Generalized Souter replacement thread.

[barracuda]

"Toughened, or coarsened, by their worldly lives, the other dissenters could shrug and move on, but Souter couldn’t. His whole life was being a judge. He came from a tradition where the independence of the judiciary was the foundation of the rule of law. And Souter believed Bush v. Gore mocked that tradition. His colleagues’ actions were so transparently, so crudely partisan that Souter thought he might not be able to serve with them anymore.

Souter seriously considered resigning. For many months, it was not at all clear whether he would remain as a justice. That the Court met in a city he loathed made the decision even harder. At the urging of a handful of close friends, he decided to stay on, but his attitude toward the Court was never the same. There were times when David Souter thought of Bush v. Gore and wept." - Jeffrey Toobin

This story may be apocryphal, but Souter won my respect for his dissent in the Bush v. Gore travesty, if only for doing the obvious. Any thoughts on Obama's pick? Bill Clinton?

[justdrew]

god damn but Bill Clinton would be perfect, if only to finally and completely drive the rightwing nutjob base irrevocably and completely insane.

but more likely it'll be someone we've never heard of

look what's already being said about "radical black judge"

[barracuda]

Oh yeah, radical. I'm more or less expecting someone with a Goldman Sachs background.

[compared2what?]

I gotta say, bless that Justice Souter. I think his appointment to SCOTUS may be the only event of my political lifetime that turned out to be less dire than I had anticipated.

Apart from all the stuff you'd automatically fear from a GHWB nominee, I was initially really freaked out to learn that he was still living with his mom.





I never could quite put my finger on why.

[barracuda]

Huffingtonpost - Sonya Sotomayer - 10 Things You Should Know

7. SOTOMAYOR ON ABORTION, GAY MARRIAGE: Sotomayor's record on two key hot button cultural issues is thin. But, quite notably, her sole opinion regarding abortion was in line with the anti-abortion movement's position. Some details from the anti-abortion site LifeNews.com:

"Despite 17 years on the bench, Judge Sotomayor has never directly decided whether a law regulating abortion was constitutional," the pro-life group Americans United for Life noted in a recent analysis of potential Supreme Court candidates.

Sotomayor participated in a decision concerning the Mexico City Policy, which President Obama recently overturned and which prohibits sending taxpayer dollars to groups that promote and perform abortions in other nations.

Writing for the Second Circuit, Judge Sotomayor upheld the Mexico City Policy, but AUL says the significance of the decision "may be minimal because the issue was largely controlled by the Second Circuit's earlier opinion in a similar challenge to the policy."

AUL notes that Judge Sotomayor also upheld the pro-life policy by rejecting claims from a pro-abortion legal group that it violated the Equal Protection Clause.


That said, pro-choice groups hailed her nomination, with Planned Parenthood declaring that she "understands the importance of ensuring that our Supreme Court justices respect precedent while also protecting our civil liberties."

[MinM]

Sotomayor: Maurice Clarett v. National Football League

Sonia Sotomayor: Not A Squishy, Wild-Eyed Commie, After All
By Tommy Craggs, 3:00 PM on Tue May 26 2009

"Some say," Barack Obama offered this morning, by way of introducing his Supreme Court nominee, "Judge Sotomayor saved baseball." True, at least to the extent that Sonia Sotomayor saved baseball from itself. What Obama didn't say: Sotomayor totally screwed over Maurice Clarett.

First, baseball. Obama said:

One case in particular involved a matter of enormous concern to many Americans, including me: the baseball strike of 1994-1995. (Laughter.) In a decision that reportedly took her just 15 minutes to announce, a swiftness much appreciated by baseball fans everywhere — (laughter) — she issued an injunction that helped end the strike.

Yes, everyone had a good chuckle over this, because it's just sports after all. But it was Sotomayor herself who, as a federal district judge in 1995, pithily and forcefully declared that something larger was at stake in the baseball strike, a fact ignored by the sort of facile people who dismissed the work stoppage as a pointless dispute between athletic millionaires and short billionaires. "This strike," she said, in the same courtroom where Curt Flood lost his bid for free agency in 1970, "has placed the entire concept of collective bargaining on trial."

Ruling from the bench, she directed owners to restore free agency and salary arbitration while bargaining continued and in doing so effectively ended the strike. It was a headslappingly obvious decision; Sotomayor famously needed only 15 minutes for deliberation. I asked former players union head Marvin Miller about the ruling. "It was an open-and-shut case," he said this morning. "You can't unilaterally change what has been negotiated. I'm not trying to minimize what she did. An awful lot of judges fold even in obvious cases. What she did was simply to apply the law as the NLRB [National Labor Relations Board] and the courts had already determined. But when a judge straightens it out in a sentence or two, that's marvelous."

Her decision in Maurice Clarett v. National Football League is more problematic. U.S. District Judge Shira Scheindlin had struck down the NFL's age restriction, thus making Clarett eligible for the draft. Sotomayor was a member of a three-judge panel of the U.S. District Court of Appeals in New York that overturned Scheindlin's ruling. (Note to Peter King: The question before the panel was not, by any means, whether the rule was "unreasonable or unfair." This is not what judges do. Most 10-year-olds understand that.)

In the panel's ruling, Sotomayor held that the age rule, which requires a player to be three football seasons removed from high school, fell under a labor exemption to anti-trust laws — bear with me here — and in effect had been collectively bargained by the NFL players union (even though the rule appears nowhere in the collective bargaining agreement). It's a tricky opinion that simultaneously restricts a worker's right to earn and buttresses a creaky, paternalistic rule dating back to the days of Red Grange, but, more progressively, treats the act of collective bargaining — no matter how ineptly one side may be bargaining — as sacrosanct.

It's also an infuriating opinion, one that, thanks in large part to the NFLPA's much-documented incompetence, basically countenances the collusion at the heart of our sports leagues' age requirements. In recent weeks, conservatives have gone bark-at-the-moon loony over Obama's stated desire for a Supreme Court justice who rules with "empathy." The Clarett decision, at least, was anything but empathic — it was a cold-eyed and literal-minded ruling from a judge who is nevertheless destined to spend the next hundred news cycles being branded a fire-breathing anarcho-syndicalist by the idiot right.
http://deadspin.com/5270493/sonia-sotom ... -after-all

[chiggerbit]

Interesting--Sotomayer is Catholic, which will leave only one non-Catholic Justice, John Paul Stevens.

[chiggerbit]

Did you know that the Constitution does not specify the size of the Supreme Court, and that at one time there were ten of them?

[charlotte rox]

chigger, ginsberg and breyer are both jewish...

[nathan28]

chigger, ginsberg and breyer are both jewish...

looks like you took a wrong turn on your way to the Stormfront forum

[chiggerbit]

My mistake. Thanks for the correction, charlotte rox. If Sotomayor is confirmed, there will be 6 Catholics, one Protestant and two Jewish Justices. In the history of the Supreme Court, there has never been an agnostic or atheist, Mormon, Muslim, Buddhist, Pentecostal, or Eastern Orthodox Justice. And, yeah, Nathan, I find it interesting that there will be that many Catholics at one time. What are the odds? Are Catholics smarter?

[vigilant]

...............nevermind

[chiggerbit]

If you think having six out of nine Justices being of one religious sect isn't significant, take a minute to think about it again. I wouldn't care if it were six Baptists, six Mormons, or six atheists, I believe it would be best for the justices to be diversified in religious practices, gender, ethnicity, etc. Frankly, I wasn't particularly impressed with the choices that Obama was rumored to be considering.

http://www.msnbc.msn.com/id/30974345/

On Sotomayor, abortion backers show unease
Supreme Court pick may not be a reliable vote to uphold Roe v. Wade

WASHINGTON - In nearly 11 years as a federal appeals court judge, President Obama’s choice for the Supreme Court, Sonia Sotomayor, has never directly ruled on whether the Constitution protects a woman’s right to an abortion. But when she has written opinions that touched tangentially on abortion disputes, she has reached outcomes in some cases that were favorable to abortion opponents.

Now, some abortion rights advocates are quietly expressing unease that Judge Sotomayor may not be a reliable vote to uphold Roe v. Wade, the landmark 1973 abortion rights decision. In a letter, Nancy Keenan, president of Naral Pro-Choice America, urged supporters to press senators to demand that Judge Sotomayor reveal her views on privacy rights before any confirmation vote.

“Discussion about Roe v. Wade will — and must — be part of this nomination process,” Ms. Keenan wrote. “As you know, choice hangs in the balance on the Supreme Court as the last two major choice-related cases were decided by a 5-to-4 margin.”

Because Judge Sotomayor is the choice of a president who supports abortion rights at a time when Democrats hold a substantial majority in the Senate, both sides in the debate have tended to assume she could be counted on to preserve the Roe decision.

Immediately after Mr. Obama announced his selection on Tuesday, leaders of several other abortion rights groups spoke out in support of Judge Sotomayor, and several conservative groups opposed to abortion rights attacked her, saying they were convinced that the president would not nominate someone who opposed abortion rights.

But in his briefing to reporters on Tuesday, the White House spokesman, Robert Gibbs, was asked whether Mr. Obama had asked Judge Sotomayor about abortion or privacy rights. Mr. Gibbs replied that Mr. Obama “did not ask that specifically.”

Previous miscalculations
Presidents have miscalculated in their assumptions about the abortion views of Supreme Court nominees before. When the first President Bush nominated David H. Souter in 1990 to fill the seat that Judge Sotomayor would assume if confirmed, Mr. Souter was known as a “stealth nominee” with no paper trail on abortion.

But conservative and liberal advocates alike believed that Justice Souter would vote to overturn Roe v. Wade, so much so that abortion rights advocates protested outside his confirmation hearing with signs reading “Stop Souter, or Women Will Die.” Then, two years later, Justice Souter shocked the political world by voting to uphold abortion rights.

As president, Mr. Obama has sought to avoid being drawn into the culture wars of the last several decades and has encouraged each side in the abortion debate to be respectful of the other’s opinions. But there are clear political advantages to his choice for the court not being perceived as having a strong position on abortion rights.




Judge Sotomayor’s views on abortion rights could still become clear if a past writing comes to light. During Justice Samuel A. Alito Jr.’s confirmation process in late 2005, for example, the National Archives released an old Justice Department job application in which he said the Constitution does not protect a right to an abortion.

But at this point, Judge Sotomayor’s views are as unknown as Justice Souter’s were in 1990, said Steven Waldman, the editor in chief of BeliefNet.com, a religious Web site, where he has blogged about her lack of an abortion rights record.

“Everyone is just assuming that because Obama appointed her, she must be a die-hard pro-choice activist,” Mr. Waldman said, “but it’s really quite amazing how little we know about her views on abortion.”

None of the cases in Judge Sotomayor’s record dealt directly with the legal theory underlying Roe v. Wade — that the Constitution contains an unwritten right to privacy in reproductive decisions as a matter of so-called substantive due process. Several of her opinions invoke substantive due process in other areas, however, like the rights of parents and prisoners.
Sonia Sotomayor biography

Name: Sonia Sotomayor

Age-Birthdate-Location: 54; June 25, 1954; New York, N.Y.

Experience: Judge, U. S. Court of Appeals for the Second Circuit, 1998-present; judge, U. S. District Court Southern District of New York, 1992-1998; private practice, New York City, 1984-1992; assistant district attorney, New York County, 1979-1984

Education: B.A., Princeton University, 1976; J.D., Yale Law School, 1979.

Quote: "I don't believe we should bend the Constitution under any circumstance. It says what it says. We should do honor to it." — during a 1997 nomination hearing.





She has also had several cases involving abortion-related disputes that turned on other legal issues. While those cases cannot be taken as a proxy for her views on the constitutionality of abortion, she often reached results favorable to abortion opponents.

In a 2002 case, she wrote an opinion upholding the Bush administration policy of withholding aid from international groups that provide or promote abortion services overseas.

“The Supreme Court has made clear that the government is free to favor the anti-abortion position over the pro-choice position,” she wrote, “and can do so with public funds.”

In a 2004 case, she largely sided with some anti-abortion protesters who wanted to sue some police officers for allegedly violating their constitutional rights by using excessive force to break up demonstrations at an abortion clinic. Judge Sotomayor said the protesters deserved a day in court.

[chiggerbit]

http://online.wsj.com/article/SB1244158 ... And_Policy

Nominee's Criminal Rulings Tilt to Right of Souter

WASHINGTON -- While Judge Sonia Sotomayor stands in the liberal mainstream on many issues, her record suggests that the Supreme Court nominee could sometimes rule with the top court's conservatives on questions of criminal justice.

The Supreme Court's five conservatives in January held that it was acceptable for prosecutors to use evidence seized by police who mistakenly thought they had a warrant to arrest a suspect.

View Full Image

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Judge Sonia Sotomayor, center, continues her visits to senators Thursday.




Justice David Souter dissented, as did the other liberals on the court. But Judge Sotomayor, nominated to succeed Justice Souter, ruled in favor of the police in a similar case 10 years ago. In that case, the judge upheld an arrest and search that never would have happened if police and court officials had kept accurate records.

She "has contributed greatly to law enforcement in New York" as a judge, said Leroy Frazer Jr., first assistant district attorney in Manhattan and a former colleague of Judge Sotomayor.

After Yale Law School, Judge Sotomayor joined the Manhattan district attorney's office. She spent five years at the office, and handled high-profile murder and child-pornography cases.

New York criminal-defense lawyers say she is surprisingly tough on crime for a Democratic-backed appointee -- a byproduct, they believe, of her tenure as a prosecutor.

"The reputation of Sotomayor was that sentencing was not an easy ride," says Gerald Shargel, a criminal-defense attorney. In a 1997 trial, Mr. Shargel asked Judge Sotomayor to show leniency in sentencing William Duker, a prominent New York lawyer who had pleaded guilty to overbilling the government. Mr. Shargel wanted Mr. Duker to be sent to an alcohol treatment program, in lieu of prison. The judge, however, sentenced the attorney to 33 months in prison, in line with the federal sentencing guidelines.
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Following recent Supreme Court precedent, Judge Sotomayor tends to see relatively few grounds to overturn criminal convictions, says John Siffert, a New York attorney who taught an appellate advocacy class with the judge at New York University School of Law from 1996 to 2006. On the trial bench, he says, "she was not viewed as a pro-defense judge."

To be sure, Judge Sotomayor has at times shown leniency toward criminal defendants. In 2001, after she had become an appellate-court judge, she agreed to preside over the drug-conspiracy trial of Sandra Carter. The jury convicted Ms. Carter, but Judge Sotomayor sentenced her to six months in prison, far below the term that she could have drawn under the sentencing guidelines, says Edward O'Callaghan, the prosecutor in the case.

Judge Sotomayor, he says, took into account the fact that the defendant was a first-time offender who made far less money than other conspiracy participants.

Michael Bachner, a New York defense lawyer who has handled trials and appeals before Judge Sotomayor, senses a divide in her criminal jurisprudence. She can be "very tough" on white-collar defendants from privileged backgrounds, but is "more understanding of individuals who grew up in a tougher circumstance."

In the Fourth Amendment case in 1999, Judge Sotomayor ruled against Anthony Santa, who was sentenced to 30 months after officers in Spring Valley, N.Y., arrested him and found 2.95 grams of crack cocaine.

Mr. Santa's lawyer said the arrest and search were improper, because officers were acting on a warrant from a neighboring town that had been canceled two years earlier. The Supreme Court had earlier ruled that such mistakes didn't invalidate evidence if court officials were responsible. The issue of responsibility was in dispute in this case, but Judge Sotomayor's ruling assumed the police had acted appropriately and upheld the sentence.

Jeffrey Fisher, a Stanford Law School professor who was on the losing side of the January Supreme Court decision, says Judge Sotomayor's ruling demonstrates a "willingness to give police the benefit of the doubt."

[barracuda]