Actual Legal Reporting On Judge Sotomayor

TNR and Jeff Rosen, take note. This is some actual legal reporting on Judge Sonia Sotomayor, from Tom Goldstein at SCOTUSblog:

Judge Sonia Sotomayor is an obviously serious candidate to serve on the Supreme Court. We have been struck by how the amount of commentary about Judge Sotomayor has ignored the most accessible and valuable source of information: her opinions as an appellate judge. Last year, I directed a project in which a team of Akin Gump summer associates extensively reviewed Judge Sotomayor’s opinions. Amy Howe subsequently revised and expanded their work, with contributions by me. Here, we summarize what we regard as Judge Sotomayor’s principal opinions in civil cases. Our only goal is to identify and summarize the opinions, not evaluate them.

A good roundup. And how the discussion should have started about the possibility that Judge Sotomayor may be President Obama's choice for the Supreme Court. It is worth a careful read. BTW, Judge Sotomayor will not be chosen by President Obama, imo, because of speeches like the one Orin Kerr reports on here. To me, the speech is unexceptional. To the Village, it will be an outrage. And Obama has shown no inclination to standing up to the Village. Just watch.

Speaking for me only

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    Cokie Roberts (5.00 / 0) (#1)
    by Radiowalla on Fri May 15, 2009 at 01:14:01 PM EST
    clutches her pearls while  David Broder trips on his tangled shorts. Throughout the Village,  the sound of lowing intensifies as pundits deliver their fresh-born cows.

    Another day in the Big Tent.

    (p.s.I've been rooting for Kathleen Sullivan, but after reading this, my opinion of Sotomayor has gone up a notch).

    Supreme Court (none / 0) (#7)
    by 2D on Fri May 15, 2009 at 03:55:10 PM EST
    What about Elizabeth Warren

    by blogname on Sat May 16, 2009 at 09:44:17 AM EST
    Sotomayor's speech is far more sincere and provocative than Obama's heralded, politically motivated Philadelphia dissertion on race. The only thing that could hurt her is the selective use of quotations.  The "cut and paste" function of this generation makes for some of the most intellectually lazy people I have ever seen.  

    Anyway, here's what O'Connor said about gender and perception in her concurring opinion in JEB v Alabama:

    We know that like race, gender matters. A plethora of studies make clear that in rape cases, for example, female jurors are somewhat more likely to vote to convict than male jurors. See R. Hastie, S. Penrod, & N. Pennington, Inside the Jury 140-141 (1983) (collecting and summarizing empirical studies). Moreover, though there have been no similarly definitive studies regarding, for example, sexual harassment, child custody, or spousal or child abuse, one need not be a sexist to share the intuition that in certain cases a person's gender and resulting life experience will be relevant to his or her view of the case. "`Jurors are not expected to come into the jury box and leave behind all that their human experience has taught them.'" Beck v. Alabama, 447 U.S. 625, 642 (1980). Individuals are not expected to ignore as jurors what they know as men--or women.

    Today's decision severely limits a litigant's ability to act on this intuition, for the import of our holding is that any correlation between a juror's gender and attitudes is irrelevant as a matter of constitutional law. But to say that gender makes no difference as a matter of law is not to say that gender makes no difference as a matter of fact. I previously have said with regard to Batson: "That the Court will not tolerate prosecutors' racially discriminatory use of the peremptory challenge, in effect, is a special rule of relevance, a statement about what this Nation stands for, rather than a statement of fact." Brown v. North Carolina, 479 U.S. 940, 941-942 (1986) (O'Connor, J., concurring in denial of certiorari). Today's decision is a statement that, in an effort to eliminate the potential discriminatory use of the peremptory, see Batson, 476 U. S., at 102 (Marshall, J., concurring), gender is now governed by the special rule of relevance formerly reserved for race. Though we gain much from this statement, we cannot ignore what we lose. In extending Batson to gender we have added an additional burden to the state and federal trial process, taken a step closer to eliminating the peremptory challenge, and diminished the ability of litigants to act on sometimes accurate gender based assumptions about juror attitudes. . . .

    Accordingly, I adhere to my position that the Equal Protection Clause does not limit the exercise of peremptory challenges by private civil litigants and criminal defendants. . . . But what of the next case? Will we, in the name of fighting gender discrimination, hold that the battered wife--on trial for wounding her abusive husband--is a state actor? Will we preclude her from using her peremptory challenges to ensure that the jury of her peers contains as many women members as possible? I assume we will, but I hope we will not.

    I suppose the Volokh crew did not look up this material. But I will soon give it a whirl on my blog.

    Darren Hutchinson, Dissenting Justice

    Nice work Prof (none / 0) (#14)
    by Big Tent Democrat on Sat May 16, 2009 at 10:29:05 AM EST
    You have been killing it of late.

    Great job. Keep it up.


    Thanks -- Post Up Now! (none / 0) (#15)
    by blogname on Sun May 17, 2009 at 03:11:20 AM EST
    "The speech" is quite interesting and (none / 0) (#2)
    by oculus on Fri May 15, 2009 at 01:15:42 PM EST
    I'm thinking maybe President Obama or one of his SCOTUS team read it before the President stated he was looking for a person with empathy.

    I hope so.... (none / 0) (#16)
    by blogname on Sun May 17, 2009 at 03:13:39 AM EST
    It's a beautiful speech. But I tend to agree that Obama is soooo risk averse, that he would abandon Sotomayor. But the more I read about her, the more I like. I'll be disappointed if he does not pick her. Kagan is highly uninteresting and has proven herself to be a supporter of indefinite detention, etc. Of course, this would give Obama the incentive to appoint her.  I suspect that Sotomayor will have a fairly liberal view on governmental power over civil liberties.

    In an article by Neil Lewis (none / 0) (#3)
    by KeysDan on Fri May 15, 2009 at 01:16:01 PM EST
    in today's NYT, it was reported (without any sense of outrage) that in 1997, Republican senators held up Judge Sotomayor's nomination by President Clinton to the appeals court for more than a year, because they believed she would be a formidable candidate for the Supreme Court.  So, there is a long record of Republicans gunning for her.  Moreover,  President Obama will not want to get into the  New Haven firefighters promotion case.  Just hope we will not be disappointed  by the nomination he does make.

    Interesting (5.00 / 0) (#5)
    by Steve M on Fri May 15, 2009 at 03:10:12 PM EST
    but they still get their outrage meters turned way up whenever they think of how the Democrats did the exact same thing to Miguel Estrada!

    The Federalist Socity won't (none / 0) (#4)
    by oculus on Fri May 15, 2009 at 02:13:40 PM EST
    like Judge Sotomayor's opinion in Croll v. Croll. What, look at how other countries interpret law?  Outrageous.

    Agree. Obama unlikely to (none / 0) (#6)
    by oldpro on Fri May 15, 2009 at 03:51:00 PM EST
    choose her.  In fact, it wouldn't surprise me if she and the Hispanic male on the list were not put there deliberately to draw fire - with no intention of appointing either one - so that the two 'in the middle' would be under the radar when one is (if not already) selected for appointment.

    A review with empirical grist: (none / 0) (#8)
    by RonK Seattle on Fri May 15, 2009 at 04:58:22 PM EST
    Eric Posner applies the Choi/Gulati metrics (on most of which Alito scores badly, as a point of interest).

    Metrics of interest include productivity (based on quantity of published opinions, normalized by circuit), quality (based on citations by colleagues outside the circuit), and respect (based on citations by name).

    Of course, the methodology and/or data and/or application will be dismissed by those predisposed to dismiss the results ... but Choi and Gulati anticipated, tested and adjusted for many of the more obvious methodological objections. Their paper is recommended reading for anyone with a serious interest in objective tests of merit.

    Are you advocating Posner's approach? (none / 0) (#9)
    by oculus on Fri May 15, 2009 at 05:45:36 PM EST
    Are you asking for any special reason? (none / 0) (#10)
    by RonK Seattle on Fri May 15, 2009 at 06:22:29 PM EST
    No. Just curious. (none / 0) (#11)
    by oculus on Fri May 15, 2009 at 08:13:17 PM EST
    BTD, you make the mistake (none / 0) (#12)
    by cpinva on Fri May 15, 2009 at 11:37:32 PM EST
    of thinking this has anything to do with the judge's (or any nominee of obama's) actual qualifations for the job, it doesn't. if isn't going to be a scalia/alito/thomas/roberts clone, the republicans and right-wingnut noise machine will scream.