Now I realize that any case taken by the Supreme Court is more likely to see a reversal than affirmation – after all, SCOTUS is more likely to fix errors than give attaboys to circuit courts. But for a judge to have a 60% reversal rate does raise some red flags – especially when that rate may rise even further right before her confirmation hearings.

With Judge Sonia Sotomayor already facing questions over her 60 percent reversal rate, the Supreme Court could dump another problem into her lap next month if, as many legal analysts predict, the court overturns one of her rulings upholding a race-based employment decision.

Three of the five majority opinions written by Judge Sotomayor for the 2nd Circuit Court of Appeals and reviewed by the Supreme Court were reversed, providing a potent line of attack raised by opponents Tuesday after President Obama announced he will nominate the 54-year-old Hispanic woman to the high court.

Of course, she has written some 380 opinions as a member of the Second Circuit. Only six have gone before the Supreme Court – but one has to be struck by the reversal rate, even if (as pointed out at PowerLine) the percentage is not out of the ordinary. Does anyone know what her overall rate of rejection by the Supreme Court is – not just cases where she wrote the decision, but also every other case on which she has participated as a judge and whether her position has been rejected or affirmed by the Supreme Court on appeal. I think such a statistic could be even more telling.

Posted by: Greg at 10:32 AM | No Comments | Add Comment
Post contains 276 words, total size 2 kb.

HereÂ’s the clip.

HereÂ’s where she is right.

District courts are bound by the facts of a particular case. They are not bout broader questions of law – they are about the application of the law in a particular situation – and the interpretation of a particular judge of a particular law has no precedent value beyond that one courtroom.. The Circuit Courts (and the Supreme Court) are courts which hear appeals – and in doing so are taking a broader view of how to apply law for more than one particular case, but also for every other case that follows under that court’s jurisdiction (whether a particular circuit or the entire nation depends upon the court. As such, the rulings of an appellate court do make “policy” in a way that the decisions of trial courts do not. While her explanation is awkward, it has the virtue of being accurate – though the use of the phrase “where policy is made” justifiably sets off alarm bells for those who are concerned about activists courts.

Posted by: Greg at 10:02 AM | No Comments | Add Comment
Post contains 183 words, total size 2 kb.

This is the one for all the marbles, folks – either they succeed in using the federal courts to impose gay marriage nationwide, or they hand the victory to their opponents.

Former Bush administration solicitor general Theodore Olson is part of a team that has filed suit in federal court in California seeking to overturn Proposition 8 and re-establish the right of same-sex couples to marry.

The suit argues that the state's marriage ban, upheld Tuesday by the California Supreme Court, violates the federal constitutional right for same-sex couples to marry. The complaint was filed Friday, and Olson and co-counsel David Boies -- who argued against Olson in the Bush v. Gore case -- will hold a news conference in Los Angeles Wednesday to explain the case. The conference will feature the two same-sex couples on whose behalf Olson filed suit.

The suit also asks the U.S. District Court for the Northern District of California to issue an injunction that would stop enforcement of Proposition 8 and allow same-sex couples to marry while the case is being decided.

"I personally think it is time that we as a nation get past distinguishing people on the basis of sexual orientation, and that a grave injustice is being done to people by making these distinctions," Olson told me Tuesday night. "I thought their cause was just."

I asked Olson about the objections of conservatives who will argue that he is asking a court to overturn the legitimately-expressed will of the people of California. "It is our position in this case that Proposition 8, as upheld by the California Supreme Court, denies federal constitutional rights under the equal protection and due process clauses of the constitution," Olson said. "The constitution protects individuals' basic rights that cannot be taken away by a vote. If the people of California had voted to ban interracial marriage, it would have been the responsibility of the courts to say that they cannot do that under the constitution. We believe that denying individuals in this category the right to lasting, loving relationships through marriage is a denial to them, on an impermissible basis, of the rights that the rest of us enjoyÂ…I also personally believe that it is wrong for us to continue to deny rights to individuals on the basis of their sexual orientation."

Technically, the suit Olson has filed is against the governor, attorney general, and other officials of the state of California. Ultimately, Olson said, it's a question that will be decided in Washington, by the Supreme Court. "This is an issue that will get to the Supreme Court, and I think it could well be this case," he said.

Now let’s make it clear what this is about – it is about federalizing gay marriage. That Fourteenth Amendment claim is nothing short of a demand that the federal courts re-write the marriage laws of every state – an act of crass judicial activism that would constitute a case of macro-evolution of the “living Constitution”. And let there be no doubt that such a ruling would constitute the overturning of separate decisions by the people of thirty different states, federalizing as a right what has always been a state matter.

Let me deal with one of Olson’s arguments – “If the people of California had voted to ban interracial marriage, it would have been the responsibility of the courts to say that they cannot do that under the constitution.” He is, of course, correct in that observation – but when one considers that the purpose of the Fourteenth Amendment was to eliminate invidious racial discrimination, it is obvious that the decision in such a case would be compelled by the language and the history of the amendment. However, the redefinition of marriage from the traditional (and biologically based) “one man, one woman” configuration to “any two adults” does something different by actually altering the essentials of marriage.

What’s more, a decision in favor of Boies & Olson and their clients will have one additional effect – it will delegitimize the federal courts in the eyes of millions of Americans. And once our courts and their decisions are seen as lacking legitimacy, the legitimacy of the other two branches is also endangered. Will the issue of gay marriage ultimately be the one upon which the survival or dissolution of the republic hinges?

Ed Morrissey, however, points out a real possibility of a very different outcome.

However, Olson may have a more limited equal-protection case with the limited class of relief the California Supreme Court created in its decision. In this case, we have 36,000 citizens in single-sex marriages recognized by the state, while refusing to recognize any others. The only delimiter is the date of the decision. A federal court might find that a violation of the equal-protection clause and overturn Proposition 8, or at least the ruling. The danger here for Olson is that a federal court might take action that invalidates those existing marriages rather than forcing California to recognize gay marriage altogether.

Wouldn’t that be special. But my fear is that the those members of the court who look for “evolving standards” and “trends” will decide that five states approving gay marriage will trump the thirty that have come down firmly on the other side. And if that happens, it may well mean the end of our republic as we know it.

Posted by: Greg at 10:01 AM | No Comments | Add Comment
Post contains 908 words, total size 6 kb.

I’m all for making sure that a potential justice is in sufficiently good health to do the job. Acute medical conditions may well be a disqualifying factor for a candidate for the Supreme Court – but what about chronic conditions? Take this piece on Judge Sotomayor – and what I see as an overblown concern about a medical condition that does not seem to have hindered her career up to this point.

As President Obama approaches his first Supreme Court appointment, the question of how much scrutiny he should give to a candidate's health could rise to the surface once more.

A frontrunner for the post, Judge Sonia Sotomayor of U. S. Court of Appeals for the Second Circuit, is a Type One diabetic. It is one of the more compelling aspects to an already compelling biography. And while hardly a debilitating disease -- indeed, recent medical advancements have made it quite manageable to live with -- there remain enough late-in-life health implications to have sparked debate in legal, political and medical circles. Just how relevant are medical issues to Sotomayor's or any other potential Supreme Court nomination?

"It is obligatory [to look at this]" said Jeffrey Toobin, a legal analyst for CNN and author of "The Nine: Inside The Secret World of the Supreme Court." "The issue of duration of service for a Supreme Court nominee is critical to any president, and thus health and medical issues are very much at the forefront of their considerations... It would be irresponsible for any president not to make the health of the nominee a major subject of concern, because presidents want decades of service from their nominees."

Added another political operative who has worked on judicial nominations in the past: "I don't even think it is very sensitive. I think it is just obvious.... It is part of who we are. And so I think you find that there is almost in this day and age, there is almost no area of inquiry that is out of bounds."

Now do I think that there is a place to ask questions about Sotomayor’s diabetes? Perhaps, but only to the degree that there is any evidence that she is suffering from some seriously debilitating effects of the disease. As a Type Two diabetic, I know that there are possible complications to both forms of our disease, and that these potential future complications can be serious or even life threatening. But for most of us, they are not likely to be – yesterday I sat with an 85 year old woman who has been coping quite nicely with her Type Two diabetes for a couple of decades. My Type One cousin is a successful hospital administrator in a major Midwestern city who has progressed from insulin shots as a child to a pump as an adult to a pancreas transplant several years ago – she has been told that she can expect to live a normal lifespan with no real diminution of her ability to work or otherwise lead an active life.

Am I a fan of Sonia Sotomayor as a potential nominee to the High Court? No, but do think she may be better than some of the other options on Obama’s radar. But regardless of my lack of enthusiasm for the prospect of her becoming a justice, I don’t see her diabetes as something that should disqualify her in the eyes of the President – or during any confirmation fight. Given medical advances over the last few decades, diabetes is simply not a serious enough medical condition to keep her off the bench – as her service on both the district and circuit court levels has amply proved.

Posted by: Greg at 08:18 AM | Comments (31) | Add Comment
Post contains 633 words, total size 4 kb.

Finally, Richard Cohen sees that there is a problem with affirmative action as it is sometimes practiced. This is particularly true in the case currently before the Supreme Court, involving the city of New HavenÂ’s decision to not promote qualified firefighters of their race.

Blatant affirmative action always entailed a disturbing and ex post facto changing of the rules -- oops, you're white. Sorry, not what we wanted. As a consequence, it was not racists who were punished but all whites. There is no need to cling to such a remedy anymore. There is, though, every need to retain and strengthen anti-discrimination laws, especially in areas such as fire departments, where racial discrimination was once endemic. Sufficient progress has been made to revert to treating individuals as individuals. After all, it is not some amorphous entity called "whites" who will suffer: It is un-lieutenant Ricci.

Now Cohen takes this position in the context of discussing Obama’s upcoming nominee to the Supreme Court. Oddly enough, the position he takes is quite akin to that taken by a current member of the Supreme Court – Chief Justice John Roberts. Has Cohen come to recognize that it is, indeed, a sordid business for the government (any government, whether federal or city) to divide and classify its citizens by race and to award benefits and burdens based upon that classification? Will Obama – who arguably achieved his current position based upon merit, not an affirmative action quota – recognize the same truth that conservatives have long embraced, and make an appointment based upon that truth?

Posted by: Greg at 12:42 PM | No Comments | Add Comment
Post contains 271 words, total size 2 kb.

On one level, this makes little difference – we will simply trade one liberal justice for another. On another level, this makes it likely that we will have one reliably liberal justice on the high court for decades longer.

Supreme Court Justice David Souter is planning to retire at the end of the current court term.
The vacancy will give President Obama his first chance to name a member of the high court and begin to shape its future direction.
At 69, Souter is nowhere near the oldest member of the court. In fact, he is in the younger half of the court's age range, with five justices older and just three younger. So far as anyone knows, he is in good health. But he has made clear to friends for some time that he wanted to leave Washington, a city he has never liked, and return to his native New Hampshire. Now, according to reliable sources, he has decided to take the plunge and has informed the White House of his decision.

Of all the justices of my lifetime, it is Souter for whom I hold the least respect. A non-entity whose contributions to our nation’s jurisprudence have been negligible, he seems to have been singularly unqualified. Indeed, his appointment ranks up there with George W. Bush’s abortive nomination of Harriet Miers in terms of its weakness – and Justice Souter exemplifies the sort of judge referred to by one senator regarding a failed Nixon Nominee – "[T]here 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, Frankfurters and Cardozos."

But what will we get from Barack Obama? I tend to agree with the assessment that it won’t be a white man – even if that white man has the qualifications and character of a Brandeis, Frankfurter, or Cardozo. It would appear that the top candidates are Sonia Sotomayor, Elena Kagan, Diane Wood, Harold Koh, and Seth Waxman. To my thinking, Waxman is likely out of the running as simply another white guy – and given that Kagan and Koh are recent Obama nominees to top executive branch positions, I doubt that they are serious candidates fro the position. While Wood has Chicago connections, my money is on Sotomayor – and as a Bush 41 appointee, she would have the advantage of somewhat soothing some elements of the GOP while checking both the female and Hispanic boxes on the quota checklist. Wood, Kagan, and Sotomayor are already targeted for attack by some on the Right, so expect this to be a contentious battle for confirmation.

Posted by: Greg at 02:05 PM | No Comments | Add Comment
Post contains 451 words, total size 3 kb.