Response to My Comments About Sotomayor

As might be expected, I have received much email responding to my CNN.com commentary about Obama’s Supreme Court pick. Some of it has been favorable, some less so (and some simply incoherent). One particular email covered most if not all concerns — and quite thoughtfully at that — so I thought I would share this exchange with a reader who emailed me his comments:

I read your piece “Sotomayor Pick Not Based on Merit”, where you
write, “in over 10 years on the Second Circuit, she has not issued any important
decisions”.

Granted that I’m a layman, not a legal scholar or anything - this list seems quite impressive, and,
as a whole, pretty non-ideological.

In reviewing this list, I found myself disagreeing with her here and there,
but I couldn’t find something that really irked me. Can you?

According to the authors, “Since joining the Second Circuit in 1998,
Sotomayor has authored over 150 opinions, addressing a wide range of issues, in
civil cases.” And that “To date, two of these decisions have been overturned by
the Supreme Court; a third is under review and likely to be reversed.” 2 out of
over 150, is not a bad record at all.

You also write that she’s “far less qualified for a seat on the Supreme
Court than Judges Diane Wood and Merrick Garland or Solicitor General Elena
Kagan.”

I did a bit of research on them, and I’m not sure why you reached that
conclusion. They are all qualified, in some respects Wood and Kagan are a bit
more impressive, but you give the impression that she’s not highly qualified,
and I don’t see evidence for that. On the contrary, she seems highly qualified -
she has a long judicial and academic record, she has dealt with a myriad of
issues, and has authored a vast amount of rulings, which, as far as I’ve seen,
don’t appear to be ideological or particularly “activist.” She strikes me as
someone balanced and sensible, with a slight tilt to the left.

You also write, “this does not a mean that Sotomayor is unqualified to be a
judge — or less qualified to be a Supreme Court justice than, say, Harriet
Miers” - but, c’mon, how can you even compare her to Miers? Miers was truly
unqualified. She’s hardly intellectually impressive in any way, to put it
mildly, and nothing about her record was impressive or even remotely suggesting
she’s qualified to serve as a Justice. She was basically a manager of a law
firm, with zero qualifications to serve as a SC justice. By even mentioning her
name while discussing Sotomayor, you’re giving the impression there’s an analogy
there, where there’s really none. Sotomayor is light-years ahead of Miers. You
can’t be serious.

You also make a big issue over Ricci v. DeStefano. Well, I
personally would side with the firemen, and it’s unfortunate that Sotomayor
hasn’t, but to be fair, she hasn’t even written a decision about that.We don’t
know what her reasoning was. She merely signed, along with the rest of the
panel, to uphold the lower court’s decision. It’s hard to build an entire case
against her based on something like that. She has written over 150 other
decisions, why not focus on them? Why pick one, that doesn’t even have any
arguments in it, and make it the central issue, when there are over 150 reasoned
decisions to analyze?Why not review them, and give the public a deeper
assessment, rather than focusing on ONE, which doesn’t even have any arguments
or reasoning in it?

I’m generally a Cato fan, I get the mailings every day, I’m a moderate
libertarian by philosophy, I’m just not sure why Cato is opposing her
nomination. I like to think of Cato as non-partisan, just as I am, but on this
issue your and Pilon’s opposition/criticism smacks from political partisanship
and is not based on the evidence. So it seems to me.

Here is my response:

Thanks for writing and for the thoughtful comments. A few points:

1. My argument is explicitly NOT that her opinions are disagreeable. I’ve
waded through a fair number and read every public report on them produced thus
far (including the very helpful SCOTUSblog summary you cite). Like you, some I
agree with — most, actually, because most cases at this intermediate appellate
level are not controversial (legally or politically), even if complex — some I
don’t. But there’s just not much “there” there — intellectual depth, scholarly
merit, etc. — at least by the elevated standards for elevation to the Supreme
Court and in comparison to more accomplished jurists like Wood and Garland.
She’s a competent judge, but we have 500 of those in the federal judiciary
alone. (And none of this is to disparage her tremendous personal story; I write
this from Princeton, where she had a truly impressive four years.)

2. Her reversal rate (I think there are six cases now) is a non-issue. The
Supreme Court reverses over 60% of cases it hears and hears fewer than 2% of
cases it is asked to review. So, statistically, we can say nothing about
Sotomayor in that sense. A couple of her reversals are a bit strange, but on
technical issues that, again, don’t lend much to the overall debate.

3. Yes, she’s much more qualified than Miers (though it’s a little unfair
to say Miers was a mere “law firm manager” — she was White House counsel and
apparently a decent lawyer in private practice). I threw that line in
there to show I can pick on Republican nominees too.

4. While Roger has discussed suspicions of Sotomayor’s activism or
radicalness — and I think it’s clear she has more of those tendencies than Wood
or Kagan — this is not the thrust of the my CNN commentary. We just can’t tell
from her opinions, which are all over the map — other than the speeches at
Berkeley and Duke and then the Ricci case.

5. Ricci is important for two reasons: a) on the merits, the
decision is blatant racial discrimination — and the Supreme Court looks likely
to overturn Sotomayor’s panel; b) perhaps more importantly, the failure to
grapple with the complex constitutional and statutory issues is a serious
dereliction of judicial duty — as pointed out by Jose Cabranes in his dissent
from denial of en banc rehearing. Regardless of the merits of the case, the way
it was handled — as a per curiam summary affirmance released late on a Friday,
meant to sweep the case under the rug — is outrageous. Sotomayor was 100%
complicit in that.

6. In no way are my (or Roger’s) comments partisan. Cato’s interest here
isn’t in any particular personality but rather: 1) that official appointments be
made irrespective of racial/ethnic/identity politics, and 2) even more
importantly, that the Supreme Court interpret the Constitution in a way that
treats the judicial enterprise not as one of enforcing social justice or
otherwise rewriting the law it when a result is inconvenient. The talk of
“empathy” is disturbing precisely because it is the antithesis of the rule of
law. And this is why Republican Judiciary Committee members must generate a
public debate on judicial philosophy and not merely attempt to tear down this
nominee. If they don’t demand substantive answers on serious constitutional
questions, they will be complicit in the deterioration of our confirmation
processes.

I look forward to following and commenting further as the confirmation process plays itself out.

[Cross-posted from Cato's blog.]