Sonia Sotomayor

  • July 16, 2009
    Guest Post

    By Howard M. Wasserman, Associate Professor of Law, Florida International University College of Law 

    There is blame all around for the utter inanity of these hearings on the issue of the actual work of judging. An exchange yesterday between Sen. Coburn and Judge Sotomayor on the subject of using foreign and international is a case in point.

    At one point, Coburn asked whether anything in the Constitution granted judges permission or power to rely on foreign and international law. Coburn asked the judge to "cite for me the authority either given in your oath or in the Constitution that allows you to utilize laws outside of the country."

    The premise underlying these questions is silly. Of course neither the oath nor the Constitution says anything about utilizing laws outside of the country. But the Constitution also does not say anything about Originalism, Textualism, Living Constitutionalism, social science, canons of construction, precedent, interpretive methodology, history and purpose, or any other of the ordinary methods of judicial analysis. Article III vests the "judicial power" in the Courts of United States; enveloped within that term are all the tools by which judges interpret legal sources and find meaning, including resort to persuasive legal sources. The fact that nothing grants judges permission or power to use foreign law is meaningless, since nothing grants judges permission to look to state law (in federal cases) or to look at law review articles or to look at legislative history or to do anything that will help them interpret and determine applicable law. There is a nice question whether Congress could prohibit courts from relying on foreign or international law (Justice Scalia has emphatically said hell no; I argue the answer is different in constitutional and statutory cases). But absent a ban, judges don't need permission to do the ordinary work of judging.

  • July 16, 2009
    Guest Post

    David Kairys, a law professor at Temple University, is the author of Philadelphia Freedom, Memoir of a Civil Rights Lawyer. Kairys' other books include a leading progressive critique of the law, The Politics of Law.

    It's hard for me to watch the Sotomayor confirmation hearings, not only because of the Senators' generally unfocused, rambling questions. Conservatives and many of their most cherished values and ideas were just resoundingly defeated in an election. Congress is overwhelmingly Democratic, with 60 Democrats in control of the Senate, which will vote on the nomination. Yet, the hearings and the media coverage of them are dominated by conservatives and conservative ideas about law and justice, and a lack serious criticism of the last three decades of conservative dominance of the courts.

    I am aware of and share the priority of getting Sonia Sotomayor seated on the Supreme Court. But there is a big gap of possibility between safely doing that and the surrender we're watching.

    The senators of both parties and Judge Sotomayor often seem to be in a debate over who has the most passive vision of judging. Listening to them, one might think judges don't make decisions at all but simply write down legally required results, and have no apparent need for judgment or experience.

  • July 16, 2009
    Guest Post

    Peggy Cooper Davis, John S.R. Shad Professor of Lawyering and Ethics, New York University School of Law

    Many have expressed regret about the fact that prospective Justice Sonia Sotomayor has supported the fiction that judging is or ever could be a neutral and fully objective process. I share their concern and offer a distinction that might be helpful as we attempt to address this question more honestly.

    A judge's personal biography and status can affect decisionmaking in two ways: 1) it can sensitize her to familiar perspectives, and 2) it can distance her from perspectives that are unfamiliar. We should embrace the first effect and guard against the second, for, as James Boyd White said most eloquently, our goal in litigation should be to assure that decisionmakers consider all that can fairly be said on each side of a controversy.

    Given the make up of our judiciary, it is clear that we should welcome the addition of "wise Latinas." To deny this is to overlook the component of wisdom.

    We must never forget the words of the great African American Federal District Judge Constance Baker Motley in response to a motion that she recuse herself in a discrimination case involving, as I recall, a woman of color. They were to this effect: There is no judge in this courthouse who does not have a race and a gender.

  • July 15, 2009
    Guest Post

    By Paul M. Secunda, Associate Professor of Law, Marquette University Law School

    During the second day of the Sonia Sotomayor confirmation hearings, a telling exchange occurred between the Judge and the Senate Judiciary Committee. The exchange concerned the recently decided employment discrimination case of Ricci v. DeStefano (U.S. June 29, 2009). As some readers of this blog undoubtedly know, the case established a new test for deciding when a municipality could lawfully throw out the results of a job promotion exam because of its disparate impact on a Title VII-protected group of individuals.

    In a closely divided 5-4 opinion, which the usual suspects aligned on either side of the ledger, the Court held that the adverse impact of the test results in a New Haven firefighter promotion test that amounted to a prima facie case of disparate impact discrimination against black employees was not a defense to a disparate treatment case brought by white employees because the employer did not have a "strong basis in evidence" to believe that it would be liable for disparate impact discrimination. The majority came to this conclusion by importing into Title VII a color-blind standard from constitutional equal protection cases like Parents Involved in Community Schools v. Seattle School Dist. No. 1, 127 S.Ct. 2738 (2007) (plurality opinion).

    As Judge Sotomayor pointed out, the state of Title VII employment discrimination law at the time her Second Circuit Court of Appeals panel heard the case did not embrace the Supreme Court's eventual chosen test. Indeed, the law in this area of disparate impact cases was sufficiently established that the Second Circuit panel was able to enter a per curiam decision affirming the factually-oriented, district court decision.

    Of course, the Republican Senators on the Judiciary Committee, including Senators Sessions and Hatch, sought to portray Judge Sotomayor as an activist for joining the panel's decision in this case and attacked her on that basis. Nothing, however, could be further from the truth. In fact, whereas Judge Sotomayor followed established precedent in this area of the law, there is a much better argument that it was the Supreme Court, which relied on case precedent from non-Title VII case law to come to its surprising conclusion, that had engaged in judicial activism to reach a desired outcome in favor of the white firefighters challenging the city's decision to throw out the initial exam test scores.

    As my colleague Professor Michael Zimmer has ably demonstrated, Justice Kennedy, the author of the majority opinion in Ricci "takes an enormous leap from the first conclusion - that the City acted because it knew the ‘statistical disparity based on race'-to his second - that it rejected the test ‘solely because the higher scoring candidates were white . . . . [I]t [now] appears that an employer's conscious knowledge of the race of those affected by its decisions suffices to make out intentional disparate treatment discrimination. This appears to be a tremendous change in the law."

  • July 15, 2009
    Guest Post

    By Bernadette A. Meyler, Professor of Law, Cornell University Law School. See Professor Meyler's previous post on the Senate's Supreme Court Confirmation hearings here.

    As Senator Sheldon Whitehouse of Rhode Island astutely observed, if confirmed, Judge Sonia Sotomayor will not only be the first Latina on the Supreme Court, but will also be the sole member of that body who has served as a district court judge.

    Justice O'Connor, the first woman to be appointed to the Court, similarly brought a somewhat different legal background to her task than her colleagues. She had previously been both a state legislator and a state court judge, and commentators have often suggested that her experience in those state capacities helped shape her views on federalism and her respect for state sovereignty.

    What, then, might be the implications of a Supreme Court Justice with district court experience?

    One answer might serve to explain the conciseness of the Ricci v. DeStefano summary order that has been the subject of so much controversy, and about which Ricci himself is slated to testify. In that summary order, the three-judge panel affirmed the rationale of what it called the "thorough, thoughtful, and well-reasoned opinion of the [district] court below." During her confirmation hearing, Judge Sotomayor has emphasized the length and comprehensiveness of that district court opinion, and she has expressed respect for the efforts of the trial court. Judge Sotomayor's experience on the district court may have contributed to a view that, although the determinations of law below are not entitled to the same degree of deference as those of fact, it was not necessary to supplement or supersede the otherwise sufficient reasoning of the district court judge in the Ricci case.

    Just as those in favor of a rigorous conception of federalism place significance on local determinations, and members of the founding generation feared fact-finding in the Supreme Court because it might contravene the independence of regional juries, we might see considerable value in granting more weight to the decisions of district courts. It is, after all, the district court judge who assesses all the evidence in person, and who is best positioned to evaluate the entirety of the circumstances of the case. Confirming someone who can appreciate the vantage point of the district court judge would certainly add another welcome element of diversity to the Supreme Court.