entire Family with a capital ‘F’.

    Good Night and Sweet Peace – One and All, Amen.

    You are gonna need it

  113. […] Jonathan Turley is ambivalent on the pick, and would have rather seen Diane Wood be the nominee. 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. […]

  114. Buddha, AnonY, et al.

    Many of us regulars know that Professor Turley has repeatedly warned Patty C, although he prefers to look forward and not backwards, in full President Obama fashion. I defer to his judgment since this is his blawg, he is the master, and above all, he is a fine gentleman who I revere as a fair-minded and gifted constitutional scholar.

    Let us simply accept that Patty C can say whatsoever she prefers and please try to ignore her; I know that I will from this post onward. I spoke up several times in defense of people she attacked and I did so because—through silence—people might think that I agreed with her ad hominem abuse. In addition, conflict resolution is part of law enforcement and I thought that I could help resolve some issues, in a very basic way.

    However, some people are incorrigible and out of self-respect, I am going to bow out trying to assist others against PCs attacks. Honestly, all of this embarrasses me, although it is just a blawg; however, this site is very important to me.

    If I were one of the many trolls who posted here, and if I wanted to disrupt this site, I would simply reference all of the initially good threads that started out fine and then ended up as just one more Patty C nonsense thread. That is convincing evidence that we “Turlees”, old and new, sometimes exhibit trollish and irrational behavior as distasteful as that of any other hit-‘n-run troll.

    Therefore, I will now consider Patty C the *resident troll*, and one of the original *untouchable* “Turlees,”—as she reminds us, ad nauseam—and assume, in some perverted way, that Professor Turley accepts her attacks over respect for his other regulars.

    Henceforth, please note that my silence and indifference to anything Patty C posts does not confer my acceptance of her nonsensical ad hominem attacks.

    FFLEO

  115. Swarthmore mom 1, May 27, 2009 at 9:46 pm

    AY Are you watching the game?

    No But I will be going to the game tomorrow. Thank you. It was a pleasure to see you today.

  116. Messpon72Cubed, FFLEO, Buddha, Mike S., LottaK, raffflaw,Jill, Bron98, MatthewN, et al and last but least JT.

    I saw someone in real time who said that they would not be back on this site because of the tiff I allowed myself to get into on this last week. I did not realize that would happen. But in life I am learning all sorts of things are possible.

    I want this site to be a success and I will do my part to make it happen and when the need comes I take responsibility for my actions. I am responsible for my response to those words that I invoke that evoke. Because I can say it and get over it I usually forget it and can refocus very quickly.

    If I start to get off kilter please direct me back. Thank you.

  117. Swarthmore mom,

    No mame, It was a distinct pleasure to hear feedback. I forget the impact that I can have and I am responsible for my actions. No one elses am I responsible for. Thank you again.

  118. I want this site to be a success and I will do my part to make it happen and when the need comes I take responsibility for my actions.

    If so, then leave. That should suffice quite well, if in fact!

    It was a success long before you and Jill ever showed up, and quite admirably, I may add.

    OK, RUN along, then… ;)

  119. Jill.

    It is a pleasure. We All can make this site a better one despite personal personalities.

  120. rafflaw,

    I read the mail/blawg on my phone and respond accordingly on the site. I am going to use that time as a cooling period rather than a reactionary time for dribble.

    We expect it of trolls to be disruptive. Why should we allow a debate with personalities to win. What were the words that Lincoln used to justify an invasion of the Great South “A House Divided Cannot Stand” so I must do my part. And another saying I like from Perot “I’m All Ears” well yeah, have you got a look at him?

  121. The “need” for an Hispanic woman, as opposed to an Asian one for instance, is clearly political, but reminds me of a joke:

    Written on a wall, Joe saw written in chalk: “I hate grils”
    So he wrote underneath that: “You mean ‘girls’ stupid!”
    Next day, Joe saw that something had been written under that:
    “Hey, what about us grils?”

    Obama, I say us grils should be nominated to the Supreme Court.

  122. Mystic: “Obama, I say us grils should be nominated to the Supreme Court.”

    LOL, I enthusiastically agree. In about ’70 a trio of us Sci/Fi fans put out a fanzine by that name, taken from the joke you reference. Grils are a minority that have been overlooked far too long.

  123. The stupidity of many of these comments is absolutely staggering. It’s hard to know where to begin, but take the one by Professor Tracey, for starters.

    “You read 30 opinions from an 18 year career on the bench and you decide that you are now an authority to question Justice Sonia Sotomayor’s intellectual depth.”

    Thirty opinions? My God, half of that would have been more than enough, you turnip! Turley is a professor with years of experience evaluating candidates for law school, for professorships, etc. Every academic is paid to size up a person’s mind on the basis of a small sample of their work. When you get 300 applicants for a professorship, you learn quickly how to do so, if you know your own field.

    “And it’s a very interesting commentary about “temperament” considering that Justice Scalia is well-known to have the temperament of a pissed off snake, . . . ”

    Can you read, you jackass? Turley was defending Sotomayor against criticisms of her temperament, because he thinks that is not an important issue.

    “. . .you trampled all over the grave of Supreme Court Justice Thurgood Marshall as well by smearing him. . .”

    Are you deranged? Turley said that Marshall is “one of my personal heroes,” “he certainly was [smart],” “he was a brilliant choice [for the court]” but that he is not “someone who has had a lasting intellectual influence on the Court.” That’s a smear? You need to get a grip. A simple factual observation, nothing more.

    “It is truly amazing whenever a woman of color achieves anything, she smeared with the same poisonous brush; not smart enough, not nice enough, only picked because they were a woman of color, and of course, not qualified.”

    Again, can you read? Turley didn’t say any of these things you blithering idiot!!! He makes it clear that he thinks she is qualified, only NOT THE BEST that could have been chosen. Can you wrap your tiny little mind around that thought?

    The only thing truly amazing here is that an utter moron like you uses the moniker “Professor.” I shudder at the thought that it might be true.

  124. dyslexia treatment…

    Meares-Irlen Syndrome is a condition characterised by perceptual reading problems such as illusions of shape, colour or motion, combined with sore, tired eyes and headaches (asthenopia), the symptoms of which are alleviated by the use of coloured overl…

Comments are closed.