Smooth sailing for Sotomayor?

[Starving_Artist]

@Richard_Parker

The full video is here, if you want the context (though clearly you weren’t interested in the full context before leaping to judgment).

She was talking to students about jobs and clerkships. She noted that if you want to work for “legal defense funds”–which is shorthand for impact litigation organizations–an appeals court is the place to get relevant experience. Impact litigation is the practice of bringing certain cases not for the effect on a particular client, but for the effect on the law and ultimately on public policy. From the NRA to the NAACP, many organizations seeking political change also do so by means of impact litigation. The DC guns case (Heller) is a classic example of this. Clients are carefully selected, and the case is managed and timed to present the best possible argument for a change (or a beneficial clarification) of the law.

Impact litigation focuses on getting into appellate courts, and that tends to be where the real battles lie, because the effect of a win in the district court doesn’t have the kind of impact that an appellate court has. Additionally, anything that is in a gray enough area of law to be good fodder for impact litigation will almost inevitably be decided by an appellate court. By virtue of working with more complicated, less settled issues, appellate courts also have to employ more subjective judgment. They have less precedent to rely on. They make law in a very real sense, and that law usually has important policy consequences. In that sense, they make policy.

You’re confusing “making policy” with deciding disputes based on policy. Courts undoubtedly make policy, as Sotomayor states. But that doesn’t mean that judges decide based on policy preferences. She’s merely saying that if you want to work go work for any of the dozen or so elite impact litigation organizations, it is very useful to have experience working for appellate judges to understand how the appellate court works, how appellate judges make decisions, etc. She’s giving good and true advice.

What you mistake for embarrassment is nothing of the kind. She’s recognizing that while her audience understands her meaning plainly since as law students they understand the context, the wider public might misunderstand what she means by making policy (especially if the quote is taken out of context). She is saying something that every lawyer knows, even if they don’t admit it, so she sort of does so with a little wink and a nod and an acknowledgment that in the age of shrill cries of judicial activism, people will likely misunderstand what she means when she says appeals courts make policy.

I don’t have time to go into it right now and there are areas where I would disagree, but I do thank you for the explication.

[furt]

@Bricker

How do you feel about her abortion program funding ruling? How does that square with the “solid liberal” view?

“Solid liberal” does not equate to “liberal on every single case she ever ruled on.”

Are you going to dispute my characterization that she can be “counted on to vote with Stevens and Ginsburg and against Thomas and Scalia the large majority of the time, and who has little chance of giving Obama reason to regret the pick?” Or are you just gonna play the “look, I can find a case I think you hadn’t heard of” game?

[Diogenes_the_Cynic]

She was a Bush Sr. pick before she was a Clinton pick. That makes me wonder how “solidly liberal” she is.

[Simplicio]

@Diogenes_the_Cynic

She was a Bush Sr. pick before she was a Clinton pick. That makes me wonder how “solidly liberal” she is.

Well, Souter was a Bush Sr pick to.

[Kimmy_Gibbler]

@furt

“Solid liberal” does not equate to “liberal on every single case she ever ruled on.”

Are you going to dispute my characterization that she can be “counted on to vote with Stevens and Ginsburg and against Thomas and Scalia the large majority of the time, and who has little chance of giving Obama reason to regret the pick?” Or are you just gonna play the “look, I can find a case I think you hadn’t heard of” game?

Why does asking “In this case, the nominee took an unexpected position. Does that change your assessment?” count as game playing? It seems like a fair question to me.

If you’d prefer no such follow-ups in future political threads, I’ll keep a notebook called “Furt’s Viewpoints”. You’ll announce your position on a given topic, and I will write it down there. Then we’ll promptly move on to other people’s posts. Would that be more to your liking?

[Fotheringay-Phipps]

My impression is that at the entry level to the federal bench, ideology doesn’t count for nearly as much as it does at the upper levels. Possibly this is because the prospective appointees don’t have as much of a track record, possibly because there aren’t enough ideological soulmates to go around, possibly because people feel the lower courts aren’t that influential anyway, or whatever other reason. But I’ve noticed that a lot of judges have records of having been appointed early on by people of the opposing ideology.

More knowlegable people can correct if this is wrong.

In the case of SS, she was appointed by GHWB, but was sponsored for that appointment by D. Moynihan. I would imagine the fact that GHWB appointed her doesn’t say a whole lot.

[Mr.Moto]

Because home state Senators can have an outsize impact on the process by “blue-slipping” a nominee, during the Bush I administration (as at other times) appointments of Democrats were made to the district bench so that Republican nominees could get fair consideration.

This was done with Sotomayor - who could fairly be called a Bush appointee - but this was an accommodation to Senator Moynihan.

[MovieMogul]

@Mr.Moto

As for empathy, I am certainly aware of the need for it in the process. However, considering that the proper role of the Supreme Court is as a check on the other branches of federal government and the other federal courts, the role of empathy would be much more constrained there. Taking this too far would step on the responsibilities of other branches to do their part in crafting responsible legislation and policy.

Well, I figure if empathy was a non-issue for Alito and Thomas in their nomination process, it shouldn’t be an issue for Sotomayor either.

[furt]

@Kimmy_Gibbler

Why does asking “In this case, the nominee took an unexpected position. Does that change your assessment?” count as game playing? It seems like a fair question to me.

That was not the question. The exact words were “How does that square with the “solid liberal” view?” Bricker knows perfectly well that it is quite possible to square one (or even two or three) conservative opinions with the idea that someone is still a “solid liberal,” or vice versa; nonetheless he seemed to me to be implying that one ruling was supposed to change my overall impression of her.

Trent Lott and Elizabeth Dole vote “liberal” fully 20% of the time. (cite). I nonethless have no problem and see no insult in calling them “solid, garden-variety conservatives.”

[DSYoungEsq]

Her voting record on the Bench is not consistent with “solidly Liberal.” She is willing to vote in a way that would be consistent with Scalithomasberts at times. Obviously, the President doesn’t think that she will be so likely to do so that she will end up Warrenizing on him.

furt, you have short memory. Justices Brennan and Marshall were solid liberals. No one on the Court since they left has been a “solid liberal.”

Which is not to say that there aren’t those who are generally liberal.

[Johanna]

@Marley23

No. There are 99 Senators right now, which means it takes only 59 to break a filibuster.

Three-fifths of 99 is 59.4 – so if I understand the rules correctly, 59.0 doesn’t cut it. It’s still 60 as long as we’re using whole senators.

[Hentor_the_Barbarian]

I’m getting the sense that the right’s little “empathy: bad” trial balloon has gone down in flames.

Seems like a record, but it could be that their footsoldiers were just too ignorant on the topic for it to gain traction.

[furt]

@DSYoungEsq

furt, you have short memory. Justices Brennan and Marshall were solid liberals. No one on the Court since they left has been a “solid liberal.”

Meh. Now we’re splitting hairs about who is “solid” vs. who is “lockstep” vs. who is “predictable” or whatever you want to say.

Put it this way: One statistical analysis of the Rehnquist court’s votes came up with these mathematical expression of the voting patterns.

Stevens -0.445911
Ginsburg -0.367567
Breyer -0.327401
Souter -0.3127
O’Connor 0.104212
Kennedy 0.174192
Rehnquist 0.304502
Scalia 0.403145
Thomas 0.405752

To my view, I’d say that’s three “solid” conservatives, two conservative “leaners” three “solid” liberals, plus Souter who apparenlty tends to vote with the liberals, but as I understand is usually regarded as actually being kind of an anamolous.

IMO, there’s nobody on the court that can credibly be called an extremist, and I don’t think Sotomayor will be either.

[Captain_Carrot]

Oh, give me a break. Scalia and Thomas are two of the most conservative Justices ever.

[elucidator]

For the sake of brevity, you really need not say “and Thomas”. Redundant.

[El_Gui]

@ArchiveGuy

Well, I figure if empathy was a non-issue for Alito and Thomas in their nomination process, it shouldn’t be an issue for Sotomayor either.

But IOKIYAR!

Seriously, though, I wonder if the media will compare Sotomayor’s commentary with what was similarly said by Thomas and Alito during their confirmation hearings.

I won’t hold my breath.

And, were are supposed to pronounce her name as SotoMAYor, 'cause the other way just sounds so un-emrcan.