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The Sotomayor confirmation hearings Dust-Up [UPDATED]

July 13, 2009 | 11:29 am

Sonia Sotomayor, confirmation, Supreme Court, Senate Judiciary Committee
Joshua Roberts / Bloomberg News
The Opinion Manufacturing Division invited a half dozen or so esteemed legal minds to comment on the Senate Judiciary Committee's hearings this week on the nomination of Judge Sonia Sotomayor for the Supreme Court. We'll present them here, in reverse chronological order.

Monday, July 13

10:32 p.m.
Ilya Somin
Assistant Professor of Law, George Mason University School of Law

I of course agree that it is possible to find a few objectionable decisions from virtually any judge. However, these are four of the most important constitutional cases that Judge Sotomayor has handled in her career. They surely fall within President Obama's famous 5% of cases that truly reveal a judge's "deepest values."

Regarding Maloney, it is true that the Supreme Court ruled in the 19th century that the Privileges and Immunities Clause of the 14th Amendment does not incorporate the Second Amendment against the states. But the Supreme Court has never ruled that the Due Process Clause of the same amendment doesn't do so. Over the last 60 years, The Court has in fact ruled that  most of the Bill of Rights applies to the states through that Clause,  and in District of Columbia v. Heller, the Court specifically urged lower courts to consider the possibility that the Second Amendment is incorporated under that Clause.

On Ricci v. DeStefano, I think that Prof. Chemerinsky ignores my point that even the liberal dissenters in the Supreme Court criticized Judge Sotomayor's ruling that the case should not even have been sent to a jury. There was extensive evidence that racial politics, not a desire to avoid Title VII liability, was the real cause of city's decision. The District Court opinion that Judge Sotomayor and her colleagues endorsed in their Second Circuit opinion acknowledged as much, noting that evidence suggested that the city was motivated in part by a desire to promote "diversity" and by fear of adverse "political consequences."

Finally, I think Judge Sotomayor's decisions in Didden and Doninger were clearly not required by Supreme Court precedent. Indeed, in Didden she upheld precisely the sort of "pretextual" taking that even the Supreme Court majority in Kelo said was unconstitutional.

Ilya Somin, a constitutional law scholar, is an Assistant Professor at George Mason University School of Law and co-editor of the Supreme Court Economic Review.

9:59 p.m.
Erwin Chemerinsky
Dean, UC Irvine School of Law

The most revealing statement during the first day of the confirmation hearings was by Senator Lindsay Graham....

.... He said that presidential elections determine nominations to the Supreme Court and that unless Judge Sotomayor had a "meltdown" she was sure to be confirmed. There is no drama surrounding these hearings. There is no serious opposition. With 60 Democratic Senators and an impeccably qualified candidate, the result is known to all. The only question is how much Republicans want to use the Sotomayor nomination to appeal to their base by railing against judicial activism. But few are unlikely to seriously attack her because of the risk to alienating an increasingly important political constituency.

If nothing else, the first day of the hearings revealed against the brilliance of President Obama's selection. Any president wants a Supreme Court nomination that pleases his political base while requiring little political capital for confirmation. Sonia Sotomayor is exactly that nominee.

Professor Somin's post focuses on something totally different: Do Judge Sotomayor's rulings warrant her rejection by the Senate? Putting aside the political realities that ensure her confirmation, does her record as as court of appeals judge justify her being denied confirmation? Professor Somin points to four cases that he disagrees with. At the outset, the question must be whether these four decisions reflect some pattern or trend that shows Judge Sotomayor to be unqualified or undesirable for the position. For any judge or justice it is possible to find four objectionable decisions. They provide a basis for rejection only if they show inadequacy or bias or an individual out of the judicial mainstream. These cases do not show any such pattern.

Also, I disagree with Professor Somin's criticism of most of these cases.  In Maloney v. Cuomo Judge Sotomayor's opinion said that the Second Amendment does not apply against state and local governments because there is a Supreme Court case on point so holding. A conservative panel of the Seventh Circuit recently came to the same conclusion. It is for the Supreme Court to overrule this (and I hope they won't), not for a court of appeals.

In Ricci v. DeStefano, the Supreme Court recently reversed Judge Sotomayor's opinion 5-4. Unlike Professor Somin, I believe that the dissent very much agreed with Judge Sotomayor, and so do I. The civil service exam in New Haven, Conn., would have meant 10 whites would have been eligible for consideration for lieutenant and seven whites and two Hispanics would have been eligible for captain. In other words, there was a strong racially discriminatory effect. Title VII of the 1964 Civil Rights Act creates liability for employment practices with a discriminatory impact. New Haven justifiably did not use the test, for an occupation with a long history of race discrimination, to avoid liability. The fact that five Justices disagreed, while four agreed with Judge Sotomayor, certainly does not make her unqualified.

The final two examples by Professor Somin fail to recognize the role of the court of appeals judge in being bound by Supreme Court precedent. As to Didden v. Port of Chester, the Supreme Court has said that a taking is for public use so long as the government acts out of a reasonable belief that the taking will benefit the public. As for Doninger v. Niehoff, I agree with Professor Somin's criticism, but I put the blame on a Supreme Court which has been tremendous deferential to school officials in regulating student speech.

Ultimately, these four decisions do not show a judge who is incompetent or biased or at the extremes of the ideological spectrum.  She will surely be confirmed, in part, because she has been an excellent judge, but even more, because there are 60 Democratic Senators and no real opposition to her nomination.

Erwin Chemerinsky, a constitutional law scholar, is founding dean of the School of Law at the University of California, Irvine. His latest book is "Empowering Government: Federalism for the 21st Century."

9:02 p.m.
Ilya Somin
Assistant Professor of Law, George Mason University School of Law

I am not a conservative. Nor do I feel any particular loyalty to the GOP. But as the only panelist who seems skeptical about Sotomayor's nomination, it falls to me explain why.

I don't doubt Sotomayor's professional qualifications. It is also true that she has an inspiring life story. However, as Barack Obama explained when he voted against the confirmation of Chief Justice John Roberts, it is perfectly justifiable to oppose a technically qualified nominee on grounds of judicial philosophy. Unfortunately, Sotomayor's record on important constitutional cases too often shows unwillingness to protect important constitutional rights. I note four examples.

In my own field of property law (which I will be testifying about at the confirmation hearings), Sotomayor joined one of the worst decisions of recent years: Didden v. Village of Port Chester. Sotomayor's 2nd Circuit Court of Appeals panel ruled that that the 5th Amendment requirement that condemnations must be for a "public use" did not forbid the use of eminent domain to take property from owners who had refused to pay $800,000 to a politically influential developer who threatened to have the land taken from them unless they paid him the money. The ruling went even further in undermining property rights than the Supreme Court's widely denounced 2005 decision in Kelo v. City of New London, which defined "public use" extremely broadly. Even the Kelo majority emphasized that "the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit," was not enough to count as a "public use." It is difficult to imagine a more clearly pretextual taking than this one. Unconstrained use of eminent domain disproportionately victimizes minorities, the poor, and the politically weak, a point emphasized by the NAACP.

In the First Amendment area there is Doninger v. Niehoff, where she joined a ruling that a public school could punish a student for speech critical of school officials in an Internet blog post written outside of school. As liberal scholars Jonathan Turley and Paul Levinson have emphasized, this decision poses a serious threat to the free speech rights of public school students.

In Ricci v. DeStefano, recently reversed by the Supreme Court, Sotomayor summarily dismissed a reverse discrimination claim by 17 white and one Hispanic firefighters, despite what the district court ruling she endorsed conceded was considerable evidence that the City of New Haven denied them promotion for racial reasons and not merely to avoid possible liability under Title VII of the Civil Rights Act.*

It is true, as Susan Estrich notes, that this was a close 5-4 decision in the Supreme Court. However, even the four liberal dissenters to the Supreme Court decision disagreed with Sotomayor's conclusion that the firefighters' claim should be dismissed on summary judgment, without even being allowed to go to a jury. I am not categorically hostile to the use of affirmative action preferences as a tool for alleviating racial injustice. However, I still consider Sotomayor's ruling  troubling, since the use of racial preferences by New Haven may have been the result of pure interest group politics.

Finally, Judge Sotomayor's recent ruling in Maloney v. Cuomo that the Second Amendment right to bear arms does not apply against state governments simply ignored relevant Supreme Court precedent, which states that lower courts must give careful consideration to the possibility that the Second Amendment is "incorporated" against the states under the Due Process Clause of the Second Amendment.

In three of these cases (Didden, Ricci, and Maloney), Sotomayor not only reached a dubious result, but disposed of an important constitutional issue in short, cursory opinions that provide little or no analysis.

Sotomayor's record isn't all bad. I would bet she reaches the right decision the overwhelming majority of the time. But her flawed performance in several important cases is a genuine concern. As Barack Obama has emphasized, any competent judge will decide 95% of cases more or less the same way. But the other 5% includes some of the most important issues of our time, controversies that, in Obama's words, reveal a judge's "deepest values."

Ilya Somin, a constitutional law scholar, is an Assistant Professor at George Mason University School of Law and co-editor of the Supreme Court Economic Review.

[Professor Somin corrected this line at 10:35 p.m. The original stated, "despite what she herself conceded was considerable evidence that the City of New Haven denied them promotion for racial reasons and not merely to avoid possible liability under Title VII of the Civil Rights Act."]

5:20 p.m.
Marci A. Hamilton
Paul R. Verkuil Chair in Public Law, Yeshiva University's Benjamin N. Cardozo School of Law

From my perspective, the most compelling moment during the opening hearings today was when Sen. Dianne Feinstein (D-CA) chose to focus on the range of legal fields within which Judge Sotomayor has been involved. I found these to be the most substantive comments of the day and I thought it was interesting that they were coming from a woman who also has achieved success in a universe that remains dominated by men. Feinstein was insisting on looking at the merits of the woman, not the politics.

Setting aside Sotomayor's roles in each, Feinstein pointed out that she has been involved in criminal prosecution (from the government's side); business and intellectual property litigation (from the business side); and the wide range of issues that face a district court (including complex procedural issues); and then a wide variety of appellate issues involving those fields as well as constitutional, statutory, and procedural issues in the Second Circuit. Add to that her involvement in litigating for minority rights groups. When you add up the numbers of cases she has had to address to these fields of competence, she appears perfectly qualified to be a Supreme Court Justice -- well-educated and well-rounded in the universe she is very likely to enter.

Even more arresting, her major practice areas put her in positions where Republicans would want her -- on the prosecutor's side and business' side.  Republicans need to be careful what they wish for if they think scuttling her nomination is a good idea.  They need to set aside the politics of race, which are being spun out of the thinnest threads (and making them look silly), and realize that they will not get a better appointment from the Obama Administration for their traditional interests.

Marci A. Hamilton holds the Paul R. Verkuil Chair in Public Law at Yeshiva University's Benjamin N. Cardozo School of Law and is the author of "God vs. the Gavel: Religion and the Rule of Law."

4:42 p.m.
Vikram D. Amar
Associate Dean for Academic Affairs and Professor of Law, UC Davis

I largely agree with Susan, but unless the conservatives are simply going to concede the wisdom and propriety of the Sotomayor nomination (and for a variety of reasons they won’t and can’t do that), they have to find something to pick at/on.  And the “wise Latina” being “better” comment is an easy target. Were I Judge Sotomayor, I would apologize for saying that any one voice on the bench is “better” than another, and say instead that more kinds of voices on any bench are better than fewer.

At best, the conservatives can hope to make vividly clear where a mainstream “liberal” mainstream member of this Supreme Court would want to take constitutional jurisprudence, and pray that such a vision is too ambitious or interventionist for the median American voter.

Vikram D. Amar is Associate Dean for Academic Affairs and Professor of Law at the University of California, Davis

10:33 a.m.
Susan Estrich

Robert Kingsley Professor of Law and Political Science, University of Southern California Law School

Sonia Sotomayor is going to be a justice. I’m sure of that. How many Republican votes she’ll get I really don’t know, and to be honest, it matters a whole lot more for Republican strategists than it does to me.

I’m happy to fight about Judge Sotomayor’s speeches and decisions, if conservatives really want to. Thrilled, actually. It’s a whole lot easier than explaining why unemployment is higher than it was supposed to be with the stimulus, and why pessimism is growing about how long this recession will drag on and whether we’ve even hit bottom yet. It’s a whole lot simpler coming up with an explanation for what Sotomayor has said than it is to come up with any kind of explanation of how California is going to get out of the IOU business, much less solve the structural crisis that spawned the flood of paper "warrants."

Heck yes, let’s talk about whether a woman who graduated summa cum laude from Princeton and went on to be a star at Yale Law School and in the District Attorney’s office, who was one of the youngest federal judges on the bench, was a 17-year veteran of both trial and appellate courts and was raised by a single mother in the projects deserves to be on the Supreme Court. My kind of fight: should an unsigned opinion by a panel on which she sat, which was reversed by a 5-4 vote of the court, disqualify her? Get serious. Are we also going to impeach Justices Stevens, Souter, Ginsburg and Breyer because they agreed with her? And what about her serving on the board of the Puerto Rican Legal Defense Fund with such known radicals as José Cabranes, the Second Circuit judge and longtime mentor and friend of Judge Sotomayor’s who was on the other side of that affirmative action case? Of course, Thurgood Marshall represented the NAACP Legal Defense Fund in the United States Supreme Court, and that was viewed, rightly, as qualifying him for the High Court, but hey....

No, any way you cut it, the Sotomayor fight is a gift for an administration that would otherwise, right about now, be facing a huge backlash of doubt and frustration about the economy. Republicans can rail about affirmative action in the hiring of fire fighters in New Haven, but it hardly matters when nobody anywhere is hiring anyone for anything. If I were a Republican, I’d pay more attention to the lines of people competing for part-time work at Starbucks (my daughter’s friend found herself in line in Culver City with men and women twice her age with decades of management experience who needed the money and the health insurance) than to the lines in old Sotomayor speeches. At least if they want to be picking any justices in the future, or blocking them for that matter.

Susan Estrich, national campaign manager for Democratic presidential nominee Michael Dukakis in 1987-88, is the Robert Kingsley Professor of Law and Political Science at USC and a partner in the Los Angeles office of Quinn Emanuel Urquhart Oliver & Hedges, LLP. She is a legal and political analyst for Fox News and a syndicated columnist.

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