Roundup On The Sotomayor Nomination
May 29, 2009
Ed Whelan at NRO has the facts on Judge Sotomayor’s controversial decision in Ricci and the extraordinary dissent by Judge Jose Cabranes that helped propel this case to the U.S. Supreme Court. Whelan speculates that Judge Sotomayor’s unsigned, unpublished opinion, which Judge Cabranes dismissed as “containing a single substantive paragraph,” was designed to fly under the radar and escape further judicial review. Over at Slate, Emily Bazelon also asks why Judge Sotomayor “didn’t explain herself”:
“If Sotomayor and her colleagues were trying to shield the case from Supreme Court review, her punt had the opposite effect. It drew Cabranes’ ire, and he hung a big red flag on the case, which the Supreme Court grabbed.”
“The problem for Sotomayor … is why she didn’t grapple with the difficult constitutional issues, the ones Cabranes pointed to. Did she really have nothing to add to the district court’s opinion? In a case of this magnitude and intricacy, why would that be?”
The Ricci case stems from a decision by the City of New Haven to disregard the results of a promotion exam for firefighters – a exam “carefully constructed to ensure race-neutrality” according to Judge Cabranes – because not enough minority candidates qualified for promotion. Several white firefighters and two Hispanic firefighters were denied promotion, even though they qualified based on their test performance, and they later sued the city.
Judge Cabranes wrote that the appeal “raises important questions of first impression in our Circuit – and indeed, in the nation” … that the Constitutional questions “are indisputably complex and far from well-settled” … that Judge Sotomayor and her two colleagues “failed to grapple with the questions of exceptional importance raised in this appeal” with an opinion that “contains no reference whatsoever to the constitutional claims at the core of this case” and that he hoped “the Supreme Court will resolve the issues of great significance raised by this case.”
Much has been made of Judge Sotomayor’s history-making nomination as the first Hispanic chosen for the Supreme Court. Perhaps that honor should have been reserved for her Second Circuit Court of Appeals colleague Judge Jose Cabranes.
Posted by Dan Pero in the categories: Supreme Court
One Response to “Roundup On The Sotomayor Nomination”
SOTOMAYOR IGNORANT OF THE LAW
Sotomayor flunks on getting the most basic principle of appellate law wrong – the Standard of Review.
In Huminski v. Haverkoch, 11/5/04, 03-7036 2d. Cir., Sotomayor reveals an ignorance of the law by failing to apply the correct standard of review to an important civil rights case. She found appellate review was for reversible error when the correct standard of review for such a case (summary judgment) is De Novo.
A simple google on, “standard of review for summary judgment de novo” supplies tens of authorities on the issue. I guess Sotomayor would rather be wrong than google on such a rudimentary issue. She also could have assigned her flock of law clerks to research the issue. Further, on a motion for rehearing specifically pointing out her error she did not act and correct it.
Here is the link to the Sotomayor summary order from this case in which she presided over.
http://www.ca2.uscourts.gov/decisions/isysquery/cb42154f-30e6-47ee-ae7c-d8e4c3acc2e5/1/doc/03-7036_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/cb42154f-30e6-47ee-ae7c-d8e4c3acc2e5/1/hilite/
Where the order states “For the Court”, it refers to Sotomayor and the 2 other judges on the case.
See a different case of mine, Huminski v. Corsones, No. 02-6201 (2d Cir. 10/07/2004) (“We review a district court’s grant or denial of summary judgment de novo.”)
– Scott Huminski
(202) 239-1252