Conservative opponents to the confirmation of Supreme Court nominee Sonia Sotomayor were provided with new ammunition in their flagging attempt to sidetrack her nomination. In a case (Ricci v. DeFastano et al.) coming out of the Second Circuit in which Judge Sotomayor participated, the Supreme Court decided in favor of the white firefighters (Ricci) who claimed the city of New Haven violated their Title VII civil rights by throwing out the results of a test required to qualify for promotion. In that test, white firefighters scored higher than the minority firefighters. The federal district judge had sided with New Haven (DeFastano et al.) and Judge Sotomayor joined with two of her colleagues in the Second Circuit to affirm the district court ruling. The Supreme Court now has overruled that decision.
This is a complex case that conservative opponents of Sotomayor have already tried to oversimplify as a straight-forward instance of racial discrimination against whites. Some will also try to paint this overturning of the Second Circuit as an indicator of Sotomayor’s lack of fitness to serve on the Court. Alas, both arguments constitute shameless efforts to influence public opinion, a public these advocates are counting on to be ill-informed about both jurisprudence and the workings of the Supreme Court.
With respect to the Supreme Court’s decision, Ricci was the winner because Justice Anthony Kennedy saw it that way. This was the fourth 5-4 decision in recent weeks in which Kennedy has decided whether the outcome will be one preferred by the Court’s four conservative justices or the four more liberal ones. In Ashcroft et al. v. Iqbal et al. Justice Kennedy wrote the Court's conservative opinion imposing limits on the liability of government supervisors. In Montejo v. Louisiana, the conservative bloc effectively reversed a 1986 precedent protecting a defendant's 6th Amendment right to have counsel present during interrogation by the police after one's arraignment. Subsequently, Kennedy joined his more liberal colleagues in Caperton et al. v. Massey Coal to rule that elected judges may have to recuse themselves in cases connected with individuals who were huge contributors to the election campaign of that judge. In each of these instances, had Kennedy sided instead with the minority of four, the Court decision would have been the reverse.
An argument that Sotomayor is somehow unqualified to be on the Court because of her affirmation of the district court’s ruling against Ricci fails on two fronts. First, circuit court judges have less latitude than do Supreme Court justices to break new ground in interpreting legal issues. Doing so would constitute the very judicial activism that conservatives purport to decry. Second, even assuming that Sotomayor would have decided against Ricci were she on the Supreme Court, and she likely would have, to say that disqualifies her from being on the Court is tantamount to saying that Justices Stevens, Breyer, Ginsburg, and Souter are unqualified to be on the Court, or that Justices Roberts, Scalia, Thomas, and Alito are unfit because of their minority opinion in the Caperton case. Interpreting the law is a complex endeavor that engenders reasonable differences of opinion. After all, without controversy, a case is not a case.
I believe it is legitimate to oppose the nomination of Sotomayor because you would prefer someone more in the mold of Alito or Scalia than of Ginsburg or Souter. Using the 5-4 decision in Ricci, however, to couch that preference in terms that question her very fitness or her bias, especially by people who know better, is fundamentally dishonest.
[This blog entry is part of the civic education project, "Vacancy on the Court," which may be found at http://supremecourt.ws]
Monday, June 29, 2009
Rhetoric and Rancor in the Confirmation Process: A Wee History
Ever yearn for those good old days when Supreme Court nominations did not generate such partisan rancor? Many consider that to be any time before the nomination of Robert Bork in 1987. Remember this reaction to his nomination?
“. . . taking into view [his] reputation, character, and professional career, he is not a fit person to be a member of the Supreme Court of the United States.”
Oops, my mistake. That comment wasn’t about Robert Bork; it was directed at Louis Brandeis in 1916. Woodrow Wilson did not shy away from nominating this intellectual giant, the first Jew to serve as a justice, but the opposition was fierce and the rancor distinct.
Still, that comment seems rather mild, almost gentile. Was it really that way back when? Let’s get more personal. What about “an office too important and dignified for a character not very far above mediocrity. . . [he is] wholly destitute of every qualification for that important station.” Or “[This nomination] is an affront to the Court and to the people. [It] is as menacing as it is unfit. [The president has] picked the one who would be generally regarded as the worst he could find.” Surely, these observations rank right up there with the comment made by a senator in voting against Clarence Thomas, “I cannot find a single distinguishing aspect of [this nominee's] legal career that would warrant his consideration for the Court.”
The “mediocrity” comment was directed at one of our very first justices, John Rutledge, nominated to be our second Chief Justice in 1795 by the Father of our Country. The “worst” comment was directed at Hugo Black in 1937, considered by many to be one of the strongest voices in the Warren Court of the 50s and 60s.
If we were to hear this following comment today, it would undoubtedly elicit complaints about how politicized the process has become: “Even those most acquainted with modern degeneracy were astounded at this abominable nomination.” But this comment came in 1811, directed at Alexander Wolcott, a nominee put forward by the Father of our Constitution, James Madison.
Hyperbole abounds in reactions to nominees. Of Roger Taney, an Andrew Jackson nominee, it was said, “[He administered]...the most dangerous blow which has been given our constitution and law. If [he] ... be now confirmed, all will be lost.” The “blow”was Taney’s undermining of the Second Bank of the United States, as Jackson’s Secretary of Treasury. Perhaps the statement was not overly aggressive: Taney’s majority opinion in the Dred Scott case is considered by some as moving the nation a step closer to the Civil War.
One of the most famous reactions to a nomination was made, not by an opponent, but by a supporter. Never was “damning with faint praise” more evident than in Senator Roman Hruska’s effort to support Nixon nominee Harold Carswell: “Even if he were mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they, and a little chance? We can't have all Brandeises and Frankfurters and Cardozos . . .”
If there’s a lesson to be gleaned from all of this, it is that the process of appointing Supreme Court justices has always been partisan and political. While plaintive voices and oppositional reactions of advocacy groups have proliferated with expanding media fora, rancorous rhetoric has been common in the public sphere from the dawn of the republic. If it ever seemed otherwise, it was only because of solid Senate support for the president or because the president himself chose to exercise a politics of consensus rather than the politics of controversy in making a nomination.
And while we may legitimately decry the rancor, making the appointment process an adversarial one is not inappropriate. After all, the justice system itself assumes an adversarial system is the best way to find the truth.
[For more on this subject, visit "A Vacancy on the Court," a civic education project of Professor George Watson at http://supremecourt.ws]
“. . . taking into view [his] reputation, character, and professional career, he is not a fit person to be a member of the Supreme Court of the United States.”
Oops, my mistake. That comment wasn’t about Robert Bork; it was directed at Louis Brandeis in 1916. Woodrow Wilson did not shy away from nominating this intellectual giant, the first Jew to serve as a justice, but the opposition was fierce and the rancor distinct.
Still, that comment seems rather mild, almost gentile. Was it really that way back when? Let’s get more personal. What about “an office too important and dignified for a character not very far above mediocrity. . . [he is] wholly destitute of every qualification for that important station.” Or “[This nomination] is an affront to the Court and to the people. [It] is as menacing as it is unfit. [The president has] picked the one who would be generally regarded as the worst he could find.” Surely, these observations rank right up there with the comment made by a senator in voting against Clarence Thomas, “I cannot find a single distinguishing aspect of [this nominee's] legal career that would warrant his consideration for the Court.”
The “mediocrity” comment was directed at one of our very first justices, John Rutledge, nominated to be our second Chief Justice in 1795 by the Father of our Country. The “worst” comment was directed at Hugo Black in 1937, considered by many to be one of the strongest voices in the Warren Court of the 50s and 60s.
If we were to hear this following comment today, it would undoubtedly elicit complaints about how politicized the process has become: “Even those most acquainted with modern degeneracy were astounded at this abominable nomination.” But this comment came in 1811, directed at Alexander Wolcott, a nominee put forward by the Father of our Constitution, James Madison.
Hyperbole abounds in reactions to nominees. Of Roger Taney, an Andrew Jackson nominee, it was said, “[He administered]...the most dangerous blow which has been given our constitution and law. If [he] ... be now confirmed, all will be lost.” The “blow”was Taney’s undermining of the Second Bank of the United States, as Jackson’s Secretary of Treasury. Perhaps the statement was not overly aggressive: Taney’s majority opinion in the Dred Scott case is considered by some as moving the nation a step closer to the Civil War.
One of the most famous reactions to a nomination was made, not by an opponent, but by a supporter. Never was “damning with faint praise” more evident than in Senator Roman Hruska’s effort to support Nixon nominee Harold Carswell: “Even if he were mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they, and a little chance? We can't have all Brandeises and Frankfurters and Cardozos . . .”
If there’s a lesson to be gleaned from all of this, it is that the process of appointing Supreme Court justices has always been partisan and political. While plaintive voices and oppositional reactions of advocacy groups have proliferated with expanding media fora, rancorous rhetoric has been common in the public sphere from the dawn of the republic. If it ever seemed otherwise, it was only because of solid Senate support for the president or because the president himself chose to exercise a politics of consensus rather than the politics of controversy in making a nomination.
And while we may legitimately decry the rancor, making the appointment process an adversarial one is not inappropriate. After all, the justice system itself assumes an adversarial system is the best way to find the truth.
[For more on this subject, visit "A Vacancy on the Court," a civic education project of Professor George Watson at http://supremecourt.ws]
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