June 30, 2009

Sotomayor Overruled 9-0

Despite the 5-4 decision handed down yesterday in Ricci, the Court actually reversed Sotomayor and her Second Circuit colleagues 9-0.  Adding insult to injury, Sotomayor was also overruled by the Obama Administration as pointed out by Stewart Taylor.

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 filea "disparate-impact" lawsuit -- regardless of whether the exam was valid or the lawsuit could succeed. ...

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.

Justice Ginsburg also suggested clearly -- as did the Obama Justice Department, in a friend-of-the-court brief -- that the Sotomayor panel erred in upholding summary judgment for the city. (emphasis added)

The only reason Justice Ginsburg reached a conclusion on the merits is because the Court had reached an ultimate conclusion in granting the firefighters summary judgement.

Contrary to the Sotomayor-endorsed opinion, the Ginsburg dissent states (on page 19) that an employer's decision to jettison a promotional test under circumstances like this case would be legal only if the employer had "good cause to believe the [test] would not withstand examination for business necessity."

Ginsburg added (on page 26 and page 33) that "ordinarily, a remand for fresh consideration" would be proper because the lower courts (including Judge Sotomayor) had not carefully considered the evidence of "pretext" and racial politics. (emphasis added)

Even though all nine Justices and the Obama Administration were in agreement that Sotomayor should have been reversed the spin-machine has not stopped trying to paint her as a run-of-the-mill liberal judge.  The following quotes represent an example of this spin.

"The main charge against Judge Sotomayor is that she will be an activist judge, but this decision clearly shows that she won't," said Sen. Charles Schumer, D-N.Y., who is part of the Democratic leadership and sits on the Judiciary Committee.

"The results in this case won't change things a wit... in fact it bolsters [the claim] that she is mainstream," Schumer added in a conference call.

"Judge Sotomayor and the lower court panel did what judges are supposed to do, they followed precedent," Leahy said. He added that a ruling for the firefighters who were suing New Haven, Conn., over their withheld promotions "would have been judicial activism contrary to clearly settled and longstanding Second Circuit precedent. The Second Circuit was bound by this precedent and not free to adopt a new interpretation of the law, as the Supreme Court has done today."

The bottom line is Sotomayor and her Second Circuit colleagues wanted to sweep the issue under the rug, refusing to even allow a trial, because it presented a difficult set of facts for them to continue advancing their preferred identity/grievance agenda.  This underhanded attempt was thoroughly rejected by all nine members of the Court as well as the Obama Administration.  Perhaps the best rebuttal to this incoherent nonsense put forth in her defense is the close to Justice Alito's concurrence.

Petitioners were denied promotions for which they qualified because of the race and ethnicity of the firefighters who achieved the highest scores on the City’s exam. The District Court threw out their case on summary judgment, even though that court all but conceded that a jury could find that the City’s asserted justification was pretextual. The Court of Appeals then summarily affirmed that decision.


The dissent grants that petitioners’ situation is “unfortunate” and that they “understandably attract this Court’s sympathy.” But “sympathy” is not what petitioners have a right to demand. What they have a right to demand is evenhanded enforcement of the law—of Title VII’s prohibition against discrimination based on race. And that is what, until today’s decision, has been denied them. (emphasis added)

Update: RCP links to Ed Whelan who echoes the points I make above.

June 29, 2009

Biased Headline in NY Times Piece on New Haven Fire Fighters' case

Notice that the NY Times piece mentions only white fire fighters when the plaintiffs were both white and Hispanic firefighters. The same is true for their first paragraph. It isn't until the seventh paragraph that they mention Hispanics, and even then they mention only one Hispanic was denied promotion when there were actually two of them.


New Fox News Op-ed: Serious Questions About Sotomayor and Race: With today's Supreme Court ruling there are even more questions about Sonia Sotomayor

My new piece at Fox News starts this way:

With the Supreme Court narrowly striking down Judge Sonia Sotomayor's decision in the New Haven fire fighter's case, it emphasizes the importance of a single vote and there are renewed questions about her judgment on race. It brings back into focus not only her comments on the superiority of certain racial groups and women, but when combined with her recent comments on the Belizean Grove club indicate a very selective and self serving decisions on deciding when discrimination is occurring.

Judge Sonia Sotomayor can't take back her seven speeches over a decade where she talked about women's (or Latina women's) judgment being superior to men' (or white men's). But, about a week ago, almost a month after her Supreme Court nomination, Judge Sotomayor resigned as a member of the extremely exclusive all-woman club, the Belizean Grove. If she were a Republican man, such a withdrawal would have come too late. Worse, her letter announcing her withdrawal from the organization raises questions about her judgment.

In June 1990, all but one of the Democrats on the Senate Judiciary Committee and one then Republican, Arlen Specter, warned future judicial nominees that membership in an organization that determines membership based on gender could be sufficient to deny confirmation. Further, it would be held against the nominee unless they "actively engaged" in efforts to get underrepresented groups into the organization. . . .

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Supreme Court Decisions Bad News for Sotomayor

CFJ Executive Director Curt Levey on the implications of today’s Supreme Court decisions for the Sotomayor nomination:

Two of the Supreme Court’s decisions today – ruling that New Haven unlawfully discriminated against white firefighters and ordering reargument on whether “Hillary: the Movie” violated campaign-finance laws – are bad news for Sonia Sotomayor. Both decisions focus attention on aspects of her record and nomination, discussed below, that she and the White House would prefer we forget about. Adding to Sotomayor’s woes, on Friday, James Maloney petitioned the Supreme Court to review Judge Sotomayor’s controversial Second Amendment decision in Maloney v. Cuomo, thus highlighting that controversy as well (More on Maloney v. Cuomo).

All three cases remind us of serious concerns about Sotomayor’s nomination to the Supreme Court. While senators are back home this week for the July 4 recess, we hope their constituents will raise these concerns with them.

Ricci v. DeStefano (New Haven firefighters)

Today’s outright reversal of Judge Sotomayor’s Second Circuit decision in Ricci, which allowed the city of New Haven to throw out a promotional exam on which minority firefighters scored relatively poorly, will haunt Sotomayor’s nomination for several reasons that go beyond her being on the wrong side of the law.

1) The Supreme Court’s ruling that New Haven unlawfully discriminated against its white firefighters reminds the public both of the dark side of the affirmative action policies Judge Sotomayor supports and of the fact that Sotomayor is, by her own admission, “the perfect affirmative action baby.”

Sotomayor credits affirmative action with getting her into Princeton University and Yale Law School. And affirmative action – specifically President Obama’s focus on finding a Hispanic woman to put on the High Court – obviously played a role in her recent nomination. Nonetheless, Obama has tried to have it both ways, claiming credit for nominating the first Hispanic to the Supreme Court and “present[ing] Sotomayor’s race and gender as credentials in themselves” (Boston Globe), while simultaneously denying that she was chosen for any reason other than merit. The Globe article adds that
“In effect, Obama connected Sotomayor’s life story to the subject of her most controversial case [Ricci] … [T]he narrative connection between a candidate chosen from a list of women, touted for her race and hailed for her willingness to make gutsy decisions – who also happened to weigh in against white firefighters – created a story line that has dominated her nomination.”

Moreover, the politics motivating New Haven’s decision highlights the ugliness of the racial spoils system behind many of the nation’s affirmative action programs, and reminds us of the demands from Hispanic and women’s groups that resulted in Sotomayor’s nomination. National Journal columnist and former New York Times Supreme Court reporter Stuart Taylor explains:
“Politically powerful African-American leaders made it clear that if not enough blacks were eligible for promotion, then no whites should be promoted either. One was the Rev. Boise Kimber, who disrupted meetings of the city's civil service board and warned its members of a ‘political ramification’ if they certified the exam results. Kimber was a key vote-getter for [New Haven] Mayor DeStefano.”

2) The Supreme Court’s reversal of Judge Sotomayor focuses attention on ties between her Ricci decision, favoring Hispanic and black firefighters, and her racially divisive remarks.

In her speeches, Judge Sotomayor has repeatedly stated that “a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion [as a judge] than a white male.” At the same time, her speeches endorse legal theories that view impartial interpretation of the law as enabling white male domination. Did Sotomayor’s out-of-the-mainstream racial theories lead her to eschew impartial interpretation of civil rights laws in her Ricci decision?

Stuart Taylor thinks the answer may be yes. In a column earlier this month, Taylor wonders if “her decisions may be biased by the grievance-focused mind-set and the ‘wise Latina woman’ superiority complex displayed in some of her speeches.” He concludes that “close study of her most famous case only enhances my concern.”

3) The Supreme Court’s decision reminds the public that Sotomayor and two of her Second Circuit colleagues tried to bury their Ricci decision and prevent the white firefighters from attaining Supreme Court review, probably to avoid the legally and politically embarrassing reversal that occurred today. More generally, Sotomayor’s repeated pattern of burying controversial decisions seems to confirm the contempt for the rule of law evidenced in her speeches.

A New York Times article explains what Sotomayor and her colleagues did in Ricci:
“Almost everything about the case of Ricci v. DeStefano … suggested that it would produce an important appeals court decision about how the government may use race in decisions concerning hiring and promotion. … [Instead] [t]he appeals court’s cursory treatment suggested that the case was routine and unworthy of careful scrutiny. Yet the case turned out to be important enough to warrant review by the Supreme Court … The result Judge Sotomayor endorsed, many legal scholars say, is perfectly defensible. The procedure the panel used, they say, is another matter.”

Stuart Taylor explores Sotomayor’s motivation:
“[The 2nd Circuit panel] affirmed the dismissal, in a process so peculiar as to fan suspicions that some or all of the judges were embarrassed by the ugliness of the actions that they were blessing and were trying to sweep the case quietly under the rug, perhaps to avoid Supreme Court review or public criticism, or both.”

Taken by itself, one can only speculate about Sotomayor’s motives in giving short thrift to the white firefighters’ claims. However, it turns out that Sotomayor has a habit of burying important but controversial decisions. Sen. Jeff Sessions, the Ranking member of the Judiciary Committee, explains:
“[Sotomayor has] provided a breathtakingly short amount of analysis when confronted with novel and important constitutional questions. … These truncated opinions also suggest a troubling tendency to avoid or casually dismiss difficult Constitutional issues of exceptional importance. Other examples of this [in addition to Second Amendment cases] may include the New Haven Firefighters case … and the Fifth Amendment case, Didden v. Village of Port Chester.”

4) Now that the Supreme Court has reversed Sotomayor’s Ricci decision, rather than remanding as many had predicted, her rationale for declining to discuss the case has vanished.

Given today’s decision, Sotomayor will be questioned extensively about her Ricci decision at her Judiciary Committee hearings, in written follow-up questions, and in any additional meetings with senators. Here’s a suggestion for a question:
Judge Sotomayor, you have said that the richness of your Latina experiences make you a better judge. While you served on the board of the Puerto Rican Legal Defense and Education Fund, it sued New York City, claiming that promotional exams for police officers had an adverse impact on blacks and Hispanics. Did that experience, and any empathy you may have felt for the minority officers, influence your opinion in Ricci v. DeStefano or otherwise lead to a better decision than a white judge would have made?

Citizens United v. FEC (“Hillary: the Movie”)

Sotomayor’s passionate advocacy, while serving on the federal bench, for greater regulation of campaign finances has called into question her judicial ethics and her ability to impartially decide campaign finance cases. But before today, it was anyone’s guess as to when such a case might come before her on the Supreme Court. Now it looks like this potential problem will become a reality in the very near future. The Supreme Court’s decision today to rehear Citizens United v. FEC, a challenge to the McCain-Feingold campaign finance statute, this September 9 means that Sotomayor will hear the case if she is confirmed by that date.

This problem of judicial ethics arises primarily from a Suffolk University law review article written by Sotomayor while she was a federal trial judge. In it, she rails against the lack of campaign finance regulation. As Politico describes it,
“[Sotomayor} forcefully defended the policy motivations behind such [campaign finance] restrictions, questioning the line between campaign contributions and ‘bribes,’ calling on Congress to overhaul campaign finance laws … and blasting the Federal Election Commission [the appellee in Citizens United] for not enforcing existing laws. … [Conservative election law attorney James Bopp says the article shows] that ‘she’s bought into the most extreme campaign finance reformer rhetoric. And considering that she has on occasions extolled the legitimacy of policy preferences guiding judicial decisionmaking, including her own, you’ve got to take her personal policy preferences seriously.’”

Ask yourself whether Sotomayor sounds more like a politician or a judge here. Then ask yourself if a citizen challenging campaign finance reform in the Supreme Court could have confidence that she would impartially decide the case. The answers explain why Sotomayor’s remarks run afoul of Canon 2 of the Code of Conduct for United States Judges, which states that a judge “should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” It appears that Sotomayor does not fully comprehend the all-important difference between her role as a political activist prior to 1992 and her role as a judge since then.

Supreme Court Overturns Sotomayor Decision

The Supreme Court voted 5-4 that the City of New Haven had wrongfully denied a group of white and Hispanic firefighters an opportunity for promotion on account of their race. Their decision overrules the Second Circuit in the case of Ricci v. DeStefano, which was decided by a panel of three judges that included current Supreme Court nominee Sonia Sotomayor.

Justice Kennedy authored the opinion for the Court, and Justices Scalia and Alito each filed concurring opinions. Both Justices Scalia and Thomas joined Alito's concurrence. Justice Ginsburg delivered the dissent, which was joined by Justices Stevens, Breyer, and Souter (who is retiring today). All of the opinions can be found here.

Given the fact that Sotomayor would be replacing Souter if she is confirmed, the vote tally would not have differed had she been in his place (and had not participated in the matter as a circiut court judge). Nonetheless, Republican Senators should note that it was her ruling that the Court has overturned, thus adding further concerns about how she would rule in cases involving allegations of discrimination and whether or not her apparent biases would play a role in such cases.

UPDATE: Ed Whalen has some excellent initial reactions to the ruling at Bench Memos.

June 25, 2009

NRA & Senators: Sotomayor Hostile to 2nd Amendment

CFJ Executive Director Curt Levey on the Second Amendment threat to confirmation of Sonia Sotomayor:

Speculation that Sonia Sotomayor’s hostility to the Second Amendment would become the biggest roadblock to her confirmation became reality yesterday, just two days before the first anniversary of the Supreme Court’s historic gun rights decision in District of Columbia v. Heller. As leading NRA board member and past President Sandy Froman urged aggressive opposition to the nomination yesterday, key members of the Senate GOP Leadership and their colleagues denounced Sotomayor’s Second Amendment record at a press conference and on the Senate floor.

Given Judge Sotomayor’s record of opposition to the Second Amendment, it’s been widely noted that if gun owners are drawn into the confirmation debate, that could completely change the political equation by causing red state Democrats to run for cover. However, while Gun Owners of America and other prominent Second Amendment advocates had already voiced grave concerns about Sotomayor’s record, the NRA’s top leadership had remained silent. That changed when Froman, a lifetime member of the NRA’s Executive Council, as well as a former law professor and Harvard Law School graduate, issued a clarion call yesterday evening in an op-ed, urging that
“Gun owners, and especially the members of the National Rifle Association, must aggressively oppose Judge Sotomayor’s confirmation to the Supreme Court … [because her] view on the Second Amendment clearly reflects an extreme anti-gun philosophy.”

Froman noted that there are 90 million gun owners in America and emphasized that the opposition she urges can defeat Sotomayor’s nomination:
“I saw NRA members turn the tide on Election Day 2000 to defeat Al Gore. We fought again to help defeat John Kerry in 2004. We can do the same with Sonia Sotomayor, if we call our U.S. Senators and tell them to vote against this anti-gun judge. No fewer than fourteen Democrat senators have solid records on the Second Amendment, and we must urge them to oppose this nominee.”

Froman goes on to explain why defeating Sotomayor is so important for gun owners:
“Today in the Supreme Court, the right to bear arms hangs by a single vote. The next question the Supreme Court will decide is whether the Second Amendment is a ‘fundamental right’ that applies to cities and states … Even the liberal Ninth Circuit Court of Appeals held [that it] is a fundamental right, yet Judge Sotomayor disagrees. … If your state or city chooses to ban all guns or take away the ones that you already have in your home for hunting and self-defense, Sonia Sotomayor says the Constitution can’t help you. … Throughout her career, Judge Sotomayor’s record is one of consistent opposition to the private ownership of firearms.”

It is not just gun owners and the Ninth Circuit who believe Sotomayor is on the wrong side of the law. A recent CNN poll found that more than three-quarters of Americans disagree with Sotomayor’s cramped interpretation of the Second Amendment (link below).

Senators Thune, Sessions, Cornyn, DeMint, Hatch and Brownback all voiced similar sentiments to Froman’s. At yesterday’s press conference, Sen. Cornyn emphasized the historic importance of the debate about Sotomayor Second Amendment record:
“This is the first time that I know of in our nation’s history that a Supreme Court nomination will … revolve around the nominee’s commitment to the Bill of Rights, and most particularly the Second Amendment to the Constitution.”

Sen. Hatch focused on the judicial activism Sotomayor displayed in deciding Second Amendment cases:
“Even after the Supreme Court in Heller indicated the Second Amendment protects not only an individual right to keep and bear arms but a pre-existing fundamental right, Judge Sotomayor continued to say that the right to keep and bear arms is not a individual fundamental right and did so when it was not necessary to decide the case before her. This appears to be an approach focused on politically correct results rather than a judicially correct process. Other circuits looking at the issue … gave it much more attention and analysis than did Judge Sotomayor and they did not address the unnecessary issues. … I wish Judge Sotomayor had been similarly restrained on these issues. … [T]his is a fair way of letting her know in advance that this is an important issue to I think a majority of senators in the US Senate and certainly a majority of the people in this country.”

Sen. Sessions, the Ranking member of the Judiciary Committee, focused in part on Sotomayor’s pattern of burying her questionable decisions on the Second Amendment and other high-profile issues by brushing over the key questions:
“[Sotomayor has] provided a breathtakingly short amount of analysis when confronted with novel and important constitutional questions. … Judge Sotomayor’s lack of attention and lack of analysis are troubling. These truncated opinions also suggest a troubling tendency to avoid or casually dismiss difficult Constitutional issues of exceptional importance. Other examples of this [in addition to Second Amendment cases] may include the New Haven Firefighters case, Ricci v. DeStefano, which is currently pending before the Supreme Court, and the Fifth Amendment case, Didden v. Village of Port Chester.”

June 19, 2009

Sotomayor: My women-only club isn’t discriminatory but I’m quitting it anyway

As Allahpundit says, "Who among us hasn’t distanced themselves from something they personally have no problem with?"

June 18, 2009

A Tale of Two Clubs

As a followup to Emily's post below, Jeffrey Lord recalls Senate Judiciary Chairman Patrick Leahy's 2002 reaction to Bush Third Circuit Court nominee D. Brooks Smith's former membership in an all-male fishing club in Pennsylvania. 

"He could fish -- but wasn't one to frequent Spruce Creek and stand around mid-stream rod in hand. His membership was sentimental. Asked at his 1988 confirmation hearing if he would work to end the all-male gender membership barrier, Smith promised he would do so. He did just that, trying and failing several times to get the club to admit women as members (they were already allowed as wives or guests.) In 1999, between his infrequent visits with his wife and consistent rebuffs from the club leaders about allowing women in as members, Smith finally quit.

By 2002, as Leahy, Schumer, and others were busy colluding behind the scenes with left-wing special interest groups to savage Bush judicial nominees, Smith's now ex-membership became a target. Submitting his written questions to Smith, Schumer's 6th question concerned Spruce Creek. It had no sooner arrived on Smith's desk than, mysteriously, a corresponding attack from the National Organization for Women appeared in the Pittsburgh Post-Gazette. While it never mentioned Schumer's question to Smith, the attack tracked with the points raised in Schumer's question. When this was noted by a Smith supporter in a response, NOW denied any collusion, then proceeded to comment on the substance of Schumer's question -- which it had previously claimed not to have seen and which was still sitting atop the "privacy" of Smith's desk.

The attack was beaten back to considerable degree because of an interesting fact neither Leahy nor Schumer knew. On the wall of the club was a photograph of Marine One landing at Spruce Creek. That would be the official helicopter of the President of the United States. The president in question was a Spruce Creek devotee -- Jimmy Carter. Not only was the Democratic president responsible for appointing every federal judge in the country between 1977 and January of 1981 a frequent visitor to what Leahy and Schumer were painting as a sewer of gender discrimination, he was still coming there long after his White House days were over."

Jimmy Carter's presence at the club mattered little as Democrat after Democrat took to disparaging the club and Smith's membership therein.  Ted Kennedy even echoed the charge that it violated Canon 2c addressed below when he stated that, "if the Spruce Creek Club can be used for business purposes, its exclusion of women would violate the Judicial Code of Conduct."  The fishing club was not used for business purposes.  On the contrary, according to a club official, "the whole point of the Club is to get away from business."  The Belizean Grove as described by its website is "a constellation of influential women who are key decision makers in the profit, nonprofit and social sectors; who build long-term, mutually beneficial relationships in order to both take charge of their own destinies and help others to do the same."  So, in short it is a club precisely for business purposes.

Where are Senator Leahy and his Democratic colleagues now? 

Bueller... Bueller... Bueller...

For what it is worth I don't care that Judge Sotomayor belonged to an all women's club.  Maybe it violates Canon 2c and maybe it doesn't.  But that is not the greater point.  As was seen with Sotomayor's widely repeated "wise latina" remarks, the Democrats are rank hypocrites whose desire to play on identity and grievance politics often trumps rationality.  It also shows the party's propensity to overreact and blow things out of proportion.  Judge Smith's membership in a fishing club was enough for some to vote No on his nomination, but when the tables are turned, nothing but silence.

Sotomayor and the Belizean Grove

Nominee Sonia Sotomayor has come under fire for her membership in an elite women-only group. Some Republican senators claim that she violated Cannon 2C of the American Bar Association’s judicial codes, which states that it is inappropriate for judges to belong to groups that “invidiously” discriminate on the basis of race, sex, religion or national origin. In a letter responding to concerns raised by Republicans on the Senate Judiciary Committee, the nominee claims the Belizean Grove does not invidiously discriminate on the basis of sex because men are permitted to participate in events, and can probably even join if they wish to.
“Men are involved in its activities — they participate in trips, host events, and speak at functions — but to the best of my knowledge, a man has never asked to be considered for membership. It is also my understanding that all interested individuals are duly considered by the membership committee.”

This is the most flimsy defense she could possibly have concocted. The Belizean Grove advertises itself as an all-female group. Of course no man has ever asked to be considered. Jennifer Rubin notes that this is the same argument exclusive men’s groups used to exlude women:
“A few things are noteworthy. First, the condescension toward men — we let the guys come to party — is reminiscent of the “we let women be social members” excuses that exclusive men’s clubs routinely gave for decades – and which were scorned by women’s groups. Second-class citizenship for thee, but not for me. Got it?
[T]he line about “no one ever asking to join” is rich. Certainly if one declares the organization to be “all men” or “all white” or “all anything” those not in the “all” group are going to be dissuaded from seeking membership. Isn’t the mere statement of exclusivity enough to raise concerns?”

Susan Strautberg, founder of the Belizean Grove, supported Sotomayor’s statements when she spoke to Politico

“Stautberg stressed that male “spouses, partners and adult children” are permitted to go on the optional post-retreat expeditions (last year’s was to Machu Picchu and the Sacred Valley) and said that even though “no man has ever applied to be a member. ... If they did, we would certainly vote on it.”

They might vote on it, but no individual with a Y chromosome is getting into the Belizean Grove. And that’s perfectly fine. Why? The group was established as a networking group for women, and women only. I have scoured the Belizean Grove’s website, and there is not one shred of evidence that suggests men are welcome in the group. Indeed, the website confirms that the group was established as a group for women in response to the existence of the similar all-male Bohemian Grove.

Who does Sotomayor think she’s fooling? She is relying on old-fashioned arguments employed by discriminatory all-male groups to justify their exclusion of women. The Belizean Grove is expressly women only, and not because no men ever applied. Sotomayor should have been honest, and defended her membership in what is a seemingly harmless women’s professional group. Instead, she is insulting our collective intelligence by claiming that the group might admit men if they ever applied. The fact that this was the best defense she could patch together truly makes me doubt the strength of her intellect.

June 17, 2009

Did Sotomayor Overrule....Herself?

It certainly looks that way in a Second Circuit panel's ruling on In re Initial Public Offering Securities Litigation, which reverses its decision in the case of In re Visa Check/Mastermoney Antitrust Litigation. Oddly enough, Sotomayor participated on the panel that disavowed the earlier opinion that she herself wrote.

Robert J. Ambrogi has the details at Law.com's Legal Blog Watch.

June 16, 2009

The Court and Public Opinion

The National Journal's Stewart Taylor has an interesting article entitled "Court More Liberal Than Public Opinion."  It is worth remembering when the White House or the media label Obama's nominees moderate.

"We in the media habitually describe the Supreme Court as made up of four conservatives, four liberals and one swing-voting centrist, Anthony Kennedy. These labels serve reasonably well to situate the justices on the ideological spectrum compared with one another.

But while the court is sometimes called "conservative," it looks pretty liberal if we chart the justices' rulings and individual views against general public opinion, as measured by poll results on issues including abortion, race, national security, religion, gay rights, gun rights and the death penalty.

The four more liberal justices -- John Paul StevensDavid SouterRuth Bader Ginsburg and Stephen Breyer -- all fall markedly to the left of public opinion on every one of the abovementioned issues. So does Kennedy, when it comes to national security, religion, gay rights, the death penalty and to some extent abortion. Judge Sonia Sotomayor is widely expected to be at least as liberal as Souter, whom she would replace.

If President Obama gets an opportunity to replace one of the five more conservative justices, the new majority will be quite dramatically to the left of public opinion. And voters will, of course, remain powerless to overturn the justices' constitutional interpretations. (emphasis added)"

Be sure to read the whole thing.

June 12, 2009

Standardized Tests, Cultural Bias, and Ricci: How Experience Influenced Sotomayor's Decision

Supreme Court nominee Sonia Sotomayor believes that judge’s personal experience should influence his or her rulings. Her oft-quoted remarks published in Berkley’s La Raza Law Journal in 2001 leave little room for doubt on this account:

"While recognizing the potential effect of individual experiences on perception, Judge Cedarbaum nevertheless believes that judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law. Although I agree with and attempt to work toward Judge Cedarbaum's aspiration, I wonder whether achieving that goal is possible in all or even in most cases. And I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society."

“Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see.”

And the most controversial of all:

“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.”

Democrats were quick to rise to the judge’s defense once the quotes reached the public ear. Perhaps she only meant that her experiences as a Latina would add to the diverse perspectives on the Court, suggested Senator Arlen Specter. Or maybe she didn’t mean it literally, argued Senator Dianne Feinstein. The quote was surely taken out of context, added Senator Chuck Schumer.

Of course, the fact that she echoed the same sentiments numerous times in public appearances throughout her career has cast considerable doubt on these excuses. Yet prior to the recent video release, only speculative inferences could be drawn about how she applied those “rich experiences” to her practice as a judge.

Now, however, there is further evidence to suggest that Sotomayor’s personal biases contributed directly to her ruling in the case of Ricci v. DeStefano.

The case, as most will recall, involves an exam that was administered to New Haven, Connecticut firefighters in order to select candidates for promotion, but was discarded when no black firefighters managed to score high enough to qualify for consideration. Seventeen of the firefighters who qualified for promotion, led by Frank Ricci, sued the city on grounds of discrimination, but the three-judge panel that included Sonia Sotomayor ruled against them.

Given that President Obama has praised her for having that crucial empathy factor necessary for an effective Supreme Court justice, combined with Sotomayor’s own emphasis on her Latin heritage, one could reasonably (though not conclusively) surmise that her empathy for minorities played a role in her decision on the Ricci case.

But recently revealed statements by the judge suggest a more concrete basis for her lack of impartiality:

“With my academic achievement in high school, I was accepted rather readily at Princeton and equally as fast at Yale, but my test scores were not comparable to that of my classmates. And that’s been shown by statistics, there are reasons for that. There are cultural biases built into testing, and that was one of the motivations for the concept of affirmative action to try to balance out those effects.”

Here we have Sotomayor admitting that she not only benefited directly from affirmative action, but that she believes standardized tests are implicitly biased. Thus, the fact that not a single black firefighter scored high enough on the New Haven test (although one Hispanic managed to pass) in all likelihood convinced her that this test was biased as well. Frank Ricci and his fellow petitioners never stood a chance.

And she came to this conclusion despite the city’s intentional efforts to ensure the test was free of potential sources of bias by hiring a consultant to design the exam with this specific goal in mind.

Defenders of Sotomayor might object to this interpretation by contending that we cannot possibly know what she was thinking when she ruled against Ricci. If we were discussing a judge who was dedicated to putting the rule of law ahead of personal bias, they would have a legitimate point. But Sotomayor's experience with "culturally biased" testing, coupled with her history of remarks upholding a judge's use of personal experience to guide his or her reasoning on the bench, makes it difficult to conclude she was not unduly influenced by her personal views on the matter.

UPDATE: An interesting article from the LA Times on a Puerto Rican Legal Defense and Education Fund (PRLDEF) suit filed in a case similar to Ricci when Sotomayor sat on the organization's board in 1984.

June 11, 2009

The Sotomayor Tapes

The New York Times has posted nine videos that were given to the Senate Judiciary Committee last week. The videos feature Sonia Sotomayor commenting on a variety of issues during speeches, interviews, and panels.

June 10, 2009

Debate over the Hearing Date

Yesterday's announcement by Senate Judiciary Committee Chairman Patrick Leahy that Supreme Court nominee Sonia Sotomayor's confirmation hearings will begin on July 13th has already prompted criticism on the part of Republican lawmakers, who argue that combing through the judge's 17 year record will require more time. Seeing as Harry Reid had not yet bothered to read any of her opinions by June 2nd, it appears that Republicans are not the only ones in need of an extention (although Reid admits he probably will not have read any of them even after the hearings are finished).

"I'm really a bit surprised," Sessions remarked. "I don't think our side has the time to do this right. ... That's a rushed time frame, and I don't think that's necessary."

Senate Minority Leader Mitch McConnell is quoted in the same article: "An arbitrary date on this nomination, when we're not clear yet how long it's going to take to work our way through her extensive record ... strikes me as not a good way to proceed."

"She has 10 times as many decisions as Roberts did. It takes a long time to go through that material. We'll simply have to wait and see how that review goes," Senator John Kyl added.

The fact that some questions have arisen over omissions in Sotomayor's Senate questionnaire, as the Judicial Confirmation Network reports, only increases the difficulty of the process.

While Sotomayor's hearing is set to begin only 48 days after Obama announced her nomination, both John Roberts' and Samuel Alito's hearings began after longer periods of time. A total of 55 days had passed from the day Roberts was nominated to the date of his hearing, and Alito's hearing began 70 days after his nomination was announced. Furthermore, neither Bush nominee had as many years of experience on the bench prior to their nominations, a fact that the Obama administration enjoys touting.

Perhaps, then, they should also be willing to admit, in the name of fairness, that more time is needed before lawmakers can vote on her suitability for such a prominent position. . . .

Sotomayor Again Says No to 2nd Amendment

CFJ Executive Director Curt Levey on Sonia Sotomayor’s growing Second Amendment problem:

Concerns about Sonia Sotomayor’s hostility to the Second Amendment continued to grow this week. After meeting with Sotomayor yesterday, Sen. Jim DeMint, Chairman of the Senate Steering Committee, emphasized that

“[Sotomayor] was unwilling to say the Second Amendment protects a fundamental right that applies to all Americans, which raises serious questions about her view of the Bill of Rights.”
And on Monday, Congressional Quarterly reported that the National Rifle Association (NRA) and Gun Owners of America are preparing to “weigh in” on Sotomayor’s nomination to the Supreme Court:

“[T]he NRA staff is scouring her record, [NRA Institute for Legislative Action executive director Chris] Cox said. They are paying close attention to Maloney v. Cuomo, in which a three-judge panel on which she served … stated that the [Second] amendment applies only to limitations sought by the federal government, not to those imposed by state or local governments.”

“[Gun Owners of America] president, Larry Pratt, said a vote to confirm [Sotomayor] would cancel out any previous pro-gun-rights votes cast by congressional lawmakers. ‘She’s very hostile to the Second Amendment,’ he said. ‘A vote for her says you don’t really support the Second Amendment. . . . It nullifies all we have achieved and hope to achieve.’”

Even the liberal Ninth Circuit disagreed with Sotomayor’s conclusion in Maloney that only D.C. residents have full Second Amendment rights. Attempts to defend Sotomayor by pointing to last week’s Seventh Circuit gun decision fell flat once analysts looked more closely at the two cases. As John Lott explains in today’s Washington Times,

“[T]he media are either unable or unwilling to read beyond who won the 2nd and 7th circuit cases and the most basic parts of the decisions. … Judge Sotomayor's panel tried to eviscerate the recent Supreme Court decision that had struck down the District's gun ban even for federal laws. To her panel, the Second Amendment would not block any gun-control laws as long as the politicians passing the laws thought the weapon was ‘designed primarily as a weapon and has no purpose other than to maim or, in some instances, kill.’ With that interpretation, the Supreme Court never could have struck down the D.C. gun ban, let alone any other gun-control law. That Judge Sotomayor would make such an argument … means she would vote to return the D.C. gun ban the first chance she got. For those who have any remaining doubts, in a 2004 decision, U.S. v. Sanchez-Villar, Judge Sotomayor ruled ‘that the right to possess a gun is clearly not a fundamental right.’ … It also tells us that no matter how much he protests, Mr. Obama's views on guns are out of sync with those of the vast majority of Americans.”
Judge Sotomayor’s hostility to the Second Amendment is likely the biggest threat to her confirmation, both because more than three-quarters of Americans disagree with her that the Second Amendment is not a fundamental right, and because her views put red state Democrats in a difficult position. As I previously noted,

“[E]very red and purple state Democratic senator who considers voting for Sotomayor will be forced to explain to his constituents why he’s supporting a nominee who thinks those constituents don’t have Second Amendment rights. Because they can send red state Democrats running for cover, gun owners are the one interest group that could completely change the political equation on judicial nominations if they’re drawn into the debate.”
Majority Leader Harry Reid apparently agrees, given his warning to Democratic senators that “I dare any one of them to say they’re not” supporting Sotomayor (Roll Call 6/4/09). Yesterday on the Senate floor, Sen. Orrin Hatch commented on Reid’s warning, calling it

“a strange tactic indeed, especially so publicly and so early in the process. It makes me wonder whether there are concerns even on the majority side that the leadership simply cannot allow to be expressed.”

June 09, 2009

Gun Rights Groups Expand Their Target

An article posted on CQ Today Online News details the upcoming agenda of Second Amendment lobbyist groups. Among their plans, both the National Rifle Association (NRA) and Gun Owners of America have expressed intentions to "weigh in on Obama's nomination of federal appellate court Judge Sonia Sotomayor to the Supreme Court":

As the Senate’s consideration of Sotomayor’s nomination approaches, the NRA staff is scouring her record, [Chris] Cox [executive director of the NRA Institute for Legislative Action] said. They are paying close attention to Maloney v. Cuomo, in which a three-judge panel on which she served unanimously rejected a man’s claim that a New York ban on nunchakus, a martial arts weapon, violated his Second Amendment right to keep and bear arms. The opinion stated that the amendment applies only to limitations sought by the federal government, not to those imposed by state or local governments.

Cox said “it has yet to be determined” if the NRA will use the Senate vote on Sotomayor’s confirmation as part of its rankings for senators.

Gun Owners of America, whose membership of roughly 300,000 is dwarfed by the NRA’s 4 million members, takes a much harder line on Sotomayor.

The group’s president, Larry Pratt, said a vote to confirm her would cancel out any previous pro-gun-rights votes cast by congressional lawmakers.

“She’s very hostile to the Second Amendment,” he said. “A vote for her says you don’t really support the Second Amendment. . . . It nullifies all we have achieved and hope to achieve.”

In the past, gun rights advocates have focused their fire on Congressmen and state legislators. Of course that was prior to the Supreme Court’s ruling in the D.C. v. Heller case of 2008, which transferred the Second Amendment battle from the legislative to the judicial branch. Thus far, both groups have been hesitant to adapt their strategies to address these changed circumstances, but this report suggests that they are slowly coming to terms with the new reality that, as Mr. Pratt states, threatens to overturn everything they have achieved.

Moreover, if the gun lobby puts enough pressure on senators to vote against Sotomayor on the basis of her demonstrable antagonism toward Second Amendment rights, they will severely jeopardize her chances of appointment. No red or purple state Democrat can afford to attract the fury of gun rights proponents and still manage to win reelection, and don’t expect any of them to sacrifice their jobs for a vote on a Supreme Court nominee.

June 05, 2009

Sotomayor Questionnaire Raises New Questions

CFJ Executive Director Curt Levey on the release of Sonia Sotomayor’s Judiciary Committee questionnaire and related documents:

Yesterday’s release of Judge Sotomayor’s Senate questionnaire conclusively puts the lie to President Obama’s assertion that he is "sure she would have restated" her now famous 2001 remark in Berkeley, CA that “a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion [as a judge] than a white male.” Ditto for Robert Gibbs’s earlier assertion that "if she had the speech to do all over again, I think she'd change that word." The Associated Press summarized the evidence to the contrary found in the released documents:
“Obama has said he is ‘sure she would have restated it.’ In fact, she said it almost precisely the same way in speeches to the Princeton Club in 2002 and one at Seton Hall law school in 2003, according to copies she sent the Senate.”
Not only did Sotomayor repeat her controversial claim about racial and gender superiority in 2002 and 2003, but the documents released yesterday reveal she also made similar claims – substituting “wise woman” for “wise Latina woman” – in a 1999 speech to the Women's Bar Association of New York State and in a 1994 speech to the Conference on Law Reviews.

Now that the attempts to explain away Sotomayor’s statements are no longer plausible, there will inevitably be questions about what Obama and Gibbs knew about the 1994, 1999, 2002, and 2003 speeches and when they knew it. Were their untrue assertions in defense of Sotomayor the result of poor vetting or an attempt to mislead the press and public?

Moreover, Sotomayor’s work as a Puerto Rican activist – from the time she was a Princeton undergraduate to her 12 years on the board of the Puerto Rican Legal Defense and Education Fund – now becomes relevant fodder for questions by Senate Judiciary Committee members. A judicial nominee should ordinarily be afforded the presumption that activism before joining the bench is not relevant to fitness for the bench. Sotomayor would deserve that presumption if her Berkeley remark were really an offhand comment she regretted. However, that presumption cannot logically survive Sotomayor’s repetition of the remark and the similar remarks she has made – for example “I further accept that our experiences as women and people of color affect our decisions [as judges].” (Berkeley 2001)

In other words, since Sotomayor believes that the “richness of her [Latina] experiences” make her a better judge, it is only logical to question her about those experiences. As an illustration, here’s an obvious question for a Judiciary Committee member to ask Sotomayor concerning her controversial decision in Ricci v. DeStefano, which upheld the discarding of results of a New Haven promotional exam on which only one black or Hispanic firefighter qualified for promotion:
While you served on the board of the Puerto Rican Legal Defense and Education Fund, it sued New York City, claiming that promotional exams for police officers had an adverse impact on blacks and Hispanics. Did that experience, and any empathy you may have felt for the minority officers, influence your opinion in Ricci v. DeStefano or otherwise lead to a better decision than a white judge would have made?
The fact that Sotomayor’s remarks naturally raise such questions makes one wonder if those remarks run afoul of Canon 2 of the Code of Conduct for United States Judges, which states that a judge “should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Of particular concern is the conclusion Sotomayor draws from her ethnocentric, experience-based theory of judging. In the Berkeley speech, she concludes that
“The aspiration to impartiality is just that – it's an aspiration because it denies the fact that we are by our experiences making different choices than others.”
It’s difficult to see how that statement promotes public confidence in the impartiality of the judiciary. Ed Whelan notes that an April 2009 Sotomayor speech released yesterday, in which she repeatedly extols the election of Barack Obama, also presents a Canon 2 problem (see link below).

The same can be said for another one of the released documents, a Suffolk University law review article written by Sotomayor while she was a federal trial judge. In it, she rails against “private money play[ing] such a large role in [election] campaigns” and suggests “strict, well-enforced regulation, to ensure that politicians are not inappropriately influenced.” Ask yourself if a citizen challenging campaign finance reform in her court could have confidence that she would impartially decide the case.

I don’t believe that Judge Sotomayor intended to violate Canon 2 or undermine confidence in the judiciary. But I do believe that her loose lips problem, exhibited time and again, is indicative of Sotomayor not fully comprehending the profound difference between her role as a activist prior to 1992 and her role as a judge since then. Her blurring of the two roles is reason enough to oppose her elevation to the Supreme Court.

"Racist" Political Cartoon

After the outrage spawned by the infamous chimp cartoon a few months back, we should have known it was only a matter of time before someone cried "racist!" in reaction to a cartoon depicting Judge Sonia Sotomayor:

One of the more controversial aspects of the cartoon is that it contains references to Mexican culture - the sombrero and the piñata - while Sotomayor is in fact Puerto Rican. Such ignorance of the subtle differences between latin cultures is undoubtedly indicative of racist intent, especially when Sotomayor has on countless occasions sought to portray herself as a representative of Latin Americans in general rather than simply those of Puerto Rican ancestory.

No Majesty in a Constitutionally Deficient Supreme Court Nominee

The United States Constitution was crafted as a series of compromises that established two general divisions that remain ceaselessly and compellingly intricate to this day. The first of which would be the division of the governance power and that power’s focus between the centralized federal government and the governments of state and local municipalities. This separation, with regards to plain constitutional analysis, results in a narrow focus for the federal and a broad focus for the state/local. Secondly, the powers within the government were divided amongst themselves in a fashion that allowed for proper social exchange of power and an ever-unchanging ability to adapt to the rigors of “modern” society. With a nomination like Judge Sonia Sotomayor, we would be naïve to not at least question how much of these intricacies would be caught in the majesty of the “historic moment” that is so highly touted by the democrats and the left.

When analyzing any nomination to the Court, one may quickly leap to the determination that they are either considered to be a model of judicial restraint or a model of judicial activism. In his recent Forbes.com column, Professor Richard Epstein cuts to the chase and proclaims that unhappy conservatives and libertarians “won't alter the terms of the political debate by waving the tattered flags of judicial activism and strict construction.” Further, he calls for a more intricate, “fine-grained inquiry” to investigate and to extrapolate why nominees of her progressive ilk make errors and why these errors are a more legitimate way of analyzing the nominee's judicial aptitude. In this article, Prof. Epstein references two constitutional guideposts in illuminating error: the first being a situation where the judge should have stayed out of the “conversation” (Roe v. Wade), and the second being a situation where there should have been intervention (Kelo v. City of New London, or Sotomayor’s own Didden v. Village of Port Chester).

Under this constitutional error inquiry, a fair analysis of Judge Sotomayor’s decisions should ensue in order to not just frame her as either activist or strict constructionist, but to identify discrete ways in which she has erred and how these errors resonate in constitutional law. To start, Judge Sotomayor had twice been a participant in the adjudication of Bartlett v. New York State Board of Law Examiners. The first was as district judge and the second was upon special designation, which occurred after the case had numerous years of litigation. The basic facts were this: the plaintiff had tried three times to take the bar, and three times he had failed. She cited a learning disability that made him read at a far slower rate than his colleagues, and she brought various constitutional and civil rights claims (equal protection, due process, § 1983) as well as claims arising under the Americans with Disabilities Act (ADA). Eventually, Bartlett was given double the amount of time on a time-sensitive test (four days compared with two) in order to complete and for his skills to be “adequately” assessed.

Whether or not they passed the bar (she has not) is a moot point. In Bartlett, there is a clear-cut example of a judge using a set of facts under the guise of empathetic pragmatism in order to forward constitutional rights that are simply nonexistent or grossly mislead. Usurping a cornerstone of an examination in the name of “reasonable accommodation” is, at best, faulty reasoning. What is so reasonable about taking a very key asset of an examination- the strict time restrictions set in place to test both the reading comprehension and the analysis of the taker- and inherently removing it for one person, to give them an advantage over the other takers? Is it not the point of the examination to show who is best apt to serve the bar and the people who utilize that profession? One can see this same defective legal reasoning within Ricci v. DeStefano, whose facts and controversies are by now widely known. These two cases show distinct constitutional error, manifesting in intervention that occurred for the sake of leveling a playing field that was justly in place, in the name of anti-discrimination, due process, equal protection, etc. By leveling the playing field, Judge Sotomayor in-fact lowered the constitutional protections of everyone else who took the bar or who took the firefighter's exam, and needless to say, the harm to society is greater than the harm to the individual.

Secondly, the aforementioned case of Didden v. Village of Port Chester is a clear-cut case of where the judiciary could have stepped in to prevent the other branches of the government from exerting too unwieldy of a force over an individual and their private property rights. In this case, the panel, including Sotomayor, generally excused what amounted to extortion and what would be considered duress, undue influence, or fraud, anywhere else. Not only did Didden not accept the $800,000 for the land (or agree to give a hefty fifty-percent share), his land was condemned almost immediately. The court ruled that although the statute of limitations had barred any claim, this was not a taking regardless, and thus there is no need to encounter question of just compensation. Without getting into a larger debate regarding property rights and the 5th Amendment’s Takings Clause since Kelo, it is quite evident to the ordinary human being- the ordinary worker, may he be white or with the richness of heritage that Judge Sotomayor so favors- that private property rights were severely disfigured by a panel of judges who felt that a pretextual (i.e. a fraudulent misrepresentation of public purpose) taking is a legitimate, constitutional practice. Simply put, the panel “empathized” with greed, corruption, and fraud over the inalienable rights of hard-working Americans.

Dare I say it, but the tattered flag of activism still flies because of decisions like Didden, Bartlett, and Ricci. While Professor Epstein may favor a fine-grained inquiry over a loose designation of activist or constructionist, I still believe there is relevancy to those designations which place the behaviors of judges in the context of a larger socio-political setting.

However, regardless of personal preference, I believe that we all can agree that allowing a judge onto the Court who takes even the radical Kelo decision to new heights is one that is simply unacceptable. Or, phrased differently, the legal majesty that Sonia Sotomayor eyed in her law review article, and the majesty that the Court has long held in the public eye, will slowly dissolve the democratic protections that we find self-evident. The protections of the people, through the legislature and through the executive, to create and enforce laws on their terms will be eroded to the point that even distinct constitutional error will be considered moot, for there may no longer be a true constitution to err against. I would much rather wave a tattered flag of activism or construction than sit idly, waiting for the eventual demise of the government by the people, for the people.

Bartlett v. New York State Board of Law Exam’rs, 970 F. Supp. 1094 (S.D.N.Y. 1997)
Bartlett v. New York State Board of Law Exam’rs, 2001 U.S. Dist. LEXIS 11926 (S.D.N.Y. 2001)
Ricci v. DeStefano, 530 F.3d 87 (2nd Cir. 2008), rehearing denied 530 F.3d 88 (2nd Cir. 2008), cert. granted 129 S. Ct. 893 (2009).
Didden v. Village of Port Chester, 173 Fed. Appx. 931 (2nd Cir. 2006), cert. denied 127 S. Ct. 1127 (2007).

Sotomayor's Law Review Article:
Hon. Sonia Sotomayor, Returning Majesty to the Law and Politics: A Modern Approach 30 Suffolk U. L. Rev. 35 (1996).

June 04, 2009

Judge Sonia Sotomayor's Completed Questionnaire

It is available here.

June 03, 2009

Michael Ramirez's Take on Sonia Sotomayor

Pulitzer Prize winning political cartoonist Michael Ramirez sets his sights on Sonia Sotomayor in two recent cartoons.



Sotomayor Nomination Offers Lesson to Democrats on Playing the Race Card

The Democratic party has frequently mounted opposition to Republican efforts in almost every area by essentially calling them racists.  It is interesting to see whether Republican charges of racism against Sotomayor, likely deployed in part to expose this hypocrisy, will teach them to be more careful in slinging around the race card.  Two recent posts shed light on this issue.  

Mona Charen uses the nomination of Charles Pickering to the Fifth Circuit Court of Appeals to make her point.

"The Democrats succeeded in torpedoing Pickering's nomination -- not to mention assassinating his character. More than "insensitive," he was called a crypto racist with a "segregationist past" (Paul Krugman). When President Bush offered Judge Pickering a recess appointment to avoid a Senate filibuster, Sen. John Kerry, D-Mass., breathed fire: "Here we are, on the weekend before a national holiday when we celebrate Martin Luther King's birthday, and George W. Bush celebrates it by appointing Charles Pickering, a known forceful advocate for a cross-burner in America, to the federal court of the United States."

In point of fact, Judge Pickering had been a friend to civil rights throughout his career. To its credit, the New York Times actually quoted longtime associates of the judge and members of the black community in Pickering's hometown who "overwhelmingly support his nomination . . . and admire his efforts at racial reconciliation." The black chairman of the city council told the Times, "I can't believe the man they're describing in Washington is the same one I've known for years." They recalled that as a young prosecutor in 1967, Pickering had endangered his career (and perhaps more) by testifying in court against the Imperial Wizard of the Ku Klux Klan. He was known for hiring black staffers at a time when few white Mississippians did. Pickering encouraged the chancellor of University of Mississippi to form the Institute for Racial Reconciliation and served on its board for many years. Pickering, unlike some white southerners (and many Democrats currently serving in Congress), chose to send his children to integrated public schools."

She argues in closing that, "Republicans should seize this teachable moment to remember all of the fine candidates -- Pickering, Miguel Estrada, Robert Bork -- and many more who were so shamefully treated by the Democrats who have suddenly discovered the evil of baseless accusations."

Ed Whelan makes a similar argument in comparing the rulings of two initially anonymous judges.

"Judicial Nominee # 1 joins an en banc appellate opinion that affirms an administrative ruling that the use of an ugly racial slur—the n-word—by a public employee did not justify the sanction of terminating her employment. Far from condoning the racial slur, the opinion clearly states that the “unwarranted use by a state employee of any inflammatory or derogatory term when referring to or directly addressing a co-worker is an action that cannot be justified by any argument.”


Judicial Nominee # 2 reviews the case of a police officer who was fired from his job for anonymously mailing racially bigoted materials—including printed fliers that asserted white supremacy and ridiculed black people—to police departments.  In dissent from the majority opinion, Judicial Nominee # 2 opines that the police officer’s firing violated his First Amendment rights. "

He later reveals the names of the nominees and the reactions to their two opinions.

"Judicial Nominee # 1 was President Bush’s Fifth Circuit nominee Leslie H. Southwick. Based in large part on left-wing activist groups’ wild distortions of the ruling described above, then-Senator Obama was the first senator to oppose Southwick’s nomination and recklessly alleged that Southwick “has shown hostility towards civil rights and a disregard for equal rights for minorities, women, gays and lesbians” and that his nomination even “threaten[ed] the very basis of our freedom and democracy.”  (emphasis added) (Southwick, in the end, was barely confirmed.)


Judicial Nominee # 2 is, as you’ve probably guessed, President Obama’s Supreme Court nominee, Judge Sonia Sotomayor (in Pappas v. Giuliani, 290 F.3d 143 (2002)).  Sotomayor has received the ardent support of the same left-wing activist groups that smeared Southwick."

Maybe Sotomayor's nomination will finally convince Democrats that, as Charen titled her piece, "It's Not Fair To Casually Call People Racist."