Sotomayor and the Volokhians redux

Last week it was noted here that professor of law and Volokh conspiracist Ilya Somin had deployed a criticism of Judge Sonia Sotomayor that missed its mark by some considerable margin.

In a nutshell, Somin had attacked Sotomayor over the case of Kelo v. City of New London, where the Fifth Amendment Takings Clause was exercised in Connecticut to further a local building development.

Somin said Sotomayor was wrong to refer to the area in question as "economically blighted" because, Somin claimed, the Court in Kelo determined that "the area in question was not blighted" (italics his).

This isn't exactly correct, as I explained. What the Court acknowledged was that the individual properties (in contrast to Sotomayor's "area") the government had taken were not blighted:

There is no allegation that any of these properties [that is, the individual ones subjected to the Takings Clause] is blighted or otherwise in poor condition; rather, they were condemned only because they happen to be located in the development area.

Then last Thursday Prof. Ilya Somin appeared live in person before the Senate Judiciary Committee.

In his prepared remarks, Prof. Somin made reference to "'blight' condemnations of the sort licensed by Kelo." Quote, unquote. This observation in turn is supported [sic] by a footnote to an earlier piece of Somin's that appeared in a 2006 issue of Legal Times.

But there was no "blight condemnation" at all in Kelo, as Somin himself had pointed out previously at the Volokh Conspiracy.

In sum, Prof. Somin had criticized Judge Sotomayor for calling something other than those individual properties "economically blighted" yet here he is — facing Congress, no less — describing the case in terms that the Kelo majority had expressly repudiated.

Except Prof. Somin never criticized himself, only Judge Sotomayor.

How does that work, one might ask. Here, let me show you it:

This made me wonder whether Judge Sotomayor was in fact recalling Prof. Somin's own prior Legal Times scholarship and I put the question to Prof. Rick Esenberg of Marquette Law School, who was leveling the same criticism against Sotomayor as had Somin.

"I stand by my statement," came his retort. Although now he's retreated to alleging merely that Sotomayor's observation "left an impression" of her misstating the case. Oh. Well, then.

It's funny, because many other conservative critics of Judge Sonia Sotomayor are chastising her for misstating the law and for being unclear. How do you get to do both? Easy: assume the worst of her, obviously, and then labor mightily to discover it somehow.

Among the more egregious examples of this transparently fallacious technique (in reverse) appears at an online "debate" hosted by the conservative Federalist Society, which can be located here.

During the course of the discussion, one of the participants invokes the experience of Clarence Thomas, who had responded to the Senate Judiciary Committee's inquiries into his views on abortion by saying that he hadn't really thought much about Roe v. Wade, even though the decision came down while he was in law school.

Many observers found this claim to be at least mildly preposterous, pronounced as it was some 17 years after the Court's opinions in Roe.

Yet the Federalist Society disciples seem to be of the opinion that Thomas's remarks are themselves at worst "unclear," and therefore Thomas's words are naturally entitled to a careful and meticulous parsing weighted heavily in his favor and with personal anecdotes, leading inexorably to the preordained determination that whatever Thomas had said must have been righteous, upright, and True.

But as for Sotomayor's "lack of clarity," well, it can only be either that she's stupid or she's lying. Nope, no double standard here at all.

A swing and a miss at Volokh Stadium

SOTOMAYOR: And [in Kelo], the Court held that a taking to develop an economically blighted area was appropriate.

There is some mildly entertaining commentary underway at the famous highbrow gun nut website The Volokh Conspiracy, related to today's Senate Judiciary Committee hearings.

Generally, fans of The Volokh Conspiracy are — in many cases, rabidly — pre-opposed to Judge Sonia Sotomayor's confirmation to the U.S. Supreme Court. Assumedly because she's going to take away their guns (her and Frank Easterbrook and Richard Posner, apparently).

It seems some of the Volokh Conspiracy conspiracists, contributors, and commenters are busily picking apart Judge Sotomayor's testimony in the hopes of finding a few Gotcha! moments.

For example, Prof. Ilya Somin boldly claims that Sotomayor "misstated" the holding in Kelo v. City of New London, an endlessly contentious 2005 Supreme Court case wherein the majority upheld the Fifth Amendment taking of some privately held parcels of real estate for a commercial development in Connecticut.

This attempted Gotcha! moment concerns Sotomayor's use of the word "blighted" instead of "distressed," two legal terms of art in property law. Granted, they might not be interchangeable, but the following demonstrates not so much a misstep by Judge Sotomayor as the less-than-accurate enthusiasm of Prof. Somin.

Here are the highlights of the Volokh thread:

SOMIN: [Sotomayor] incorrectly claimed that Kelo upheld a taking in an "economically blighted area." In reality, both sides in the Kelo litigation agreed that the area in question was not blighted.

First of all, one does not normally characterize the holding of a U.S. Supreme Court decision by reference to what the litigating parties agreed to. That may be interesting, but it is not controlling.

And within a slightly realer reality, what the Court did say was that the 15 individual properties the municipality had exercised its takings power over were not "blighted." That is, the Court wasn't speaking about "the area," as was Judge Sotomayor.

A more careful commenter chimes in:

ZUCH: Prof. Somin, you're nitpicking here. The Court said the area was "distressed" (or at least that the CT gummint's determination that it was "distressed" was entitled to some deference; Kelo, p. 13). I don't think [Sotomayor's] characterization of the case was fundamentally wrong, even if she didn't use the 'right' words; the exact words used by the opinion, not having the text of such in front of her. There's a fine line between "blighted" and "distressed," but the fact is that she didn't say, as you imply above, that the gummint could take land for "public use" for any reason whatsoever.

Commenter Zuch has it exactly right. From the opinion:

Those who govern the City [of New London] were not confronted with the need to remove blight in the Fort Trumbull area, but their determination that the area was sufficiently distressed to justify a program of economic rejuvenation is entitled to our deference.

Emphasis added.

The next commenter confirms and clarifies:

SHELBYC: The area was distressed, not the property itself. So as opposed to condemning "blighted" property to remove the blight, they were condemning property within an economically distressed area to help uplift the entire area. Big difference.

Indeed. Regardless of what the litigating parties agreed to.

So, what Judge Sotomayor was referring to by "economically blighted area" was not Suzanne Kelo's and the others' property, but rather the Fort Trumbull "area," which the Supreme Court had characterized as "sufficiently distressed," and for which Sotomayor had substituted the expression "economically blighted." (And note the qualifier.)

So the far more appropriate distinction is between the individual properties taken and the larger area targeted for municipal development, not so much the difference between "sufficiently distressed" and "economically blighted" (the latter distinction being practically non-existent, under the circumstances).

Is this worthy of Prof. Somin's own condemnation? Hardly.

Held: Sotomayor 1, Somin 0.

On Sotomayor: Judge Koschnick's two-sense

Part One of Three

Jefferson County Circuit Judge Randy Koschnick, the conservative Republican who conducted an often unintelligible political campaign against Wisconsin Supreme Court Chief Justice Shirley Abrahamson earlier this year, is back, and he seems to be mightily confused.

Appearing as a guest blogger at the highly regarded conservative Republican echo chamber "Boots & Sabers," Koschnick wants to say that U.S. Supreme Court nominee Sonia Sotomayor is a "liberal activist" — and he does, ten times — but he's as incoherent as ever.

Beneath the highfalutin rubric "Judge Koschnick Opines on Judge Sotomayor," Koschnick claims that Sotomayor is "nothing short of supremely unqualified and significantly flawed" and alleges that confirming her to the Court would be a collective Senatorial act of "intellectual dishonesty" (the latter was also a charge Koschnick leveled toward Shirley Abrahamson without one iota of support).

Koschnick selects three cases, labels this an "examination of her record," and concludes that, as they all contain "serious defects," Sotomayor's "record" is that of an "unapologetically liberal activist."

Unfortunately Koschnick's sweeping criticisms barely make any sense, especially issuing from a self-described "strict constructionist."

Randy Koschnick might be a good circuit judge and an effective political panderer to the credulous "Boots & Sabers" aficionados, but he's not much of a convincing theorist.

First of all, and speaking of serious defects, it would certainly appear that Judge Koschnick hadn't known that the expressions "felon disenfranchisement" and "felony disenfranchisement" both mean exactly the same thing and are therefore interchangeable.

In some compound legal terms, "felony" precedes another word and acts as a sort of adjective. As in, for example, felony theft or felony battery. These are meant to distinguish from misdemeanor theft or misdemeanor battery — felony and misdemeanor denote the seriousness of the offense, and thereby the potential for sentencing to different periods of incarceration upon conviction.

Then there is felony murder, where an unintended homicide is caused during the commission of some other felony crime.

In all those instances, "felony" describes the offense. Perhaps they are what Judge Koschnick had in mind when he undertook his "examination of Sotomayor's record." (In fact her record consists of thousands of cases. Koschnick "examines" three. But never mind.)

Except that isn't the case with the term "felony disenfranchisement."

Felony disenfranchisement refers to one's losing the voting franchise on account of having been convicted of a felony. Those convicted of felonies are known as felons. Hence the interchangeability of the terms "felony disenfranchisement" and "felon disenfranchisement."

In other words, it isn't the disenfranchisement that's a felony, it's the fact that the disenfranchisement from the privilege of voting kicks in upon conviction of a felony. Many States have such provisions.

(And they are, to say the least, controversial.)

Apparently Judge Koschnick the "strict constructionist" isn't aware of these not-so-subtle semantic distinctions. Koschnick opines of Sotomayor's three-paragraph contribution to a 2006 Second Circuit Court of Appeals en banc decision called Hayden v. Pataki:

In her dissenting opinion, she goes so far as to identify the plaintiff, convicted murderer Joseph Hayden, as a victim of something that she calls "felony disenfranchisement."

Goes what who? She makes an innocuous, descriptive statement.

True, it's something that she calls felony disenfranchisement. She, together with thousands of other judges, lawyers, and scholars. Some of whom, other than Sotomayor, actually use it elsewhere in the Hayden opinions (there are several among its 103 pages).

But Sonia Sotomayor never called Joseph Hayden* or any of the numerous other plaintiffs "victims" of anything, nor did she even remotely suggest that it was the disenfranchisement itself that was a felony, which is clearly what Koschnick thinks she meant.

Or — worse — what he wants the credulous to believe she meant.

That misstep has got to be a little embarrassing for Koschnick, who advertised himself as "more qualified" to sit on the Wisconsin Supreme Court than is its Chief Justice. Moreover, he should have kept at reading Sotomayor's opinion:

It is plain to anyone reading the Voting Rights Act that it applies to all "voting qualification[s]." And it is equally plain that § 5-106 [the New York State statute at issue] disqualifies a group of people from voting. These two propositions should constitute the entirety of our analysis. Section 2 of the Act by its unambiguous terms subjects felony disenfranchisement and all other voting qualifications to its coverage.

The duty of a judge is to follow the law, not to question its plain terms. I do not believe that Congress wishes us to disregard the plain language of any statute or to invent exceptions to the statutes it has created.

Sounds a lot like sentiments that should warm the cockles of any self-restrained, self-described "strict constructionist," do they not?

Indeed, they could well have been authored by Clarence Thomas.

So why did Randy Koschnick choose to completely ignore that passage, which summarizes Sotomayor's view of the case, and instead focus on a term it's not clear he even understood?

Because, obviously, he simply doesn't care for her result.

* No relation, I hope.

Next: Sotomayor is not enough of a liberal activist for Koschnick

Another Volokh conspiracist

Some time ago, after I'd obtained my law degree, I had lunch with one of my professors, who I kept calling, "Professor."

"Will you please stop calling me 'Professor,'" he said. "We're colleagues now." "I can't help it," I replied, "I have too much respect for the legal academy's knowledge, wisdom, and objectivity."

"Well then," said he, "obviously you haven't met enough of us."

This time around, meet Prof. Randy Barnett:

One of the things we hope to learn during confirmation hearings is a nominee's approach to the constitutional protection of liberty. But in her exchange with Sen. Orrin Hatch (R-Utah) about the second amendment and its potential application to the states, Sonia Sotomayor revealed remarkably little about her understanding of how the Supreme Court protects liberty under the fourteenth amendment. For example, more than once she said a right was "fundamental" if it was "incorporated" into the fourteenth amendment. But this gets it backwards. The Supreme Court incorporates a right BECAUSE it finds it to be fundamental.

I was paying particular attention to Judge Sotomayor's Second Amendment exchange with Orrin Hatch, and have written about these questions here before on several occasions.

It's true that in constitutional law, provisions of the federal Bill of Rights are deemed to apply to State and local governments — incorporated — after a finding that they are "fundamental."

That's the process, in chronological order.

By the same token, once rights have been incorporated, there's nothing wrong with saying they're fundamental, in the constitutional sense. But that's not the same as claiming that rights become fundamental by dint of their incorporation.

What Prof. Barnett is charging is that Sotomayor thinks rights are fundamental only because they've been incorporated.

During the opening moments of her exchange with Senator Hatch, Judge Sotomayor responded:

It's not that I considered [the right to keep and bear arms] unfundamental, but that the Supreme Court didn't consider it fundamental so as to be incorporated against the State.

"Fundamental, so as to be incorporated." Exactly right. In fact, I can't think of a way to put it any more succinctly.

Sotomayor is referring to her decision in Maloney v. Cuomo and with "Supreme Court" she's referencing D.C. v. Heller. Seems pretty clear to me, that finding the right to be fundamental precedes a determination of incorporation, which is what Sotomayor said.

Prof. Barnett's proffered "evidence" for his allegation:

Here is her characterization of a "fundamental right":

SOTOMAYOR: Those rights have been incorporated against the States. The States must comply with them. So in — to the extent that the court has held that...

HATCH: Right.

SOTOMAYOR: ... then they are — they have been deemed fundamental, as that term is understood legally.

And by "evidence" I mean, of course, "zero evidence."

[Edited to add, 07/16/09: Later in the hearings, presented with the same line of questioning, Judge Sotomayor said, "Fundamental, hence incorporated." So she did come up with an even more succinct means of expressing the procedural chronology after all.]

These folks are really clutching at straws here. But the worst offender continues to be Senator Jefferson Beauregard Sessions III, who has been bandying the expression "fundamental right" against Judge Sotomayor without any context whatsoever, in an attempt to make it look like she is opposed to the right to keep and bear arms.

There's no evidence of that either. In her Second Amendment rulings, Judge Sotomayor has carefully followed the precedent within the Second Circuit, which in turn is driven by Supreme Court case law.

Any suggestion by Sessions and others that she should have done otherwise is an expression of desire for "judicial activism."

Over one thousand law professors*

Always, Leah.

One thousand law professors, including two from Marquette University in Milwaukee, sent a letter of support for Sonia Sotomayor to Patrick J. Leahy and Jefferson Beauregard Sessions III, respectively the chairman and the ranking Republican on the Senate Judiciary Committee:

As a federal judge at both the trial and appellate levels, Judge Sotomayor has distinguished herself as a brilliant, careful, fair-minded jurist whose rulings exhibit unfailing adherence to the rule of law. Her opinions reflect careful attention to the facts of each case and a reading of the law that demonstrates fidelity to the text of statutes and the Constitution. She pays close attention to precedent and has proper respect for the role of courts and the other branches of government in our society.

True dat. A perfect example following.

Speaking of Jefferson Sessions, he appeared on the Fox News Channel yesterday complaining about Sotomayor's attitude toward the Second Amendment. Sessions whined that Sotomayor doesn't think that keeping and bearing arms are fundamental rights.

It's a stupid and inflammatory thing to say outside of its proper legal context. But obviously it's Sessions's game to misinform and inflame his constituents.

In constitutional law, "fundamental right" is a term of art that derives from decisions by the Supreme Court on whether or not to incorporate provisions of the Bill of Rights to restrict the actions of State and local governments. Those provisions must be found to contain fundamental rights before they can be incorporated.

The fact of the matter is, the Supreme Court has never incorporated the Second Amendment and States remain empowered to regulate weaponry beyond the Amendment's restrictive reach, as it only applies to the federal government's jurisdiction.

Don't believe me, ask Frank Easterbrook.

So it's true that the United States Supreme Court has yet to rule that the Second Amendment contains fundamental rights and Sotomayor, in her official role as a member of one of the subordinate federal courts, was entirely correct in following that precedent.

Moreover, if Senator Sessions is not aware of the several active petitions to the Supreme Court asking it to incorporate the Second Amendment, then he is clearly in the wrong line of work.

Sessions criticized Judge Sotomayor for allegedly holding that the foregoing is a matter of "settled law," and claimed that he wasn't so sure about that. Sessions was presumably referring to a recent decision of the Ninth Circuit Court of Appeals which held that the Second Amendment does indeed apply to the States (at least, those nine States within the Ninth Circuit, and Guam).

But that decision came after Sotomayor's Second Amendment opinions and anyway, the Ninth Circuit has little to do with the Second Circuit in terms of precedent. So yes, as far as Sotomayor's decisions go, it was and is a matter of settled law. End of story.

It's also amusing that Sessions is implying that Sotomayor hasn't been activist enough, and doubly amusing that he's telegraphing his desires that Sotomayor would defer to the Ninth Circuit, of all things, one of the archetypal conservative Republican bugaboos.

Only when convenient, as usual.

Not that the average Fox News enthusiast/Bill-O fan would be aware of any of this — or even care, probably — and not that Jefferson Sessions would be honest enough to explain it to them, of course.

That's far too much to expect of this transparent politician.

* This should be "more than" one thousand law professors.

Reading helps

True, it does. Writes law professor Rick Esenberg:

Contrary to the uninformed speculation of this blogger, I am familiar with Sotomayor's record and, as I said in the column (reading helps), it is conventional if "liberal."

Except I didn't say he wasn't.

I said the contrast between the two columns that appeared on the front of a section in yesterday's Milwaukee Journal-Sentinel was that one was based on an examination of her record and the other discussed what Esenberg calls Sonia Sotomayor's "political assumptions" (although the political assumptions in evidence are primarily Esenberg's own, derived as they are from a couple of offhand remarks made by the judge in informal settings).

Since Judge Sotomayor hasn't yet been afforded the opportunity to explicate her comments, in the meantime Esenberg's personal speculation remains exactly that: a set of political assumptions.

More to the point, I was sarcastically observing that it was pleasant to discover the Journal-Sentinel soliciting an opinion column for once from some lawyer other than Rick Esenberg.

The icing on that cake was that the other lawyer, Edward Fallone, appropriately focused on Sotomayor's record and accomplishments rather than the aforementioned offhand remarks, which have elicited a cri de guerre — however tenuous and speculative itself — from conservative Republicans in search of any justification to oppose Sotomayor's nomination to the U.S. Supreme Court.

In spite of her record and in spite of her accomplishments.

Now this morning Esenberg claims he isn't all that interested in Sotomayor's 16-plus-year record as a federal judge anyway — she is merely "conventional," sniffs the professor — but only in those decisions of hers that reached the Supreme Court on appeal.

I'll leave it for the actual uninformed speculators to divine why that, then, wasn't the subject of Esenberg's Journal-Sentinel column, instead of its being yet another rehearsal of the now-familiar conservative Republican talking points.

Speaking of the relatively miniscule number of cases where the Supreme Court accepted an appeal from one of Sotomayor's decisions, the Court will shortly rule on Ricci v. DeStefano, the celebrated firefighter "discrimination" case out of New Haven, CT.

The case has inspired some of the most ridiculously incoherent and ill-informed commentary from miscellaneous conservative Republicans, who normally demand that judges defer unwaveringly to the "will of the people," as expressed by statutory language and promulgated by the executive branch through administrative law.

That is what Sotomayor and the other judges did, in determining that New Haven scrupulously and in good faith adhered to the requirements of federal law. Suddenly and with suspicious convenience, doing so is practically grounds for impeachment.

Talk about your political assumptions.

In the event that Sotomayor and the Second Circuit are reversed, and barring any earth shattering upheaval of federal affirmative action policy — a.k.a. "judicial activism" — the district judge who originally ruled in Ricci will likely be admonished for not according due weight to a certain set of evidentiary facts presented in the initial lawsuit.

The Court's conservative judges shall accomplish this by enforcing judicial policy, policy fabricated by conservative judges and today reiterated and perhaps even strengthened by conservative judges.

And conservative Republicans will applaud heartily, even as they continue to deride Sonia Sotomayor for informally and impertinently alluding to the very process about to be revealed.

On Sotomayor: Koschnick's non-sense

Part Two of Three

Jefferson County Circuit Judge Randy Koschnick has some very harsh words for U.S. Supreme Court nominee Sonia Sotomayor.

Not only are they harsh, but they're flat wrong. They're also comically uninformed and, ultimately, alarmingly irresponsible coming from a professional judge, one who notably declared himself "more qualified" to sit on the Wisconsin Supreme Court than is its Chief Justice.

Of course Koschnick is simply pandering to a certain right-wing political constituency and he's entitled to his personal views, but at least he might actually read the opinions upon which he pontificates.

More importantly for a judge, he should find out whether they're even good law before celebrating them. Or using his odd misapprehensions of those cases to unprofessionally slag Judge Sotomayor.

On a favorite topic, guns, Koschnick alleges that a recent per curiam opinion of the Second Circuit Court of Appeals in which Judge Sotomayor participated "reveals [Sotomayor's] unabashed, open hostility to the Constitutional rights of gun owners."

This is pure, unsupported fantasy, which apparently purports to derive from the Second Amendment case law. Here, Koschnick takes a run at constitutional scholarship:

Despite the unequivocal holding by the United States Supreme Court in [District of Columbia v. Heller] that the Second Amendment actually does guarantee individuals the right to bear arms, in the 2009 case of Maloney v. Cuomo, Judge Sotomayor ruled that state governments do not have to abide by the Second Amendment.

First off, the non sequitur.

Whether the Second Amendment guarantees an individual right — as opposed to a collective one: see Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002) — is a separate question from whether it restricts State and local governments.

Thus, Koschnick's reasoning does not follow.

That Heller ruled the 2A protects an individual right has nothing to do with its application to the States, or what the courts call "incorporation." Heller is about gun laws in D.C., a federal enclave, and it did not even engage the question of whether the States have to abide by it — apart from explicitly mentioning that they don't.

It says so right in its famed footnote 23, where Justice Scalia, discussing some earlier Supreme Court decisions, points out two things: 1) that incorporation is a question not addressed in Heller and 2) that "our later decisions ... reaffirmed that the Second Amendment applies only to the Federal Government."

"Only to the Federal Government" = "Not to the States."

But wait, it gets better, much better:

Sotomayor’s position is to the left of even the activist Federal Ninth Circuit Court of Appeals in San Francisco, which concedes, albeit reluctantly, that Heller prohibits both state and federal interference with the gun rights of law-abiding citizens.

This is an astonishing misreading of both Heller and the referenced Ninth Circuit decision, Nordyke v. King.

Look carefully at what Koschnick is saying: that Nordyke concluded the Second Amendment applies to the States because Heller said so. But that is false. Here is what Nordyke says (correctly) about Heller:

[W]e must decide whether the Second Amendment applies to the states through the Fourteenth [Amendment], a question that Heller explicitly left open.

"Explicitly left open," as in: "Heller did not answer that question." Yet Koschnick confidently informs us that Heller "prohibits State interference" with Second Amendment rights.

It most certainly does not.

The Nordyke court relied on Heller primarily for its recitation and portrayal of historical sources (without — significantly — devoting any effort at direct inspection of the sources and their respective contexts themselves), not Heller's legal holdings.

Indeed, the Ninth Circuit came to its legal conclusion that the Second Amendment applies to the States independently of Heller.*

Not only that, but the holding in Nordyke, which was decided in April by a three-judge panel, has been a legal nullity since the Ninth Circuit granted en banc review of the panel's decision on July 29, nearly a week before Koschnick's celebration of it appeared.

That is, Nordyke isn't the law even within the Ninth Circuit anymore, according to that very court:

The three-judge panel opinion shall not be cited as precedent by or to any court of the Ninth Circuit.

And it may well be overruled, as it's unprecedented for a court other than the Supreme Court to declare a provision of the Bill of Rights incorporated against the States. In that sense, Nordyke might fairly be characterized an "activist" decision.

Which brings us back to Sonia Sotomayor's opinion in Maloney v. Cuomo. In that case, Sotomayor declined to overstep the authority of the Supreme Court on the question of incorporation. And for this Koschnick labels her an "unapologetically liberal activist."

Except Maloney is an example of the very antithesis of "activism." Rather, it's a prime example of what the Constitution calls an "inferior court" deferring to the authority of a higher one. Thus, in deriding Maloney, Koschnick is effectively complaining that Sonia Sotomayor is not enough of an "activist" for his tastes.

Then there is the Seventh Circuit Court of Appeals, which faced the same question in June. Frank Easterbrook, acknowledged as one of the most conservative jurisprudes in the country, also adopted Sotomayor's position (along with two other conservative Republican judges). He even wrote, approvingly, "We agree with Maloney."

Koschnick, predictably, ignores the Seventh Circuit, even though one of the States within its jurisdiction, Wisconsin, is where he works.

Instead, he prefers to cite the case from California, Nordyke, despite its precedential value having been rendered void during the month prior to his declaring its enduring wisdom.

And he misrepresented the United States Supreme Court decision upon which he claims (erroneously) Nordyke relied.

Simply amazing.

Evidently it's appropriate and acceptable for a judge to pull that in an online right-wing echo chamber, but if a lawyer pulled something like it in a judge's courtroom, there'd be hell to pay for lack of candor.

* Nevertheless, Nordyke further concluded that the California gun regulation at issue was not in violation of the Second Amendment.

Perhaps that gang of crazy, wild-eyed, unapologetically liberal activists in San Francisco needed to incorporate the Second Amendment for the sole purpose of upholding another tyrannical State infringement on Randy Koschnick's constitutional rights.

I wouldn't put it past them!

Next: The ex-president and the Chief Justice

Local paper discovers another law professor

One who's actually examined Sonia Sotomayor's record.

In contrast to the one committed instead to rehearsing conservative Republican talking points and implying — not only without any evidence but against all evidence — that Judge Sotomayor is unable to separate her personal views from the process of judging, and that Sotomayor will get on an activist breakaway once she's freed from the constraints of the lower district and appellate courts.

Sotomayor's primary transgressions? She's too honest, too candid.

It could be worse, I suppose, and it will surely get worse beginning on July 13, when Sonia Sotomayor faces a gaggle of Republican Senators who don't even know what "fundamental right" means and pretend to be oblivious to the Militia Clause of the Second Amendment.

Prediction: If and when the U.S. Supreme Court decides that the Second Amendment restricts State and local governments, Associate Justice Sotomayor will be among the majority* and conservative Republican avatar Clarence Thomas will dissent.

* Assuming the Court accepts one or more of the currently percolating cases in which Judge Sotomayor did not participate.

Coming soon: Leah Vukmir believes Sonia Sotomayor is pretty "dim" and moreover, is hostile to the constitutional right of illegal aliens to keep and bear submachine guns and surface-to-air missiles.

Hutchinson v. Rosen

Darren Hutchinson, a law professor in Washington, D.C., has escorted The New Republic's Jeffrey Rosen to the woodshed.

All of this began when Rosen posted something of an anonymously-sourced hit piece on Second Circuit Court of Appeals Judge Sonia Sotomayor, who many consider a leading candidate for the U.S. Supreme Court.

Rosen's article was nearly universally trashed, and he since published an "update." Prof. Hutchinson concludes:

Finally, after two essays, Rosen still has not analyzed one opinion written by Sotomayor. This glaring omission completely undermines his evaluation of her.

But Rosen was obsessed with one particular footnote.

I don't know much about Sonia Sotomayor myself, but I had watched the oral arguments in Arar v. Ashcroft on C-SPAN several months ago, long before Justice David Souter announced his retirement and Sotomayor became a hot commodity.

Some of the criticism contained in Rosen's original article negatively characterized Judge Sotomayor's demeanor with lawyers and her colleagues, and was based on her participation in Arar.

But Judge Sotomayor wasn't in the courtroom, she was on a video link-up, which made it difficult for her to follow whether the other judges and the lawyers were finished asking and answering questions, so she was interrupting here and there.

And it's hardly any criticism of an appellate judge that they were holding some advocate's feet to the fire by asking penetrating questions. That's both of their jobs.

Unless you're Clarence Thomas.

McIlheran v. Ricci

If you ever want a laugh, check out the Milwaukee Journal-Sentinel's hapless "right-wing guy" Patrick McIlheran on matters law-related.

It seems Mr. P. McIlheran — who in addition to his role as an op-ed calumnist is also a member of the daily newspaper's editorial board — believes that the complexity of a legal issue is directly proportional to the number of written pages a court devotes to it.

"Guess the firefighters' case wasn't so simple," Fire Marshall Pat guesses, by way of setting ablaze and then attempting to extinguish his own freshly constructed straw man, Hero-Syndrome-style.

Apparently unable to offer anything else constructive, McIlheran resorts to a Federalist Society lawyer blogging at the Volokh Conspiracy, a highbrow gun nut website, before the said lawyer has even read the decision (he claims he's waiting for it to print):

Jonathan Adler says that while this won't stop Sotomayor's inevitable ascension to the high court, it is telling that the Supremes saw it as anything but a simple issue. Sotomayor & Co. disposed of it in a few brusque words — too brusque, implied Justice Anthony Kennedy. Writes Adler:

"The fact that it took the Court nearly 100 pages to resolve this question does cast a shadow over the Second Circuit panel's handling of the case, and may raise questions about (Sotomayor’s) judgment."

What a ridiculous non sequitur.

In actual fact, it took the Court more than a dozen fewer pages (34) to "resolve this question" than the federal district court spent assessing the parties' claims in the first place (48).

(Contrary to the effects of Mr. McIlheran's lack of clarity, Sonia Sotomayor did not "help write" the district court's decision.)

And that's not including the several dozens more pages that the Second Circuit Court of Appeals expended in grappling with the question of whether to grant the case en banc review.

The balance of the Supreme Court's "nearly 100 pages" consists of a syllabus and dissenting and concurring opinions. One of the latter (Justice Scalia's) engages in speculative navel gazing at resolving an issue that wasn't even presented to the Court.

The other (Justice Alito's) bickers with the dissenters' presentation of the facts, which he nevertheless concludes has nothing to do with "resolving this issue" anyway. And obviously it was the five-justice majority which "resolved this issue," not the four dissenters.

As for Sonia Sotomayor's "few brusque words" (if they are indeed hers at all — Mr. McIlheran hasn't the foggiest notion whether they were or not), they simply affirmed the federal district judge who, according to McIlheran's own system of measurement, treated the case as 33-1/3% more complicated and subtle than did the Roberts Court.

Among Sotomayor's "few brusque words," incidentally, was a categorical rejection of "empathy" playing a role in the three-judge panel's per curiam disposition, a notion that's been obsessing conservative Republicans at least since last October.

The bottom line is that the Supreme Court did yesterday what the Second Circuit simply does not have the authority to do: invade the province of Congressional legislative policy and muck about with the Supreme Court's own prior case law.

Normally a court exercising the like restraint is cause for self-satisfied celebration among conservative Republicans but when you're little more than a hack partisan/ideologue, then not so much.

Whereupon it's cause only for rank foolishness.

Conversely, if you want to read an op-ed columnist who actually knows what she's talking about, try Linda Greenhouse.

Yet another Sotomayor mindreader

This time it's glorified blogger Ross Douthat lately of the New York Times, fabricating a pile of stuff about Sonia Sotomayor's reply to questioning last week from Senator Herb Kohl of Wisconsin:

In 2003, Sandra Day O'Connor upheld race-based discrimination in college admissions [in those narrowly tailored ones of a Michigan law school, to be precise] ... but only for the current generation. Such policies "must be limited in time," she wrote, adding that "the Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today."

Inventing from whole cloth, Douthat surmises: "It's doubtful, though, that Sonia Sotomayor shares this view." And why is that? Because Judge Sotomayor responded that she "hopes" instead of "expects" that corrective affirmative action policy will go by the wayside.

In fact, Judge Sotomayor referenced another case, without Kohl's urging to do so, demonstrating where it had gone by the wayside.

In addition, that is, to pointing out that AA policy is primarily the province of the country's elected legislatures, whereas the Court's role lies in determining whether those policies adequately comport with the Fourteenth Amendment's Equal Protection Clause.

That would the Court whose open position she is applying for.

Ross Douthat stopped listening or examining the transcript long before then, evidently. 'Twas inconvenient to his "point," perhaps.
What's doubtful is Douthat's ability to understand plain English, as "hope" and "expect" are synonyms and, more importantly, O'Connor's preference for the word "expect" has no legal force whatsoever.

She might just as well have written "hope," or even "dream."

Paul Krugman is off today.

Pity. Ah well, could be worse. Could be William Kristol.

On teh web: Douthat's greatest hits — Roy Edroso

More McIlheran Funnies

Local editorialist, calumnist, and champion NRO-hotlinker Patrick McIlheran has his knickers in a twist apparently because Dahlia Lithwick penned a somewhat sardonic column at Slate over the weekend noting that Frank Ricci, the New Haven, CT firefighter whom Senate Republicans plan on calling to testify against Sonia Sotomayor, once sued his employers for discrimination.

And then later for so-called reverse discrimination. Both suits are in the public record, and in fact were reported by the press. Indeed, Mr. Ricci prevailed in both actions, so they were at least meritorious.

This is called "digging up dirt," we are told.

But the exercise has little to do with Mr. Ricci himself — certainly he has a right to object to New Haven's employment practices, and more power to him, obviously — but rather the typically incoherent, contradictory messages promulgated by the Republicans.

First, that Republicans are making a negative issue out of "empathy" against Sotomayor by trying to generate positive empathy favoring themselves; and second, that Ricci's two lawsuits evince a twinge of counterintuitive legal strategies. That's all Lithwick was saying.

For McIlheran, however, this is a "smear campaign."

Yet for all his standard manufactured outrage, McIlheran has few qualms about smearing Judge Sotomayor herself:

Sotomayor dismissed the complaint with an almost contemptuous lack of comment.

This is unadulterated nonsense, of course, and is easily debunked. Still, McIlheran continues to repeat it.

McIlheran has a track record of this sort of thing, and willingly participated in the attempted character assassination of former Wisconsin Supreme Court Justice Louis Butler.

And, naturally, nary a squeak from McIlheran of the real smear campaign against Sonia Sotomayor launched by Gingrich and his ilk.

Sen. David Vitter: Still a thoroughgoing creep

Not every senator was charmed by Sotomayor. The day she broke her ankle, she kept an appointment with Senator David Vitter, a Republican from Louisiana. Vitter, Sotomayor later told a friend, was unwelcoming. As they were finishing their meeting, Vitter said, "I want to ask you—do you think if I was you, and I had made the wise-Latina comment that you made, that I would have deserved to be a Supreme Court Justice?"

Sotomayor replied, "If you had my record, yes."

From Lauren Collins's comprehensive profile of Sonia Sotomayor in the current New Yorker. Remember family values Republican David Vitter; he had an illicit relationship with Deborah Jeane Palfrey. Palfrey was found hanged in a storage shed behind her mother's mobile home, whereas David Vitter is still a United States Senator.

So he may or may not have learned something about justice.

In which I lose some respect for Sonia S.

Sotomayor quits women's club after criticism from GOP

GOP criticism isn't just the worst reason not to do something, it's also the best reason to keep doing whatever it is you were doing.

When I first came to this country, being unfamiliar with the leading issues in American politics, the remedy was simple: Subscribe to Jerry Falwell's weekly e-nail newsletter, and then adopt precisely the opposite position to whatever it was he was advocating.

Hate the gays? Love the gays. Accept Jesus? Embrace Satan. Etc.

Supreme Court nominee Judge Sonia Sotomayor said she resigned from the Belizean Grove* because she didn't want it to become a distraction during her confirmation hearings, which begin July 13.

That may well be an admirable rationale, in that Judge Sotomayor would prefer the time better spent in helping facilitate a substantive examination of her record and qualifications.

But having watched these Senate characters in action on many occasions, I'm here to tell you that nothing will prevent them from bringing up any nonsensical ephemera they can lay their hands on.

Most of them aren't the slightest bit interested in her jurisprudence anyway. They're there to posture for their respective constituents and the fact that Sotomayor has resigned from her club is certainly not going to restrain them from cross examining her about it.

I mean, come on. After all, the Republicans installed Tom Coburn of Oklahoma, a physician, on the Committee on the Judiciary. All he's going to do is try and get her to stipulate that mentioning "foreign law" is an impeachable offense. E.g., Blackstone's Commentaries.

And now, by popular demand, the best TV Funhouse ever:

To the extent that the statement is making the basic point ...

* OTOH, major props to Sullivan's aggregating the news out of Iran.

Krauthammer one more time

Last Wednesday I mentioned this:

In the meantime, we can all be entertained by the comic spectacle of Faux News "expert" Charles Krauthammer at once decrying the application of judicial empathy generally while publicly pleading for judicial empathy on behalf of the Ricci v. DeStefano plaintiffs.

And, naturally, Dr. Krauthammer's focusing unwaveringly on the result of the case rather than on the process of reasoning employed in reaching it, like all good judicial conservatives invariably do.

Two days later Glenn Greenwald had a bit more:

Inveighing against Sotomayor's Ricci decision by touting all the sad things that happened to Frank Ricci (Krauthammer: "he spent $1,000 on books, quit his second job so he could study eight to 13 hours a day and, because of his dyslexia, hired someone to read him the material") is to demand that Sotomayor do exactly that which they claim is so inappropriate and which they accuse Sotomayor of doing: namely, deciding cases based on emotion, empathy and political views about affirmative action rather than the law and judicial precedent.

Like I said.

I wonder if Krauthammer the illustrious Faux News "expert" has even read the district court's decision in Ricci v. DeStefano.

Or has this local character:

The egregious judicial activism she displayed in Ricci v. DeStefano, in and of itself, is a disqualifier.

Again: judicial activism = result I don't like.

There's a link to the district court's decision (which a three-judge panel of the Second Circuit Court of Appeals unanimously affirmed) in this useful discussion at the Connecticut Employment Law Blog.

I challenge any of Judge Sotomayor's conservative detractors to describe how her involvement with the case is an instance of "judicial activism," bearing in mind that the race-conscious hiring and promotion policies and directives at issue in Ricci — like them or not — are mandated by federal statutory and administrative law.

You know, that sacred "will of the people" stuff that judges appropriately exercising restraint are not empowered to upset.

Funny, they weren't complaining then

Reporting from Washington ― Supreme Court nominee John G. Roberts maneuvered through three days of an often-antagonistic confirmation hearing by portraying himself as a legal MLB official who would stick to precedent and never "make law." But in doing so he revealed almost nothing about the philosophy that would guide him on the high court.

An umpire in a black robe ― Los Angeles Times

And now-Chief Justice Roberts didn't have a 17-year record as a federal judge to examine (which is something few currently complaining conservatives have done, at least with respect to the question of whether or not that record comports with Sonia Sotomayor's characterizations of her judicial methodology*).

Nevertheless, Roberts's almost absurdly simplistic "umpire calling balls and strikes" analogy is often reiterated with approval by those same conservative critics. Odd how that works, isn't it.

* Sotomayor's "philosophy," in contrast to her practices as a working judge and contra the Los Angeles Times, was made abundantly clear during her testimony, and also through the hundreds of speeches she's given. The Senate Republicans, to their strategical detriment, failed to pursue her on its substance, preferring to focus instead on the so-called "racial politics" they seem to believe anyone other than their own paleoconservative political base is incensed by.

For example, during questioning from Senator John Cornyn of Texas, Judge Sotomayor described American law as a continually evolving set of assumptions and conclusions, always tentative and subject to adjustment not only by judges, but by lawyers confronting new patterns of facts with novel arguments which in turn force the retooling of the (previously judge-made) legal rules and tests which govern those and future sets of facts. See, e.g., Ricci v. DeStefano.

As Sotomayor correctly pointed out — and it's about time that someone on a national stage did — it isn't the Constitution that evolves, lives, breathes, or what have you, but rather the society to which the Constitution's often vague principles apply that evolves.

Which is, it seems to me, exactly as the Framers contemplated and predicted, hence the less-than-specific principles embodied therein.

For instance, it doesn't give examples of "speech" or "religion." Or, for that matter, examples of "arms." Few would argue that the Constitution only permits muzzle-loading rifles and broadswords.

(Maybe Robert Bork.)

That's why the United States Constitution is a work of both contemporary and prospective genius, and thus why it endures.

Not only did Senator Cornyn — himself a former State Supreme Court judge — pass up the opportunity to further engage this rather fascinating organic view of the law, he appeared visibly taken aback that anyone might actually adhere to it (although the view itself is barely controversial to most people who've given it some thought).

(P.S. Law review convention: Footnote 4x longer than post.)

She asked for it, right?

Limbaugh loves his stereotypes more than Sotomayor does:

Today, my friends,* we turn our attention to the latest revelation from Judge Sonia Sotomayor. It appears that Ms. Sotomayor, the model of diversity and inclusion, has some explaining to do regarding her membership in a club.

No, she doesn't.

I think I'm going to send Sotomayor, and her club, a bunch of vacuum cleaners to help them clean up after their meetings.

Cute. I take grave personal offense at that particular sexualist jab, incidentally. I happen to enjoy vacuuming very much.

And speaking of old boys' clubs, there is this one, which has on more than one occasion been in addition a senile men's club.

Also, why is Limbaugh constantly tugging at his polo shirt?** Is he hallucinating some kind of insect attack, or what? Delerium tremens?

* How many listeners are not so much friends as seekers of yuks?
** How many polyesters did they have to kill to make that thing?

Your Friday evening soporific

I can imagine few topics less stimulating than securities law, but here are a couple of relatively interesting posts by corporate lawyers looking at Sonia Sotomayor's rulings in that area.

This one thinks the Supreme Court erred (it happens) when it reversed Sotomayor in a case called Dabit v. Merrill Lynch:

Sotomayor, business, and preemption

And this one performs a broader survey and concludes, "If we're worried about the nominee showing empathy instead of following the law, there's no evidence of runaway shareholder empathy!"

More on Sotomayor's Securities Law Record

McIlheran's authorities

Oh yes. It's a straight line from community organizing to crack cocaine dealer. Community organizers use crack cocaine in exchange for votes.

— American Spectator's Matthew Vadum

The Milwaukee Journal-Sentinel's political calumnist and (mostly) inveterate hyperlinker to "good reading on the web" Patrick McIlheran has apparently given up at marshaling his own alleged "thoughts" on the Sotomayor confirmation hearings.

The other day, McIlheran quoted approvingly and at length from some nut-right knob who called Second Circuit Court of Appeals Judge Sonia Sotomayor "a mediocrity" (how's that for irony) whose "main qualifications are that she is a Latina and a woman."

The said nut-right knob is one Matthew Vadum, who for McIlheran is an authority by way of being "American Spectator's" Matthew Vadum. It almost goes without saying that Mr. Vadum's credentials for evaluating Judge Sotomayor's qualifications are approaching nil.

He's also a bit of an idiot:

Matthew Vadum begins at 1:27

Good reading on the web. It's nice to see that the Journal-Sentinel is presenting fair, unbiased coverage of the Sotomayor hearings.

More McIlheran: Congress = Murderers.

This is why

Obama nominated Sonia Sotomayor:

Guido Calabresi said Judge Sotomayor’s forceful and lucid arguments had persuaded him to reconsider his position in a number of instances. "And I'm a tough act," he said.

Obama knows he's unlikely to replace any of the Court's reliably conservative bloc, even if he serves two terms.

And he's counting on Sotomayor to be more persuasive among her colleagues than perhaps Justice Souter ever was.

This is something barely anyone has mentioned in all of the thousands upon thousands of words devoted to Sotomayor already, as those authors prefer instead to concentrate on peripheral matters, including a goodly portion of mostly irrelevant nonsense.