Sotomayor -- SCOTUS hearings update

An Unpublished Summary Order Can't Be Defended in Ricci [Andy McCarthy]

Judge Sotomayor continues to try to defend the manner in which her panel buried the Ricci case by unpublished summary order. She claims that she was operating under clear precedent — but there wasn't clear precedent, and her peremptory order didn't cite any. But let's give her that one. Sotomayor has issued scores of opinions on legal issues in which the outcome was clear, controlled by obvious precedent — that didn't stop her from writing an opinion.

Now consider this. The Ricci case was widely deemed to be the most important discrimination case to come before the Second Circuit in years — perhaps decades. As Judge Cabranes pointed out in his dissent from the full Second Circuit's decision not to rehear the case, Ricci featured "unusually lengthy briefs from the parties, amicus briefs, an 1,800-page record, and an hour of oral argument, all well beyond the norm" (most arguments before the Second Circuit are about ten minutes per side).

You can argue the result in Ricci. You can't defend burying the case without a published, reasoned decision.


What Is 'Settled' Law? [Andy McCarthy]

Judge Sotomayor answering Senator Hatch [almost a quote]: All decisions of the Supreme Court I consider "settled law" to the extent that the doctrine of stare decisis (respect for precedent) applies.

In other words, all law is settled . . . except when it isn't.


Say What, Sonia? [Andy McCarthy]

Judge Sotomayor testifying this morning: "Most of my cases if not all of them explain why the law requires what it does."

Judge Jose Cabranes describing the opinion of Judge Sotomayor and the rest of the panel in the New Haven firefighter case: the panel gave peremptory treatment to:

significant constitutional and statutory claims of first impression . . . in an opinion that lacks a clear statement of either the claims raised by the plaintiffs or the issues on appeal. Indeed, the opinion contains no reference whatsoever to the constitutional claims at the core of this case, and a casual reader of the opinion could be excused for wondering whether a learning disability played at least as much a role in this case as the alleged racial discrimination. . . . This perfunctory disposition rests uneasily with the weighty issues presented by this appeal.
When Senator Sessions was grilling Judge Sotomayor on why her panel gave such shoddy treatment to such an important case, the judge kept saying they relied on a "thoughtful 72-page opinion" from the district judge. What she didn't mention was that before her panel attepted to bury the case in an unpublished ruling, the district judge dug the grave by attempting make certain that no one got to see how "thoughtful" the 72-page opinion was — it, too, was unpublished.

This was not an effort to "explain why the law requires what it does"; it was an effort to make the law go away.