Sonia Sotomayor

Back from vacation but swinging directly into a big move this weekend. I have a lot to say on the California Supreme Court decision upholding proposition 8, the California budget, and the last two weeks of Obama’s assault on the rule of law, but it will have to wait. In the mean time, I have some links on Sonio Sotomayor.

I don’t have much of an opinion on Judge Sotomayor, so I’ll just point out some interesting links.

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.

This has echos of Jeffery Rosen’s hit-piece from a couple of weeks ago, but seems grounded in his reading of her opinions. When Justice Souter’s retirement was announced, I wrote that we needed a true progressive on the court. It is with this in mind, that Professor Turley’s analysis concerns me a little.

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.

Meanwhile, Erwin Chemerinsky takes a different view.

Sotomayor brings to the bench essential diversity. Every justice’s rulings are a product of his or her life experiences. As a woman, a Latina, a person who has faced a life-long serious illness (diabetes), and a person who grew up in modest circumstances, Sotomayor brings experiences that are unrepresented or largely absent from the current court. These certainly will influence her rulings and they also may help in the most important task for a Democratic appointee on the current court: persuading Justice Anthony Kennedy, the key swing justice on almost every closely divided issue. Sotomayor’s background, as well as her intellect and experience, make her ideally suited for this role.

[Snip]

But most of all, Sotomayor is an excellent choice because she is an outstanding judge. Her opinions are clearly written and invariably well-reasoned. My former students who have clerked for her rave about her as a judge and as a person. She has enormous experience as a lawyer and as a judge, both in the federal district court and the federal court of appeals.

Finally, over the weekend, Charlie Savage discussed the positions of various likely court nominees on presidential power. While Diane Hood is skeptical of expanded powers, and Elena Kagan supportive, little is known about Judge Sotomayor’s positions. Even though confirmation is very likely, without some kind of surprise scandal, this is a topic that will need to be fully explored in hearings. Judge Sotomayor will certainly be faced with a number of executive powers issues, from both the Bush and Obama administrations.

Addendum: SCOTUSblog has a discussion of a number of Judge Sotomayor’s opinions.

Published in: on May 27, 2009 at 10:24 pm  Leave a Comment  
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Justice Souter Retiring

NPR is reporting that Justice Souter is going to retire at the end of the court’s current term. This is not a surprise – speculation has been going around for months. Listening to Nina Totenberg during my commute home, one thing continually stood out: her statement that Souter is a liberal “on this court.” While he certainly hasn’t been the conservative that the first President Bush was expecting, Souter isn’t really more than a center-left moderate. On this court, though, dominated by arch-conservatives, he is the very picture of a liberal.

So, while the many news analysts discuss how his replacement won’t shift the balance on the court (and it won’t), what it can do is change the nature of the balance. Concurrences and dissents are important, as are all of the secret compromises necessary to get a majority. President Obama can appoint a center-left moderate, or a true progressive, and this will matter by shaping the make-up of the court’s liberal bloc. He also has the opportunity to appoint a woman, which is necessary based on, if nothing else, the oral arguments last week in Safford Unified v. Redding. The point is, the appointment will matter. With that in mind, take a look at the argument for appointing a true progressive at Overruled.

Where President Clinton seriously dropped the ball, however, is corporate accountability.

[Snip.]

All of this is to say that issues like Roe and Gitmo are very important, but issues of corporate accountability are equally important.  I want the government to stay the hell away from my bedroom, but I also want to be able to rely on my insurance company if I get sick, and I want to be able to hold it accountable if it illegally denies me coverage of a medically-necessary treatment.

Published in: on April 30, 2009 at 10:39 pm  Comments (2)  
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