Maybe Vargas can take heart in the fact that Sotomayor has seemingly undergone constructionist conversion since the start of the hearings. She sounds more like Roberts and Alito — except when she doesn’t know fundamental things about the law. I have mixed feelings though – - if you are going to replace Souter with a weak liberal justice who has no capacity to swing the court — Sotomayor is a good pick. If you wish to have a court that is full of excellent judges and a battleground for ideas — Sotomayor is a lousy pick. I would rather see Diana Wood on the Court than Sotomayor from an intellectual point of view as opposed to a results point of view. Call me conflicted.
@1 Sure there was fuster – -because it isn’t about law – -its about results. And the result is that the Puerto Rican guy got screwed because he was less favored than the other guys. When you start playing favorites based on empathy — that is when things like that happen. So it is completely relevant to Sotomayor’s work.
Am I the only one who finds this depressing? Two wronged men speak, and they do not just speak for themselves. They speak on behalf of far too many who are pushed aside for the connected.
And nothing happens. Polite Republican gentlemen Senators nod away and all but compliment the new Justice.
There are no consequences for this betrayal of justice.
@fuster: I thought he spoke eloquently about how he was denied a reasoned judgment. That speaks exactly to her qualifications and implicitly to her judicial philosophy. Her summary judgment in his case was a naked attempt to bury the suit. That’s terribly relevant. You don’t think the Supreme Court should have taken up the case? Clearly they thought the CofA left much to be desired in their “application” (if you can call it that) of the law.
@4 Really? Then they got spanked by the Ricci decision in which NONE of the Supremes picked up on the rationale the C of A used — including the dissenters. Does anyone know when Ricci was actually heard by the Supreme Court? If it was after Sotomayor’s nomination it was a real slap in the face that none of the lib’s on the court saw fit to bail her out. If it was before, it was a slap because no one agreed with the rationale. Either way not good.
I know an 89.7% apolitical American – pays attention around elections, otherwise much more interested in sports – who happened to overhear the other night when they were playing the Wise Latina remark in the middle of a news report, and he shouted, “What!?”
He found it incredible that she hadn’t been disqualified, and found the explanations ludicrous. A lot of polit-junkies – us and the pundits – went through this weeks ago. Millions of Americans are getting exposed to this for the first time right now.
The Rs are erring on the side of playing it soft and safe, but there are a lot of people, including some non-Caucasian guys on my block who happen to still have their American flags up, who are shaking their heads in wonderment and disgust anyway.
Barb, nok, the deal with Ricci was that the CofA judged the case by looking at way the statute was being applied and finding that there wasn’t enough to overturn.
The CoA did it’s job.
You’re confusing following the law with the idea that the law isn’t really good law. The CofA doesn’t pass the laws and it shouldn’t be the CofA that overturns laws that have been in place for years.
When it’s time for laws or the usual interpretation of laws to be acknowledged as contrary to justice, that should be done at the top of the chain.
That’s what happened here. The Supremes decided that the accepted interpretation relied upon by the CofA was no longer acceptable. This is where laws go to be remade in our system.
Sotomayor wasn’t and isn’t anyone supplying much more than what some folks used to call strict construction.
Your mischaracterization of Ricci and what the C of A did there is comical. The majority C of A ignored blatant Constitutional issues and attempted to side step via a procedural mechanism. The reason that this is relevant to Sotomayors nomination is that she failed to recognize a blatant constitutional issue which would have precluded the court from issuing the summary judgment and then per curiam opinion that was issued. Judge Cabranes calls them out on it — link below. So what in Judge Cabranes original dissent do you disagree with? Where does he confuse the idea that the law isn’t really good law? If he could recognize that the C of A was abusing its authority in trying to sweep this under the rug with a per curiam why couldn’t Sotomayor?
Yeah, fuster I think you lose this one. Is the whole legal garbage around race creatig bad law? Yep. With that as a given, were Sotomayor’s action consistent with the current rules and procedures in determining the type of decision to render? No. And on that count the Supremes ruled against her 9-0.
The Court of Appeals did not do its job correctly here. It tried to bury this issue, which had never before been decided, in a summary affirmance. That was the very reason Judge Cabranes took such a strong position in his dissent from the refusal to rehear the case en banc. Citing a fear of disparate impact as a basis for this decision was baseless. The test that was tossed had been validated and would have provided a strong defense to any such claim.
When you read Justice Alito’s concurrence, you get a real sense of what happened here. It was racial politics at its worst, and beneath contempt. Besides paying back a political favor, the city basically decided it would rather deal with claims by white and Hispanic firefighters than by its black firefighters. This is not what Title VII was intended to cover, to put it mildly.
An interesting question is what Sotomayor’s fellow 2d circuit judges think of her now. As has been pointed out by Stuart Taylor and Peter Wehner, circuit judges absolutely DEPEND on the integrity of fellow judges who issue a summary judgment. There are simply too many cases on federal circuit-court’s docket for each judge to read every published opinion, which is why so many opinions are either unpublished or come down as summary judgments. The explicit undersatnding under the court’s own rules is that if there is a prima facie argument to be made that a case is nontrivial, not moot, or not CLEARLY a matter of settled law then an opinion must be published so that the other judges may consider its implications in their own cases and so that they will no how to respond if an appeal for an en banc ehearing comes up. In the case of summary judgments, they know exactly how to respond, which is to deny a rehearing without even reading the pleadings.
Sotomayor and the other two bad actors knew exactly what the result of an unpublished summary judgment was supposed to be. They were, fortunately too obtuse or too unimaginative to foresee that another judge, in this case Cabranes, would learn about the case in an fairly improbable manner, namely, through perusing the morning paper over coffee. And who can blame them? There is nothing in the rules of the court that directs judges to be sure to go through the paper thoroughly every day in case one or more of your colleagues are trying to pull a fast one.
I’d guess that, after this fiasco, a number of her colleagues are mightily pleases she’s gone. Counterintuitively, heir gain is the country’s loss.
Comments 14
No, she didn’t. There was nothing that was relevant to Sotomayor’s work presented.
July 16th, 2009 at 11:31 pm
Maybe Vargas can take heart in the fact that Sotomayor has seemingly undergone constructionist conversion since the start of the hearings. She sounds more like Roberts and Alito — except when she doesn’t know fundamental things about the law. I have mixed feelings though – - if you are going to replace Souter with a weak liberal justice who has no capacity to swing the court — Sotomayor is a good pick. If you wish to have a court that is full of excellent judges and a battleground for ideas — Sotomayor is a lousy pick. I would rather see Diana Wood on the Court than Sotomayor from an intellectual point of view as opposed to a results point of view. Call me conflicted.
July 16th, 2009 at 11:31 pm
@1 Sure there was fuster – -because it isn’t about law – -its about results. And the result is that the Puerto Rican guy got screwed because he was less favored than the other guys. When you start playing favorites based on empathy — that is when things like that happen. So it is completely relevant to Sotomayor’s work.
July 16th, 2009 at 11:34 pm
Naw, nok. The CofA is about law. They applied it.
July 16th, 2009 at 11:39 pm
Am I the only one who finds this depressing? Two wronged men speak, and they do not just speak for themselves. They speak on behalf of far too many who are pushed aside for the connected.
And nothing happens. Polite Republican gentlemen Senators nod away and all but compliment the new Justice.
There are no consequences for this betrayal of justice.
Nothing.
July 16th, 2009 at 11:39 pm
@fuster: I thought he spoke eloquently about how he was denied a reasoned judgment. That speaks exactly to her qualifications and implicitly to her judicial philosophy. Her summary judgment in his case was a naked attempt to bury the suit. That’s terribly relevant. You don’t think the Supreme Court should have taken up the case? Clearly they thought the CofA left much to be desired in their “application” (if you can call it that) of the law.
July 16th, 2009 at 11:41 pm
@4 Really? Then they got spanked by the Ricci decision in which NONE of the Supremes picked up on the rationale the C of A used — including the dissenters. Does anyone know when Ricci was actually heard by the Supreme Court? If it was after Sotomayor’s nomination it was a real slap in the face that none of the lib’s on the court saw fit to bail her out. If it was before, it was a slap because no one agreed with the rationale. Either way not good.
July 16th, 2009 at 11:45 pm
I know an 89.7% apolitical American – pays attention around elections, otherwise much more interested in sports – who happened to overhear the other night when they were playing the Wise Latina remark in the middle of a news report, and he shouted, “What!?”
He found it incredible that she hadn’t been disqualified, and found the explanations ludicrous. A lot of polit-junkies – us and the pundits – went through this weeks ago. Millions of Americans are getting exposed to this for the first time right now.
The Rs are erring on the side of playing it soft and safe, but there are a lot of people, including some non-Caucasian guys on my block who happen to still have their American flags up, who are shaking their heads in wonderment and disgust anyway.
July 16th, 2009 at 11:52 pm
Barb, nok, the deal with Ricci was that the CofA judged the case by looking at way the statute was being applied and finding that there wasn’t enough to overturn.
The CoA did it’s job.
You’re confusing following the law with the idea that the law isn’t really good law. The CofA doesn’t pass the laws and it shouldn’t be the CofA that overturns laws that have been in place for years.
When it’s time for laws or the usual interpretation of laws to be acknowledged as contrary to justice, that should be done at the top of the chain.
That’s what happened here. The Supremes decided that the accepted interpretation relied upon by the CofA was no longer acceptable. This is where laws go to be remade in our system.
Sotomayor wasn’t and isn’t anyone supplying much more than what some folks used to call strict construction.
July 17th, 2009 at 12:04 am
Your mischaracterization of Ricci and what the C of A did there is comical. The majority C of A ignored blatant Constitutional issues and attempted to side step via a procedural mechanism. The reason that this is relevant to Sotomayors nomination is that she failed to recognize a blatant constitutional issue which would have precluded the court from issuing the summary judgment and then per curiam opinion that was issued. Judge Cabranes calls them out on it — link below. So what in Judge Cabranes original dissent do you disagree with? Where does he confuse the idea that the law isn’t really good law? If he could recognize that the C of A was abusing its authority in trying to sweep this under the rug with a per curiam why couldn’t Sotomayor?
http://www.newhaven20.com/cabranesonlydissent.pdf
July 17th, 2009 at 12:33 am
Your link doesn’t seem to work, nok.
July 17th, 2009 at 1:32 am
Yeah, fuster I think you lose this one. Is the whole legal garbage around race creatig bad law? Yep. With that as a given, were Sotomayor’s action consistent with the current rules and procedures in determining the type of decision to render? No. And on that count the Supremes ruled against her 9-0.
July 17th, 2009 at 2:19 pm
The Court of Appeals did not do its job correctly here. It tried to bury this issue, which had never before been decided, in a summary affirmance. That was the very reason Judge Cabranes took such a strong position in his dissent from the refusal to rehear the case en banc. Citing a fear of disparate impact as a basis for this decision was baseless. The test that was tossed had been validated and would have provided a strong defense to any such claim.
When you read Justice Alito’s concurrence, you get a real sense of what happened here. It was racial politics at its worst, and beneath contempt. Besides paying back a political favor, the city basically decided it would rather deal with claims by white and Hispanic firefighters than by its black firefighters. This is not what Title VII was intended to cover, to put it mildly.
July 18th, 2009 at 4:58 pm
An interesting question is what Sotomayor’s fellow 2d circuit judges think of her now. As has been pointed out by Stuart Taylor and Peter Wehner, circuit judges absolutely DEPEND on the integrity of fellow judges who issue a summary judgment. There are simply too many cases on federal circuit-court’s docket for each judge to read every published opinion, which is why so many opinions are either unpublished or come down as summary judgments. The explicit undersatnding under the court’s own rules is that if there is a prima facie argument to be made that a case is nontrivial, not moot, or not CLEARLY a matter of settled law then an opinion must be published so that the other judges may consider its implications in their own cases and so that they will no how to respond if an appeal for an en banc ehearing comes up. In the case of summary judgments, they know exactly how to respond, which is to deny a rehearing without even reading the pleadings.
Sotomayor and the other two bad actors knew exactly what the result of an unpublished summary judgment was supposed to be. They were, fortunately too obtuse or too unimaginative to foresee that another judge, in this case Cabranes, would learn about the case in an fairly improbable manner, namely, through perusing the morning paper over coffee. And who can blame them? There is nothing in the rules of the court that directs judges to be sure to go through the paper thoroughly every day in case one or more of your colleagues are trying to pull a fast one.
I’d guess that, after this fiasco, a number of her colleagues are mightily pleases she’s gone. Counterintuitively, heir gain is the country’s loss.
July 18th, 2009 at 5:26 pm