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Sotomayor Must Answer Questions On Judicial Issues

By Big Tent Democrat, Section Supreme Court
Posted on Sun May 31, 2009 at 09:36:20 AM EST
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In an otherwise very good editorial, The New York Times makes one assertion I completely disagree with:

Supreme Court nominees should not go into specifics about cases they might judge.

I have always disagreed with this formulation and I still do. Why shouldn't judicial nominees indicate their views on the issues they are likely to face? What could be more important to know about judicial nominees? I do not understand this convention of evaluating judicial nominees and I never have. It is wrong.

Speaking for me only

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    Sotomayor Must Answer Questions On Judicial Issues | 50 comments (50 topical)

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    I choose construe what the Times is saying (none / 0) (#1)
    by andgarden on Sun May 31, 2009 at 09:43:18 AM EST
    quite narrowly. I take them to mean that she should not comment on any pending individual case. In other words, no Ricci.

    But I would very much like to hear her on issues and how she interprets the Constitution. I do not much like what she had to say in 1997 on that.

    Can we ask her about Griggs? (5.00 / 1) (#2)
    by Big Tent Democrat on Sun May 31, 2009 at 09:48:16 AM EST
    Roe? Griswold?

    What's interesting to me is Roberts actually commented on Griswold and roe. I believe he lied through his teeth but at least he answered the questions.

    Parent

    O.K. Let's say we ask her the questions and (5.00 / 1) (#5)
    by MO Blue on Sun May 31, 2009 at 10:03:13 AM EST
    her answers indicate that she takes the conservative viewpoint on these issues. Would it really make a difference in whether or not she received confirmation. Don't see enough Democratic politicians willing to go in opposition to President Obama nor do I see any indication that Obama really cares what those left of center want.

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    What would you have me do? (none / 0) (#12)
    by Big Tent Democrat on Sun May 31, 2009 at 10:19:52 AM EST
    Shut up about it? I will not.

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    No I don't want you to shut up about it (none / 0) (#41)
    by MO Blue on Sun May 31, 2009 at 11:26:54 AM EST
    Speaking up is all well and good. It is to be commended. Yet, it is not enough. Somehow, we need to obtain the same level of power that the conservatives had when they were able to have Bush pull the Harriet Myers nomination.

    I wish I knew how we accomplish that objective. I only know we will never achieve success by making excuses or accepting that he/she is better than the other guy. This is not directed at you personally. You do a great job or I wouldn't be here. Right about now I fear we who care about things like executive power, civil liberties, choice etc. stand to lose those decisions even though a Democrat won the election.

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    I'm open to suggestions (none / 0) (#43)
    by Big Tent Democrat on Sun May 31, 2009 at 11:31:18 AM EST
    All I have is my loud moth.

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    The image this conjured up (5.00 / 1) (#44)
    by jnicola on Sun May 31, 2009 at 12:12:06 PM EST
    of BTD and his pet, which I conceive to be a large Madagascan Sunset, jointly engaged in a rambunctious argument with a milquetoast Democrat, has cheered up my day considerably. Thanks.

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    I'm no lawyer (none / 0) (#14)
    by Militarytracy on Sun May 31, 2009 at 10:22:17 AM EST
    But it seems to me to be a REALLY bad idea to begin acting upon this notion that it is somehow inappropriate to ask judges going through the confirmation process about case rulings.  Adopting practices that do little outside of weaken public participation and public opinion and the voices of public activism have always seemed to be able to inflict a lot of damage on this democracy.

    Parent
    And Casey, and Lawrence (none / 0) (#3)
    by andgarden on Sun May 31, 2009 at 09:51:12 AM EST
    Yes.

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    As always BTD (none / 0) (#4)
    by Militarytracy on Sun May 31, 2009 at 09:56:31 AM EST
    Displaying common sense before granting institutional respect, which is exaclty what keeps our institutions functional.

    Okay, here's a question... (none / 0) (#6)
    by Anne on Sun May 31, 2009 at 10:06:34 AM EST
    Let's say Sotomayor does answer some of these questions, about specific cases like Roe and Griggs and Casey, but also generally about things like executive power and the right to privacy, and we don't like her answers.  
    What then?  

    Does anyone think the Dems are going to mount an attempt to sink her nomination?  Or are we going to politely usher her into Souter's seat, deferring to a president we now worry either didn't do his homework on the nominee (see Gibbs' strained attempts to explain what the president did and did not specifically discuss with Sotomayor because Obama was "confident" she shared his views), or worse, who agrees with those views?

    I guess we'll have to wait and see; maybe something will come out of her private meetings with Senators that will tell us how this is all going to break.

    We oppose (5.00 / 2) (#11)
    by Big Tent Democrat on Sun May 31, 2009 at 10:19:12 AM EST
    I can;t act for the Senate. Heck, I would have filibustered Roberts and Alito.

    We can do what we can do. and we should do that at least.

    Parent

    I don't think we should have (5.00 / 1) (#19)
    by inclusiveheart on Sun May 31, 2009 at 10:31:48 AM EST
    to accept any nominee without a good case made in favor of that person - for any government position.  I don't really understand why it is that the notion of "inevitability" should eclipse due dillegence.

    All this does is give everyone political cover that they don't actually deserve.  The President, the party in power and the opposition party should be engaging in open debate about all of these nominees, but if they all hide behind this silly notion that a nominee can't comment on the issues pertaining to their work, then they ALL can pretend that they weren't responsible when the nominee disappoints.

    This is a cowardly era in American political history imo.

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    Hear, hear! (none / 0) (#24)
    by Militarytracy on Sun May 31, 2009 at 10:46:19 AM EST


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    It is unlikely anythingSotomayor (5.00 / 1) (#32)
    by pluege on Sun May 31, 2009 at 11:02:58 AM EST
    says or does would turn dems against her nomination. What knowing her views ahead of time would do is twofold:

     1)  it would let everyone know what we're dealing with, i.e., where in the spectrum from scalia to Ginsburg she is likely to be.

     2)  provides more insight into Obama: further out to screw progressivity, or mostly OK, just severely misguided on a few issues, like human rights.

    Parent

    Specifics about cases they might judge? (none / 0) (#7)
    by ChiTownMike on Sun May 31, 2009 at 10:11:02 AM EST
    Are you kidding?

    Let see here. How many would you like a judge to try your case before it reached their bench? Because in asking a judge to tip their hand, that is if they have a hand to tip, which they shouldn't, you are essentially having them reveal how they would judge that case before hearing any of the evidence or any arguments in court. That's close to insanity.

    Now to dig into their on the record background as to their idealogical bent - fine - that's pretty much public record. But to ask for specifics, the way I see it that is not to understand the judicial process.

    Your approach is to pretend (none / 0) (#8)
    by andgarden on Sun May 31, 2009 at 10:14:00 AM EST
    (because I'm sure you don't actually believe) that judges nominated to the Supreme Court don't actually have any opinions about controversial issues.

    Parent
    That is a way to broad (none / 0) (#15)
    by ChiTownMike on Sun May 31, 2009 at 10:23:54 AM EST
    a comment from you and does not apply to all judges on all cases which history shows is the case.

    My post still stands. Asking for specifics on cases before the judge is seated is the same as trying the case publicly before it even reaches their bench. No savvy attorney would ever want to be in that judges courtroom unless of course their win is a certainty due to the public airing of "specifics". But that is not the broader issue. The broader issue is to keep with the idea that evidence and arguments are what determines the outcome.

    Parent

    HA! (none / 0) (#16)
    by andgarden on Sun May 31, 2009 at 10:26:01 AM EST


    Parent
    They are discussing her on abc (local) right now (none / 0) (#21)
    by nycstray on Sun May 31, 2009 at 10:36:46 AM EST
    My Rep, a former judge and I didn't catch who the other guy is.

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    HA! is right. (none / 0) (#25)
    by ChiTownMike on Sun May 31, 2009 at 10:47:03 AM EST
    You want to be an attorney. Evidently your success at being a good one in the courtroom is based on what judge is assigned to your case! So why want to be an attorney when the outcome of cases are based on a lotto?

    Parent
    Maybe you think you can convince anyone (none / 0) (#26)
    by andgarden on Sun May 31, 2009 at 10:49:57 AM EST
    of anything, given a good argument. I think that's highly unlikely. Just ask immigration lawyers whether it matters which judge they pull.

    Sometimes a judge may not have an opinion, and arguing the case matters. Other times. . .

    Parent

    And it seems to me that public awareness (none / 0) (#28)
    by Militarytracy on Sun May 31, 2009 at 10:54:53 AM EST
    of certain cases being tried and even what kind of public awareness that is being cultivated plays a role too in how judges conduct themselves!  God knows that that Nancy Grace person has completely convinced me of this!

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    Well then (none / 0) (#30)
    by ChiTownMike on Sun May 31, 2009 at 10:58:18 AM EST
    your post just agreed with my post that you responded to.

    As they say online - "thanks for making my case". I suppose that last quoted remark now applies to judges too after a, cough, win by an attorney - Hey Judge, "thanks for making my case"!

    Parent

    umm, OK (none / 0) (#31)
    by andgarden on Sun May 31, 2009 at 11:01:13 AM EST


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    Too often that is the case (none / 0) (#38)
    by Big Tent Democrat on Sun May 31, 2009 at 11:16:07 AM EST
    You prefer the ostrich approach.

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    Exactly (none / 0) (#46)
    by ChiTownMike on Sun May 31, 2009 at 12:50:01 PM EST
    Like an ostrich I have excellent eyesight and acute hearing and serve as an  important sentinel for those with lesser facilities.

    (BTW the 'head in the sand' meme about an ostrich is a myth. google it.)

    Parent

    Indeed (none / 0) (#48)
    by Big Tent Democrat on Sun May 31, 2009 at 07:13:32 PM EST
    Your capabilities are limited to literal uses of a phrase.

    Not surprising in the least.

    Parent

    Why thank you (none / 0) (#49)
    by ChiTownMike on Sun May 31, 2009 at 09:39:03 PM EST
    for the compliment. Given the synonyms for literal are: truthful, exact, reliable...I couldn't agree more.

    You are right. My being literal, truthful, exact, and reliable, is not a surprise at all!

    Parent

    Heh (none / 0) (#10)
    by Big Tent Democrat on Sun May 31, 2009 at 10:18:22 AM EST
    Because they have no formed opinions now. What a comment.

    Parent
    Heh (none / 0) (#20)
    by ChiTownMike on Sun May 31, 2009 at 10:33:21 AM EST
    Like I said, going into their public record to see what their ideology is on certain issues is fair. But to try a case in congress by asking for specifics is just not keeping with what the judiciary is supposed to be about.

    Evidence rules - and each case has different evidence. Even with known ideological bents history has shown some surprises in how justices rule. And even if their were no surprises on record it is just not keeping with the judicial process to air view in public in front of congress.

    You know it is kind of like we don't want judges on the courthouse steps telling the media what they think of an outcome of a case before they have ruled on the case!

    Parent

    Just ask them about decided cases (none / 0) (#37)
    by Big Tent Democrat on Sun May 31, 2009 at 11:15:35 AM EST


    Parent
    Nope (none / 0) (#47)
    by ChiTownMike on Sun May 31, 2009 at 12:52:29 PM EST
    Decided cases sometimes come up again in the SCOTUS.

    Parent
    I would much rather have (none / 0) (#9)
    by TeresaInSnow2 on Sun May 31, 2009 at 10:17:53 AM EST
    a nominee who I don't have to ask about the issues I care about, because they've already decided cases based on some of those issues.

    I don't trust anything people say during confirmation hearings.

    And Gibbs' horrible answers to questions about Sotomayer only make me queasy.

    Yes, she'll sail through based on brilliance and qualifications, because she's is brilliant and qualified. Democrats won't reject her and Republicans can't. But will she judge as progressives want?  I'm doubtful, but I do have the popcorn already popped for the Cheetoid whining.

    And as I've said before, Obama had a great opportunity to bring in an unambiguously progressive candidate.  The fact that he didn't, says a great deal about Obama.  And should another justice retire, midterm elections and Obama's upcoming re-election campaign will ensure that his next pick will be just as stealth as this one.  I can actually taste the disappointment, or is that just a bitter cup of coffee ;-).

    Your approach would be mistaken (none / 0) (#13)
    by Big Tent Democrat on Sun May 31, 2009 at 10:20:43 AM EST
    A Justice on the SCOTUS is in a different position than any other human on Earth.

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    In your opinion (none / 0) (#18)
    by TeresaInSnow2 on Sun May 31, 2009 at 10:29:16 AM EST
    I disagree! once again.

    Parent
    Another point about brilliance (none / 0) (#17)
    by TeresaInSnow2 on Sun May 31, 2009 at 10:28:44 AM EST
    To folks in media who say Diane Wood etc. is "smarter," I'll say:

    Diane Wood didn't arise from poverty and a single parent household or other fairly tragic circumstances.  People who do and find success aren't only intelligent pertaining to IQ, they also have an extraordinary level of "street smarts/common sense" that you can't teach and can't measure.  It is a talent and is expressed only in the context of necessity.  And when it is expressed to the high degree that Sotomayer has done, it is amazing.

    That said, I still wish Obama had nominate someoned whose case rulings spoke for themselves.

    Parent

    So you are rubber stamping (none / 0) (#22)
    by ChiTownMike on Sun May 31, 2009 at 10:39:57 AM EST
    activist judges on both sides of the issue. It then becomes a game of who retires or dies when a certain party is in power.

    What you are endorsing is a fixed outcome rather than a impartial bench.

    Parent

    WTF do you think we have now? (5.00 / 2) (#23)
    by andgarden on Sun May 31, 2009 at 10:42:00 AM EST


    Parent
    Drink some more coffee (none / 0) (#27)
    by ChiTownMike on Sun May 31, 2009 at 10:52:48 AM EST
    WTF do you think I meant about "rubber stamping"?

    That's a rhetorical question as obviously you don't know what "rubber stamping" means. Does 'status quo' ring a bell?

    Parent

    I don't think that's the natural meaning (none / 0) (#29)
    by andgarden on Sun May 31, 2009 at 10:55:06 AM EST
    of what you wrote. But accepting that representation, the idea that we could change the status quo by not asking questions or pretending that judges don't actually have any opinions strikes me as insane.

    Parent
    So you think (2.00 / 1) (#33)
    by ChiTownMike on Sun May 31, 2009 at 11:04:07 AM EST
    that by asking questions you can change the status quo? Now that is insane. BTD just gave an example above regarding Roberts.

    Anyway, I'm done in this thread as I have made my point with no good rebuttal put forth by anyone. As usual what is happening is people are nibbling around the edges and getting of the main point I put forth. No thanks, when that happens it no longer is about the comment, it is about finding a thin thread to claim victory on.

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    At least we can call them on their lies (none / 0) (#36)
    by Big Tent Democrat on Sun May 31, 2009 at 11:15:05 AM EST


    Parent
    That is true (none / 0) (#45)
    by ChiTownMike on Sun May 31, 2009 at 12:24:25 PM EST
    But I don't think that to be able to do that trumps the sanctity of the judiciary process as I  have already posted on. You can have one or the other but not both. Which is more important is an easy call.

    Parent
    Yes, I think that by asking questions (none / 0) (#42)
    by Militarytracy on Sun May 31, 2009 at 11:27:40 AM EST
    you can change the status quo.

    Parent
    If it were possible to have a truly (none / 0) (#39)
    by Anne on Sun May 31, 2009 at 11:17:00 AM EST
    impartial bench, all we would have to do when these vacancies came up is just put a bunch of names in a hat, pick one, and be done with it.

    But there is no such thing as an impartial bench, and there never will be as long as human beings are involved.  The legal issues that come before the country's highest court are not usually so clear-cut that all the justices reach the same conclusions for the same reasons.  Can you strive for balance?  Yes, but balance isn't impartiality, either.

    As for Sotomayor being asked to give her views on actual cases, I expect the cases involved will be those that have already been decided at the SC level, not anything pending or that could someday be before the Court.  So, she wouldn't be asked specifically about Ricci, but it's fair, in my opinion, to ask her about affirmative action, about reverse discrimination - things that may come up in any event in light of the scrum that has been taking place with respect to her own nomination.

    We have a right to know what she thinks; it remains to be seen how open her answers will be, and whether we can take from them enough assurance to be reasonably happy, or even delighted that she will be adding her two cents to the Court for as long as she wishes to do so.

    Parent

    Ask her about Griggs (none / 0) (#40)
    by Big Tent Democrat on Sun May 31, 2009 at 11:26:49 AM EST


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    Because (none / 0) (#34)
    by pluege on Sun May 31, 2009 at 11:06:07 AM EST
    Why shouldn't judicial nominees indicate their views on the issues they are likely to face?

    If you went before a judge that had publicly stated views material to your trial would you not use that to cry foul and demand that they recuse themselves? Seems like an obvious problem to me.

    Silly (none / 0) (#35)
    by Big Tent Democrat on Sun May 31, 2009 at 11:14:28 AM EST
    The judge had not seen your case yet. how could they express a view on your case?

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    Lets take the case of Dr. Tiller's Murderer (none / 0) (#50)
    by pluege on Sun May 31, 2009 at 09:39:09 PM EST
    if the trial goes before a judge that has openly declared that Roe v. Wade is wrong and should be overturned, does the case have the same outcome as going before a judge that has strongly declared a women's right to choose abortion. Do the 2 judges rule the same, give instructions to the jury the same, sentence the same, address extenuating circumstances the same? I think not.

    I'm not saying that judges opinion's shouldn't be investigated as part of their confirmation for SCOTUS, but it is a difficult situation given the potential ramifications of judge's public statements of their personal outlook and the potential they raise of mistrials and other trial hankypanky.

    Parent

    Sotomayor Must Answer Questions On Judicial Issues | 50 comments (50 topical)

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