Wednesday, May 27, 2009

Supreme Difficulties: The Appointment of Sonia Sotomayor to the Supreme Court

The big story in the legal profession this week is President Obama's nomination of Judge Sonia Sotomayor to the Supreme Court.

Throughout the blogosphere, this is now a ranging controversy over her pending confirmation---which, given the current composition of the U.S. Senate, is assured...assuming that there are no hidden skeletons in her professional closet. Most of these discussions, though, appear to miss the real point. There is, to my mind, a big difference between whether someone "should NOT be confirmed" and whether they "SHOULD be appointed" in the first place: since Obama won the election, his choice should be honored in the absence of a clear reason not to confirm; but whether Sotomayor was the best nominee for the job is an entirely different question.

There's a lot about judges and the judiciary that it will be hard for non-lawyers to understand. To my mind her biggest test to date was Ricci v DeStefano (the New Haven firefighters case), which is, in many ways, a lesson in what is wrong with the American judicial system today.

In a nutshell...she was on a panel that gave very short shrift to the argument of the plaintiff that he was the victim of racial discrimination when the City tossed out the results of a civil service test---which had been designed to be racially neutral---because none of the top-scoring applicants were black. The lower court decision had ruled in favor of the defendants on a motion for "summary judgment"---which means, in layman's terms, that their claim was so lacking in merit that it didn't even warrant a trial (meaning that the judges had to accept all the facts alleged as true). A colleague of hers on the Second Circuit---a liberal judge appointed by Clinton, named Jose Cabreras---was outraged that the court didn't address the issues at the heart of the case, and it was only because HE wrote a dissent to the court's denial of rehearing en banc (before the entire circuit, rather than the three-judge panel assigned to the case) that the case got much press; otherwise, it may well have been buried in the thousands of other summary dismissals that come out of the courts, another unpublished summary dismissal at the trial court level followed by a routine summary affirmance.

To my mind, this suggests one of the following: (1) she is a partisan whose rulings will come from the "empathy" she feels with one side or the other (a possibilty also suggested by her YouTube comments at a seminar a few years ago...talking about federal appeals judges "making policy"); (2) she is intellectually dishonest, and was trying to bury the case by using language usually reserved for dealing with frivolous lawsuits (I've been the beneficiary of that myself often enough to recognize it...though the Michigan Court of Appeals has been better about trying to hide "tough" cases in superficial opinions in the last fifteen years or so); or (3) she can't recognize a "big issue" when it hits her in the head. Any of these would have meant that I wouldn't have appointed her, if I were the president. But none of them is a disqualification from office---nor, sadly enough, uncommon among judges in this day and age.

Having said that...I haven't studied the body of her work well enough to know whether the Ricci case is an aberration, or her usual way of doing business. What I've read suggests that she is usually yeomanlike in her work, and reasonably competent in her legal scholarship. I've also read pieces suggesting that her reasoning and writing isn't very "tight" (ie, well thought out and precisely written), and that her judicial temperament leaves a lot to be desired (ie, she has a reputation for being dismissive and abusive from the bench). I suspect that much of what will be written about her in the coming days will be written with a partisan pen...and I plan to double-check any facts I read, and ignore most of the conclusions (which I usually prefer to draw for myself).

None of what is said below speaks to anything I'd regard as important in a judge: I would expect most judges to rule on both sides of First Amendment, Civil Rights, and other issues...depending on the particular facts and law governing each particular case. And, with due respect for Obama, I don't regard "empathy" as a judicial qualification: if anything, it suggests bias, unless the judge feels "empathy" toward BOTH sides...meaning that he (or she) takes the time to understand the human dimension to the legal controversy, as well as the legal issues (something the Second Circuit didn't seem to show in the Ricci case). For me, assuming a bright mind capable of honest legal scholarship, the key qualifications are judicial temperament (ie, fair-mindedness and respect toward everyone who comes to court...and a recognition that being a judge is a privilege and a public trust, not a means to dole out rulings out of a subjective preference for one side or the other), and humility.

While I have a lot of reservations, I think it's too soon to judge her...and, as I said, the President is the one who gets to make the appointment, and I don't think "perfection" should be the standard.

JEFFREY CAMINSKY, a veteran public prosecutor in Detroit, Michigan, specializes in the appellate practice of criminal law and writes on a wide range of topics. His books include the science fiction adventure novel The Star Dancers, the exciting second volume in the Guardians of Peace-tm series, The Sonnets of William Shakespeare, and the acclaimed Referee’s Survival Guide, a book on soccer officiating. All are published by New Alexandria Press, and are available on Amazon, as well as directly from the publisher.

No comments: