The National Journal’s Stuart Taylor Jr. has an important post on how the three-judge panel of the Second Circuit, one of whom was Judge Sonia Sotomayor, almost succeeded in hiding the Ricci case from their colleagues, perhaps violating a 2nd Circuit rule in the process.
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.
This may seem like a classic case of inside politics, something that most people don’t know and don’t care to know. But it isn’t. In fact, what might appear to be a minor administrative glitch, or even slight sleight of hand, says far more about Sotomayor’s judgment, or lack of it, than her often-repeated “wise Latina” slur on white male judges or even her substantive views on the racial discrimination issues raised by Ricci that she did not succeed in suppressing.
Taylor continues:
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. [Emphasis added]
Reasonable people can disagree about the outcome in Ricci, as evidenced by the spirited if misguided (but not unreasonable) dissent of the Court’s four liberals. But I don’t believe any reasonable and honest judge could have looked at the briefs, record, and District Court opinion in Ricci and said with a straight face that it “presents no important issues,” not even an especially wise Latina.
Again, reasonable people disagree about whether or when it is legitimate to oppose judicial nominees because of disagreement with their past or predicted future decisions, but no senator (or anyone else) should consent to the nomination of any nominee without full confidence in that person’s integrity and — something that you’d think would be essential in any judge, and especially so in a Supreme Court justice — honest good judgment.
UPDATE [12 July]
In one of her contributions to the online Federalist Society debate over Judge Sotomayor’s nomination, Prof. Wendy Long describes the Second Circuit panel’s “trying to sweep the firefighters’ claims under the rug with a summary order” as amounting “to judicial malpractice.”
And it is not the only time she did so: she used similar perfunctory dismissals in Didden concerning property rights and in Maloney concerning Second Amendment rights, for example.
These are very important areas for Senators to examine, not only for the merits of the underlying cases, but for her conduct as a judge. What emerges is a picture of a judge who tries to dispose of tough, controversial issues by just avoiding them: a judge who jumps to conclusions that suit her own personal sense of justice, who seems fearful or incapable of explaining her reasons when others are justifiably critical of her methodology and outcome.
This goes to the heart of what kind of judge, and how good a judge, she is — something Senators must surely take into account in discharging their constitutional obligation of “advice and consent.”
“her often-repeated “wise Latina” slur on white male judges”
It was not a slur on white male judges. You guys in the conservative echo chamber are the only ones who believe it to be, and that is why your talking points on the issue have no traction.
Instead, it was the very logical idea that people with different experiences are going to view, interpret and apply the law in different ways. No one buys this “conservative” nonsense that jurists are these computers who run input files against the Constitution in database form to produce output, because everyone knows that it is humans up there making those decisions.
What is particularly appalling is the hypocrisy. When conservatives run for office, the first thing that they talk about is how they have “common sense down home middle America values, and not the values of the elitists in Hollywood and the Ivy League.” And more specifically applicable, what conservative can’t quote Clarence Thomas’ painful recollections of having been demeaned, humiliated etc. by affirmative action, or the background and values of hard work and self-determination that he learned on the farm and from his grandfather?
And of course, recall Clarence Thomas’ position in Virginia v. Black on cross burning. Thomas’ personal experience growing up in fear of the Ku Klux Klan and similarly violent racists clearly influenced his views on the case, and he made on efforts to hide that fact. Yet no conservative claimed that Thomas, in expressing his views, somehow “slurred” the many white liberal first amendment absolutists who opposed Thomas on this issue and wanted to make cross burning protected political speech (not so much for the sake of cross burning, mind you, but for the sake of the anarchist/incendiary “speech” that the left wants to be able to use in the future).
Honestly, the only difference between Thomas and Sotomayor vis a vis the “slur” issue is your agreeing with one and disagreeing with the other.
Instead, it was the very logical idea that people with different experiences are going to view, interpret and apply the law in different ways
I’m sure Sotomayor wishes she’d said (over and over again) something along the lines you defend, but unfortunately for your defense what she discussed was “better” decisions, not “different” ones. But at least she’s open-minded — she’s not sure whether this superiority comes “from experience or inherent physiological or cultural differences.” Nature? Nurture? No matter; it’s the superiority that counts.
I suggest you take some lessons on How Not To Defend Judge Sotomayor.
“Instead, it was the very logical idea that people with different experiences are going to view, interpret and apply the law in different ways.”
Accepting and acknowledging the problem is one thing. To positively revel in it is another completely.
Judges may not be able to completely rid themselves of influences of their background but that does not mean that they can not strive for impartiality and judgment by established law. That is why the positive emphasis of empathy is idiotic and useful only for the 3rd grade (legal) mindset of who? whom?
P.S. Who? Whom? is only idiotic in a legal context. In a purely political context, it is the only reasonable mindset to have. Since liberals are incapable of adhering to absolute standards, their use of the judiciary as a political weapon is perfectly consistent.