Obama's SCOTUS Pick: Sonia Sotomayor

[National Kato]

Federal appeals court Judge Sonia Sotomayor (http://en.wikipedia.org/wiki/Sonia_Sotomayor) has been chosen by President Obama to replace U.S. Supreme Court Justice David Souter. Sotomayor, 54, will be the third woman ever to serve on the Supreme Court as well as the court's first justice of Hispanic descent (http://www.cnn.com/2009/POLITICS/05/26/supreme.court/index.html), if confirmed.

Learn more about this judge:

American Bar Association Bio (http://www.abanet.org/publiced/hispanic_s.html)
Judgepedia entry (http://judgepedia.org/index.php/Sonia_Sotomayor)

From what little I've heard thus far in the media and taking into account the importance of this position, I expect we'll be hearing a lot about Judge Sotomayor in the coming weeks. Nominated by both Democratic and Republican Presidents and twice confirmed by the Senate with strong bipartisan support, it will be very interesting to see how she is received during the confirmation process.

[Ox]

Would she really be the first Hispanic?

[Ink Asylum]

Demographics of the Supreme Court (http://en.wikipedia.org/wiki/Demographics_of_the_Supreme_Court_of_the_United_St ates)

For its first 180 years, Supreme Court justices were almost always white male Protestants. The 20th century saw the first appointment of a Jew (in 1916), an African-American (1967) and a woman (1981).

All U.S. Supreme Court Justices were white until the appointment of Thurgood Marshall, the first African-American Justice, in 1967. Since then, only one other non-white Justice has been appointed, Marshall's African-American successor, Clarence Thomas. Of the 110 Justices, 108 (98.2%) have been white.

Benjamin Cardozo, appointed to the Court in 1932, was the first Justice of non-northern European descent. A few historians contend that Cardozo, a Sephardic Jew of distant Portuguese descent, and fluent in Spanish, should also be counted as the first Hispanic Justice. The majority view is that Cardozo was white, and thus only whites and African-Americans have ever been on the Court.

[Ox]

Thanks, Ink, for clarifying my point. Cardozo gets no respect. I think it's 'cause he was Jewish.

Sonia Sotomayor: Anti-Semite???

[Ink Asylum]

We've got a sneak preview of Republican opposition to Sotomayor. Someone at the RNC accidentally mailed their talking points to the media. (http://briefingroom.thehill.com/2009/05/26/rnc-fumbles-sotomayor-talking-points/)

A sample:

• Justice Souter's retirement could move the Court to the left and provide a critical fifth vote for:

• Further eroding the rights of the unborn and property owners;

• Imposing a federal constitutional right to same-sex marriage;

• Stripping "under God" out of the Pledge of Allegiance and completely secularizing the public square;

• Abolishing the death penalty;

• Judicial micromanagement of the government's war powers.

[National Kato]

Most of those talking points (the ones in the link, not Ink's quoted points) seem pretty fair and reasonable to me. If it was an accident, it's not damaging at all.

[Ink Asylum]

They are mostly fair. It's also obvious that pretty much all of them would apply to any nomination Obama would be expected to make.

[Shrinn]

Those talking points were reasonable, nothing too outlandish. That's good because if they don't like her they need to have good reasons, and bringing out the crazy as a knee jerk response would kill their credibility further.

It strikes me as weird that unborn and property owners are in the same bullet point, but I'm sure they didn't mean anything by it.

They basically just said "We don't like democrat policies" which is understandable.

I wonder if she paid her taxes.

[Kelegacy]

I'd have a problem with them taking "under God" out of the Pledge. I'm not religious, but I think taking it out is in bad taste.

I also fully support the death penalty. I don't think it's used enough, to be honest. That's one of my biggest conservative beliefs. The other being having sex with male prostitutes while condemning homosexuality in the public forum. :)

[Ancalagon]

Wasn't Souter surprisingly liberal anyway?

[ShivaX]

Wasn't Souter surprisingly liberal anyway?

Only because he was supposed to be a conservative and turned out to be a moderate.

[Ink Asylum]

Yeah. That was the surprise. He was picked by George H.W. Bush, after all.

[johnperkins21]

I'd have a problem with them taking "under God" out of the Pledge. I'm not religious, but I think taking it out is in bad taste.

No, putting it in was in bad taste. Taking it out is the only rational thing to do.

[National Kato]

I'd have a problem with them taking "under God" out of the Pledge. I'm not religious, but I think taking it out is in bad taste.


And putting it in because of the fear of God-less Communism (http://www.religioustolerance.org/nat_pled1.htm) was in good taste?

[ShivaX]

No, putting it in was in bad taste. Taking it out is the only rational thing to do.

Honestly as a person who is pretty anti-religious, I've never had an issue with it. Its pretty non-denominational and vague. Its not like its "under Jesus/Allah" or anything.

[Ox]

No, putting it in was in bad taste. Taking it out is the only rational thing to do.
I can see wanting to take out the "under God" from the Pledge, although that is not the issue. I can perhaps even see declaring that it's unconstitutional for a public school student to utter the words "under God" while in a public school -- which actually is the legal issue. But I'm not quite sure why it's impossible for a rational person to disagree with you.

[Goronmon]

Even as a kid I felt uncomfortable with the "under God" portion of the Pledge.

Now I just think the entire thing is a little strange.

[Ox]

Even as a kid I felt uncomfortable with the "under God" portion of the Pledge.

Now I just think the entire thing is a little strange.
Okay. Then don't recite it.

Problem solved.

[Goronmon]

Okay. Then don't recite it.

Problem solved.Meh, it was never that big of a deal. Just one of those things that I remember thinking occasionally as everyone recited it.

[Telefrog]

Okay. Then don't recite it.

Problem solved.

Sure, nowadays. When I went to gradeschool, on a military base, not reciting the pledge wasn't really an option! :p

[Ox]

Sure, nowadays. When I went to gradeschool, on a military base, not reciting the pledge wasn't really an option! :p
I'm not certain about the military base, but unless you went to grade school prior to 1943 (http://en.wikipedia.org/wiki/West_Virginia_State_Board_of_Education_v._Barnette ), you had the option of refusing to recite the Pledge of Allegiance.

[johnperkins21]

I can see wanting to take out the "under God" from the Pledge, although that is not the issue. I can perhaps even see declaring that it's unconstitutional for a public school student to utter the words "under God" while in a public school -- which actually is the legal issue. But I'm not quite sure why it's impossible for a rational person to disagree with you.

Rational people can have irrational ideas. The majority of people who believe in god are rational people, yet a belief in god is by definition irrational.

I'm not saying rational people can't disagree with me, just that the only rational thing to do is to remove the words "under god" from the pledge. We are not "one nation, under god." We are simply one nation. Adding the "under god" portion to the pledge, and asking children to recite it in public schools endorses a religious belief. However vague, it still endorses belief over non-belief, which is unconstitutional.

I personally think we should do away with the pledge completely. But I doubt that will happen any time soon.

[Ox]

Rational people can have irrational ideas. The majority of people who believe in god support are rational people, yet a belief in god is by definition irrational.
Oh, good, I missed Schnoogs.

[johnperkins21]

Oh, good, I missed Schnoogs.

Faith: Belief that does not rest on logical proof or material evidence.
Rational: Consistent with or based on reason; logical

I'm sorry if you think I'm trolling, or being offensive, but faith is, by definition, irrational.

[Telefrog]

Faith: Belief that does not rest on logical proof or material evidence.
Rational: Consistent with or based on reason; logical

I'm sorry if you think I'm trolling, or being offensive, but faith is, by definition, irrational.

Oh, crap. You've done it now.

I'm not certain about the military base, but unless you went to grade school prior to 1943, you had the option of refusing to recite the Pledge of Allegiance.

Oh yeah, technically that's true, but imagine telling your Army Sergeant Major father why you didn't say the Pledge of Allegiance. :p

[National Kato]

Let's not completely derail this thread with a discussion about rationality and faith. Maybe a new thread would be preferable?

[Ultima Thulian]

Agreed with Kato.

In any case, I don't think the President will have much difficulty getting his nominee through. Should be a cake-walk.

[Inspector Fowler]

Hey, according to the Federal government, she's white anyway. All Hispanics are. Hispanic is not a race, it's an ethnicity.

Whether or not that is true in reality and practice is another story. I'm just sayin'.

[Shrinn]

Sotomayor may swing pro-life? (http://www.msnbc.msn.com/id/30974345)
In nearly 11 years as a federal appeals court judge, President Obama’s choice for the Supreme Court, Sonia Sotomayor, has never directly ruled on whether the Constitution protects a woman’s right to an abortion. But when she has written opinions that touched tangentially on abortion disputes, she has reached outcomes in some cases that were favorable to abortion opponents.

But in his briefing to reporters on Tuesday, the White House spokesman, Robert Gibbs, was asked whether Mr. Obama had asked Judge Sotomayor about abortion or privacy rights. Mr. Gibbs replied that Mr. Obama “did not ask that specifically.”


Very interesting. Granted, it's mostly assumptions, but still. Obama was very much Pro-choice.

[Ox]

I have a lot of difficulty believing Obama would consider appointing a justice -- especially a woman -- whom he remotely suspected of being willing to overturn Roe v. Wade. The mere fact that he did not, personally, directly address the question to her doesn't show he's ignoring that issue.

[Shrinn]

I'm with you on that. I definitely doubt Obama would want Roe v. Wade overturned. What troubled me was this statement.

But when she has written opinions that touched tangentially on abortion disputes, she has reached outcomes in some cases that were favorable to abortion opponents.

Granted, I gave didn't go searching out these opinions and read them myself. I most likely mistakenly gave them the benefit of the doubt that they were honest in their reporting.

Still interesting to bring these stories that throw off reasonable assumptions to light.

EDIT: Looks like it's been updated with more information since I first read it. It was pretty bare bones then. The reasons for their assumptions are pretty weak.

[Ink Asylum]

"Favorable to abortion opponents" is incredibly vague.

One case, Center for Reproductive Law and Policy v. Bush, was about whether the Bush administration's Global Gag Rule was violating the constitutional rights of American NGOs. The gag rule threatened to revoke their federal funding for working with foreign NGOs that discussed abortion. For various technical reasons, Sotomayor concluded that the rule was constitutional after all.

The other abortion related case was mainly about protestors, not abortion: (http://www.cbsnews.com/blogs/2009/05/27/politics/politicalhotsheet/entry5041949.shtml)

Another Second Circuit opinion written by Sotomayor dealt with West Hartford, Conn. police officers accused of using excessive force after blocking pro-life protesters who blocked access to an abortion clinic by locking themselves together. She and her other panel members allowed the protesters' civil rights case to continue.

Neither case is really some kind of strong challenge to reproductive choice rights.

[J Arcane]

Rational people can have irrational ideas. The majority of people who believe in god are rational people, yet a belief in god is by definition irrational.

I have no response to this that will not potentially run me afoul of the moderation, which makes me unhappy on a number of levels.

However, let me extend my personal invitation that you take a long trip to somewhere other than here, because I'd really hate to have to start seeing this kind of ignorant bollocks on a regular basis.


As for Sotomayor, I'm more concerned with her history regarding the Second Amendment, which isn't good. (http://www.cnsnews.com/public/content/article.aspx?RsrcID=48718)

[alienmastermind]

As for Sotomayor, I'm more concerned with her history regarding the Second Amendment, which isn't good. (http://www.cnsnews.com/public/content/article.aspx?RsrcID=48718)

Arcane...I found the article interesting, and found out that the parent site is a marketplace for Ann Coulter's stuff, and pretty right wing. So, while this is useful in shedding light on some of her stances, I have to take the source with a grain of salt, man.

But looking into the matter, it seems like she upheld a Supreme Court decision. Not knowing the workings of these things, is she required to find that the law the Supreme Court is ruling as 'good law' in the same way?

It seems like the case she was hearing was 'Is it okay for NY to take away someone's nunchuks and prosecute them under a misdemeanor?', and she referred to the fact that the 2nd Amendment has not been incorporated (so that each state can have final say over the laws of the land) as I understand it.

Even gun owners are worried that incorporating the 2nd Amendment would put too much federal control over the ownership of firearms, a point I would agree is very troubling indeed as a gun owner, and gun user.

Anyway, I don't know exactly what to think of that. The knee-jerk reaction would be 'She's gunna take mah gun!' and I don't think that's the case, or the case that the site's trying to make...I think. In fact, Obama's actually going to sign a bill into law that allows firearms into state parks (another thing that Republicans have done right, by the way).

[J Arcane]

She upheld a rather ancient SCOTUS decision, in a decision that is directly contrary to the opinion given in a much more recent case. Here "states don't need to follow it" is rather at odds with the Heller case's "It's a natural right, and everyone should have it".

You can discount the source all you want, but every other one you find reporting on it will pretty much tell you the same shit.

[Ox]

But looking into the matter, it seems like she upheld a Supreme Court decision. Not knowing the workings of these things, is she required to find that the law the Supreme Court is ruling as 'good law' in the same way?
Yes and no. The Supreme Court didn't explicitly overrule those old cases. But their reasoning has seemingly been overturned. It's a common problem -- when a case overturns an old body of law, it usually doesn't mention every now-obsolete case and specifically say, "This is no longer good law." Often, it's hard to tell which cases survive and which don't. I don't know of any prominent legal scholars who have said those old cases are good law. They were explicitly premised on the doctrine that the right to bear arms was not a fundamental right, which seems no longer to be the case.

Even gun owners are worried that incorporating the 2nd Amendment would put too much federal control over the ownership of firearms
Huh? Would you mind linking one of those arguments, because I can't even understand it. I suppose you could say that restricting the power of states to restrict weapons ownership counts as "federal control" in a technical sense, but I can't see why gun owners would object to it.

[alienmastermind]

She upheld a rather ancient SCOTUS decision, in a decision that is directly contrary to the opinion given in a much more recent case. Here "states don't need to follow it" is rather at odds with the Heller case's "It's a natural right, and everyone should have it".

You can discount the source all you want, but every other one you find reporting on it will pretty much tell you the same shit.

Which is why I mentioned I don't know much about the authority circuit and federal judges have to just do what they want in regards to Supreme Court decisions.

The ancient decision was upheld, because in the panel of judges' view, (a point glossed over there by the article, but is important) Pooler, Sotomayor and Katzmann agreed that the Circuit Court could not overturn a Supreme Court decision.

Heller vs. D.C. was about firearm ownership.
This was about nunchucks. :)

Here's the judge's opinion on the matter: (I bow to Ox to untangle the legalese)

And to the extent that
Heller might be read to question the continuing validity of this principle, we “must follow
Presser” because “[w]here, as here, a Supreme Court precedent ‘has direct application in a case,
yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals
should follow the case which directly controls, leaving to the Supreme Court the prerogative of
overruling its own decisions.’” Bach, 408 F.3d at 86 (quoting Rodriguez de Quijas v.
Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989)) (alteration marks omitted); see also State
Oil Co. v. Khan, 522 U.S. 3, 20 (1997). Thus, N.Y. Penal Law §§ 265.00 through 265.02 do not
violate the Second Amendment.

[Ox]

Which is why I mentioned I don't know much about the authority circuit and federal judges have to just do what they want in regards to Supreme Court decisions.
Let me boil it down: Sotomayor had a lot of discretion in this case. She could very easily have justified striking down the statute based on Heller. The language of Heller seems to provide moderately strong support for incorporation (http://volokh.com/posts/1214582490.shtml). The famously-liberal Ninth Circuit held (http://armsandthelaw.com/archives/2009/04/nordyke_v_king_2.php) that the Second Amendment is incorporated, notwithstanding the cases Sotomayor cited.

Does this mean Sotomayor ignored the law? No, she had a colorable legal justification for her ruling. Does it mean Sotomayor is anti-weapon? A harder question. This is an example in which she was unwilling to accept a plausible legal argument to extend weapon rights. That may be indicative of a generalized reluctance to rule in favor of weapon owners. Or it may indicate she has a generalized reluctance to exercise discretion (which would make her an odd choice for Obama, but I include it for completeness). Or it might just be an unusual opinion for her. It's hard to judge a judge based on a single opinion. But since we often have to do precisely that, it will be interesting to see how she explains this ruling during the hearings.

EDIT: Huh, this is interesting. If you check out the text of Nordyke (the 9th Circuit case holding the Second Amendment is incorporated), you see footnote 8: "Other circuits [meaning a pre-Heller case in 1982 and Sotomayor's case] have similarly relied on Presser to reject arguments for direct application or total incorporation, without addressing selective
incorporation." Emphasis added. Indeed, it says Sotomayor didn't even address total incorporation, much less selective incorporation (the difference is very inside-baseball and I won't bore you with it, but they are different arguments and it's puzzling why Sotomayor didn't address either of them). If I have time later, I'll check to see if the Ninth Circuit fairly summarized Sotomayor, and if so, whether the parties argued these theories.

[torrefaction]

Everything I've read shows she's one of the single best choices for a justice I've ever seen. Ever damn ruling has been clear and based on the letter of the law and a solid interpretation of the constitution. Couldn't approve more. Cheers, Obama.

[Narradisall]

With a name like Sonia Sotomayor I was expectin her to be hot.

Colour me disappointed.

[J Arcane]

Let me boil it down: Sotomayor had a lot of discretion in this case. She could very easily have justified striking down the statute based on Heller. The language of Heller seems to provide moderately strong support for incorporation. The famously-liberal Ninth Circuit held that the Second Amendment is incorporated, notwithstanding the cases Sotomayor cited.

To me, it seemed more than a touch odd to go out of one's way to dig all the way back to a case from the 1880s to support one's ruling, instead of going with a much, much, more recent and directly applicable ruling from just a year ago. Certainly the argument can be made, but to this layman's perspective it seems an awful lot like reaching hard to avoid making a decision that disagrees with the judge's personal view on the subject.

[alienmastermind]

Huh? Would you mind linking one of those arguments, because I can't even understand it. I suppose you could say that restricting the power of states to restrict weapons ownership counts as "federal control" in a technical sense, but I can't see why gun owners would object to it.

From the article J posted:

Gun Week Senior Editor Dave Workman told CNSNews.com that the Nordyke and Maloney decisions are at odds and the Supreme Court, possibly with a Justice Sotomayor, may soon sort them out.

“Whenever you have a conflict like this, you’re likely to have it end up before the Supreme Court so they can decide the issue. If the Second Amendment is incorporated into the states, it’s going to jeopardize thousands of local gun laws, and the people who supported those gun laws are just freaked about that.”

[Ox]

To me, it seemed more than a touch odd to go out of one's way to dig all the way back to a case from the 1880s to support one's ruling, instead of going with a much, much, more recent and directly applicable ruling from just a year ago.
I appreciate your stance, and far be it from me to say you're wrong. However, I don't think Heller was directly applicable. When talking about a technical issue like this where I have an innate advantage, I try to be as balanced as possible in pointing out information that goes against my view.

“Whenever you have a conflict like this, you’re likely to have it end up before the Supreme Court so they can decide the issue. If the Second Amendment is incorporated into the states, it’s going to jeopardize thousands of local gun laws, and the people who supported those gun laws are just freaked about that.”
Sure, that explains why gun control advocates are worried about incorporation. Why are gun control opponents worried about incorporation?

[J Arcane]

I appreciate your stance, and far be it from me to say you're wrong. However, I don't think Heller was directly applicable. When talking about a technical issue like this where I have an innate advantage, I try to be as balanced as possible in pointing out information that goes against my view.


Sure, that explains why gun control advocates are worried about incorporation. Why are gun control opponents worried about incorporation?
I will also admit though, that there is some strength to the argument I've seen made elsewhere about the case that the only agenda in that case was more expediency, in the sense that they went for the "tried and true" over a relatively recent case, in an attempt to avoid possible minefields or major upset decisions. The decision made was the "easier" one, in the sense that it meant not overturning an existing law or dealing with a decision whose full repercussions were still in some debate.

Doesn't speak much to her attitude as a judge, but it also would potentially be a counter to arguments suggesting she had an agenda in mind when the decision was made.

I have hesitated to bring up though, as a counter-counter, the rumors as to her personal opinions on the 2nd Amendment, which is that she's very much a "it means gov't and military only" person, but I've been unable to Google up actual confirmation that she does hold this belief from a reliable source, so I am inclined to disregard it unless someone else can verify it. IF true, it would seem to support my previous suggestion as to the motive of the decision.

[alienmastermind]

Sure, that explains why gun control advocates are worried about incorporation. Why are gun control opponents worried about incorporation?

AIEEE! Comprehension fail. Sorry, I thought the dude was from an NRA-style group. My bad. (It also seemed kind of odd to me, as well, being a gun control opponent me-ownself).

Edit: Went to Gun Week's site. They're NOT gun control advocates. And the rep seems to be saying 'If we incorporate, that's going to threaten gun laws that are on the books'... I imagine it's the gun show laws etc. that are on the books in places like Fl. and Tn.

[alienmastermind]

I have hesitated to bring up though, as a counter-counter, the rumors as to her personal opinions on the 2nd Amendment, which is that she's very much a "it means gov't and military only" person, but I've been unable to Google up actual confirmation that she does hold this belief from a reliable source, so I am inclined to disregard it unless someone else can verify it. IF true, it would seem to support my previous suggestion as to the motive of the decision.

I think she's a solid pick, and so do a lot of Republicans. But if they didn't pick at her to find out whether or not she's a crazy person, or completely out of her mind biased on subjects, they wouldn't be doing their jobs correctly in examining her for approval.

I think that reading her notes or opinions would also be helpful. It's kind of unfair that the decision we're talking about isn't even about guns. It's about nunchucks. :)

[Ox]

I have hesitated to bring up though, as a counter-counter, the rumors as to her personal opinions on the 2nd Amendment, which is that she's very much a "it means gov't and military only" person, but I've been unable to Google up actual confirmation that she does hold this belief from a reliable source, so I am inclined to disregard it unless someone else can verify it.
True or not, I can't imagine a reliable source is going to have confirmation of this. Any judge who has ambitions to join the Supremes is too canny to take a position on a valence issue like that if she can possibly help it.

[alienmastermind]

As for liberals on the 9th Circuit, while overall, I agree, Ox, it also contains:

From left-wing blog, The Huffington Post.
Judge Jay Bybee, a chief architect of the legal rationale for the Bush administration's
program of torture who is now on the U.S. Court of Appeals for the 9th Circuit.

[Ox]

Okay, true. But Bybee didn't hear this case. A unanimous panel -- O'Scannlain, Alarcon, and Gould -- heard it, nominated by Reagan, Carter, and Clinton respectively.

[alienmastermind]

I also looked up Cordozo's background, Ox...guess what?

Not exactly Hispanic.
Even if you take into account his family background, which stems from Holland and England in the 1700s or so (no one has proven that means Cordozo is descended from Portugese ancestry, though, by the by, even if he was, he still wouldn't really be Hispanic, as the language in Portugal is Portugese, not Spanish.).

[alienmastermind]

Okay, true. But Bybee didn't hear this case. A unanimous panel -- O'Scannlain, Alarcon, and Gould -- heard it, nominated by Reagan, Carter, and Clinton respectively.

True. I just wanted to point out that while the 9th circuit may tend to be liberal, there's folks out there that are pretty different from 'hippy dippy' liberals. :)

Also, all of this talk about liberal or conservativism on the bench, does that count as grounds for any kind of contempt of court? (Curious, is all. If I stand up and say 'I would like a different judge, this one is clearly too liberal', could I be held in contempt?)

[Ox]

Even if you take into account his family background, which stems from Holland and England in the 1700s or so (no one has proven that means Cordozo is descended from Portugese ancestry
Awfully odd for Cordozo to have been fluent in Spanish, active in Portuguese-American youth groups as a young man, and take tremendous pride in his Portuguese ancestry if he's really Dutch.

though, by the by, even if he was, he still wouldn't really be Hispanic, as the language in Portugal is Portugese, not Spanish.).
What are Brazilians? And Cordozo spoke Spanish. And this conversation proves that racial classifications are really, really fucking stupid, aren't they?

[Ox]

Also, all of this talk about liberal or conservativism on the bench, does that count as grounds for any kind of contempt of court? (Curious, is all. If I stand up and say 'I would like a different judge, this one is clearly too liberal', could I be held in contempt?)
Well, you can't be held in contempt of court unless you actually disturb the smooth processes of a court while in court or violate a court order after court is over. Saying on a gaming forum that a particular court is liberal or conservative doesn't really disturb any court proceeding, and you'd have a good First Amendment defense even if it did. I live by much more stringent rules, which you may have noticed when I dramatically tone down the tenor of my arguments when discussing judges and the legal system.*

You are entitled to request that a judge recuse himself if you think he will be unable to hear your case impartially. It's a dumb thing to do, because (a) he has near-total control over whether to recuse himself and (b) if he doesn't grant it, you've insulted the judge and he may be even less likely to rule in your favor. But it happens pretty frequently anyway. If you were to base your recusal motion on the judge's perceived ideological leanings, if the judge was thin-skinned, if you did it loudly and obnoxiously and especially at an inappropriate time... yeah, you could be held in contempt. I know a lawyer who was once held in contempt because she asked for permission to argue the case too many times (the judge didn't know the law, the lawyer was trying to explain the law, the judge didn't want to hear it and got pissed off). That was a pretty egregious case, though, and if you phrase it with a modicum of respect a recusal motion almost certainly won't result in a contempt charge.

*Awesome story from here in Philly about this. A white lawyer had a number of outstanding grievances with several judges here in town, including a white male judge and a black female judge. So she did what any rational officer of the court would do: she printed up some flyers and started handing them out in the courtyard at City Hall. The disciplinary board's description of the flyers is worth quoting:
The Flyer contained two photographs with commentary.

The first photo was of a large African-American woman with exposed buttocks sitting on the back of a moving motorcycle, next to which is stated "Summer fun as Judge [Black Lady] Vacations in Camden, New Jersey".

The second photo was of Judge [White Guy] being handed a plaque, next to which is stated that the plaque is being given "for his successful efforts at saving the city money by sitting on attorneys' fees petitions or drastically cutting same without explanation."
...
The text of the flyer is false. Specifically, the photograph identified as that of Judge [Black Lady] is not the Judge, as testified to by Judge [Black Lady]. The second photograph actually depicts Judge [White Guy] handing a plaque to Thomas Press of the First Judicial Warrant Unit in a memory of a member of that Unit who was killed in the performance of his duties.

I apologize if I've told that story before, but I really, really love that lawyer.

[National Kato]

And this conversation proves that racial classifications are really, really fucking stupid, aren't they?

Classifications might be really, really fucking stupid, but it's something humans do by nature, finding ways to organize and label things that happen in groups, for the first time, etc. It's not something that's going to go away.

However, only a few historians believe Cardozo should be counted as the first Hispanic Supreme Court Justice. Everyone gives him the title of first Justice of non-European descent, but the majority view is that Sotomayor is the first Hispanic.


Andrew Kaufman, of the Harvard Law School (author of a 1998 biography of Cardozo), says "Well, I think he regarded himself as a Sephardic Jew whose ancestors came from the Iberian Peninsula", and the fact that most definitions of Hispanic and Latino Americans exclude people of Portuguese origin or hailing from a Portuguese speaking country, as Cardozo believed his family origin to be. In this sense, being a Sephardi Jew of probable remote Portuguese origin, Cardozo was not Hispanic according to the National Association of Latino Elected and Appointed Officials.[source, (http://en.wikipedia.org/wiki/Demographics_of_the_Supreme_Court_of_the_United_St ates)emph. mine]

[Ox]

I have a lot of difficulty believing Obama would consider appointing a justice -- especially a woman -- whom he remotely suspected of being willing to overturn Roe v. Wade. The mere fact that he did not, personally, directly address the question to her doesn't show he's ignoring that issue.
Once again, I am right (http://www.washingtonpost.com/wp-dyn/content/article/2009/05/28/AR2009052803937.html?hpid=topnews).

"In their discussions, they talked about the theory of constitutional interpretation, generally, including her views on unenumerated rights in the Constitution and the theory of settled law," Gibbs said. "He left very comfortable with her interpretation of the Constitution being similar to that of his."
Got that? There's no litmus test for being pro-choice. There is a litmus test for knowing the code words for being pro-choice.

[DylonCorp]

Got that? There's no litmus test for being pro-choice. There is a litmus test for knowing the code words for being pro-choice.

"So, babyflesh. Delicious, amiright?" "Absolutely, Mr. President."

[alienmastermind]

Okay, well, this obviously brings up whether or not Sotomayor was chosen for her stance on abortion.

Honestly, Roe V. Wade would have to be overturned for her to get a swing at this, and Ox, I don't know how likely that decision is to come before the SCOTUS any time soon.
And, why Obama, a liberal-centrist picking someone likely to uphold the decision comes as a surprise, is beyond me.

[alienmastermind]

What are Brazilians? And Cordozo spoke Spanish. And this conversation proves that racial classifications are really, really fucking stupid, aren't they?

I think basing anyone's achievements based upon race is stupid, and does nothing to help racial relations.

But an answer from a Brazilian (I guess) on Yahoo Answers about Hispanics and Brazilians is:

Both countries speak Portuguese - which has little resemblance to Spanish. Calling a Portuguese Hispanic is an insult.

There may be close resemblance between Spainish and Portuguese people due to sharing the same pennisula - Portuguese people are not considered Hispanic.

Brazilian people have intermarried with African, Hispanic and Indian nations and they are considered Portuguese only because of the country which settled there.

Okay, I think the Spanish language thing is what makes 'Hispanic'. Brazilians speak mainly Portugese, and other dialects. Both Portugese and Spanish people could be considered latino/latina, which is kind of confusing.

I don't know Ox, she's definitely the first Latina.

Is this just to say 'HA! See! They're lying!' or something?

[Zero]

As a Hispanic, I think calling Cordoza Hispanic would be the equivalent of calling you people Canadian.

Also as a Hispanic, I would be filled with pride about this appointment if Gonzalez hadn't set Hispanics back 20 years with his fuck-ups.

[Generation ABXY]

So, in light of Shiva X's late thread, I was wondering if anybody else here has been watching the confirmation hearings. I've been pulling it up whenever I think I can risk it (on my already limping laptop, that is), and I have to say I actually enjoyed Graham's line of questioning today. Anyone else catch it?

[Vulture]

So, in light of Shiva X's late thread, I was wondering if anybody else here has been watching the confirmation hearings. I've been pulling it up whenever I think I can risk it (on my already limping laptop, that is), and I have to say I actually enjoyed Graham's line of questioning today. Anyone else catch it?

i caught some clips on npr on my commute to school lastnight. what i heard, i thought the questioning was tough but fair and pointed to the record. nothing from the short amount i heard seemed offbase or unfair. good questions.

i did however, hear some analysts on the station briefly touch on the subject of the tough questioning having a sexist overtone. anyone notice this? i didn't (from my brief listening).

[Ink Asylum]

Nothing more amusing than watching a Senator who was blocked from being a judge because he was a racist trying to prove a minority nominee is a reverse racist.

[Generation ABXY]

Broken clocks and all that, I guess.

[Ox]

I've been disturbed by the number of legal commentators who have noticed outright errors in her analysis. I mean like first-year law student didn't-read-the-case errors.

[torrefaction]

I've been disturbed by the number of legal commentators who have noticed outright errors in her analysis. I mean like first-year law student didn't-read-the-case errors.

Any links? (Not calling you out on it, more curious.)

[Ox]

There's this (http://volokh.com/archives/archive_2009_07_12-2009_07_18.shtml#1247671867) and this (http://volokh.com/archives/archive_2009_07_12-2009_07_18.shtml#1247600807). But those are pretty technical and not obvious to a layman.

Here is some stuff that's obvious to the layman, and it's what I was thinking of. Judge Sotomayor was asked about Kelo v. City of New London, the Takings Clause cause celebre of a few years ago. She made two statements about that case which are worth noting:
I understand the concern that many citizens have expressed about whether Kelo did or did not honor the importance of property rights, but the question in Kelo was a complicated one about what constituted public use. And there, the court held that a taking to develop an economically blighted area was appropriate.
I direct your attention to the majority opinion in Kelo (http://www.law.cornell.edu/supct/html/04-108.ZO.html), where Justice Stevens noted: "There is no allegation that any of these properties is blighted or otherwise in poor condition; rather, they were condemned only because they happen to be located in the development area."
With respect to the Kelo question, the issue in Kelo, as I understand it, is whether or not a state who had determined that there was a public purpose to the takings under the -- the takings clause of the Constitution that requires the payment of just compensation when something is -- is condemned for use by the government, whether the takings clause permitted the state, once it's made a proper determination of public purpose and use, according to the law, whether the state could then have a private developer do that public act, in essence. Could they contract with a private developer to effect the public purpose?
Again, I direct your attention to the majority opinion, in which Justice Stevens notes that the issue was "whether a city’s decision to take property for the purpose of economic development satisfies the “public use” requirement of the Fifth Amendment."

Now, there's certainly room to debate lots of things about Kelo. But the facts of the case, and the holding of the case, aren't really open to debate. Had I given the answers the judge while being questioned by one of my professors, he would have called me out in front of the entire class for not reading the case. I make no claim about whether the judge didn't read Kelo, didn't understand Kelo, misremembered, or misspoke. But I think her answers were very clearly erroneous, and Kelo is not an obscure case or one she shouldn't have expected to be on the assigned reading list. The big scandal, of course, is that not a single member of the Senate Judiciary Committee or their staffs know the case well enough to realize when she gives clearly incorrect answers. Why the fuck do we have these hearings?

Extra-special bonus: apparently Dianne Feinstein can't count (http://volokh.com/archives/archive_2009_07_12-2009_07_18.shtml#1247629621). But at least we don't expect competence from Senators.

EDIT: Note for whoever is doing the transcript of the hearings: I'm pretty sure the judge is referring to "precedents", as in cases that have precedential value, not "precedence", as in the state of diplomatic or other seniority. Christ on a fucking cross, people.

[Generation ABXY]

The big scandal, of course, is that not a single member of the Senate Judiciary Committee or their staffs know the case well enough to realize when she gives clearly incorrect answers.

To be fair, she seems to talk in circles...though that could just be the law in general.

iLsDvGlIDh0

Why the fuck do we have these hearings?

So these Senator's can have a chance to stroke their ego once more, of course. I mean, did anybody catch Franken's opening remarks the other day? It seemed nothing more than a bit of brown nosing and a history lesson. I'm sure he wasn't the only one (just one I managed to catch), but it damn near bored me to tears.

[alienmastermind]

I've been disturbed by the number of legal commentators who have noticed outright errors in her analysis. I mean like first-year law student didn't-read-the-case errors.

I would only state on her behalf that this is probably the most intense job interview, for the greatest job she'll ever have being televised to millions of people, and she might stammer a bit.

Also, the Republican Senators have thus far:

- Implied she should vote the same way as another Puerto Rican.

- Did a nice Ricky Ricardo impression for her, though Mr. Ricardo was Cuban, and Ms. Sotomayor is actually Puerto Rican.

All of this talk of overturning probably calls for an explanation of what the Supreme Court's role in government is, Ox. If my basic Civics from High School and my Governmental Studies class serve me correctly, it's the reason the Supreme Court exists, to create new interpretations of law (which in the case of those firefighters, it actually changed the law they were asked to interpret), and to be the highest ruling court in the land.

As I understand it the 9th Circuit court is an apellate court, which is to say, that the people coming there have already exhausted the lower courts options to serve them, or have cases that the other lower courts don't have the authority to judge. Also, the lower courts don't seem to have the ability to avoid precedent or accepted understanding of the law the way the Supreme Court does.

It's their job to overturn 9th Circuit decisions. But, again, this is clouding the issue of the fact that of the many, many cases she's heard and ruled on, only a tiny fraction of those cases were overturned.

Also, she's a liberal-leaning person, and the Supreme Court has been conservative leaning for a very long time, Ox. I'd be MORE surprised if her opinion hadn't been in the minority.

Edit: This was pointed to you Ox, for expertise, not out of a sense of nyahh-nyahh.

Also, I would like to state for the record that I'm in the minority of Democratic Party members who thought Sessions was treated unfairly in the hearings for his nomination. But I will say that someone who has been called out for matters of race should have less of a tin ear for the kinds of things he intimated the other day. A cynic would say, he's a racist. I think, he thinks he's speaking to adults in the real world, and assumes that he can speak freely.

But, then again, if someone wants to see racism, they'll listen pretty hard for it.

Just saying that if they're trying to 'get' the nominee, they'd be best off not bringing up race at all.

[Generation ABXY]

- Did a nice Ricky Ricardo impression for her, though Mr. Ricardo was Cuban, and Ms. Sotomayor is actually Puerto Rican.

Wait, that was supposed to be Ricky Ricardo? You 'd think he would have at least gone for an accent with it...

[Ox]

I would only state on her behalf that this is probably the most intense job interview, for the greatest job she'll ever have being televised to millions of people, and she might stammer a bit.
Sure. But she's not stammering. And I have a tough time seeing how even being really nervous gets you to miss the mark quite that widely.

Also, the Republican Senators have thus far:
Good thing none of them are Supreme Court nominees, then! Christ, alien, you guys have lots of good lawyers and judges in your stables. You needn't assume that any criticism of Sotomayor needs to be rebutted with pointing out various flaws in Republicans. Don't you want the President to nominate someone who understands the law? Don't you think there are a fair number of liberals who meet that criterion?

All of this talk of overturning probably calls for an explanation of what the Supreme Court's role in government is, Ox. If my basic Civics from High School and my Governmental Studies class serve me correctly, it's the reason the Supreme Court exists, to create new interpretations of law (which in the case of those firefighters, it actually changed the law they were asked to interpret), and to be the highest ruling court in the land.
I think you should have paid a little more attention in Civics class. If the Supreme Court exists to create new interpretations of the law, then why do Democrats call Roe v. Wade a "super-precedent"?

As I understand it the 9th Circuit court is an apellate court, which is to say, that the people coming there have already exhausted the lower courts options to serve them, or have cases that the other lower courts don't have the authority to judge. Also, the lower courts don't seem to have the ability to avoid precedent or accepted understanding of the law the way the Supreme Court does.
The 9th Circuit is an appellate court, and while your description of an appellate court's role isn't quite right, it's close enough for government work. Why are you talking about it, though? Sotomayor is on the Second Circuit.

And while the Second Circuit is also supposed to apply precedent and the accepted understanding of the law, my criticism is that she doesn't know what the current accepted understanding of the law and precedent are. That would seem to be a handicap in performing her current job, right? And even if the Supreme Court exists to upend the existing law at every opportunity, it would probably be helpful to know what the existing law is (if only to avoid the tragedy of accidentally upholding the law).

Also, she's a liberal-leaning person, and the Supreme Court has been conservative leaning for a very long time, Ox. I'd be MORE surprised if her opinion hadn't been in the minority.
You misunderstand. I am not objecting to her having a different view of what the law ought to be or how she would rule on particular cases. I'm saying she was asked about a major recent Supreme Court case. She misstated the facts, and she misstated the issue. And for evidence, I cited Stevens's very clear description of both, which was both the majority opinion and the words of one of the biggest liberals on the Court.

Look, I don't like Roe v. Wade. But if you ask me, "What's the holding of Roe v. Wade?", my opinion doesn't come into it. I can clearly state that Roe v. Wade held that a woman has a qualified right to terminate her pregnancy. If I say Roe v. Wade was really about the rules of beer pong, that's not an opinion, that's me being wrong. You can tell I'm wrong because the majority opinion says, "the right of personal privacy includes the abortion decision, but that this right is not unqualified, and must be considered against important state interests in regulation." I'm generally a fan of saying that there's reasonable room for debate about stuff, but the holding of a case, or the facts on appeal, are not (usually) open for debate.

[National Kato]

The Daily Show had this pretty funny piece on Judge Sotomayor (http://www.thedailyshow.com/watch/thu-july-16-2009/judgmental). The whole 'racist' angle coming from conservatives could use a bit of humor.

[Generation ABXY]

Screw Sotomayor - Senator Sessions wants to get this party started right:

J0gnPTLOq5E

[National Kato]

Senate Judiciary Committee approves Sotomayor nomination 13-6. Final confirmation vote by Senate pending.

[National Kato]

Senate vote is going on right now. Plenty of 'Ayes' but several 'Nos' thus far. I think most expect she will be confirmed.

[National Kato]

Yeas - 68
Nays - 31

Sotomayor has been confirmed as the 111th Supreme Court Justice.