Sonia Sotomayor for USSC?

[garbon]

They come from intolerant cultures and don't understand that pork is not food for some people.

Americans don't really realize or care about that either.

[Berkut]

Overall, the White House's biggest task is simply demonstrating that Judge Sotomayor is the most qualified candidate, not a choice based on her gender and ethnicity.

That is going to be tough, seeing as she was the choice based on her gender and ethnicity.

...and, presumably, her generally non-ideological approach.  Her gender and ethnicity might be secondary, but helpful.

You cannot call her gender "secondary" when the list made up of potential nominees was 100% female, and there was no possibility of a man getting the position. That is not secondary, that is primary. More like her ideology (or lack thereof) was helpful, rather than the other way around.

[AnchorClanker]

<snip> don't understand that pork is not food for some people.

Some people don't understand that pork, once cooked properly, can be food.
Some people, whose ancestors didn't grasp this, proceeded to make divine law of prohibition, vice proper cooking.

Your move.

[The Minsky Moment]

Some people don't understand that pork, once cooked properly, can be food.
Some people, whose ancestors didn't grasp this, proceeded to make divine law of prohibition, vice proper cooking.

I doubt that the peoples of 7th century Arabia were unaware that pork could be cooked safely.

Come to think of it, the same goes for 11th century BC Canaanites.

[AnchorClanker]

Some people don't understand that pork, once cooked properly, can be food.
Some people, whose ancestors didn't grasp this, proceeded to make divine law of prohibition, vice proper cooking.

I doubt that the peoples of 7th century Arabia were unaware that pork could be cooked safely.

Come to think of it, the same goes for 11th century BC Canaanites.

It was a joke, but again, there's a reason that the prohibition made it into the code.
I suspect that at some point in time, it was known to be dangerous, and it was easier to advise not eating it at all.
Again, st some point, this went from folk wisdom to a religious injuntion.  This interests me greatly, actually.

[Liep]

The guy who wrote it in was neighbour to a swine farm, easy way to get rid of the smell. Well, not easy as such, but effective.

[Syt]

Some people don't understand that pork, once cooked properly, can be food.
Some people, whose ancestors didn't grasp this, proceeded to make divine law of prohibition, vice proper cooking.

I doubt that the peoples of 7th century Arabia were unaware that pork could be cooked safely.

Come to think of it, the same goes for 11th century BC Canaanites.

It was a joke, but again, there's a reason that the prohibition made it into the code.
I suspect that at some point in time, it was known to be dangerous, and it was easier to advise not eating it at all.
Again, st some point, this went from folk wisdom to a religious injuntion.  This interests me greatly, actually.

Similar to rules how women should always travel/be in company of husband or brother or father, because in olden times it wasn't safe for them to be on their own.

[Hansmeister]

Well, The New Republic certainly doesn't seem very enthused about her:

The Case Against Sotomayor
Indictments of Obama's front-runner to replace Souter.

Jeffrey Rosen,  The New Republic  Published: Monday, May 04, 2009


This is the first in a series of reports by TNR legal affairs editor Jeffrey Rosen about the strengths and weaknesses of the leading candidates on Barack Obama's Supreme Court shortlist.

A judge on the U.S. Court of Appeals for the Second Circuit, Sonia Sotomayor's biography is so compelling that many view her as the presumptive front-runner for Obama's first Supreme Court appointment. She grew up in the South Bronx, the daughter of Puerto Rican parents. Her father, a manual laborer who never attended high school, died a year after she was diagnosed with diabetes at the age of eight. She was raised by her mother, a nurse, and went to Princeton and then Yale Law School. She worked as a New York assistant district attorney and commercial litigator before Senator Daniel Patrick Moynihan recommended her as a district court nominee to the first President Bush. She would be the first Hispanic Supreme Court justice, if you don't count Benjamin Cardozo. (She went to Catholic schools and would also be the sixth Catholic justice on the current Supreme Court if she is, in fact, Catholic, which isn't clear from her official biography.) And she has powerful supporters: Last month, the two senators from New York wrote to President Obama in a burst of demographic enthusiasm, urging him to appoint Sotomayor or Ken Salazar.


Sotomayor's former clerks sing her praises as a demanding but thoughtful boss whose personal experiences have given her a commitment to legal fairness. "She is a rule-bound pragmatist--very geared toward determining what the right answer is and what the law dictates, but her general approach is, unsurprisingly, influenced by her unique background," says one former clerk. "She grew up in a situation of disadvantage, and was able, by virtue of the system operating in such a fair way, to accomplish what she did. I think she sees the law as an instrument that can accomplish the same thing for other people, a system that, if administered fairly, can give everyone the fair break they deserve, regardless of who they are."


Her former clerks report that because Sotomayor is divorced and has no children, her clerks become like her extended family--working late with her, visiting her apartment once a month for card games (where she remembers their favorite drinks), and taking a field trip together to the premier of a Harry Potter movie.


But despite the praise from some of her former clerks, and warm words from some of her Second Circuit colleagues, there are also many reservations about Sotomayor. Over the past few weeks, I've been talking to a range of people who have worked with her, nearly all of them former law clerks for other judges on the Second Circuit or former federal prosecutors in New York. Most are Democrats and all of them want President Obama to appoint a judicial star of the highest intellectual caliber who has the potential to change the direction of the court. Nearly all of them acknowledged that Sotomayor is a presumptive front-runner, but nearly none of them raved about her. They expressed questions about her temperament, her judicial craftsmanship, and most of all, her ability to provide an intellectual counterweight to the conservative justices, as well as a clear liberal alternative.


The most consistent concern was that Sotomayor, although an able lawyer, was "not that smart and kind of a bully on the bench," as one former Second Circuit clerk for another judge put it. "She has an inflated opinion of herself, and is domineering during oral arguments, but her questions aren't penetrating and don't get to the heart of the issue." (During one argument, an elderly judicial colleague is said to have leaned over and said, "Will you please stop talking and let them talk?") Second Circuit judge Jose Cabranes, who would later become her colleague, put this point more charitably in a 1995 interview with The New York Times: "She is not intimidated or overwhelmed by the eminence or power or prestige of any party, or indeed of the media."


Her opinions, although competent, are viewed by former prosecutors as not especially clean or tight, and sometimes miss the forest for the trees. It's customary, for example, for Second Circuit judges to circulate their draft opinions to invite a robust exchange of views. Sotomayor, several former clerks complained, rankled her colleagues by sending long memos that didn't distinguish between substantive and trivial points, with petty editing suggestions--fixing typos and the like--rather than focusing on the core analytical issues.


Some former clerks and prosecutors expressed concerns about her command of technical legal details: In 2001, for example, a conservative colleague, Ralph Winter, included an unusual footnote in a case suggesting that an earlier opinion by Sotomayor might have inadvertently misstated the law in a way that misled litigants. The most controversial case in which Sotomayor participated is Ricci v. DeStefano, the explosive case involving affirmative action in the New Haven fire department, which is now being reviewed by the Supreme Court. A panel including Sotomayor ruled against the firefighters in a perfunctory unpublished opinion. This provoked Judge Cabranes, a fellow Clinton appointee, to object to the panel's opinion that contained "no reference whatsoever to the constitutional issues at the core of this case." (The extent of Sotomayor's involvement in the opinion itself is not publicly known.)


Not all the former clerks for other judges I talked to were skeptical about Sotomayor. "I know the word on the street is that she's not the brainiest of people, but I didn't have that experience," said one former clerk for another judge. "She's an incredibly impressive person, she's not shy or apologetic about who she is, and that's great." This supporter praised Sotomayor for not being a wilting violet. "She commands attention, she's clearly in charge, she speaks her mind, she's funny, she's voluble, and she has ownership over the role in a very positive way," she said. "She's a fine Second Circuit judge--maybe not the smartest ever, but how often are Supreme Court nominees the smartest ever?"


I haven't read enough of Sotomayor's opinions to have a confident sense of them, nor have I talked to enough of Sotomayor's detractors and supporters, to get a fully balanced picture of her strengths. It's possible that the former clerks and former prosecutors I talked to have an incomplete picture of her abilities. But they're not motivated by sour grapes or by ideological disagreement--they'd like the most intellectually powerful and politically effective liberal justice possible. And they think that Sotomayor, although personally and professionally impressive, may not meet that demanding standard. Given the stakes, the president should obviously satisfy himself that he has a complete picture before taking a gamble.



Jeffrey Rosen is the legal affairs editor at The New Republic.

[alfred russel]

Again, st some point, this went from folk wisdom to a religious injuntion.  This interests me greatly, actually.

Wasn't it when God said so?

[Hansmeister]

Here are some of her cases that were overturned:

On those occasions on which the Supreme Court has reviewed Sotomayor's rulings, she hasn't fared well, drawing some pointed criticism and garnering at most 11 out of 44 possible votes for her reasoning across five cases. 

 
In Malesko v. Correctional Services Corp. (2000), Sotomayor ruled that the Court's 1971 ruling in Bivens, which implied a private action for damages against federal officers alleged to have violated a citizen's constititutional rights, should be extended to create an implied damages action against a private corporation operating a halfway house under contract with the Bureau of Prisons.  On review (Correctional Services Corp. v. Malesko (2001)), the Court reversed Sotomayor by a 5-4 vote.  Chief Justice Rehnquist's majority opinion labeled the plaintiff's claim "fundamentally different from anything recognized in Bivens or subsequent cases."  In his concurring opinion, Justice Scalia acknowledged that "a broad interpretation of [Bivens'] rationale would doubtless produce [the] application" made by the dissenters (and Sotomayor).  But, as he put it, "Bivens is a relic of the heady days in which this Court assumed common-law powers to create causes of action—decreeing them to be 'implied' by the mere existence of a statutory or constitutional prohibition."  The Court has abandoned that power in the statutory field, and "[t]here is even greater reason to abandon it in the constitutional field, since an 'implication' imagined in the Constitution can presumably not even be repudiated by Congress."

 
Just last term, in Knight v. Commissioner, the Supreme Court, in a unanimous opinion by Chief Justice Roberts, reached the same end result as Sotomayor on a tax question, but faulted her for adopting a reading of the relevant statute that "flies in the face of the statutory language."  In Merrill Lynch v. Dabit (2006), the Court, in an opinion by Justice Stevens, unanimously (8-0) reversed Sotomayor's ruling that certain state-law securities claims were not preempted by federal law.  Stevens pointed out that the Court had rejected Sotomayor's interpretation in cases from 1971 forward.  In New York Times v. Tasini (2001), the Court, by a 7-2 vote, rejected the reading of copyright law that Sotomayor had adopted (as the district judge in the case).

 
In Empire Healthchoice Assurance v. McVeigh, the Court, by a vote of 5 to 4, affirmed a ruling by Sotomayor on a question of federal jurisdiction.  (On a quick read, I can't readily discern whether the majority's grounds are the same as Sotomayor's, but will assume for purposes of my cumulative vote tally that they are.)

 
I'll also note that the Court has granted review of Sotomayor's decision in Riverkeeper v. EPA ruling that certain provisions of the Clean Water Act do not authorize the EPA to engage in cost-benefit analysis in crafting its rules.  The Supreme Court will decide that case—recaptioned Entergy Corp. v. EPA—this coming term.(USSC overturned this case after the article was written)

[Faeelin]

Her EPA case doesn't seem crazy, at least to me. The EPA is forbidden from doing cost benefit analysis on plenty of occasions, notably in the Clean Air Act. So it might not be a question of being a leftist.

[CountDeMoney]

The problem is with the immigrants.
They come from intolerant cultures

Oh, that's rich.

[Razgovory]

The problem is with the immigrants.
They come from intolerant cultures

Oh, that's rich.

Ain't though?  That shit is funny.

[The Minsky Moment]

Well, The New Republic certainly doesn't seem very enthused about her:

Rosen's critique seems fair enough, though a bit heavy on the anecdotes from persons not named.

Here are some of her cases that were overturned:

None of these seem particularly outrageous.  Dabit was a straight literal reading of the statute ("purchase or sale of securities") -- the Court just decided to interpret it to extend to holder claims.  That is the Court's prerogative, and I think it made the right call, but it is understandable why a lower court would just apply the statute literally as written.

I didn't look at Knight or Empire Health (which were not overturns).  All the other decisions are not only defensible, I personally think Sotomayor got them right.

[Fireblade]

<snip> don't understand that pork is not food for some people.

Some people don't understand that pork, once cooked properly, can be food.
Some people, whose ancestors didn't grasp this, proceeded to make divine law of prohibition, vice proper cooking.

Your move.

Fireblade's Law: As a Languish discussion grows longer, the probability of a thread hijack involving pork approaches 1.