I have pretty much been silent on the Sotomayor nomination because Tom, Kevin, and the other members of the blog have been doing an outstanding job in providing useful information to our readership.  I found the multi-part coverage of Judge Sotomayor’s judicial opinions to be a particularly helpful source of information in understanding Sotomayor’s jurisprudence in a variety of areas.  Now that several days have passed since Obama announced Judge Sotomayor’s nomination to the Supreme Court, I would like to give our readers an idea of what they can expect from the remainder of the confirmation process, which is a process that I have spent the better part of a year studying from an academic perspective (including examining the history and politics of past judicial appointments), see here and here.  Some questions that I hope to answer in this post include: (1) Will Judge Sotomayor eventually be confirmed?; (2) What are the chief arguments that will be advanced against Judge Sotomayor?; and (3) Will any of those arguments gain traction with Senators or the American public?

Unlike our normal topics on SCOTUSblog, the first and perhaps most important thing to understand about a Supreme Court nomination is that it is primarily, if not entirely, about politics.  It is played out in the political arena of the Senate (and to a lesser extent in the Executive Branch).  As we will undoubtedly see in the coming months, it often includes warring interest groups that attempt to frame the debate through sound bites and “leaks” in the media.  It will include some charges against the nominee that are grossly unfair or even inaccurate, such as the characterization of Justice Alito as a racist or sexist because of his purported membership in the Concerned Alumni of Princeton.  But as I have found in researching this area, the types of attacks we are hearing against Judge Sotomayor are pretty much par for the course, neither more or less objectionable than arguments made against past nominees.

Although I do not agree that it “is over,” as Tom stated in a prior post, see here, I do think that, absent some stunning revelation of personal or ethical misconduct by Judge Sotomayor, she will be sworn in this fall as the 111th Justice of the Supreme Court of the United States.  Certainly since the nomination of Robert Bork, the most critical time for opposing a nominee is in the first 48 hours after the nomination when the Senators and the American public are first becoming acquainted with the nominee.  As an example, Robert Bork faced an uphill battle once Senator Edward Kennedy stood on the floor of the United States Senate and (in my opinion unfairly) proclaimed: “Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is — and is often the only — protector of the individual rights that are the heart of our democracy.”  In the first 48 hours after Sotomayor’s nomination, the Obama administration (probably) won the battle of the airwaves and certainly was well-prepared in defending Judge Sotomayor against attacks from the right.

Moreover, even before this nomination was made, it was pretty clear to me that President Obama possessed great discretion in his selection decision.  As I have outlined in my essay in the Northwestern University Law Review, the traditional indicators of political constraint in this process–such as the presence of divided government, a short time until the end of a President’s Term, the preferences of the median and filibuster pivots of the Senate, the approval ratings of the President, and the criticality of a particular nomination to the composition of a court–all pointed in favor of a relatively unconstrained choice for President Obama.  After the jump, I will evaluate some of the objections made against Sotomayor with a slightly different take than Kevin and Tom, but I will reach the same ultimate conclusion: it is extraordinarily likely that Judge Sotomayor will be confirmed in time for the first Monday in October. Read the rest of this entry »

Abortion is obviously an important issue for the Supreme Court, and each nominee’s view on the question whether and to what extent the Constitution guarantees a right to abortion is carefully scrutinized. 

Judge Sotomayor has never participated in a panel opinion, or decided a case as a district judge, involving that question.  Nor, so far as I am aware, has she addressed the issue publicly.

Having comprehensively reviewed her opinions, my view is that the marginally related cases she has decided do not provide any genuine insight on how she would rule on questions related to a constitutional right to abortion, but they do show a level of balance that indicates that her decisionmaking is not driven by pro-choice or pro-life views. 

Almost all of Judge Sotomayor’s abortion-related rulings involve asylum claims arising from forced abortion or sterilization, most from China.  Applying settled precedent, she has routinely affirmed rulings in which such claims have been denied administratively.  E.g., Zhu v. Holder, 2009 U.S. App. LEXIS 7987 (2d Cir. Apr. 15, 2009) (order).  But she has not done so reflexively.  E.g., Lin v. Mukasey, 553 F.3d 217 (2d Cir. 2009) (remanding for consideration of claim).  See also Bah v. Mukasey, 529 F.3d 99 (2d Cir. 2008) (female genital mutilation gives rise to a presumption of persecution).

Her most notable opinion in this field is her dissent from the en banc Second Circuit’s holding that a spouse’s forced abortion or sterilization cannot support a claim of persecution.  Lin v. United States DOJ, 494 F.3d 296 (2d Cir. 2008) (en banc); see also id. at 334 (discussing with approval Chen v. Ashcroft, 381 F.3d 221 (3d Cir. 2004) (Alito, J.)).

Judge Sotomayor also has opinions on both sides of issues relating to abortion protesters.  She twice wrote opinions reinstating a civil rights suit alleging that police used excessive force in removing anti-abortion protesters:  Amnesty America v. Town of West Hartford, 361 F.3d 113 (2d Cir. 2004); Amnesty America v. Town of West Hartford, 288 F.3d 567 (2d Cir. 2002).  On the other hand, in United States v. Lynch, 181 F.3d 330 (2d Cir. 1999), she joined a dissent from the denial of rehearing en banc in a case in which she supported the government’s right to prosecute abortion protesters for criminal contempt. 

Finally, in Center for Reproductive Law & Policy v. Bush, 304 F.3d 183 (2d Cir. 2002), she wrote an opinion holding settled precedent precluded a challenge to the “Mexico City policy” (since withdrawn by President Obama) prohibiting the distribution of federal foreign aid funds to organizations that perform or promote abortion as a method of family planning.

On the whole, my impression of Judge Sotomayor’s opinions and rulings in this area is that they depend very much on the particular facts and questions before the court and aren’t driven in any respect by a broader pro-choice or pro-life ideology.

On Monday, the Court will release orders from the Justices’ private conference last Thursday. One or more opinions in pending cases may also be released.

The petitioner’s brief on the merits is due Monday in Salazar v. Buono (08-472).  The respondent’s brief on the merits is due Monday in Maryland v. Shatzer, Sr. (08-680) and Reed Elsevier, et al., v. Muchnick, et al. (08-103).

The Justices will hold a private conference on Thursday. To view our list of petitions to watch at Thursday’s conference, click here.

This edition of “Petitions to Watch” features cases up for consideration at the Justices’ private conference on June 4. As always, the list contains the petitions on the Court’s paid docket that Tom has deemed to have a reasonable chance of being granted. To access previous editions of Petitions to Watch, visit our archives on SCOTUSwiki.

Docket: 08-1104
Title: Tankersley v. United States
Issue: Whether a Sentencing Guidelines departure should be subject to appellate review that is conducted prior to, and distinctly from, review of the ultimate sentence for reasonableness and whether the Supreme Court’s holding in Williams v. United States–that a sentencing court’s use of an erroneous ground for departure constitutes an incorrect application of the Guidelines–remains valid after United States v. Booker.

• Opinion below (9th Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply

Docket: 08-1107
Title: Hertz Corporation v. Friend
Issue: Whether the location of a nationwide corporation’s headquarters can be considered for purposes of determining principal place of business for diversity jurisdiction citizenship under 28 U.S.C. § 1332.

• Opinion below (9th Circuit)
• Petition for certiorari
• Supplemental brief of petitioner
• Brief in opposition
• Petitioner’s reply
• Brief amicus curiae of California Retailers Association (in support of petitioner)
• Brief amici curiae of Chamber of Commerce of the United States of America et al.(in support of petitioner)

Docket: 08-1119 and 08-1225
Title: Milavetz, Gallop, & Milavetz, P.A., et al.  v. United States ; United States v. Milavetz, Gallop, & Milavetz, P.A., et al.
Issue: Whether an attorney who provides bankruptcy assistance to an assisted person in return for valuable consideration, and who does not fall within one of the five exceptions, is a “debt relief agency” for purposes of 11 U.S.C. 526 and whether 11 U.S.C. 528 violates the First Amendment.

• Opinion below (8th Circuit)
• Petition for certiorari (08-1119)
• Petition for certiorari (08-1225)
• Brief for the United States (08-1119)
• Brief in opposition(08-1225)
• Petitioner’s reply (08-1225)

Docket: 08-1120
Title: American Home Products Corporation v. Ferrari
Issue: Does the National Childhood Vaccine Injury Act of 1986 preempt a design defect state-law claim against a vaccine manufacturer?

• Opinion below (Supreme Court of Georgia)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply
• Brief amicus curiae of Pacific Legal Foundation (in support of petitioners)
• Brief amici curiae of American Academy of Pediatrics et al. (in support of petitioners)

Docket: 08-1175 and 08-1229
Title:  Florida v. Powell and Florida v. Rigterink
Issue: Must a suspect be expressly advised to his right to counsel during questioning and if so, does the failure to provide this express advice vitiate Miranda v. Arizona?

• Opinion below (08-1175, Supreme Court of Florida)
• Opinion below (08-1229, Supreme Court of Florida)
• Petition for certiorari (08-1175)
• Petition for certiorari(08-1229)
• Brief in opposition (08-1175)
• Brief in opposition (08-1229)

Docket: 08-1237
Title: South Carolina v. Council
Issue: Whether the Supreme Court of South Carolina properly applied Strickland v. Washington when it found ineffectiveness of defense counsel in the capital sentencing phase of trial.

• Opinion below (Supreme Court of South Carolina)
• Petition for certiorari
• Brief in opposition

Docket: 08-1243
Title: Michigan v. Swafford
Issue:  Is a document from a state law-enforcement agency notifying the United States Marshal that a federal pretrial detainee is wanted to face pending charges a detainer, and if not, does it become a detainer if forwarded by the United States Marshal to the appropriate federal correctional institution after the pretrial detainee is convicted of the pending federal charges?

• Opinion below (Supreme Court of Michigan)
• Petition for certiorari

Cases involving lawyers from Akin Gump or Howe & Russell (listed without regard to likelihood of being granted):

Docket: 08-846
Title: Navajo Nation, et al. v. United States Forest Service, et al.
Issue: Whether a governmental action cannot constitute a “substantial burden” under RFRA unless it forces individuals to choose between following the tenets of their religion and receiving a governmental benefit or coerces them by threatening civil or criminal sanctions to act contrary to their religious beliefs.

• Opinion below (9th Circuit)
• Petition for certiorari
• Brief in opposition
• Brief in opposition (federal respondents)
• Petitioner’s reply
• Brief amicus curiae of Religious Liberty Law Scholars (in support of petitioners)
• Brief amicus curiae of The Friends Committee on National Legislation et al. (in support of petitioners)
• Brief amicus curiae of National Congress of American Indians et al. (in support of petitioners)

[Akin Gump and Howe and Russell represent the petitioners]

Analysis

NOTE: Nearly a quarter-century ago, in Navy Department v. Egan, the Supreme Court ruled that the President has broad constitutional power — even apart from any grant of power by Congress — to decide who gets access to classified secrets.  The Obama Administration, continuing efforts begun in the Bush Administration, has been maneuvering toward a new test — very likely aiming at the Supreme Court – of the authority to decide who has a “need to know” secret data.  A filing late Friday night before a federal judge in California intensified that effort.

———————-

The Justice Department, facing an impatient federal judge’s threat to rule summarily that the federal government has engaged in illegal electronic wiretrapping on a Muslim organization within the U.S., asked the judge Friday night to issue a direct order to disclose secret data over the government’s objections that would then set the stage for an appeal on issues “of extraordinary constitutional significance.”

Among those issues is whether a court has any authority to order disclosure of “state secrets” for use by a private party in a damages lawsuit, whether a law allowing such damages lawsuits overrides the government’s claim of a “state secrets” privilege against disclosing classified information, and whether a judge, not the government, can decide what a private party “needs to know” from secret government data for use in a lawsuit.

Although it failed in February to get permission to appeal, the Department renewed that plea as a way to avoid court-imposed sanctions that federal officials regard to be severe and a deep intrusion on Executive power.  In a 28-page response to the threat of sanctions by U.S. District Judge Vaughn R. Walker of San Francisco, the government contended that the judge has no authority to issue any punishment at this stage.  In any event, it said, the government should not be penalized before it has a chance to appeal to defend its control on access to classified information.

The filing came in Al-Haramain Islamic Foundation, et al., v. Obama, et al. — a case now in its fourth year — involving a claim that the federal government engaged in illegal electronic eavesdropping on the Foundation and its officials.  Al-Haramain is a Muslim group that insists it is a charity, but that the U.S. government has labeled a terrorist organization with links to Al-Qaeda.  The eavesdropping allegedly was aimed at its actvities at a branch in Ashland, Ore.  (The case is in U.S. District Court in Northern California, docket 07-109.)

Read the rest of this entry »

On Sunday at 10 pm EST, SCOTUSblog and the Women’s Bar Association of DC are partnering with Fem2.0 for a Twittercast entitled “Another Woman’s Voice on the Supreme Court: Is It Important?”  You can join the Twittercast here.

I’ve now completed the study of every one of Judge Sotomayor’s race-related cases that I mention in the post below.  I’ll write more in the morning about particular cases, but here is what the data shows in sum:

Other than Ricci, Judge Sotomayor has decided 96 race-related cases while on the court of appeals. 

Of the 96 cases, Judge Sotomayor and the panel rejected the claim of discrimination roughly 78 times and agreed with the claim of discrimination 10 times; the remaining 8 involved other kinds of claims or dispositions.  Of the 10 cases favoring claims of discrimination, 9 were unanimous.  (Many, by the way, were procedural victories rather than judgments that discrimination had occurred.)  Of those 9, in 7, the unanimous panel included at least one Republican-appointed judge.  In the one divided panel opinion, the dissent’s point dealt only with the technical question of whether the criminal defendant in that case had forfeited his challenge to the jury selection in his case.  So Judge Sotomayor rejected discrimination-related claims by a margin of roughly 8 to 1.

Of the roughly 75 panel opinions rejecting claims of discrimination, Judge Sotomayor dissented 2 times.  In Neilson v. Colgate-Palmolive Co., 199 F.3d 642 (1999), she dissented from the affirmance of the district court’s order appointing a guardian for the plaintiff, an issue unrelated to race.  In Gant v. Wallingford Bd. of Educ., 195 F.3d 134 (1999), she would have allowed a black kindergartner to proceed with the claim that he was discriminated against in a school transfer.  A third dissent did not relate to race discrimination:  In Pappas v. Giuliani, 290 F.3d 143 (2002), she dissented from the majority’s holding that the NYPD could fire a white employee for distributing racist materials.

As noted in the post below, Judge Sotomayor was twice on panels reversing district court decisions agreeing with race-related claims – i.e., reversing a finding of impermissible race-based decisions.  Both were criminal cases involving jury selection.

The numbers relating to unpublished opinions continued to hold as well.  In the roughly 55 cases in which the panel affirmed district court decisions rejecting a claim of employment discrimination or retaliation, the panel published its opinion or order only 5 times.

In sum, in an eleven-year career on the Second Circuit, Judge Sotomayor has participated in roughly 100 panel decisions involving questions of race and has disagreed with her colleagues in those cases (a fair measure of whether she is an outlier) a total of 4 times.  Only one case (Gant) in that entire eleven years actually involved the question whether race discrimination may have occurred.  (In another case (Pappas) she dissented to favor a white bigot.)  She participated in two other panels rejecting district court rulings agreeing with race-based jury-selection claims.  Given that record, it seems absurd to say that Judge Sotomayor allows race to infect her decisionmaking.

Though the study dealt with panel opinions, Jonathan Adler helpfully reminds me of Judge Sotomayor’s dissent in Hayden v. Pataki — which I discuss here — in which she urged that felon disenfranchisement laws violate the Voting Rights Act.

UPDATE 9 p.m.

The Obama Administration urged the Supreme Court on Friday to turn away the plea by 17 Chinese Muslim Uighurs for release from Guantanamo Bay for settling temporarily inside the U.S.  The U.S. Solicitor General’s brief in opposition in Kiyemba, et al., v. Obama, et al. (08-1234) can be downloaded here.   Although no longer considered enemies, their continued confinement at Guantanamo is constitutionally valid, the brief asserted.

The Uighurs, Solicitor General Elena Kagan wrote, “have already obtained relief.  They are no longer detained as enemy combatants, they are free to leave Guantanamo Bay to any country that is willing to accept them, and in the meantime, they are housed in facilities separate from those for enemy combatants under the least restrictive conditions practicable.”

The brief holds to the position of the Bush Administration that a court’s power to issue a remedy in a habeas case — even in the wake of the Supreme Court’s mandate last year that the detainees have a constitutional right to seek their freedom — is limited to a finding of eligibility for release, without an actual release from captivity while diplomatic negotiations to resettle a prisoner continue.  The brief seeks to draw a clear distinction between “simple release” and “release into the U.S.”

The filing also clearly embraces the Bush Administration view that detainees cleared for release may be held for a “wind-up” period of indefinite duration, while resettlement efforts proceed. The brief does not specify how long such a period could last, saying only that it would be “a reasonable period of time.”  But it cites examples from past history suggesting that it could run for “several years.”

Read the rest of this entry »

The Obama Administration asked the Supreme Court Friday to give it another 30 days to get help from Congress, or else file an appeal in the Court, to block public release of more than four dozen U.S. Army photos that are said to show abuse by U.S. soldiers of detainees in Iraq and Afghanistan.   In an application (08A1068), Solicitor General Elena Kagan sought a delay from June 9 — the present deadline to file an appeal — until July 9.

“The additional time…would permit the legislative process to continue and allow the United States to assess further the need to file a petition for a writ of certiorari in light of any new leigslation,” Kagan wrote. “Additional time is also necessary to permit further consultation with other components of the Department of Justice, the Department of Defense, and other affected agencies about this litigation more generally, and to prepare and print the petition.”

A post discussing this case and the possible appeal can be read here.

It is remarkable how much ink has been spilled on Sonia Sotomayor’s ethnic background rather than her legal background.

From the moment the nomination was announced, talking heads have called the President’s choice one based on “pandering to Hispanics” or “checking the box” for minorities. Some have suggested that a white man with her resume would not be so highly praised or that her academic successes were nothing more than affirmative action. Innumerable news features on Sotomayor have described her nomination in terms of identity politics or a symbol of rapprochement to the Hispanic community.

In the rush the find Sotomayor’s “biases,” media personalities and conservative opponents latched onto her Berkeley speech on “A Latina Judge’s Voice,” which provoked Rush Limbaugh’s accusations that she is a “reverse racist” and Newt Gingrich’s now-infamous “tweets” calling for her to withdraw. Instead of looking to the legal precedent in the Second Circuit’s Ricci opinion, the Judicial Confirmation Network said “[Sotomayor] reads racial preferences and quotas into the Constitution, even to the point of dishonoring those who preserve our public safety.”

Anything “ethnic,” from the food she eats to the way she pronounces her last name, has been discussed as possibly influencing her jurisprudence. The mainstream media has highlighted her group affiliations,  college comments, and a law school discrimination complaint as evidence of her racial preference possibly trumping pragmatism. And then there’s been the blatant race baiting: most shockingly,  Rep. Tom Tancredo today called the civil rights advocacy group La Raza, of which she is a member, “a Latino KKK without the hoods or the nooses.”

It seems to me that there is an infinitely simpler and more accurate way of figuring out whether Judge Sotomayor decides cases involving race fairly and dispassionately – read her decisions.  So I did:  I am in the midst of reviewing every single race-related case on which she sat on the Second Circuit.

There are roughly 100.  They cover the gamut from employment discrimination to racial bias in jury selection.  I decided that I would stop and write an interim report once I got through her 50 most recent race-related cases other than Ricci because the numbers are sufficiently striking and decisive.  Here is what I found.

In those 50 cases, the panel accepted the claim of race discrimination only three times.  In all three cases, the panel was unanimous; in all three, it included a Republican appointee.  In roughly 45, the claim was rejected.  (Two were procedural dispositions.)

On the other hand, she twice was on panels reversing district court decisions agreeing with race-related claims – i.e., reversing a finding of impermissible race-based decisions.  Both were criminal cases involving jury selection.

In the 50 cases, the panel was unanimous in every one.  There was a Republican appointee in 38, and these panels were all obviously unanimous as well.  Thus, in the roughly 45 panel opinions rejecting claims of discrimination, Judge Sotomayor never dissented.

It seems to me that these numbers decisively disprove the claim that she decides cases with any sort of racial bias.

I also looked at whether there was anything nefarious in the failure of the Ricci panel to publish a substantial opinion.  From the pool of 50, the panel affirmed a district court’s decision rejecting a claim of employment discrimination or retaliation (as in Ricci) 28 times; it did so by unpublished order in 24.  Whatever one thinks of the argument that the issues in Ricci deserved more attention than the panel gave them, the decision not to publish an opinion seems to have been pretty commonplace.

When I’m done with the study, I will update the numbers and publish a database with all of the decisions.

In No. 08-640, Federal Insurance Co. v. Kingdom of Saudi Arabia, the United States has filed a brief recommending that cert. be denied.  The case arises out of the September 11 attacks and alleges, inter alia, that the Kingdom of Saudi Arabia, the Saudi High Commission for Relief to Bosnia and Herzegovina, and four Saudi princes donated money to charitable organizations that they knew to be diverting funds to al Qaeda.  The petition asked the Court to review three questions relating to (1) the source of immunity from suit of foreign governmental officials; (2) the scope of the Foreign Sovereign Immunity Act’s tort exception; and (3) personal jurisdiction.  In her brief, the SG acknowledged that the United States “disagrees in certain respects with the analyses of the court of appeals” but explains that “further review by this Court to determine the best legal basis” for the officials’ immunity is not warranted because – in any event – the “lower courts correctly concluded that Saudi Arabia and its officials are immune from suit for governmental acts outside the United States.”  Nor, the United States continues in its brief, “is review warranted” on the personal jurisdiction issue.

In a prior post, we began identifying cases in which it is possible that replacing Justice Souter with Judge Sotomayor might change the outcome.  In particular, we identified cases in which Justice Souter was in the majority in a 5-4 decision, beginning with cases that did not break down along traditional liberal-conservative lines.  And we identified two cases decided thus far this term – Arizona v. Gant and Vaden v. Discover Bank – that met those criteria.

Looking back beyond the present term, it is clear that such decisions are relatively infrequent.  Since the start of the October 2005 term – during which Justice Alito joined the Court to create its present membership – we have been able to identify only seven decisions matching the 5-4 “quirky lineup” criteria with Justice Souter in the majority.  In the context of criminal cases, perhaps the most significant issue that may be affected by Justice Souter’s retirement is the Court’s willingness to rely on the rule of lenity.  In the civil context, the constitutional limitations on punitive damages emerge as the most significant issue in this collection of cases.

Criminal Cases and the Rule of Lenity

Four of the seven cases since 2005 have been criminal.  One was Gant.  Another was Day v. McDonnough, 547 U.S. 198 (2006), in which Justice Souter sided with Chief Justice Roberts, and Justices Ginsburg, Kennedy, and Alito, to hold that a federal court had the authority to dismiss sua sponte a habeas petition as untimely, despite the State’s erroneous concession that the petition was filed on time.

In another case going against a criminal defendant, Justice Souter likewise voted with the 5-4 majority in James v. United States, 550 U.S. 192 (2007), to hold that attempted burglary (as defined by Florida law) was a “violent felony” within the meaning of the federal Armed Career Criminal Act.  He was joined by Chief Justice Roberts and Justices Alito, Kennedy, and Breyer.

Read the rest of this entry »

We previously posted our petition and the amicus briefs in the Cuban Five case.  The government has now filed its brief in opposition, and on Wednesday we filed our reply brief.

The United States recently filed its brief in No. 08-803, Alfieri v. Conkright, No. 08-810, Conkright v. Frommert, and No. 08-826, Pietrowski v. Conkright, a group of petitions arising out of a decision of the Second Circuit.  (Alas, we have not been able to further loop this back to our coverage of the nomination of Judge Sotomayor.)   At issue in the cases are questions relating to the proper standard of review for an ERISA denial-of-benefits case, as well as the enforceability of releases waiving ERISA claims.  The United States has recommended that the petitions be denied.  

Oral arguments have concluded for the term. No non-capital orders are expected, but if any orders are issued today in pending cases, we will post them promptly.