Category Archives: National Journal

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Repudiating Obama’s Judicial Philosophy – The Ninth Justice

by Stuart Taylor, Jr.

National Journal

Perhaps the most remarkable exchange during the Senate Judiciary Committee’s hearing came on Tuesday, when President Obama’s nominee flatly repudiated his judicial philosophy.

This is all the more striking because it’s a good bet that the Obama team knew it was coming. White House lawyers spent days prepping Judge Sonia Sotomayor for the hearings, and it was quite predictable that she would be asked about Obama’s "empathy" criterion for choosing nominees.

Indeed, I wonder whether the Obama team itself may even have suggested to the nominee that rejecting the Obama philosophy — as well as disavowing the apparent meaning of her years of "wise Latina woman" speeches — would be the best way out of a tight spot, for reasons explained below.

Sotomayor’s three days of "I just apply law to facts" testimony may evidence a tacit recognition by smart liberals such as Obama and Sotomayor that the American public is either too unsophisticated or too sensible — take your pick — to buy the undiluted liberal judicial philosophy that pervades her speeches, and his.

The predictable question came from Sen. Jon Kyl, R-Ariz., who asked whether Judge Sotomayor agreed with Obama’s repeated assertions that "the critical ingredient in [hard] cases is supplied by what is in the judge’s heart," including empathy for the powerless.

Sotomayor’s stunning response: "No, sir. That’s — I don’t — I wouldn’t approach the issue of judging in the way the president does. He has to explain what he meant by judging. I can only explain what I think judges should do, which is, judges can’t rely on what’s in their heart. They don’t determine the law. Congress makes the laws. The job of a judge is to apply the law."

Wow. Has anyone ever before delivered such a sharp rebuff to the president who nominated her? And on national television, no less?

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The Sotomayor Puzzle

by Stuart Taylor, Jr.

National Journal

As one who had hoped for a moderately liberal, intellectually honest nominee and feared the possibility of an unprincipled left-liberal ideologue steeped in identity politics, I am having trouble figuring out Judge Sonia Sotomayor.

Sen. Lindsey Graham, R-S.C., captured my own puzzlement when he told Sotomayor on Tuesday that although her 17-year judicial record struck him as "left-of-center but within the mainstream, you have these speeches that just blow me away…. Who are we getting here?"

Graham was talking mainly about a succession of at least five very similar speeches between 1994 and 2003 in which Sotomayor appeared to glorify ethnic and gender identity repeatedly at the expense of the judicial obligation to be impartial and suggested that "a wise Latina woman" would be a better judge than "a white male."

In response to questions such as Graham’s, Sotomayor and her supporters have touted her judicial decisions as proof that she has been a solid, impartial judge.

They have a point. Sotomayor’s more than 3,000 mostly unremarkable rulings have not been ultra-liberal, have not displayed any broad pattern of bias in race or gender cases, and have closely followed precedent. Ordinarily, a judge’s record on the bench is the best guide to what she would do on the Supreme Court. She has also lived an admirable life.

But how persuasive were Sotomayor’s efforts to explain away those jarring speeches? Below I juxtapose excerpts from a typical speech — in October 2001, to an audience of Hispanic activists and others at the University of California (Berkeley) — with portions of her testimony on Tuesday and Wednesday.

• Berkeley speech: "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 who hasn’t lived that life."

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The Sotomayor Puzzle – The Ninth Justice

by Stuart Taylor, Jr.

National Journal

From National Journal‘s July 18 issue:

As one who had hoped for a moderately liberal, intellectually honest nominee and feared the possibility of an unprincipled left-liberal ideologue steeped in identity politics, I am having trouble figuring out Judge Sonia Sotomayor.

Sen. Lindsey Graham, R-S.C., captured my own puzzlement when he told Sotomayor on Tuesday that although her 17-year judicial record struck him as "left-of-center but within the mainstream, you have these speeches that just blow me away…. Who are we getting here?"

Graham was talking mainly about a succession of at least five very similar speeches between 1994 and 2003 in which Sotomayor appeared to glorify ethnic and gender identity repeatedly at the expense of the judicial obligation to be impartial and suggested that "a wise Latina woman" would be a better judge than "a white male."

In response to questions such as Graham’s, Sotomayor and her supporters have touted her judicial decisions as proof that she has been a solid, impartial judge.

They have a point. Sotomayor’s more than 3,000 mostly unremarkable rulings have not been ultra-liberal, have not displayed any broad pattern of bias in race or gender cases, and have closely followed precedent. Ordinarily, a judge’s record on the bench is the best guide to what she would do on the Supreme Court. She has also lived an admirable life.

But how persuasive were Sotomayor’s efforts to explain away those jarring speeches? I juxtapose excerpts from a typical speech — in October 2001, to an audience of Hispanic activists and others at the University of California (Berkeley) — with portions of her testimony on Tuesday and Wednesday.

Continue reading the column here.

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Senatorial Speeches: Points Of Contention – The Ninth Justice

by Stuart Taylor, Jr.

National Journal

For more than three hours on Monday, at the outset of the Sonia Sotomayor confirmation hearing, the Senate Judiciary Committee’s 19 members talked. And they talked. There were no surprises, and many a reporter found it to be a boring prelude to the questioning of the nominee on Tuesday and Wednesday.
But a few of us Supreme Court geeks found it all pretty interesting, if undramatic. I quote below, and add brief comments about, some of the more notable remarks by 10 of the 19 committee members — first five Democrats, then five Republicans.

Sen. Patrick Leahy, D-Vt.: “Those who break barriers often face the added burden of overcoming prejudice, and it’s been true in the Supreme Court. Thurgood Marshall graduated first in his law school class. He was the lead counsel for the NAACP Legal Defense Fund…. He won a remarkable 29 out of 32 cases before the Supreme Court. But despite all of these qualifications and achievements, when he was before the Senate for his confirmation, he was asked questions designed to embarrass him, questions such as ‘Are you prejudiced against the white people of the South?’… The confirmation of Justice Louis Brandeis, the first Jewish American to be nominated to the high court, was a struggle rife with anti-Semitism…. Let no one demean this extraordinary woman.”

Comment: These allusions to the “prejudice” that Marshall and Brandeis encountered were a stretch. There is no public evidence that Sotomayor has ever been subjected to serious prejudice or discrimination. Far from demeaning her, Republican senators have celebrated her inspiring personal story and the idea of a Hispanic woman sitting on the Supreme Court. And it is Sotomayor, not her critics, who has engaged in stereotyping by suggesting repeatedly that a “wise Latina woman” would make better decisions than a white male.

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Why Sotomayor Should Not Say What She Thinks – The Ninth Justice

by Stuart Taylor, Jr.

National Journal

As night follows day, the spectacle unfolding as 19 senators pose their questions to Judge Sonia Sotomayor will include a succession of demands for candor about her views — especially from Republicans — which the nominee will meet with ducking, dodging and evasion.

Sotomayor will steadfastly claim, as did all of the current justices, that it would be improper to disclose her views on issues that might come before her, except at a high level of generality. And she will be right.

I have not always held this view, and I hold it now even though there are very strong reasons for demanding candor from a nominee who is effectively running for a lifetime appointment that will give her far more power than any member of Congress, and with no accountability to voters, ever.

Once confirmed, as seems almost assured, Sotomayor will likely spend three or more decades setting national policy (when in the majority) on issues including racial quotas and preferences; discrimination law; war powers of the president, Congress and the judiciary; abortion; church-state relations; gay rights; campaign finance; environmental law; property rights; gun control; whether judges should change the meaning of the U.S. Constitution to conform to foreign law; the death penalty; and other criminal law issues.

It’s unimaginable that any serious candidate for Congress or the presidency could refuse to tell us what he or she thinks about any — let alone all — of these issues.

So why should there be an exemption for a nominee who seeks to sit on the only body with power to strike down presidential and congressional acts?

Then-Sen. Joe Biden’s frustration was understandable when he said to John Roberts in 2005, "We are rolling the dice with you, judge…. You’ve told me nothing… as if the public doesn’t have a right to know what you think about fundamental issues facing them."

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Campaign Finance And Corporations

by Stuart Taylor, Jr.

National Journal

In an unusual, relatively unpublicized June 29 order, the Supreme Court scheduled a special oral argument for September 9 to consider using a pending case to sweep away the 62-year-old ban on independent corporate spending to influence elections.

That would be the Court’s biggest attack ever on campaign finance laws. It would also be a big mistake. There is no good reason to empower Big Business CEOs to influence elections by spending other people’s money — by which I mean money belonging to ideologically eclectic shareholders, most of whom do not want it invested in election campaigns.

But for all the alarums among liberal election-law experts, I doubt that the Court’s majority is planning to open the floodgates to unlimited campaign spending by Big Business.

I am guessing, and hoping, that the justices will instead use the pending case, Citizens United v. Federal Election Commission, to draw a principled, pragmatic, nonideological line between business corporations and nonprofit advocacy corporations.

Such a decision would uphold the First Amendment rights of citizen groups to spend their individual members’ dues and contributions to support or oppose federal candidates, as long as they don’t serve as conduits for money amassed in the economic marketplace by business corporations.

While many conservatives are all too eager to unleash Big Business to spend on campaigns, most liberals have been all too content to censor nonprofit advocacy corporations. They have also ignored the blatantly self-interested and illegitimate nature of Congress’s decision to draft the campaign finance restrictions so broadly as to hog-tie such advocacy groups, as described below.

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How Ricci Almost Disappeared – The Ninth Justice

by Stuart Taylor, Jr.

National Journal

For all the publicity about the Supreme Court’s 5-4 reversal of Judge Sonia Sotomayor’s decision (with two colleagues) to reject a discrimination suit by a group of firefighters against New Haven, Conn., one curious aspect of the case has been largely overlooked.

That is the likelihood that but for a chance discovery by a fourth member of the 2nd Circuit Court of Appeals, the now-triumphant 18 firefighters (17 white and one Hispanic) might well have seen their case, Ricci v. DeStefano, disappear into obscurity, with no triumph, no national publicity and no Supreme Court review.

The reason is that by electing on Feb. 15, 2008, to dispose of the case by a cursory, unsigned summary order, Judges Sotomayor, Rosemary Pooler and Robert Sack avoided circulating the decision in a way likely to bring it to the attention of other 2nd Circuit judges, including the six who later voted to rehear the case.

And if the Ricci case — which ended up producing one of the Supreme Court’s most important race decisions in many years — had not come to the attention of those six judges, it would have been an unlikely candidate for Supreme Court review. The justices almost never review summary orders, which represent the unanimous judgment of three appellate judges that the case in question presents no important issues.

The 2nd Circuit and other appeals courts hear cases in three-judge panels, which almost always write full opinions in all significant cases. Those opinions, which are binding precedents, are routinely circulated to all other judges on the circuit, in part so that they can decide whether to request what is called a rehearing en banc by the entire appeals court.

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The Hearings: Double Standard Watch – The Ninth Justice

by Stuart Taylor, Jr.

National Journal

A perennial feature of judicial confirmation hearings is watching Senate Democrats and Republicans alike invert their approaches to various issues depending on the party of the nominating president. Look for some of that during next week’s Judiciary Committee hearings on Judge Sonia Sotomayor.

Sotomayor is expected to emulate the last seven nominees to face confirmation hearings — five picked by Republican presidents and two by Democrats — by refusing to disclose her specific views on issues likely to come before the court. And she should refuse, for reasons that I will discuss in a future post.

But will the Democrats who pronounced themselves mightily frustrated by the unresponsive ducking and dodging of John Roberts and Samuel Alito in 2005 and 2006 be similarly annoyed when Sotomayor ducks and dodges next week? Don’t bet on it.

And will the Republicans who lauded the content-free testimony of Roberts and Alito take a similarly benign view when Sotomayor parries their efforts to pin down her views? Don’t bet on that, either.

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Justices Reject Sotomayor Position 9-0 — But Bigger Battles Loom – The Ninth Justice

by Stuart Taylor, Jr.

National Journal

The Supreme Court’s predictable 5-4 vote to reverse the decision by Judge Sonia Sotomayor and two federal appeals court colleagues against 17 white (and one Hispanic) plaintiffs in the now-famous New Haven, Conn., firefighters decision does not by itself prove that the Sotomayor position was unreasonable.

After all, it was hardly to be expected that the five more conservative justices — who held that the city had violated the 1964 Civil Rights Act by refusing to promote the firefighters with the highest scores on a job-related promotional exam because none were black — would endorse an Obama nominee’s ruling to the contrary.

What’s more striking is that the court was unanimous in rejecting the Sotomayor panel’s specific holding. Her holding was that New Haven’s decision to spurn the test results must be upheld based solely on the fact that highly disproportionate numbers of blacks had done badly on the exam and might file a "disparate-impact" lawsuit — regardless of whether the exam was valid or the lawsuit could succeed.

This position is so hard to defend, in my view, that I hazarded a prediction in my June 13 column: "Whichever way the Supreme Court rules in the case later this month, I will be surprised if a single justice explicitly approves the specific, quota-friendly logic of the Sotomayor-endorsed… opinion" by U.S. District Judge Janet Arterton.

Unlike some of my predictions, this one proved out. In fact, even Justice Ruth Bader Ginsburg’s 39-page dissent for the four more liberal justices quietly but unmistakably rejected the Sotomayor-endorsed position that disparate racial results alone justified New Haven’s decision to dump the promotional exam without even inquiring into whether it was fair and job-related.

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Strip Searching Students – And Empathy For Whom? – The Ninth Justice

by Stuart Taylor, Jr.

National Journal

The Supreme Court’s decision on Thursday faulting school officials’ intrusive semi-strip search of a 13-year-old Arizona girl suspected of hiding drugs that were forbidden in school, but not very dangerous, has generated spirited commentaries. See, for example, Dahlia Lithwick‘s in Slate, suggesting that Justices Ruth Bader Ginsburg and John Paul Stevens "turned this ship around, I suspect, with the power of persuasion and a public-shaming chaser."

I dwell here on fairly obscure aspects of the case. They indicate that school officials will need to buy lots of insurance if the views of Ginsburg and Stevens on the question of liability ever command a majority. They also illustrate the limitations of President Obama‘s "empathy" standard for choosing judges, and suggest a possible question for his Supreme Court nominee.

First, the basics: Acting on a tip from another student that Savana Redding might be hiding prescription-strength ibuprofen pills (and over-the-counter naproxen), school officials told her to strip in front of two women down to her bra and underpants and pull them out, thus exposing her breasts and pelvic area to some extent. No drugs were found. Savana’s mother sued the officials and the school district for invading her privacy and humiliating her in violation of her Fourth Amendment rights.