Tuesday, May 26, 2009

Why not Harriet Miers?

Sonia Sotomayor will be the new Supreme Court Justice.

Here's a sentence I never imagined I'd write: Jennifer Granholm would have been preferable.

This appointment does not stoop - quite - to the level of Dubya's nomination of Harriet Miers in one sense: Sonia Sotomayor is not an immediate crony of Barack Obama's. It does share some characteristics, however. Sotomayor is hardly the most qualified appointee. Sotomayor is a female.

Otherwise, it is a much worse appointment. While it avoids a dubious, even reckless, emphasis on personal loyalty, it is solely political pandering. Personal loyalty is no reason to nominate a person as a Justice of the Supreme Court, calculated cynicism is not a justification for anything.

Live by identity politics. Rise through identity politics. Sotomayor will be confirmed, but there is some fun to be had with the prospect. Two questions decided by Sotomayor as a judge on the U.S. Court of Appeals for the Second Circuit are currently on the docket of the Supreme Court.

Ricci v. DeStefano, is a reverse discrimination case summarily, actually insultingly, rejected in an opinion joined by Ms Sotomayor. This article is worth reading in full. Here's a significant bit, but there's more good stuff at the link:
...firefighters in New Haven, Conn., who say they passed an exam for a job promotion only to have the test results thrown out because no African-American candidate received a high enough score to also be considered for promotion.

City officials said they wanted to add diversity to management ranks within the fire department. They made special efforts to design a test process that would reduce any bias that might disadvantage minority candidates.

But when no blacks and only two Hispanic applicants qualified for consideration for the management jobs, the city decided to scrap the entire test.
It should be noted that Frank Ricci is dyslexic and prepared for the test by studying 8 or more hours every day. He spent over $1,000 on books and tutoring.

This decision of Judge Sotomayor's is particularly interesting given her ruling in Bartlett v. New York State Board of Law Examiners that a law school graduate with a reading and learning disability was entitled to extra time in taking bar exams. On appeal, the Supreme Court ruled that the Americans With Disabilities Act did not apply because Bartlett's condition could be managed with glasses and medication. Ordered to retry the case, Sotomayor rejected the SCOTUS opinion, coming to the same conclusion she had made earlier.

The plaintiff was Dr. Marilyn J Bartlett. Her bio is here, these are the degrees listed:
  • B.S., State College at Worcester, Massachusetts, in Early Childhood Education -1970;
  • M.S.Ed., Boston University, Boston, Massachusetts, in Special Education -1976;
  • Ph.D., New York University, in Organizational and Administrative Studies -1982;
  • J.D., Vermont Law School -1991
Dr. Bartlett attempted the New York State bar exam 5 times and claims she was never given appropriate "accommodation." One wonders if she was simply a Disability Advocate looking for trouble and how much accommodation her degrees required (beyond glasses and medication). She is said to "decode" at a 4th grade level. Whatever that means, it doesn't sound like she could get a Ph.D, without studying a lot and probably with a great deal of assistance. I wonder if she paid for the assistance?

Judge Sotomayor wrote:
“Marilyn Bartlett suffers from a learning deficit that evinces itself as a difficulty in reading the speed, fluency, and automaticity of an individual with her background and level of intellectual ability. Despite this impairment, plaintiff obtained a Ph.D. in educational administration and a law degree. By virtue of superior effort and not a
small amount of courage, Marilyn Bartlett has been able to succeed academically and professionally despite the limitations that her impairment has placed upon her.
There's no information on what level Frank Ricci "decodes," but asking him about Sotomayor's empathy might produce an interesting response. Maybe if he'd gotten a Ph.D. first...

The second case, Croll v. Croll, presents the same question as Abbott v. Abbott (the case presently before SCOTUS). These cases are about child custody and involve interpretation of the Hague Convention on International Child Abduction. Judge Sotomayor dissented from the opinion of the Second Circuit, citing the manner in which foreign courts had interpreted the question.

Judge Sotomayor argued that a broader interpretation of "custody" was more in line with the "object and purpose" of the Convention, and that this was how foreign courts had considered the issue.
Perhaps judge Sotomayor will score with this one. Not, I suspect, with Justice Scalia, however.

In other news,

Sotomayor asserts (Maloney v. Cuomo) that the Second Amendment only applies to the federal government. In so doing she explicitly rejected District of Columbia v. Heller, preferring earlier SCOTUS decisions (Presser v. Illinois, 1886) to underpin her decision. Here, she appears willing - again - to overrule SCOTUS. This case appears likely to be appealed. It will bring the incorporation clause of the 14th Amendment into focus if SCOTUS takes it.

The Supreme Court reversed Judge Sotomayor in Malesko v. Correctional Services Corporation

And overturned her decision in Entergy Corp. v. Riverkeeper, Inc.

On the two Sotomayor cases presently before SCOTUS, you might think delaying a decision on them would be preferable to the Obama administration so that Sotomayor might not be embarrassed by being overturned twice more while confirmation hearings are in progress. OTOH, you would think (wouldn't you?) that she will have to recuse herself if she is confirmed before these cases are determined. This would seem to increase the likelihood she'll be overturned while a sitting Justice.

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