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Monday, June 1, 2009

Feelings, nothing more than feelings

I see that the opponents of Supreme Court nominee Sonia Sotomayor have been worrying out loud (they don't do much in silence) about the likelihood that her "feelings" will influence her judgment on the High Court. Well, gosh, that's what Supreme Court justices are all about, isn't it? In most of the cases they take, the law isn't clear, and so they do their best to reach the right result based on analysis, logic, history, context, and yes, "feelings." That's the way it goes -- always has. Don't you think Justices Thomas and Scalia have "feelings" about the way things are supposed to work in our society, and under our legal system?

If it came down to a choice between following Judge Sotomayor's "feelings" and following those of some of her soon-to-be-colleagues on the Supreme Court, I'd take hers in a New York minute.

Comments (21)

I think Justice Scalia allows his right wing feelings to trump his judicial sense to the point where he seems almost demented.
He says that torture isn't cruel and unusual punishment because the detainee isn't tortured to be punished - it's to get information.
That's convoluted and absurd, making the argument fit the wishes of his hunting buddy Dick Cheney.

Scalia bristles when people ask him about Florida in Election 2000 but let him bristle all he wants. History will note how the right wing Supreme Court justices tossed the law books aside to make sure their boy got the gig.

Sonya Sotomayor is being attacked for her comment about white men, and this is fascinating. Does the GOP really want to argue this based on their ferocious stand against racism? Really?

I flipped around the dial the other day looking for sports radio, and I heard Lars worrying if white men will now have separate drinking fountains because racism is keeping them down.

Some people never miss an opportunity to look ridiculous.

Finally, we have to do better than the justices in that Connecticut case of Kelo vs. the City of New London, that ruled the standard for a government to seize private property is the belief that the new use of the property would generate more tax revenue for the government - something the government could also set. They expanded the reasons for eminent domain to the point where private property is meaningless. The politicians don't even have to use the "blighted" word. They can just say an area is depressed and can do better, then seize private businesses in favor of - not bridges or freeways - but other private businesses of their liking.

I doubt the justices had any feeling in their brains the day they came up with that.

My 2 cents: Kelo vs. New London was deplorable, but in some ways it presented a similar issue for judges (and Justices)at the appellate level who are tasked with determining whether lower court decisions are legal. SCOTUS' majority went way beyond this obligation, and gave us a great example of judicial activism so deplored by rightists. Santamayor is being defamed for her part in the firemen's case because of the outcome of the city's decision. In reality, she ruled on whether the city's actions were legal. She said they were. That's far less "activist" than what we got in Kelo.

She has been overturned 60% of the time on appeal to the supreme court. Doesn't that say something about her "feelings".

It's true that white men on the bench are able to completely segregate feelings from legal analysis.

Justice Harry Blackman's "Poor Joshua!" dissent in DeShaney v. Winnebago County(don't have my dusty One-L books with me, so I'm relying on the Internets for cite-checking) was the height of Vulcan logic. I can't find any womanly "feelings" here, can you?

"Poor Joshua! Victim of repeated attacks by an irresponsible, bullying, cowardly, and intemperate father, and abandoned by respondents who placed him in a dangerous predicament and who knew or learned what was going on, and yet did essentially nothing except, as the Court revealingly observes, ante, at 193, "dutifully recorded these incidents in [their] files." It is a sad commentary upon American life, and constitutional principles - so full of late of patriotic fervor and proud proclamations about "liberty and justice for all" - that this child, Joshua DeShaney, now is assigned to live out the remainder of his life profoundly retarded. Joshua and his mother, as petitioners here, deserve - but now are denied by this Court - the opportunity to have the facts of their case considered in the light of the constitutional protection that 42 U.S.C. 1983 is meant to provide."

From FactCheck.org, http://www.factcheck.org/askfactcheck/what_percentage_of_sonia_sotomayors_opinions_have.html

May 28, 2009
Updated: May 29, 2009
What percentage of Sonia Sotomayor's opinions have been overturned by the U.S. Supreme Court?
Have Judge Sotomayor's decisions really been overturned 80 percent of the time as Rush Limbaugh stated on May 26?
Three of her appellate opinions have been overturned, which is 1.3 percent of all that she has written and 60 percent of those reviewed by the Supreme Court.

Of the majority opinions that Judge Sonia Sotomayor has authored since becoming an appellate judge in 1998, three of them have been overturned by the Supreme Court.

Our search for appellate opinions by Sotomayor on the LexisNexis database returned 232 cases. That's a reversal rate of 1.3 percent.

But only five of her decisions have been reviewed by the justices. Using five as a denominator, the rate comes out to 60 percent.

"According to SCOTUSblog, a 60 percent reversal rate is actually lower than the overall Supreme Court reversal rate for the past five years. In 2008, for example, the Court reversed 75.3 percent of the cases it considered.Indeed, one of the darlings of judicial conservatives, Justice Samuel Alito, also had a share of his opinions dismissed or overruled by the Court before he himself was appointed to that bench"
So much for that talking point Richard/s

It's as though these commentators aren't familiar with the whole concept of the common law. Most of Anglo-American tort and property law derives from "rank judicial activism" or judges deciding close cases over the years where the law is unclear, relying on analogies to other laws, policy considerations, and even equitable considerations.

The Anglo-American tradition even has a long and venerable tradition of having courts of equity, whose whole point was to decided cases based on what was fair, quite apart from legal precedents, which would often work harsh results.

These conservative critics seem to think judges are statutory interpretation robots and that all statutes are clearly written to cover every possible situation. Their calculated ignorance of any legal history is galling.

Bill McD & Don - Kelo was atrocious activism, but it was a 5-4 decision pulled off by all the Lib heroes plus swinger Kennedy. Majority opinion by Justice John Paul Stevens and joined by justices Stephen Breyer, Ruth Bader Ginsburg, David Souter, and Anthony Kennedy. The Wise Latina will just give us more - after all, now it's precedent.

Bill MacDonald, I completely agree with you on the dreadful Kelo decision. Just to keep the record straight, however, that was a 5-4 decision, with Rehnquist, Thomas, Scalia and O'Connor dissenting, and the empathetic majority consisting of Stevens, Breyer, Ginsburg, Souter and Kennedy. I am unenthusiastic about Sotomayor, but the country elected Obama and an almost bomb-proof democratic majority in the Senate, so Sotomayor it unfortunately probably is. Expect more Kelo decisions. Original Bob

How was Kelo " judicial activism" exactly? The US Supreme Court affirmed the decision of the Supreme Court of Connecticut, which found that the local government's action was valid. That is to say the SCOTUS did NOT overturn a local government action based on the Constitution, which, last I checked, is the opposite of judicial activism.

This use of the term "judicial activism" has really just come to mean "decisions I disagree with." That's fine to disagree with Kelo, but let's not call a decision that affirms the lower court's decision and affirms the local government's decision "judicial activism." That's judicial restraint.

The political reaction to Kelo has been strange, with more conservative types being pissed off that the Supreme Court failed to interpret Constitutional rights broadly. Ironically, the takings clause is the only part of the Fifth Amendment where we see conservatives clamoring for the courts to strike down government actions as unconstitutional. I'd fall out of my chair if I heard these same "tough on crime" conservatives calling for more robust interpretation of the Double Jeopardy Clause, the Self Incrimination Clause, the Due Process Clause, or any other part of the Fifth Amendment besides the Takings Clause. These folks weren't exactly hailing Miranda.

Let's happily strike the phrase "judicial activism" from our vocabularies as vapid and devoid of much content.

"Activism" is not simply reversing lower courts or disapproving Government action - it is the creation of rights not grounded in the Constitution, or rejection of rights clearly enumerated there, by the tendentious discovery of "emanations," "penumbras" and whatever else is necessary to achieve the desired result. In Kelo, the initial unconstitutional "activism" occurred at the local government level (exercise of powers in violation of the takings clause, etc.) which was then ratified by an equally "activist" state supreme court - The Supremes (or 5/9ths of them, which is enough) then agreed - I call that "activism," although I admit that this may no longer be the most useful term. (And I do find myself in agreement with some of the rights based on these emanations & penumbras, although I'm not comfortable with the way they were arrived at.) It's not a simple "affirmation=OK, reversal=activism=bad" formula.

Yes Anon; let's get back to broader-or is it acutually more narrow? Constitutional construction all round.

As for feelings, my experience is that people who are in touch with theirgs generally are more capable of independent thought; to say they don't know the difference between the personal and the professional is not accurate. Yet it is the kind of thing that goes on in Portland (and elsewhere, I guess) ad nauseum to justify keeping maleable, less independent, types on the bench.

I was speaking with a retired vocational counselor who testified as an expert witness for years. We agreed that the judicial system in this country seems to be something other than a truth-seeking process. When I said I looked forward to the day that serious systemic problems will come to light, he said, "It will be bloody".
It already is.

This Kelo backlash is totally bizarre to me. Knock down 25 homes to build a football stadium even though the displaced people will no longer be able to afford living in the city? No problem, core eminent domain. Force a homeowner to install a cell tower for the benefit of a private telco in their yard although it completely ruins the view? Easy case, definitely eminent domain. Tear down some run-down houses to change an unemployment rate that was double the rest of the state? No way, civil rights violation, get the pitchforks and torches.

Tongue in cheek Dave C? This is what we get when we declare economic development a public purpose?

Many lawyers are so out of touch with people who fight government agencies that have been captured by industry or just bureaucratic unreality.


I strain to follow your logic. I stand by my point that your and other's use of the term "judicial activism" really just means "decisions I don't agree with."

I'm sure a supporter of the Griswold v. CT decision, from which Justice Douglas' famous penumbras emanated, would argue that the "original activism" was the CT legislature passing a law banning use of contraceptives--just as you argue the "original activism" in Kelo was the City of New London's use of eminent domain.

If there is going to be any principled definition of "judicial activism" it has to be whether a court strikes down a law or action of another branch of government, and judicial restraint is when a court does not strike down a law or action of another branch of government.

Face it, your definition is not principled. So let's all just ditch the phrase "judicial activism" and argue about whether a decision is good or bad on the merits.

I can't find any womanly "feelings" here, can you?

I think you hit the nail on the head, Scott. This whole "feelings" business is primarily a ploy to unsubtly insinuate that Sotomayor, as a woman, is somehow untrustworthy to sit on the high Court because she might be excessively prone to feminine bouts of feeling and passion.

Anon - as I said, I don't think the phrase "judicial activism" is very useful, so I won't bore everyone with a lengthy defense of my definition. But I think you are confusing "judicial activism" with "judicial review" - by your definition (when "a court strikes down a law or action of another branch of government"), every such action back to and including Marbury v Madison represents judicial activism. I say some do (including necessarily Marbury, because it was a case of first instance for the Court) and some don't - once the principle of judicial review was established by Marbury, you then look to the Constitution to see if reversal by a court is required. And I believe the doctrine of judicial review for constitutionality was used quite sparingly for the next century & then some. But some branch of government will determine constitutionality of statutes and practices, and Marbury successfully claimed that authority for the Judiciary. It is, however, an authority that must be grounded in the language of the constitution, and if it goes beyond that, I'd call it "judicial activism." You may call it what you wish, but I find a principle behind it, even though I don't always agree with the result. And I'm afraid it's probably obvious I haven't looked into the roots of this stuff in quite a while. Now, off to see if my hero Dr. House is on TV. Thanks for the discussion.

The good news is, barring any past failure by Ms. Sotomayor to pay taxes, she's going to be confirmed easily. We just need to tolerate some breathless coverage by cable TV news and a few Senators posturing as con-law experts and this will all be over. My guess is that she gets at least 75 votes to confirm.

Dave C, maybe you're kidding. On the off chance that you're not (in which case, yikes), when the state takes property from one private citizen and gives it to another, yes, that's a big deal. And its a big deal no matter who the original owner of the property was. An expansion of the power of eminent domain beyond its limited and necessary scope infringes the rights of all of us.

genop, you're correct. Alito's reversal rate is 100%. One out of One and that was a 5-4 vote. Sotomayor is 60% (3 out of 5). If you were a betting person, who would you bet had the best chances of being overturned. Think about it.

I'm not a betting man, but my take on the reversal rate as a qualifying factor is that it is worthless. A good debater can argue either side of an issue persuasively. It does make a convenient and misleading talking point suggesting she's out of step with the conservative majority. (Thank God) A fair minded conclusion from your stats suggests that Sotomayor has more real life experience than Alito had before the SCOTUS - which I see as a plus.

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