Sotomayor Hearings

[magellan01]

@John_Mace

That was partially a joke (didn’t you notice the laughter), but it was also taken out of context as she was comparing the experience of being on the court of appeals with being a prosecutor (or some other legal function).

I don’t think it was a joke at all. The laughter seems to come from her following statement, about how she “shouldn’t say that”. I thought the laughter compounded the problem.

[John_Mace]

@Diogenes_the_Cynic

Anyway, I thought conservatives were upset at her for NOT changing the law in the firefighter case.

Yes and no. Conservatives are upset that she didn’t find the law (or the application of that particular law) to be in violation of the constitution, but my understanding is that she was pretty much just holding up the precedent set by the SCOTUS at that time. So, what they were really upset about (even if they didn’t understand the process) was that she wasn’t setting a new precedent at the AC level, which is something conservatives should generally not advocate. That is, if they are being consistent.

[Bricker]

@magellan01

I think she will be confirmed, but do her statements here give you pause?

Not really.

Look, I believe that substantive law and policy should be made by elected officials, not by unelected judges with lifetime appointments. I always have.

But it’s undeniable that many others don’t agree with this view: they see the judiciary as a vehicle to enact social change. I don’t agree, but I cannot say their view is categorically wrong or unprincipled – just unwise. But elections have consequences. We elected a man who believes in the latter view of the judiciary. he’s selected someone who, to the extent she has this view, has been remarkably circumspect about using it. Moreover, i don’t believe the “advice and consent” the Senate must offer should extend to substituting their own views for those of the President. The Senate should answer, “Is she qualified?” not “Is she the one I’d pick?” She is undoubtedly qualified. If the American people don’t want a jurist with this sort of philosophy selected, they have a ready remedy in November 2012.

[UltraVires]

@Bricker

This is absurd. There is no principled reason that I am aware of to oppose her.

I agree. She’s not who I would have picked, but she’s qualified and a hell of a lot better that some others that Obama could have picked. I vote yes.

[Whack-a-Mole]

@magellan01

I think she will be confirmed, but do her statements here give you pause?

This again?

Richard Parker gave an excellent answer to this “policy” thing a few months ago. I hope it is ok to copy it here again in full (click on the arrow to the right of his name below to go to thread where he posted this):

@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.

[Gangster_Octopus]

@Bricker

This is absurd. There is no principled reason that I am aware of to oppose her.

Let me explain politics to you…

(I keed, I keed)

[Polycarp]

Deleted – somebody already took care of what I suggested. :o

[DSYoungEsq]

@Bricker

This is absurd. There is no principled reason that I am aware of to oppose her.

She wasn’t chosen by a Republican President. What more principled reason need they?

[ElvisL1ves]

@Bricker

We elected a man who believes in the latter view of the judiciary.

We have done that in *every *election for quite some time. Sometimes candidates claim the opposite, but most of us recognize (as do most of the target audience) that “judicial restraint” is just dogwhistle code.

The view that the judiciary is part of the government, with a role in policymaking, on par with the executive and legislative was settled in Marbury. Or so those of us burdened by lesser educations have been trained to think.

[BrainGlutton]

@Diogenes_the_Cynic

She hasn’t answered a question yet. They’re all just giving opening statements. Pretty predictable stuff so far. The Dems are praising her, and the Republicans are calling her a racist.

After they way that backfired in Limbaugh, etc., I thought they were gonna drop that shit and focus on her rulings.

[Whack-a-Mole]

@BrainGlutton

After they way that backfired in Limbaugh, etc., I thought they were gonna drop that shit and focus on her rulings.

Backfired?

So much of what the fringe right says “backfires” on them with those paying attention.

What they say however plays wonderfully to those in their echo chamber and that is all they care about. The likes of Limbaugh probably considers his utterances to be failures if they didn’t get the left in a froth pointing out the stupidity of what he said. Certainly a simple metric for him to use.

[Captain_Amazing]

@Bricker

Moreover, i don’t believe the “advice and consent” the Senate must offer should extend to substituting their own views for those of the President. The Senate should answer, “Is she qualified?” not “Is she the one I’d pick?” She is undoubtedly qualified. If the American people don’t want a jurist with this sort of philosophy selected, they have a ready remedy in November 2012.

I disagree. Not about Sotomayor particularly, but about the view you’re expressing here, generally. The people elect the President, yes, but they also elect the Senate, and I don’t see the reason they should subordinate their views to his. If the founders had wanted the Senate to just rubber stamp the President’s picks, they didn’t have to put the advise and consent language in there at all. If their only role is to see if the nominee is qualified, then put that specifically on them? The president must have thought the nominee was qualified before appointing them. So why give the Senate last say on that if you don’t also give the Senate last say on whether the nominee’s views are acceptable.

And would you extend the same principle to treaty ratification? That also requires the advice and consent of the Senate. Should the Senate, in deciding whether to pass a treaty or not, not take into account whether the treaty would be good for the country?

[Diogenes_the_Cynic]

There’s a difference beween considering what’s good for the country, and focusing only on partisan ideology.

[Whack-a-Mole]

@Captain_Amazing

The president must have thought the nominee was qualified before appointing them.

Two words: Harriet Miers

ETA: (Although to be fair Bush might have been dumb enough to think she was actually qualified)

[Richard_Parker]

There is a middle ground between rubber-stamping and screening a nominee based on her views of how the law should be. That middle ground is assessing a candidate’s judicial temperament, intelligence, collegiality, and experience. I include in judicial temperament faithfully adhering to the candidate’s good faith judicial philosophy. Those are factors of qualification about which the Senate and President may disagree. I think certainly all of those are valid grounds for disagreeing with the President’s pick.

Judicial philosophy is a closer call. Some judicial philosophies must be grounds for rejecting a candidate. If the candidate wants to decide cases based on policy preferences, for example, I think that is a valid reason to reject that candidate. I think it’s reasonable to say that fights over textualism vs. originalism vs. living constitutionalism are enough part of the mainstream of legal thought that it is dangerous to start rejecting candidates on those grounds. But not really because rejecting a candidate’s judicial philosophy is per se inappropriate. Rather, because these philosophies lead to predictable results and may form a proxy for a Senator rejecting a candidate because the Senator has a particular policy view.

If I were a Senator, I would vote for cloture if the candidate met my standards of judicial temperament, intelligence, collegiality, and experience. I would vote for the candidate if she fell within the mainstream of judicial philosophies.

[Birdmonster]

Today has been somehow more asinine than the first day of the Alito hearings. I wasn’t sure that was possible.

I take a different view than Bricker regarding the SCOTUS (that they do and in fact should enact social change), though I can’t say from what I’ve read about Sotomayor that she’ll be overly inclined to do so. Not that these hearings will actually flesh any of that out, of course. I always enjoy Dahlia Lithwich’s take on the goings on in the high court and, as usual, she pretty much sums up the ridiculous theatre we’ll be not enjoying this week.

[Birdmonster]

Small addendum (missed the ETA window) I really liked Richard Parker’s thoughts here. Seconded.

[Captain_Amazing]

@Diogenes_the_Cynic

There’s a difference beween considering what’s good for the country, and focusing only on partisan ideology.

Is there? Isn’t someone’s ideology what they think is good for the country?

[Captain_Amazing]

@Richard_Parker

There is a middle ground between rubber-stamping and screening a nominee based on her views of how the law should be. That middle ground is assessing a candidate’s judicial temperament, intelligence, collegiality, and experience. I include in judicial temperament faithfully adhering to the candidate’s good faith judicial philosophy. Those are factors of qualification about which the Senate and President may disagree. I think certainly all of those are valid grounds for disagreeing with the President’s pick.

Yes, but the President in selecting the nominee no doubt considered the nominee’s views of how the law should be. Why does the President have that right but not the Senate? It’s my position that the Senate has and should have the right to accept or reject nominations for whatever reason they see fit.

[Whack-a-Mole]

@Captain_Amazing

Yes, but the President in selecting the nominee no doubt considered the nominee’s views of how the law should be. Why does the President have that right but not the Senate? It’s my position that the Senate has and should have the right to accept or reject nominations for whatever reason they see fit.

Technically that is the case today (and always has been). I assume that the Senate can give a thumbs down with no reason whatsoever if they wanted. Maybe they dislike her hair style.

That said one can hope government won’t devolve that far. Your way seems to remove the President from the choice almost completely. Basically the Senate just gives a thumbs down to anyone the President nominates till he chooses the one the Senate tells him to choose.