Monday, July 13, 2009

Understanding Sotomayor's action in Ricci: enter intrigue

Sonia Sotomayor is not a bad human being. She is personable, and would be agreeable company at dinner, or when sharing a beer.

She is, to be sure, a blowhard in the mode of Joe Biden. I think of Sotomayor and Biden - both Obama choices, btw - as being quite similar. Both LOVE the sound of their own voices. Neither are good listeners. Neither are skilled at logical consistency. Both tend towards exaggeration, and towards understanding and reasoning which does not align with truth.

I sense, in both, an insecurity about their own intellectual heft. Both compensate with skillful bluster and massive chutzpah. Admirable, on own terms. Excellence, even at bluster and chutzpah, deserves acknowledgement.

Were I to sit with Biden and Sotomayor over beer, I would fully enjoy their companionship. I would prefer their company over that of many other public personalities. I feel personal warmth towards them, even as their professional actions leave me cold and steely.

Regarding confirmation onto the U.S. Supreme Court: Sonia Sotomayor does not believe justice is blind, and therefore ought not be confirmed.

If she is not rejected, no nominee ought ever be rejected, except in cases of outright corruption. "Consent of Congress" ought be a rubber stamp.

Sotomayor will spend this week explaining all the reasons she believes Justice truly is blind. She will be personable and charming, as she truly is in real life. Yet, the hearings will be one of those: Whom do we believe? Sonia Sotomayor or our own eyes? situations. Her actions and her record will hopefully speak louder than her words and her charm.

Yet, it seems highly likely she will be confirmed. Who knows, by the end of the week, she might have Repub Senators and America eating out of her affirmative action hands. Therefore, Repubs ought use her confirmation hearings to highlight the importance of original intent and of judicial modesty; ought use her confirmation hearings to highlight the hypocrisy of racial quotas; to highlight the costs and the victims of racial quotas.

Also, we ought remember Melissa Clouthier's advice to not be distracted by dogs and ponies: Focus People: It’s Health Care & Cap-n-Trade:
Focus. The whole of the future of America rests on the decisions the next couple weeks. After this, President Obama will have spent his arsenal. Democrats are looking for reelection and need time and space between these votes because people are going to be furious when the reality of the taxes and reduced benefits hit their lives.
The people must rise up now and stop them....


Ricci: bullying and intrigue

What motivated Judge Sotomayor's bullying action of trying to stealthily sweep Ricci under the rug; of trying to hide it where it would die a lonely death? Ignorance, maybe. Either conscious or unconscious malice, definitely.

Judge Sotomayor tried to hide Ricci v New Haven in a way which would preclude an en banc hearing by the full Second Circuit Court; tried to hide Ricci v New Haven in a way which would dissuade Ricci from appealing to the U.S. Supreme Court; in a way which would dissuade the U.S. Supreme Court from taking a close look at the issues of Ricci, and which would persuade the SCOTUS to deny Ricci an opportunity to be heard. Sotomayor tried to hide Ricci via
[issuing] an unsubstantiated summary judgment - reserved for situations wherein NO reasonable jury, properly applying the law, could find for the non-moving party. In essence, a summary judgment is saying that there is no issue of law, that no reasonable group of people could possibly disagree. It is a statement, in essence, that this one is a no-brainer. (link)
At National Journal, Stuart Taylor explains the practical ramifications in "How Ricci Almost Disappeared":
The reason is that by electing on Feb. 15, 2008, to dispose of the case by a cursory, unsigned summary order, Judges Sotomayor, Rosemary Pooler and Robert Sack avoided circulating the decision in a way likely to bring it to the attention of other 2nd Circuit judges, including the six who later voted to rehear the case.

And if the Ricci case -- which ended up producing one of the Supreme Court's most important race decisions in many years -- had not come to the attention of those six judges, it would have been an unlikely candidate for Supreme Court review. The justices almost never review summary orders, which represent the unanimous judgment of three appellate judges that the case in question presents no important issues.

The 2nd Circuit and other appeals courts hear cases in three-judge panels, which almost always write full opinions in all significant cases. Those opinions, which are binding precedents, are routinely circulated to all other judges on the circuit, in part so that they can decide whether to request what is called a rehearing en banc by the entire appeals court.

Not so summary orders. They do not become binding precedents, and in the 2nd Circuit they are not routinely circulated to the judges except in regular e-mails containing only case names and docket numbers. Those e-mails routinely go unread, on the assumption that all significant cases are disposed of by full opinions, according to people familiar with 2nd Circuit practice.

In any event, any 2nd Circuit judge who had chanced to find and read the panel's summary order in Ricci would have found only the vaguest indication what the case was about.

But the case came to the attention of one judge, Jose Cabranes, anyway, through a report in the New Haven Register. It quoted a complaint by Karen Lee Torre, the firefighters' lawyer, that she had expected "'a reasoned legal opinion,' instead of an unpublished summary order, 'on what I saw as the most significant race case to come before the Circuit Court in 20 years.'"

According to 2nd Circuit sources, Cabranes, who lives in New Haven, saw the article and looked up the briefs and the earlier ruling against the firefighters by federal district judge Janet Arterton. He decided that this was a very important case indeed, and made a rare request for the full 2nd Circuit to hold an en banc rehearing.
(In response to an e-mail from me, Cabranes declined to comment.)

Cabranes, like Sotomayor a Clinton appointee of Puerto Rican heritage -- and once a mentor to her -- was outvoted by 7-6, with the more liberal judges (including Sotomayor) in the majority. But by publishing a blistering June 12, 2008, dissent Cabranes brought the case forcefully to the attention of the Supreme Court.

By that time, Torre had filed a petition for certiorari with the court, a fairly unusual move in a case involving impecunious clients because of the long odds against success. Those odds seemed especially long in this case. Not only had the panel branded it as insignificant, but the justices usually review cases to resolve conflicts among precedents set by different appeals courts -- and a summary order sets no precedent.

Enter Judge Cabranes. In his dissent, he accused the Sotomayor panel of having "failed to grapple with the questions of exceptional importance raised in this appeal," and he urged the Supreme Court to do so. He stressed that despite the unusually long and detailed briefs, arguments and factual record, the panel's "perfunctory disposition" oddly contained "no reference whatsoever to the constitutional claims at the core of this case." Cabranes also suggested that the case might involve "an unconstitutional racial quota or set-aside."

Some of the seven judges who voted to deny rehearing, including Sotomayor, responded that (among other things) the panel's decision had been dictated by past 2nd Circuit precedents. Cabranes disputed this.

Previous End Zone:

Sonia Sotomayor Rejects Lady Justice' Blindfold

John at Powerlineblog:
"Short of writing 'get whitey,' it's difficult to imagine how Judge Sotomayor could have fouled up the Ricci case any more than she did."

Michael Barone, on the backroom political machinations which resulted in Ricci vs. New Haven:
Such is [reverse discrimination] governance these days in a liberal university town. It may remind some of us old enough to remember of the machinations and contrivances of Southern white officials and agitators employed to prevent blacks from registering and voting.
Bazelon and Sotomayor, who voted to uphold the city's decertification of the promotion test, are typical of liberal elites who are ready to ratify squalid political deals -- and blatant racial discrimination -- in return for the political support and the votes that can be rallied by the likes of [local political activist] Kimber. You supply the numbers on Election Day, and we'll supply the verbiage to put a pretty label on your shenanigans.

Ann Coulter explicates with excellence: "So Much For Wise Latinas"

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