Category Archives: Supreme Court

Defining the Empathy Standard

Ruth Marcus at the WaPo attempts to provide some definition to the empathy standard.

Possessing the “empathy to recognize” should not determine the outcome of a case, but it should inform the judge’s approach. All judges are guided to some extent, consciously or unknowingly, by their life experience. The late Justice Lewis Powell, the deciding vote in Bowers v. Hardwick, the 1986 case upholding Georgia’s sodomy law, told fellow justices — and even a gay law clerk during that very term — that he had “never met a homosexual.” Would the outcome of Bowers — an outcome Powell regretted within a few months — have been different if the justice had known men and women in same-sex relationships?

When Bowers was overruled in 2003, the majority opinion by Justice Anthony Kennedy was infused with a greater understanding that anti-sodomy laws “seek to control a personal relationship.” You got the sense that Kennedy actually knew people in such relationships.

And empathy runs both ways. In 2007, when the court rejected Lilly Ledbetter’s pay discrimination lawsuit because she had waited too long to complain about her lower salary, the five-justice majority seemed moved by concern for employers unable to defend themselves against allegations of discrimination that allegedly occurred years earlier.


Sotomayor Link Round up

After Jeffery Rosen penned a curiously bad take down piece on Sotomayor questioning everything from her temperament to her intelligence to her competence that was predictably well received in the conservative blogosphere before being appropriately thrashed on the liberal side of the tracks.

Mark Hemingway at Bench Memos ran with it and called “her dumb and obnoxious.” And then the gossippy drivel just took on a life of its own to the point to with some wanting to reduce Sotomayor’s potential nomination to being another instance of an affirmative action baby  that never quite makes the cut “she’s also female and Hispanic, and those are the things that count nowadays,” quipped John Derbyshire.

But then the push back came. Matthew Yglesias took Rosen to task at TP after correctly noting, “You don’t see a lot of dumb kids growing up in the South Bronx and winding up at Princeton.”

Glen Greenwald also chimed in on the smear saying “What this sorry episode reveals, yet again, is just how poisonous and destructive is the reckless use of anonymous gossip-mongers masquerading as “journalism.””

It’s far more insidious — a rumor, a feeling, a notion that the person standing in front of you who doesn’t look like you is just “dumb and obnoxious.” So you throw their resume in the “no” pile because you don’t like their name, you seat them in the back of the class, you promote another person. You just can’t really explain why. It’s… just a feeling.too

Gerard Magliocca at Concurring Opinions, says from first hand experience that found the ill-tempered charge by Rosen is utterly baseless. “With respect to appellate argument, I never saw anything but the best behavior from her, even in cases (and there were a few) where I did not agree with the position that she took or where the lawyers arguing before the panel were clueless,” said the former Second Circuit clerk. “Accordingly, the idea that she does not have an appropriate judicial temperament is absurd. I would instead describe her as politically savvy.”

Alisa Valdes-Rodriguez is convinced she can see right through all the attacks, which in her view stem from too “many Republicans continue to view American society through the shattered lens crafted during the colonization of the Americas. To them, the thought of a Latina with power is nothing short of terrifying.”

Meanwhile, Christopher Eisgruber tells us “Diversifying the court in terms of race and gender would be consistent with Obama’s principles and his Cabinet appointments. It would also be smart politics.”


But rest assured the attacks will come coming. Marc Ambinder observes all of the back and forth and finds “If Sotomayor loses control of her public image before her nomination, then liberal groups will have trouble in the months ahead.” He also added “Obama’s nominee will probably pass through the Senate fairly easily, but a discredited nominee — even though she might make it to the Court — will not.”

Hmph. We’ll see.

Sonia Sotomayor on Courts and Policy Making

For years, the right has been successful at conflating case law, which is judicial decision making based on precedent rather than just statues, with legislating from the bench.  Each time there is a judicial nominations fight, especially when it involves a Supreme Court seat, they try to scare the bejesus out of people with this idea that unelected activist judges are supplanting lawmakers with their fancy expansive decision making. Nonsense.

Case law does not just come out of the thin air. Its grounded in previous court opinions may have interpreted a given statue and usually its a fairly rigorous process taking place over many years.

So now conservatives think they have a smoking gun video clip with Judge Sonia Sotomayor telling law students in a flip manner that policy gets made at the appellate court level.  And that’s certainly true for a lot of things, particularly domestic policy, but not as true when it comes to national security matters.

At any rate, here is the innocuous clip of Judge Sotomayor discussing case law.

Who’s afraid of Empathy and Sotomayor?

Apparently, Karl Rove is.

Souter Speculation Link Round-Up

Rumor and speculation are the life blood of covering nominations and appointments particularly during the early days of any presidential administration. That said, here are some helpful links and other info on who is on the short and expanded list of replacements.

The WSJ wants President Obama to appoint, “Jose Cabranes, a Puerto Rican immigrant named to the Second Circuit Court of Appeals by President Clinton in 1994.”

I got an oldie but goodie here. In July of 2007, Tom Goldstein wrote a really good post for SCOTUS blog on who Democratic Supreme Court nominees might be.

Stuart Taylor at the National Journal shares some “random thoughts” on what to expect when you are expecting a nominee.

Georgetown Law Professor Jefferey Rosen in the NYT urged the president not to follow the Souter model in picking a nominee, since he had “a hermetically sealed approach to the job” and “had had trouble communicating his ideas” to other Justices.

Mary L. Dudziak at Balkination says Obama should appoint someone like Justice Thurgood Marshall to the court.

Meteor Blades at DailyKos has a post featuring pics to go with the names of potential nominees being floated in the media.

Otis is Hungry at Daily Kos also has bios and commentary to go with the names.

Michele Malkin implores her fellow conservatives to gird their lions.

SCOTUS blog collected the statements from sitting Justices on Souter’s retirement.

Obama the Candidate on Supreme Court Nominees

If you drop the needle at the 8:28 mark, you will see that in this May 8, 2008 interview with CNN’s Wolf Blitzer, candidate Obama sounded a lot like President Obama.

Here is a transcript of those remarks.

BLITZER: You used to teach constitutional law.


BLITZER: You know a lot about the Supreme Court. And the next president of the United States will have an opportunity to nominate justices for the Supreme Court. He gave a speech, McCain, this week saying he wants justices like Samuel Alito and John Roberts. And he defined the kind of criteria he wants. So, what would be your criteria?

OBAMA: Well, I think that my first criteria is to make sure that these are people who are capable and competent, and that they are interpreting the law. And, 95 percent of the time, the law is so clear, that it’s just a matter of applying the law. I’m not somebody who believes in a bunch of judicial lawmaking. I think…

BLITZER: Are there members, justices right now upon who you would model, you would look at? Who do you like?

OBAMA: Well, you know, I think actually Justice Breyer, Justice Ginsburg are very sensible judges.

I think that Justice Souter, who was a Republican appointee, is a sensible judge. What you’re looking for is somebody who is going to apply the law where it’s clear. Now, there’s going to be those 5 percent of cases or 1 percent of cases where the law isn’t clear. And the judge then has to bring in his or her own perspectives, his ethics, his or her moral bearings.

And, in those circumstances, what I do want is a judge who’s sympathetic enough to those who are on the outside, those who are vulnerable, those who are powerless, those who can’t have access to political power, and, as a consequence, can’t protect themselves from being — from being dealt with sometimes unfairly, that the courts become a refuge for judges.

That’s been its historic role. That was its role in Brown vs. Board of Education.

I think a judge who is unsympathetic to the fact that, in some cases, we have got to make sure that civil rights are protected, that we have got to make sure that civil liberties are protected, because, oftentimes, there’s pressures that are placed on politicians to want to set civil liberties aside, especially at a time when we have had terrorist attacks, making sure that we maintain our separation of powers, so that we don’t have a president who is taking over more and more power.

I think those are all criteria by which I would judge whether or not this is a good appointee.

Judge Sonia Sotomayor

sonia-sotomayorWith so many court and political observers expecting President Obama to name a woman or person of color or both to replace Justice David Souter, Second Circuit Appeals Judge Sonia Sotomayor seems to jump to the top of the list.

But who is she?

According to news reports, the 55 year old native of the Bronx, New York was raised by a single mom in the city’s housing projects.  In 1976, she graduated summa cum laude from Princeton University and went on to become an editor at the Yale Law journal. The appellate judge of Puerto Rican descent apparently decided to pursue a legal career after watching episodes of Perry Mason as a girl. She served as an assistant district attorney for New York Country, which is basically Manhattan, from 1979 until 1984.

President Bush the elder appointed Sotomayor to the federal bench as a trial court judge at the urging of New York Senator Daniel Patrick Moynihan.  President Bill Clinton elevated her to the Second Circuit Court of Appeals since 1998, and according to the New York Times, is best known “for issuing an injunction against major league baseball owners in April 1995, effectively ending a baseball strike of nearly eight months, the longest work stoppage in professional sports history, which had led to the cancellation of the World Series for the first time in 90 years.”

But she is lesser known for a more historic case.  In 2004, for instance, she wrote a majority opinion revoking the citizenship of an 84 year old New York resident who misrepresented his involvement in the Germany army during WWII. Jack Reimer was an ethnic German born in Ukraine who became a U.S. naturalized citizen in 1959 who contended that he was forced to serve in the Germany army against his will. But a federal trail court judge found that Reimer was much more involving in persecuting Jews than he let on and revoked his U.S. citizenhip. When Reimer appealed the trial court’s decision, Sotomayor affirmed the lower court’s ruling. The case is called United States v. Reimer.

In her majority opinion, Sotomayer said, “We find it no less an act of assistance in persecution that [Reimer], whose presence just as much as that of the other armed guards forced the victim to remain in the pit waiting to be murdered, ultimately fired over the victim’s head.”

Here is how summed up another case that involved the Klu Klux Klan.

In 2004, Sotomayor joined a ruling that upheld a law targeted at the Ku Klux Klan that would ban mask-wearing in public.

“The masks that the American Knights seek to wear in public demonstrations does not convey a message independently of the robe and hood,” the court decided. “That is, since the robe and hood alone clearly serve to identify the American Knights with the Klan, we conclude that the mask does not communicate any message that the robe and the hood do not. The expressive force of the mask is, therefore, redundant.”

Since she’s been on the bench she has demonstrated an independent streak in in casesm so saith the NYT, where she ruled against the White House, and cases involving the religious rights of prisoners and the Hell’s Angels while earning high praise from liberals.