The New Republic

my position: anyone qualified but sotomayor

- basman

May 20, 2009 at 5:13pm

She's been all over the map: public school, private school, the West, East, the Plains, public positions, private firms, professor, visiting professor...

And she's from Colorado.  Smells good to me.  

- dylanposer

May 20, 2009 at 5:19pm

I'm very angry that its not a white man.

- mmathog

May 20, 2009 at 5:55pm

basman, what is the hang up with Sotomayor? As to me, I am not going to pretend I am remotely qualified to say who is best.

- blackton

May 20, 2009 at 6:39pm

If Obama's goal is to appoint a moderate with the ability to sway Kennedy so that there are more liberal 5-4's (and that's not a stupid goal), then you have to look at Elena Kagan very hard. It is possible that the court's balance at this time recommends someone with the capability of suasion. Kagan is not a "liberal lion," but she might provide the type of reasoning and temper that could win over a center-right guy like Kennedy for the foreseeable future and thereby transform SCOTUS. I use the the term transform loosely in this sense. One "vote" is key in this context. Does that make her a wasting asset maybe. But I highly doubt that she would drift right once appointed. Nothing suggests that she would.

- propositionjoe

May 20, 2009 at 7:38pm

She sounds wonderful, especially for some things I really hope for: a state school lady from the west.  I look forward to learning more.

I so appreciate these leaks, they make my day.  Go dark horses go.

- Wandreycer1

May 20, 2009 at 8:18pm

...I am not going to pretend I am remotely qualified to say who is best...

I don't have to pretend: I am remotely qualified.

Not: I'm just another slob venturing his half baked opinions.

My dislike for her is for the following reasons: a bunch of people working around her and who appear before have said  she is mean spirited on the bench, gives counsel before her a hard time, tends to be prickly and intolerant and impatient and cutting to counsel,and is not as smart as she may think she is. That's one of the the last qualities you want in a judge--lack of judicial temperament. That reporting about her by Rosen was confirmed by a friend of mine who is involved in a huge case a with cross border issues. In the result he is in frequent contact with good New York litigators who appear before her regularly and and who told my firend she's everything Rosen reported and worse. She is by their account *terrible* to appear before. What I understand is that she is a run of the mill appellate judge, smart enough all right, but without the overarching intelligence of a Breyer or Scalia. I heard her speak on a panel on the issue of judges making policy. She was cringe inducing in saying judges don't but ,nudge wink, really we do as if she was letting insiders know the way it is even as she mouths right surrounding cliches to appear judicial. and to conform to what those "out there" think a judge shoould be.  And for now, finally, she for mr has to answer for her disgraceful role in the Second Circuit  majority's en banc decisiion in Ricci just argued in SCOTUS. What the majority did was outrageous and that was made explicit and disaggregated by Cabranes in a great dissent. Not for nothing, based in part on his dissent, did the plaintiffs get cert. She to my  distant mind has a lot of explaining to do about that.

That's it.

- basman

May 20, 2009 at 8:31pm

Oh dear Bas - well, thank you for your inside stuff, seriously.

- Wandreycer1

May 20, 2009 at 8:40pm

Digression:

How does anyone finish off a post here of any bit of length free of stupid errors in spelling and grammar and such like?

The type is so small.

It's embarrassing.

I'm embarrassed--as though I come across as semi-literate.

- basman

May 20, 2009 at 9:06pm

Wandreycer1:

Just to be clear, I was talking about Sotomayor not Arguello, who, on first whiff, sounds great.

- basman

May 20, 2009 at 9:08pm

Obama should go the route of FDR. He should try and pack the court with as many justices as he can. And given his adminstration so far he would get lots and lots of support. At least from conservatives.

Only this morning Joe Scarboro became the latest Republican to wax giddily over his policies thus far.

As for all his passionate [and progressive] followers on the campaign trail, he could throw them a bone by insisting he would nominate no one more reactionry than Anton Scalia and Clarence Thomas

Hey, I told you so, right?

I tried to remind liberals who swooned over his campaign promises, that, once president, he would toe the line with respect to 1] crony capitalism and 2] America's imperialistic foreign policy.

And [gasp!] he has, hasn't he?

Just yesterday John Cusack at Huff Post posted this:

"Like many other American progressive-types (title for sake of argument), I voted for Obama and hope every day he'll facilitate the change he promised. A big part of the change progressives interpreted that promise to mean was to bring an end to the Bush administration's "War on Terror." The White House no longer uses the term -- but how much of a break has the new administration really made?

"I am not condemning his entire presidency -- nor am I debating it, and I would not debate his goodness as an individual man. I'm arguing that so far his administration has failed to resolve (by reversing) a massive constitutional and moral crisis which has resulted in the brutalization of thousands."

george:

I believe you are going to see a lot more of this over the next months. Cusack is disgruntled because he actually took candidate Obama AT HIS WORD!!!

It will be curious to see how other celebrities [from Oprah Winfrey to Bruce Springsteen] either rationalize Obama's backsliding or confront him head on for the fraud that was the campaign promises.

Obama will probably please them with respect to social issues----abortion, stem cell research, gay rights etc. But with respect to core economic and foreign policy agendas, he toes the line of America's ruling class.

His administration to date is bascially Bush Lite, right?

george walton

- iambiguous

May 20, 2009 at 10:46pm

bas:

How does anyone finish off a post here of any bit of length free of stupid errors in spelling and grammar and such like?

george:

Go up to"view" on the toolbar. Scroll down to "zoom-in".

Set it at 125%.

gw

- iambiguous

May 20, 2009 at 10:55pm

Basman,

Better suggestion than iambiguous's, and one I consistently fail to live up at my firm's computer when I'm working with other minutia, is to type it in Word and wait for the red squigglies tell you you've fucked up.  Plus it's got zooming funtion, too.

- dylanposer

May 20, 2009 at 11:02pm

thx for the tips re zoomng and so on.

- basman

May 20, 2009 at 11:28pm

Firefox flags spelling errors for me, and when all else fails I increase the font size in my browser window. No substitute for proper website software, but that's what we have.

And thanks again, basman, for the scoop on Sotomayor. I have no idea who Obama will pick, but I'm not going to bet against him making a reasonable choice. Betting against Obama's judgement sometimes pays off, but not too often, I think.

- JEFF FREY

May 20, 2009 at 11:49pm

I have no information about Judge Arguello other than what is posted here.  But I am skeptical of a candidate who has no experience as an appellate judge and has been a trial judge for less than six months.  As far as I can tell, Judge Arguello has no credential that would compensate for her lack of judicial experience, such as having distinguished herself as a legal scholar, a Supreme Court practitioner, or a governmental leader.  It is inconceivable to me, at least based on what I know now, that Obama would nominate Arguello in lieu of Elena Kagan, Diane Wood, Jennifer Granholm, Sonia Sotomayor or others that are on his short list.  

Wandrey, Basman is entitled to his opinion regarding Judge Sotomayor, but I would encourage you to form your own opinion by, at minimum, reading the critiques of Jeffrey Rosen's pieces on Sotomayor by Darren Hutchinson on May 4, May 7 and May 20 on the Disseting Justice site, and by Glenn Greenwald on Salon.com, starting on May 7, 2009.  Rosen's pieces were based largely on anonymous comments by some law clerks and prosecutors, on a distortion of a footnote by another Second Circuit Judge (Judge Winters), and by a distortion of a quote by Sotomayor's fellow Second Circuit Judge Jose Cabranes.  You will see from the hundreds of comments on TNR responding to Rosen, as well as from Hutchinson's pieces, that there are different views about Judge Sotomayor than those reflected by Rosen and Basman.  With all due respect to Basman, his views about Sotomayor's temperament and intellect appear to be based largely on Rosen's unsupported piece and on additional anonymous double hearsay.  

Now, the comments about Judge Sotomayor's temperament are sufficiently numerous (including some comments in the Almanac of the Federal Judiciary) that I think it is probably true that Judge Sotomayor can be cantankarous on the bench.  But one person's cantankerousness can be another person's firmness and ability to not be intimidated.  Judge Cabranes (the dissenting judge in the Ricci case) actually praised Judge Sotomayor as being "smart," and as not being intimidated by power or her brethren on the bench.  Look, a lot of lawyers engage in misconduct, fail to follow the rules and make frivolous arguments, and thereby incur the wrath of judges.  They all will conclude that the wrathful judge has a "bad temperament."  So I don't think claims of bad temperament should be used to write a candidate off until one learns more.  Indeed, we clearly do not need some wilting flower on the Court right now.

Basman, with regard to the Ricci case, I am not sure what you find "outrageous" about it.   Judge Sotomayor, along with two other Second Circuit judges, affirmed the trial court's decision in a "per curiam" opinion that largely adopted the trial court's opinion.  It was not necessarily Judge Sotomayor's opinion -- by definition a per curiam opinion is by all three judges on the panel and not attibuted to any one judge.  And, as Darren Hutchinson explains, it is not at all unusual for appellate judges to adopt trial court opinions when the appellate judge regards the trial court's opinion as thorough and well-reasoned.  The petitioners challenged the decision of the three-judge panel (which included Sotomayor) by filing a motion for rehearing before the entire bank of the 13 or so Second Circuit Judges.  The MAJORITY of the Second Circuit bank of judges voted not to reconsider the 3-judge panel's decision.  Judge Cabranes was among the MINORITY of judges who wanted to rehear the matter, and he wrote a vigorous dissent.

Now you are free to agree with Cabranes' dissent, but it is really a stretch to accuse Judge Sotomayor of behaving "outrageously" where her decision was joined by two other Second Circuit Judges and where the majority of the Second Circuit bank of judges voted not to rehear it.

- dhurtado

May 21, 2009 at 12:39am

Hurtado: I don't think you know what you are talking about!

1.

..Now you are free to agree with Cabranes' dissent, but it is really a stretch to accuse Judge Sotomayor of behaving "outrageously" where her decision was joined by two other Second Circuit Judges and where the majority of the Second Circuit bank of judges voted not to rehear it....

Anyone can read for themselves and come to their own conclusions:

"...Cabranes wrote for the dissenters, saying the appeal "raises important questions of first impression in our circuit."

The core question, he said, was this: "May a municipal employer disregard the results of a qualifying examination, which was carefully constructed to ensure race-neutrality, on the ground that the results of that examination yielded too many qualified applicants of one race and not enough of another?"

Cabranes questioned the use of the per curiam opinion issued Monday by the original panel after it had withdrawn the summary order.

He said the "use of per curiam opinions of this sort, adopting the full reasoning of a district court without further elaboration, is normally reserved for cases that present straight-forward questions that do not require explanation or elaboration by the Court of Appeals."

But the issues in this case, Cabranes said, "are indisputably complex and far from well-settled," including whether the Equal Protection Clause bars a city from discarding exam results because "'too many' applicants of one race received high scores and in the hope that a future test would yield more high-scoring applicants of other races?"

Cabranes also asked whether such a practice amounted to "an unconstitutional racial quota or set-aside," and "Should the burden-shifting framework applicable to claims of pretextual discrimination ever apply to a claim of explicit race-based discrimination in violation of Title VII?..."

from: www.law.com/.../LawArticleFriendly.jsp

And this a little sharper in calling spades spades:

"..Second Circuit Shenanigans   [Ed Whelan]

A remarkable opinion last week by highly regarded Second Circuit judge (and Clinton appointee) José Cabranes exposes some apparent shenanigans by three members of a Second Circuit panel and a district judge.  Cabranes’s opinion, joined by five of his colleagues (including Chief Judge Jacobs), dissented from his court’s narrow 7-6 denial of en banc rehearing in Ricci v. DeStefano.  

 In Ricci, 19 white firefighters and one Hispanic firefighter charged that New Haven city officials engaged in racially discriminatory practices by throwing out the results of two promotional exams.  As Cabranes puts it, “this case presents a straight-forward question:  May a municipal employer disregard the results of a qualifying examination, which was carefully constructed to ensure race-neutrality, on the ground that the results of that examination yielded too many qualified applicants of one race and not enough of another?”

 The district judge, Janet Bond Arterton, issued a 48-page summary-judgment order ruling against the firefighters.  Summarizing Arterton’s opinion, Cabranes clearly finds highly unusual that Arterton could grant summary judgment for the city officials notwithstanding her acknowledgement that the evidence was sufficient to enable a jury to find that the city officials “were motivated by a concern that too many whites and not enough minorities would be promoted.”  Further, Cabranes finds it remarkable that such a “path-breaking opinion” was “nevertheless unpublished.”  

On appeal, Cabranes’s account suggests, the judicial effort to bury the firefighters’ claims got worse.  In a case in which the parties “submitted briefs of eighty-six pages each and a six-volume joint appendix of over 1,800 pages,” in which two amicus briefs were filed, and in which oral argument “lasted over an hour (an unusually long argument in the practice of our Circuit),” the panel, consisting of Clinton appointees Rosemary Pooler, Robert Sack, and Sonia Sotomayor, “affirmed the District Court’s ruling in a summary order containing a single substantive paragraph”—which Cabranes quotes in full and which gives the reader virtually no sense of what the case is about.  Four months later, just three days before Cabranes issued his opinion (and in an apparent attempt to preempt it), “the panel withdrew its summary order and published a per curiam opinion that contained the same operative text as the summary order, with the addition of a citation to the District Court’s opinion in the Westlaw and LexisNexis databases.”  As Cabranes sums it up:

'...This per curiam opinion adopted in toto the reasoning of the District Court, without further elaboration or substantive comment, and thereby converted a lengthy, unpublished district court opinion, grappling with significant constitutional and statutory claims of first impression, into the law of this Circuit.  It did so, moreover, in an opinion that lacks a clear statement of either the claims raised by the plaintiffs or the issues on appeal.  Indeed, the opinion contains no reference whatsoever to the constitutional claims at he core of this case, and a casual reader of the opinion could be excused for wondering whether a learning disability played at least as much a role in this case as the alleged racial discrimination....

 And then this killer understatement:

            ... This perfunctory disposition rests uneasily with the weighty issues presented by this appeal....

Cabranes and his five colleagues clearly believe that the panel members—Pooler, Sack, and Sotomayor—acted as they did in order to prevent en banc or Supreme Court review of the firefighters’ claims.  [Note:  I amended the foregoing sentence on 6/17 to add the en banc point.]  Cabranes’s opinion expresses his “hope that the Supreme Court will resolve the issues of great significance raised by this case” and his judgment that plaintiffs’ claims are “worthy of [Supreme Court] review.”

It’s worth noting that the highly controversial—but not highly regarded—Sotomayor is mentioned often as a likely Supreme Court pick in an Obama administration, largely because she is Hispanic and partly because it is thought that the fact that she was nominated to the district court by President George H.W. Bush (as part of a broader deal with Senate Democrats—see point 1 here) may provide useful camouflage...."

And folks can go right to the source: www.ca2.uscourts.gov/.../06-4996-cv_opn2.pdf

The outrage is manifest in the granting of cert by SCOTUS, and which vindicated Cabranes's dissent.

She will need to explain herself here in the context of any nomination SCOTUS.

2.  She's intemperate. The lawyers who spoke to my friend plead before her. They corroborated Rosen's reporting and said worse. What do you know about it or her; whom have you spoken to? I don't know if you are a litigator. I am. You'd need to go before impatient ,bullying judges who will not give counsel the time of day to understand what a travesty such judges make of justice. The reponse of the lawyers my friend spoke to was visceral disgust, the way we talk in my jurisdiction about really terrible judges.

3. Rosen did real reporting. He spoke to many people who are in the know and gave a balanced account of what they said. It's just that the feedback was on balance bad. That the people he spoke to insisted on anonymity is entirely understandable, and is an irrelevant distraction to the the objectivity of his reporting. You just don't like what he said.

- basman

May 21, 2009 at 1:36am

I gotcha bas, I knew.

You're absolutely right dhurtado - I know people have wildly different opinions on judges and like Blackton, I'm not afraid to say I am not remotely qualified to say who is a qualified judge.

I know you'll hate this, but I'm seriously hoping for a politician anyway.  Like I said, I'd like a Western female from a state school background of some sort.  But even this is an abstraction and I know that candidates should not be judged solely on identity stuff, ugh.

I really enjoy watching here on TNR while lawyers and judges hash it out, fight, etc.  I learn a great deal.  

- Wandreycer1

May 21, 2009 at 8:31am

Wow, such condenscension Basman.  First, I currently have no opinion on whether Sotomayor would make a good Justice because I have not yet gathered sufficient, reliable, information about her.  At the time I read Rosen's first piece, I knew nothing about Sotomayor except that she was a judge on the Second Circuit.  Therefore I had no reason to not "like what he said."  I independently reacted to it as being unsupported and unfair.  I later learned that a lot of people had the same reaction to it, including not only hundreds of posters on TNR, but Professor Darren Hutchinson and Salon's Glenn Greenwald.  Those commentators pointed out that Rosen's piece was not only unsupported and unbalanced, but that it was dishonest.  Now, you are free to disagree with all of that, but let's not pretend that yours is the only resaonable or untainted view.

Second, yes, I am a litigator, and I have argued in numerous United States Courts of Appeals, including arguments in the 7th, 10th and Third Circuits (before then Judge Samuel Alito), and have observed arguments before Diane Wood, Richard Posner and Frank Easterbrook, among others.  So I understand that judicial temperament is important, but I also understand that temperament can be in the eye of the beholder, and that temperament is much less important in a Court of Appeals than it is in a trial court, where the parties may have to live with a judge for months or even years.  That said, I may eventually conclude that Sotomayor has a tempermant problem that is debilitating.  But I sense a kind of rush to judgment here that is just a bit unusual.

Regarding Ricci, despite the spin you cite, Cabranes' dissent itself does not suggest that the 7-judge majority, much less Sotomayor individually, was engaged in some type of nefarious effort to insulate the decision from Supreme Court review.  The per curiam opinion, even without a petition for rehearing, would not have prevented Ricci from petitioning for and obtaining cert in the Supreme Court.  Both the Court and the public would have the district court's 48-page opinion to review (which was adopted by the Second Circuit), and Ricci could have (and obviously did) make all the same arguments in its petition for cert as he did in his petition for rehearing in the Second Circuit.

On the other hand, one could readily infer that Judge Cabranes WANTED the case to go to the Supreme Court not merely because he thought it raised signficant issues, but because he disagreed with the result.  One could infer as much from his mischaracterization of the issue:

"May a municipal employer disregard the results of a qualifying examination, which was carefully constructed to ensure race-neutrality, on the ground that the results of that examination yielded too many qualified applicants of one race and not enough of another?"

That characterization is both disingenuous and argumentative (probably very close to the way Ricci's lawyers phrased it).  It assumes disputed facts, such as that the test was "carefully constructed to ensure race-neutrality."  But more importantly, it misstates the legal issue that was before the court, which is whether Title VII 's(federal employment-discrimination statute) prohibition on employment practices having a disparate impact, except under certain conditions, can be a defense to a claim of intentional discrimination where an employer has declined to use a test that would have a disparate impact.  The City contended that it declined to use the test for fear that it would be in violation of Title VII and would be exposed to a lawsuit by the minority firefighters.  In the face of such a lawsuit, it would have to prove that: (1) the test was job-related; and (2) there was no alternative that would have a less disparate impact.  The City purports to have determined that it could not satisfy those proofs, and therefore decided not to use the test.

Now, one can believe or assert that the City is being disingenuous, and that its real reason for declining to use the test is that it didn't like the results and wanted to promote more minorities than use of the test would permit.  But that is not the legal issue that is before the Court.  The issue is whether Title VII's disparate-impact provision is a defense.  If the Court decides that it is not a complete defense, then the case likely will have to go back to the trial court for a trial regarding the City's true motivations.  If the Court finds that it is not a defense at all, then that would put employers in a position of damned-if they-do and damned-if-they-don't.  If they use a test with a disparate impact, they will be sued by one group, and if they decline to use a test with a disparate impact, they will be sued by another group.  As Justice Souter commented at oral argument on the Ricci case, it is inconceivable that that is what Congress intended in enacting Title VII.

- dhurtado

May 21, 2009 at 2:25pm

oy vey

apologies for any condescension

no energy or will for this subject anymore.

- basman

May 21, 2009 at 4:10pm

p.s. I answered you though on the other thread about sympathy and so on, partly waving an off white flag, partly still contending with you.

- basman

May 21, 2009 at 5:32pm