Supreme Court

[KukriKhan]

What (beyond her being on a list of potential Obama picks ) invalidates Granholm? I've never heard of her (though being Governor of Michigan probably isn't a good sign).

Her friends and family make out pretty well on 'no-bids' whenever she's won a position of influence, and she's shown she's not above a little backroom quid pro quo back-scratching. And she does not suffer anyone else looking over her shoulder (like independent investigators), preferring to review her own decisions herself, then absolve herself.

I don't see "judicial temperment" there; rather a penchant for political deal-making - which I think would be deleterious to the serious business of the court.

Plus: she's Canadian.*

*j/k. I don't hold that against her. Some of my best friends are...

[Alexander the Pretty Good]

So Corzine in a dress? Right on.

[Strike For The South]

Insulating judges from public opinion is far more important than having an old coot on there. Life appts stay.

[HoreTore]

The bill of rights:


1) The court held that the govt taking land and giving it to a corporation to build on was public use, since it would improve the economy or something.

2) Public use meant for things the public used; roads, etc.

3) The use of the land was not public, but for a private company.

The most damning thing, of course, is that there was nothing built on the land seize; it sits vacant. Any judge nominated should be asked for their opinion on this case.

CR

Does that kind of behaviour sound very leftie to you, CR?

[Louis VI the Fat]

I'll bet that no matter who he picks, there will be outrage aplenty. Who wants to bet against me?

I'll put a tenner against you. The worst that can happen, is that one liberal judge will be replaced by another. Except for the foaming fringe, I think the right will hold its guns on this one.

Then again, the foaming fringe sometimes appears to be awfully large indeed...

[Louis VI the Fat]

My thoughts about Kelo v. New London.

'Eminent domain' itself is customary throughout democracies. The outrage over Kelo v. New London is that the distinction between expropriation for public use and private use has become blurred. However, I think this is inevitable in a country were the state has privatised most everything. If roads, hospitals, prisons, city redevelopment are private affairs, then inevitably the right to eminent domain will become useless. It will have to be expanded to mean expropriaton for private use.

To put it differently: the state has the right to seize property to build roads. If not the state, but private companies build roads, then inevitably at some point during its legal history, the state will decide that private companies can seize the property needed to build these roads. Else no roads will ever gt build anymore.

I say that Leno vs. New London is the result not of leftists or 'big government' impulses, but of the reverse, the result of rightist 'small state' impulses.

[Alexander the Pretty Good]

Blah blah blah neither "side" wants to take the blame for that terrible decision. Both sides should unite in turning that crap around.

the state has the right to seize property to build roads.

Well, it has the might to do so.

[Lemur]

It's Sotomayor.

President Obama announced on Tuesday that he will nominate the federal appeals judge Sonia Sotomayor for the Supreme Court, choosing a daughter of Puerto Rican parents raised in Bronx public housing projects to become the nation’s first Hispanic justice.

Judge Sotomayor, who stood next to the president during the announcement, was described by Mr. Obama as “an inspiring woman who I am confident will make a great justice.”

-edit-

Here are the official talking points being peddled by the Antichrist and his minions:

* Judge Sotomayor is widely admired as a judge with a sophisticated grasp of legal doctrine and a keen awareness of the law's impact on everyday life. She understands that upholding the rule of law means going beyond legal theory to ensure consistent, fair, common-sense application of the law to real-world facts.

* Known as a moderate on the court, Sotomayor often forges consensus and agreeing with her more conservative nominees far more frequently than she disagrees with them. In cases where Sotomayor and at least one judge appointed by a Republican president were on the three-judge panel, Sotomayor and the Republican appointee(s) agreed on the outcome 95% of the time

* Judge Richard C. Wesley, a George W. Bush appointee to the Second Circuit, said "Sonia is an outstanding colleague with a keen legal mind. She brings a wealth of knowledge and hard work to all her endeavors on our court. It is both a pleasure and an honor to serve with her."

[Kralizec]

nor shall private property be taken for public use, without just compensation.

Wouldn't a strict reading of this passage lead one to believe that the government can take away your land without just compensation, as long as it's not for public use?

[ICantSpellDawg]

I'm happy with Sotomayor. It was the conventional pick and I don't think she'll hit a huge snag on confirmation. He could have hit us with a doozie and we would have just swallowed it. Her position on Abortion is that she is Pro-Choice, but that shouldn't disqualify people. You can be pro-choice and be sensible enough to view Roe as a steaming pile - we arn't sure which way she'll sway, but Souters seat was a huge loss anyway.

She is reasonable and isn't a bleeding heart, walking vag like Souter is.

6 out of 9 are Catholics now !!! Our plans are nearly complete.

[Lemur]

Analysis:

Obama has signaled that he plans a much more populist appeal, stressing the common touch, than the usual intellectual, legal and Beltway-centric defenses of Supreme Court nominees. And my view is that this nomination, barring surprises, carries far more risk for the Republican Party than for the White House. As I reported last week, the RNC commissioned a post-election review late last year and found that among the most urgent priorities was that the party not come across as anti-Hispanic during an immigration debate. Senate Republicans, led by Jeff Sessions, are likely to be painfully careful not even to be hinting at anything other than consuming respect for Sotomayor and her pioneering status. Talk radio is likely to be less careful and to be gleefully reposted by Media Matters and widely circulated in the Spanish-language media. Fierce opposition from the right could push Florida and the West out of reach. (Watch for what Charlie Crist says about her.) Less fierce opposition doesn't do the GOP much good either.

[Crazed Rabbit]

Does that kind of behaviour sound very leftie to you, CR?

It was the 'lefties' on the court who ruled in the city's favor, so yes, yes it is; taking private property for the 'public good'.

I say that Leno vs. New London is the result not of leftists or 'big government' impulses, but of the reverse, the result of rightist 'small state' impulses.

That's, frankly, absurd.

On to Sotomayor:

“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,” said Judge Sotomayor, who is now considered to be near the top of President Obama’s list of potential Supreme Court nominees.

Her remarks, at the annual Judge Mario G. Olmos Law and Cultural Diversity Lecture at the University of California, Berkeley, were not the only instance in which she has publicly described her view of judging in terms that could provoke sharp questioning in a confirmation hearing.

This month, for example, a video surfaced of Judge Sotomayor asserting in 2005 that a “court of appeals is where policy is made.” She then immediately adds: “And I know — I know this is on tape, and I should never say that because we don’t make law. I know. O.K. I know. I’m not promoting it. I’m not advocating it. I’m — you know.”

The video was of a panel discussion for law students interested in becoming clerks, and she was explaining the different experiences gained when working at district courts and appeals courts.

Oh, goody.

This article reviews her opinion in the Ricci v. DeStefano case (and a couple other odd decisions):

The city threw out the results because it feared potential lawsuits from activist groups if few or no minority candidates were promoted. The city also claimed that in addition to potential lawsuits, promotions based on the test results would undermine their goal of diversity in the Fire Department.

The firefighters sued, arguing that New Haven was discriminating against them by deciding that the tests would promote too many white candidates and too few minorities.

Federal Judge Janet Bond Arterton rejected the firefighters’ appeal, siding with the city and saying that no racial discrimination had occurred because the city didn’t promote anyone at all.

U.S. Appeals Court Judge Sotomayor issued an order that affirmed Arterton’s decision, issuing a one-paragraph judgment that called Arterton’s ruling “thorough, thoughtful, and well reasoned,”

But according to dissenting Judge Jose Cabranes, the single-paragraph order issued by Sotomayor and her colleagues ignored over 1,800 pages of testimony and more than an hour of argument--ignoring the facts of the case.
...
As a district court judge, Sotomayor also allowed a racial discrimination claim to continue when the plaintiff, a black nurse, sued Bellevue Hospital Corp because other nurses spoke mainly in Filipino, their native tongue, which she claimed made her feel harassed and isolated.

An article on Sotomayor at TNR:

But despite the praise from some of her former clerks, and warm words from some of her Second Circuit colleagues, there are also many reservations about Sotomayor. Over the past few weeks, I've been talking to a range of people who have worked with her, nearly all of them former law clerks for other judges on the Second Circuit or former federal prosecutors in New York. Most are Democrats and all of them want President Obama to appoint a judicial star of the highest intellectual caliber who has the potential to change the direction of the court. Nearly all of them acknowledged that Sotomayor is a presumptive front-runner, but nearly none of them raved about her. They expressed questions about her temperament, her judicial craftsmanship, and most of all, her ability to provide an intellectual counterweight to the conservative justices, as well as a clear liberal alternative.

The most consistent concern was that Sotomayor, although an able lawyer, was "not that smart and kind of a bully on the bench," as one former Second Circuit clerk for another judge put it. "She has an inflated opinion of herself, and is domineering during oral arguments, but her questions aren't penetrating and don't get to the heart of the issue." (During one argument, an elderly judicial colleague is said to have leaned over and said, "Will you please stop talking and let them talk?") Second Circuit judge Jose Cabranes, who would later become her colleague, put this point more charitably in a 1995 interview with The New York Times: "She is not intimidated or overwhelmed by the eminence or power or prestige of any party, or indeed of the media."

Her opinions, although competent, are viewed by former prosecutors as not especially clean or tight, and sometimes miss the forest for the trees. It's customary, for example, for Second Circuit judges to circulate their draft opinions to invite a robust exchange of views. Sotomayor, several former clerks complained, rankled her colleagues by sending long memos that didn't distinguish between substantive and trivial points, with petty editing suggestions--fixing typos and the like--rather than focusing on the core analytical issues.

Finally, she may not even be the first Hispanic justice.

CR

[Crazed Rabbit]

Okay, here's the worst and most troubling thing about Sotomayor; her ruling with the majority in Didden v. Village of Port Chester on the Second Circuit Court in 2006. It was a property rights vs eminent domain ruling like Kelo v New London, but a far worse assault on individual rights:

In 1999 Port Chester established a redevelopment area, in which new projects could be built only after getting approval from a village-designated private individual, Gregory Wasser, to whom the municipality inexplicably delegated its regulatory authority. In 2003 two owners of a plot within the redevelopment zone, Bart Didden and Domenick Bologna, asked Wasser for permission to build a CVS pharmacy. According to Didden and Bologna, Wasser responded: Either pay me $800,000 to build, give me a piece of the action, or I'll have the village take the property. The day after they spurned the offer, Port Chester did indeed start the takings process. Wasser then arranged for Walgreen (nyse: WAG - news - people ) to develop the site.

A more recent review with respect to Sotomayor:

I have written about Didden in Forbes. The case involved about as naked an abuse of government power as could be imagined. Bart Didden came up with an idea to build a pharmacy on land he owned in a redevelopment district in Port Chester over which the town of Port Chester had given Greg Wasser control. Wasser told Didden that he would approve the project only if Didden paid him $800,000 or gave him a partnership interest. The "or else" was that the land would be promptly condemned by the village, and Wasser would put up a pharmacy himself. Just that came to pass. But the Second Circuit panel on which Sotomayor sat did not raise an eyebrow. Its entire analysis reads as follows: "We agree with the district court that [Wasser's] voluntary attempt to resolve appellants' demands was neither an unconstitutional exaction in the form of extortion nor an equal protection violation."

Maybe I am missing something, but American business should shudder in its boots if Judge Sotomayor takes this attitude to the Supreme Court. Justice Stevens wrote that the public deliberations over a comprehensive land use plan is what saved the condemnation of Ms. Kelo's home from constitutional attack. Just that element was missing in the Village of Port Chester fiasco. Indeed, the threats that Wasser made look all too much like the "or else" diplomacy of the Obama administration in business matters.

Jurisprudentially, moreover, the sorry Didden episode reveals an important lesson about constitutional law. It is always possible to top one bad decision (Kelo) with another (Didden). This does not auger well for a Sotomayor appointment to the Supreme Court. The president should have done better, and the Senate, Democrats and Republicans alike, should subject this dubious nomination to the intense scrutiny that it deserves.

Some legal opinions on that specific case can be found here, here, and here:

University of Chicago and NYU law professor Richard Epstein points out that Judge Sotomayor was on a Second Circuit panel that issued the unsigned opinion in one of the worst property rights decisions in recent years, in the case of Didden v. Village of Port Chester. This does not bode well for her likely future rulings on property rights issues that come before the Supreme Court. In a 2007 National Law Journal op ed on Didden (no longer available on line, but excerpted here), Epstein and I discussed the facts of this disturbing case:

The U.S. Supreme Court's 2005 decision in Kelo v. City of New London generated a backlash on both sides of the political spectrum..... Many of the rear-guard defenders of this ill-conceived decision insisted that abusive condemnations are an aberration in an otherwise sound planning process. They, it turns out, were wrong. Didden v. Village of Port Chester, a most unfortunate decision out of the 2d U.S. Circuit Court of Appeals, helps demonstrate the shortcomings of their optimistic view.

In 1999, the village of Port Chester, N.Y., established a "redevelopment area" and gave its designated developer, Gregg Wasser, a virtual blank check to condemn property within it. In 2003, property owners Bart Didden and Dominick Bologna approached Wasser for permission to build a CVS pharmacy on land they own inside the zone. His response: Either pay me $800,000 or give me a 50% partnership interest in the CVS project. Wasser threatened to have the local government condemn the land if his demands weren't met. When the owners refused to oblige, their property was condemned the next day.

Didden and Bologna challenged the condemnation in federal court, on the grounds that it was not for a "public use," as the Fifth Amendment requires. Their view, quite simply, was that out-and-out extortion does not qualify as a public use. Nonetheless, the 2d Circuit . . . upheld this flexing of political muscle.

In fairness to Sotomayor and the other judges on the panel, their ruling was in part based on the Supreme Court's 2005 decision in Kelo v. City of New London, which defined "public use" extremely broadly. However, the majority opinion by Justice John Paul Stevens also emphasized that "the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit," was not enough to count as a "public use." It is difficult to imagine a more clearly pretextual taking than this one, since Didden and Bologna's property would not have been condemned if it weren't for their refusal to pay Wasser the money he sought to extort from them. Wasser's plan for the property was to build a Walgreen's pharmacy on it, which is virtually identical to the previous owners' plan to build a CVS. There was no general public benefit that Wasser's plan would provide that would not have been equally well achieved by allowing Didden and Bologna to keep their property and carry out their plan to put a CVS there.

The Didden panel decided the case in part based on procedural grounds (claiming that Didden and Bologna filed their case too late). However, it also clearly rejected their public use argument on the merits (see pp. 3-4 of the Second Circuit's opinion, available in the appendix to the property owners' cert. petition). Sotomayor's endorsement of this ruling is a strong sign that she has little or interest in protecting constitutional property rights. Her appointment is likely to exacerbate the second-class status of property rights in the Court's jurisprudence.

The fact that the Supreme Court refused to take the case is not much of a point in the ruling's favor. The Court accepts only a tiny fraction of all the cert petitions that come before it and refuses to hear many important cases. Moreover, the panel further reduced the chance of appellate review by leaving this important decision unpublished.

For more details on Didden, see this amicus brief urging the Supreme Court to review the case, which Epstein and I filed along with several other property scholars.

This woman and the rest involved with this decision have no respect for private property and she should not be on the court.

CR

[Tribesman]

Wouldn't a strict reading of this passage lead one to believe that the government can take away your land without just compensation, as long as it's not for public use?

Only if you are a strict constitutionist

[ICantSpellDawg]

Okay, here's the worst and most troubling thing about Sotomayor; her ruling with the majority in Didden v. Village of Port Chester on the Second Circuit Court in 2006. It was a property rights vs eminent domain ruling like Kelo v New London, but a far worse assault on individual rights:



A more recent review with respect to Sotomayor:


Some legal opinions on that specific case can be found here, here, and here:


This woman and the rest involved with this decision have no respect for private property and she should not be on the court.

CR

I'm not sure that she is an enemy, CR. If Democrats think that people like Sotomayor are what the right is afraid of, keep them coming while you're in office. I'll give her a try - I won't attack out of hand.

Sotomayor did not come out of left field, either figuratively or literally. We need to save our energy for the battles that can or should be fought. People should bring up the fact that the Judiciary is not where laws are meant to be made, but be civil and recognize that this is a centrist gesture. Go with grace for this appointment (she is replacing the everlasting disappointment Souter afterall) and drop the hammer at the next one. All of the recent Presidents have had at least 2 nominations and Republicans have appointed half of the worst ones. We're our own worst enemies sometimes.

[Seamus Fermanagh]

I wouldn't be entirely surprised if the GOP staged a brief filibuster just to force Specter to vote publicly with the Dems against his old party (to aid a challenger in PA). Doubt they'll vote seriously against her, though, unless somebody uncovers something surprising.

[Lemur]

Mr. Limbaugh is being reserved and thoughtful, as always:

Do I want her to fail? Yeah. Do I want her to fail to get on the court? Yes. She'd be a disaster on the Court. Do I still want to Obama to fail as President? Yeah, -- AP, you getting this? He's gonna fail anyway, but the sooner the better here so that as little damage can be done to the country.

[Hosakawa Tito]

Like, did she pay all her taxes?

“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,” said Judge Sotomayor, who is now considered to be near the top of President Obama’s list of potential Supreme Court nominees.

Justice is supposed to be blind. Sotomayer's own words seem to indicate that she will seek to promote policy from the bench, not the application of the law.

Imagine the uproar if at Chief Justice Roberts confirmation hearings he made a similar statement,
“I would hope that a wise Latina woman white man with the richness of her his experiences would more often than not reach a better conclusion than a white male Latina woman who hasn’t lived that life,” said Judge Sotomayor Roberts, who is now considered to be near the top of President Obama’s Bush's list of potential Supreme Court nominees.

Smacks of racism to me. Don't know her honor at all, but I'd be interested in examining her judicial decisions. I wouldn't be surprised to find plenty of rebukes, appeals, and overturns. The Republicans will cave in in fear of alienating the Hispanic vote.

[CountArach]

Mr. Limbaugh is being reserved and thoughtful, as always:

Do I want her to fail? Yeah. Do I want her to fail to get on the court? Yes. She'd be a disaster on the Court. Do I still want to Obama to fail as President? Yeah, -- AP, you getting this? He's gonna fail anyway, but the sooner the better here so that as little damage can be done to the country.

Also from Rush...

"So, here you have a racist. You might want to soften that and you might wanna say a reverse racist. And the libs of course say that minorities cannot be racists because they don't have the power to implement their racism. Well, those days are gone because reverse racists certainly do have the power to implement their power. Obama is the greatest living example of a reverse racist and now he's appointed one."

And I'm just going to save the Conservative side of this site time and give them the official Republican talking points

And for those wo are interested current Senators voted 35-11 in her favour during the vote to confirm her in 1998. That list includes several Republican names, such as Snowe, who are likely to side with the Dems.

[Sasaki Kojiro]

Justice is supposed to be blind. Sotomayer's own words seem to indicate that she will seek to promote policy from the bench, not the application of the law.

Justice isn't blind. To say that people are biased and not impartial, and that someones background will have an effect on the rulings they make is common sense.

“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,” said Judge Sotomayor,

When the court was ruling on the slavery, would a wise black man with a rich experience have been able to reach a better conclusion than a white man who hadn't lived that live?


The reaction to this quote is way overblown and misses the point. Let's say you have two candidates for NFL commissioner. One claims he isn't a fan of any football team and will be completely impartial. The other says she is a fan of a football team and will be as impartial as she can. Who do you pick? One is lying and the other isn't...


One would need to make an extensive study of ms sotomayor to see to what degree she believes in ruling from the bench. To dismiss her without doing that is to show the very bias you would accuse her of...

[Xiahou]

Justice is supposed to be blind. Sotomayer's own words seem to indicate that she will seek to promote policy from the bench, not the application of the law.

She clearly falls solidly in the pro-affirmative action column. I disagree with her on this- I think the government has no place granting anyone special treatment based on their race, no matter who well-meaning that you think it is. Sotomayer, and others, disagree with me and think that it's acceptable.....

I'm not wild about Sotomayer, but as other's have mentioned- she's replacing Souter, so she really can't be much worse. But I knew we were in for a treat when, during her introduction, Obama listed her "saving" of baseball as one of her major achievements.

[CountArach]

Norm Coleman chimes in. He is truly a master comedian.

"When debating judges, I was firm that I would use the same standard to evaluate judges under a Democrat President as I would a Republican President. Are they intellectually competent, do they have a record of integrity, and most importantly, are they committed to following the Constitution rather than creating new law and policy. When I am re-elected, I intend to review Judge Sotomayor's record using this process. Certainly, the nomination of a Hispanic woman to the nation's highest court is something all American's should applaud."

[Alexander the Pretty Good]

When the court was ruling on the slavery, would a wise black man with a rich experience have been able to reach a better conclusion than a white man who hadn't lived that live?

I don't need to have experienced slavery to know it's wrong. No one does.

[Sasaki Kojiro]

I don't need to have experienced slavery to know it's wrong. No one does.

Then how come it existed?

[Xiahou]

I don't need to have experienced slavery to know it's wrong. No one does.

Really, that shouldn't matter. Judges are supposed to rule on a matter's legality under the Constitution. They are not supposed to be moral arbiters, deciding rights from wrongs. That's a slippery slope that we shouldn't be on.

There's a reason that the statues of justice wear a blindfold- justice is supposed to be blind. Someone's race, social status or bank account should have no bearing on the applicability of the law.

[Sasaki Kojiro]

Really, that shouldn't matter. Judges are supposed to rule on a matter's legality under the Constitution. They are not supposed to be moral arbiters, deciding rights from wrongs. That's a slippery slope that we shouldn't be on.

There's a reason that the statues of justice wear a blindfold- justice is supposed to be blind. Someone's race, social status or bank account should have no bearing on the applicability of the law.

They aren't blind. Someone who claims to be is lying. And the quote from sotomayor speaks more of knowledge and experience in certain situations. Would you approve of replacing the supreme court justices with an advanced AI that could strictly analyze the constitution? Or is human experience necessary?

I'm sure there are better criticisms of sotomayor than that.

[Xiahou]

And the quote from sotomayor speaks more of knowledge and experience in certain situations.

Which situations would being a hispanic women make her a better judge than a black women, or a white man?

[Sasaki Kojiro]

Which situations would being a hispanic women make her a better judge than a black women, or a white man?

I can't think of any. I doubt there are any of significance. Presumably that was in the context of her speech, which sounds like it was one of the silly uplifting speeches people give at those events.

So all in all, a big red herring

[ICantSpellDawg]

Who cares if she said that.
Lets say that I believe white males should have a prominent role in governement because I am one. I think that they also tend to have a better understanding of what having money and power is like, so they might make more practiced decisions regarding the use of those things. There, I said it. Everybody wants to be in power and they project what they like about them selves onto people who remind them of themselves. People are biased and they say things that they don't mean 100%. Everyone thinks that they know what is right and that other people, particularly those who are very different from them, wont be as sensitive to close to home issues.

I get it. We arn't omniscient - we all bring unique insights to the table ESPECIALLY when those insights are honed after years and years of individual experiences. I'd make better decisions about repairing a mechanical watch than most everyone here.

People have different angles. Nothing that I have seen or read about would disqualify this woman from being a justice. I say lets just lay down for this one.

[Alexander the Pretty Good]

Then how come it existed?

For the same reasons that any injustice exists. I mean, there were abolitionists around at the time, and they could see it was wrong even though they never personally experienced it, either.

I don't see what your question proves, if anything.

@ Xiahou - you're right. The Constitution's never been about justice.