Karen Kraft
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Only a few days remain until confirmations hearings begin on Judge Sonia Sotomayor’s nomination to the Supreme Court. Here are some of the issues that face her during her appearance before the Senate Judiciary Committee.
A. The 2nd Amendment
A major issue that developed this week is increasing opposition to Sonia Sotomayor’s nomination from the 2nd Amendment community. Committee for Justice’s Curt Levey was one of the first to report on a letter released Wednesday by 14 members of the National Rifle Association's Board of Directors and Executive Council. As Levey explains, this could spell trouble for Sotomayor:
“Today's letter is a game changer politically. For the first time in the history of judicial confirmation fights, the Second Amendment community is playing a big role. Because it's the one community that can send red state Democrats running for cover, this letter and the grassroots opposition to Sotomayor that it represents put her confirmation in doubt. Red and purple state Democratic senators know that if they vote to confirm Sotomayor, they will face a lot of unhappy constituents back home. Those senators will have to explain to their constituents why they endangered their fundamental rights by putting someone so hostile to the Second Amendment on the Supreme Court. And that's after they finish explaining away Sotomayor's embrace of racial preferences and disdain for property rights.”
With its voting scorecard, which moderate to conservative Democrats frequently tout in tough campaigns, the NRA holds a large amount of sway.
Gun issues have been an area where moderate to conservative Democrats have been more than willing to side with the Republican minority. Oklahoma Republican Sen. Tom Coburn's amendment to permit concealed-carry in national parks won with the help of 27 Democrats who crossed the aisle to support the measure.
The NRA has not officially taken a position on Sotomayor’s nomination. However, NRA Executive Director Chris W. Cox submitted a letter to Chairman of the Judiciary Committee Pat Leahy and Ranking Member Jeff Sessions, expressing the NRA’s “very serious concerns about the nomination of Judge Sonia Sotomayor….”
B. Affirmative Action and Nondiscrimination
During her confirmation hearings, Sotomayor will certainly be asked about her role in the recent Supreme Court decision in Ricci v. DeStefano. As you may know, Ricci made its way to the Supreme Court following Sotomayor’s one paragraph opinion in the Second Circuit Court of Appeals decision. Sotomayor has been criticized for both her summary one-paragraph opinion and for her legal reasoning.
While the Supreme Court was closely divided (5-4) on the disposition of the case, they were not divided at all when it came to rejecting Sotomayor’s holding. As Stuart Taylor in the National Journal’s The Ninth Justice explains:
“What's more striking is that the court was unanimous in rejecting the Sotomayor panel's specific holding. Her holding was that New Haven's decision to spurn the test results must be upheld based solely on the fact that highly disproportionate numbers of blacks had done badly on the exam and might file a "disparate-impact" lawsuit -- regardless of whether the exam was valid or the lawsuit could succeed.”
In fact, even Justice Ruth Bader Ginsburg's 39-page dissent for the four more liberal justices quietly but unmistakably rejected the Sotomayor-endorsed position that disparate racial results alone justified New Haven's decision to dump the promotional exam without even inquiring into whether it was fair and job-related.
Justice Ginsburg also suggested clearly -- as did the Obama Justice Department, in a friend-of-the-court brief -- that the Sotomayor panel erred in upholding summary judgment for the city. Ginsburg said that the lower courts should have ordered a jury trial to weigh the evidence that the city's claimed motive -- fear of losing a disparate impact suit by low-scoring black firefighters if it proceeded with the promotions -- was a pretext. The jury's job would have been to consider evidence that the city's main motive had been to placate black political leaders who were part of Mayor John DeStefano's political base.
Even beyond the debate over the soundness of Sotomayor’s legal reasoning in Ricci, is how dismissive the single paragraph opinion was. Heritage’s Foundry explains in detail the concern of Clinton appointee Second Circuit Judge José Cabranes of Sotomayor’s handling of the case.
What is even worse for Sotomayor and the Democrats is that firefighter Frank Ricci, the named plaintiff in the case, is expected to appear before the Judiciary Committee next Thursday as a witness during her confirmation hearings.
Was Sotomayor’s role in Ricci just flawed legal reasoning, or does it force us to ask a larger question? As Senate Leader McConnell asks his Senate colleagues: “s she allowing her personal or political agenda to cloud her judgment and favor one group of individuals over another, irrespective of what the law says [?]” In The Hill, Senator Cornyn (R-TX), raises similar issues.
The senators questioning Sotomayor will likely be aware that the court of public opinion is not with Sotomayor in Ricci. Rasmussen Reports notes the Ricci decision resulted in “diminished public support” for Sotomayor: “The latest Rasmussen Reports national telephone survey, conducted on the two nights following the Supreme Court decision, finds that 37% now believe Sotomayor should be confirmed while 39% disagree.”
C. 1st Amendment
Politico has reported Republican senators, particularly Republican Leader McConnell, have zeroed in on Sotomayor’s support of campaign finance regulations as an area of vulnerability. The issue is especially relevant because “the issue likely would be the subject of the first case she would hear on the bench — a challenge to one of the fundamental pillars of the 2002 McCain-Feingold campaign finance act.” More from Politico:
“A leading and longtime opponent of campaign fundraising and spending restrictions, McConnell pointed disapprovingly to a 1996 law review article in which Sotomayor forcefully defended the policy motivations behind such regulations and questioned the line between campaign contributions and “bribes.” She called on Congress to overhaul campaign finance laws—including suggesting public financing of its own elections—and blasted the Federal Election Commission for not enforcing existing laws.”
The minority leader also accused Sotomayor, a federal appellate judge, of making “errors” on the only occasion when she was confronted on the bench with a campaign finance case. As a federal circuit court judge in the late 1990s, Sotomayor joined a decision that effectively gave a pass to a 1997 Vermont law that severely limited campaign contributions and capped campaign spending—a law that the Supreme Court later overturned as a First Amendment violation.
D. Property Rights
Another important issue surfacing is Sotomayor’s record on property rights. In particular, Sotomayor’s role in Didden v. Port Chester is drawing attention. Richard Epstein wrote about it on Forbes.com over a year before Sotomayor’s nomination. After Sotomayor’s nomination, he followed up:
The case involved about as naked an abuse of government power as could be imagined. Bart Didden came up with an idea to build a pharmacy on land he owned in a redevelopment district in Port Chester over which the town of Port Chester had given Greg Wasser control. Wasser told Didden that he would approve the project only if Didden paid him $800,000 or gave him a partnership interest. The "or else" was that the land would be promptly condemned by the village, and Wasser would put up a pharmacy himself. Just that came to pass. But the Second Circuit panel on which Sotomayor sat did not raise an eyebrow. Its entire analysis reads as follows: "We agree with the district court that [Wasser's] voluntary attempt to resolve appellants' demands was neither an unconstitutional exaction in the form of extortion nor an equal protection violation."
At the Volokh Conspiracy, Ilya Somin calls it “one of the worst property rights decisions in recent years.” While Somim acknowledges that the ruling was in part based on controlling Supreme Court precedent in the Kelo decision, it cannot provide total cover. However, the majority opinion [in Kelo] by Justice John Paul Stevens also emphasized that "the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit," was not enough to count as a "public use." It is difficult to imagine a more clearly pretextual taking than this one, since Didden and Bologna's property would not have been condemned if it weren't for their refusal to pay Wasser the money he sought to extort from them. Bet on some aggressive questioning on this decision by concerned senators.
E. Foreign Law
The citation of foreign law by those such as Justices Breyer and Ginsburg has become increasingly controversial in recent years. It is also another issue that Sotomayor will undoubtedly be queried on during her confirmation hearings. For example, the questions might be framed this way:
· In your speech to the ACLU of Puerto Rico, you expressed your fear that the U.S. Supreme Court may “lose influence in the world” if it was not more open to discussing the ideas raised by foreign and international courts. Do you believe that it is the proper role of a justice of the Supreme Court to decide cases based on whether the decision will influence the jurisprudence of foreign courts? If so, how great a factor should the desire to influence foreign courts play in interpreting the Constitution?
· Recent Supreme Court cases such as Roper v. Simmons (regarding the juvenile death penalty) and Lawrence v. Texas (regarding the criminalization of homosexual acts) have caused controversy since the majority opinion in those cases cited foreign law, international law, and the “opinion of the world community” in reaching a decision. You spoke favorably as to both of those opinions in your recent speech to the ACLU of Puerto Rico. By what criteria should foreign decisions be cited? Should the Court really be looking to adopt norms outside of the American tradition when deciding cases regarding controversial “values” issues such as the death penalty and homosexuality?
· In your speech to the ACLU of Puerto Rico, you stated that citing to foreign and international law in cases such as Roper v. Simmons and Lawrence v. Texas was proper, since it would “help us understand whether our understanding of our own constitutional rights fell into the mainstream of human thinking.” What exactly constitutes the “mainstream of human thinking”? Since much of American constitutional jurisprudence falls outside of the mainstream–i.e., the U.S. Constitution has been interpreted to provide broader protection for free speech and abortion than in most (if not all) of the world–how is it that America’s more illiberal neighbors within “the world community” should influence the Court’s decisions?
How do you think Judge Sotomayor will answer these concerns and address these issues, specifically?
A. The 2nd Amendment
A major issue that developed this week is increasing opposition to Sonia Sotomayor’s nomination from the 2nd Amendment community. Committee for Justice’s Curt Levey was one of the first to report on a letter released Wednesday by 14 members of the National Rifle Association's Board of Directors and Executive Council. As Levey explains, this could spell trouble for Sotomayor:
“Today's letter is a game changer politically. For the first time in the history of judicial confirmation fights, the Second Amendment community is playing a big role. Because it's the one community that can send red state Democrats running for cover, this letter and the grassroots opposition to Sotomayor that it represents put her confirmation in doubt. Red and purple state Democratic senators know that if they vote to confirm Sotomayor, they will face a lot of unhappy constituents back home. Those senators will have to explain to their constituents why they endangered their fundamental rights by putting someone so hostile to the Second Amendment on the Supreme Court. And that's after they finish explaining away Sotomayor's embrace of racial preferences and disdain for property rights.”
With its voting scorecard, which moderate to conservative Democrats frequently tout in tough campaigns, the NRA holds a large amount of sway.
Gun issues have been an area where moderate to conservative Democrats have been more than willing to side with the Republican minority. Oklahoma Republican Sen. Tom Coburn's amendment to permit concealed-carry in national parks won with the help of 27 Democrats who crossed the aisle to support the measure.
The NRA has not officially taken a position on Sotomayor’s nomination. However, NRA Executive Director Chris W. Cox submitted a letter to Chairman of the Judiciary Committee Pat Leahy and Ranking Member Jeff Sessions, expressing the NRA’s “very serious concerns about the nomination of Judge Sonia Sotomayor….”
B. Affirmative Action and Nondiscrimination
During her confirmation hearings, Sotomayor will certainly be asked about her role in the recent Supreme Court decision in Ricci v. DeStefano. As you may know, Ricci made its way to the Supreme Court following Sotomayor’s one paragraph opinion in the Second Circuit Court of Appeals decision. Sotomayor has been criticized for both her summary one-paragraph opinion and for her legal reasoning.
While the Supreme Court was closely divided (5-4) on the disposition of the case, they were not divided at all when it came to rejecting Sotomayor’s holding. As Stuart Taylor in the National Journal’s The Ninth Justice explains:
“What's more striking is that the court was unanimous in rejecting the Sotomayor panel's specific holding. Her holding was that New Haven's decision to spurn the test results must be upheld based solely on the fact that highly disproportionate numbers of blacks had done badly on the exam and might file a "disparate-impact" lawsuit -- regardless of whether the exam was valid or the lawsuit could succeed.”
In fact, even Justice Ruth Bader Ginsburg's 39-page dissent for the four more liberal justices quietly but unmistakably rejected the Sotomayor-endorsed position that disparate racial results alone justified New Haven's decision to dump the promotional exam without even inquiring into whether it was fair and job-related.
Justice Ginsburg also suggested clearly -- as did the Obama Justice Department, in a friend-of-the-court brief -- that the Sotomayor panel erred in upholding summary judgment for the city. Ginsburg said that the lower courts should have ordered a jury trial to weigh the evidence that the city's claimed motive -- fear of losing a disparate impact suit by low-scoring black firefighters if it proceeded with the promotions -- was a pretext. The jury's job would have been to consider evidence that the city's main motive had been to placate black political leaders who were part of Mayor John DeStefano's political base.
Even beyond the debate over the soundness of Sotomayor’s legal reasoning in Ricci, is how dismissive the single paragraph opinion was. Heritage’s Foundry explains in detail the concern of Clinton appointee Second Circuit Judge José Cabranes of Sotomayor’s handling of the case.
What is even worse for Sotomayor and the Democrats is that firefighter Frank Ricci, the named plaintiff in the case, is expected to appear before the Judiciary Committee next Thursday as a witness during her confirmation hearings.
Was Sotomayor’s role in Ricci just flawed legal reasoning, or does it force us to ask a larger question? As Senate Leader McConnell asks his Senate colleagues: “s she allowing her personal or political agenda to cloud her judgment and favor one group of individuals over another, irrespective of what the law says [?]” In The Hill, Senator Cornyn (R-TX), raises similar issues.
The senators questioning Sotomayor will likely be aware that the court of public opinion is not with Sotomayor in Ricci. Rasmussen Reports notes the Ricci decision resulted in “diminished public support” for Sotomayor: “The latest Rasmussen Reports national telephone survey, conducted on the two nights following the Supreme Court decision, finds that 37% now believe Sotomayor should be confirmed while 39% disagree.”
C. 1st Amendment
Politico has reported Republican senators, particularly Republican Leader McConnell, have zeroed in on Sotomayor’s support of campaign finance regulations as an area of vulnerability. The issue is especially relevant because “the issue likely would be the subject of the first case she would hear on the bench — a challenge to one of the fundamental pillars of the 2002 McCain-Feingold campaign finance act.” More from Politico:
“A leading and longtime opponent of campaign fundraising and spending restrictions, McConnell pointed disapprovingly to a 1996 law review article in which Sotomayor forcefully defended the policy motivations behind such regulations and questioned the line between campaign contributions and “bribes.” She called on Congress to overhaul campaign finance laws—including suggesting public financing of its own elections—and blasted the Federal Election Commission for not enforcing existing laws.”
The minority leader also accused Sotomayor, a federal appellate judge, of making “errors” on the only occasion when she was confronted on the bench with a campaign finance case. As a federal circuit court judge in the late 1990s, Sotomayor joined a decision that effectively gave a pass to a 1997 Vermont law that severely limited campaign contributions and capped campaign spending—a law that the Supreme Court later overturned as a First Amendment violation.
D. Property Rights
Another important issue surfacing is Sotomayor’s record on property rights. In particular, Sotomayor’s role in Didden v. Port Chester is drawing attention. Richard Epstein wrote about it on Forbes.com over a year before Sotomayor’s nomination. After Sotomayor’s nomination, he followed up:
The case involved about as naked an abuse of government power as could be imagined. Bart Didden came up with an idea to build a pharmacy on land he owned in a redevelopment district in Port Chester over which the town of Port Chester had given Greg Wasser control. Wasser told Didden that he would approve the project only if Didden paid him $800,000 or gave him a partnership interest. The "or else" was that the land would be promptly condemned by the village, and Wasser would put up a pharmacy himself. Just that came to pass. But the Second Circuit panel on which Sotomayor sat did not raise an eyebrow. Its entire analysis reads as follows: "We agree with the district court that [Wasser's] voluntary attempt to resolve appellants' demands was neither an unconstitutional exaction in the form of extortion nor an equal protection violation."
At the Volokh Conspiracy, Ilya Somin calls it “one of the worst property rights decisions in recent years.” While Somim acknowledges that the ruling was in part based on controlling Supreme Court precedent in the Kelo decision, it cannot provide total cover. However, the majority opinion [in Kelo] by Justice John Paul Stevens also emphasized that "the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit," was not enough to count as a "public use." It is difficult to imagine a more clearly pretextual taking than this one, since Didden and Bologna's property would not have been condemned if it weren't for their refusal to pay Wasser the money he sought to extort from them. Bet on some aggressive questioning on this decision by concerned senators.
E. Foreign Law
The citation of foreign law by those such as Justices Breyer and Ginsburg has become increasingly controversial in recent years. It is also another issue that Sotomayor will undoubtedly be queried on during her confirmation hearings. For example, the questions might be framed this way:
· In your speech to the ACLU of Puerto Rico, you expressed your fear that the U.S. Supreme Court may “lose influence in the world” if it was not more open to discussing the ideas raised by foreign and international courts. Do you believe that it is the proper role of a justice of the Supreme Court to decide cases based on whether the decision will influence the jurisprudence of foreign courts? If so, how great a factor should the desire to influence foreign courts play in interpreting the Constitution?
· Recent Supreme Court cases such as Roper v. Simmons (regarding the juvenile death penalty) and Lawrence v. Texas (regarding the criminalization of homosexual acts) have caused controversy since the majority opinion in those cases cited foreign law, international law, and the “opinion of the world community” in reaching a decision. You spoke favorably as to both of those opinions in your recent speech to the ACLU of Puerto Rico. By what criteria should foreign decisions be cited? Should the Court really be looking to adopt norms outside of the American tradition when deciding cases regarding controversial “values” issues such as the death penalty and homosexuality?
· In your speech to the ACLU of Puerto Rico, you stated that citing to foreign and international law in cases such as Roper v. Simmons and Lawrence v. Texas was proper, since it would “help us understand whether our understanding of our own constitutional rights fell into the mainstream of human thinking.” What exactly constitutes the “mainstream of human thinking”? Since much of American constitutional jurisprudence falls outside of the mainstream–i.e., the U.S. Constitution has been interpreted to provide broader protection for free speech and abortion than in most (if not all) of the world–how is it that America’s more illiberal neighbors within “the world community” should influence the Court’s decisions?
How do you think Judge Sotomayor will answer these concerns and address these issues, specifically?
