Flashback: GOP attempted to block Sotomayor in 1998

posted at 12:55 pm on May 26, 2009 by Ed Morrissey

Almost eleven years ago, the GOP saw Judge Sonia Sotomayor as a potential Supreme Court nominee and tried a pre-emption strategy to derail her from that path.  Bill Clinton nominated her to the Court of Appeals in 1998, and Trent Lott — then Senate Majority Leader — delayed her confirmation as a way to set a marker of opposition to Sotomayor if Clinton had any thoughts of promoting her.  The New York Times reported on the effort at the time (via Yid with Lid):

But Republican senators have been blocking Judge Sotomayor’s elevation to the appeals court for a highly unusual reason: to make her less likely to be picked by Mr. Clinton for the Supreme Court, senior Republican Congressional aides said in interviews.

The delay of a confirmation vote on Judge Sotomayor to the United States Court of Appeals for the Second Circuit, based in New York, is an example of the intense and often byzantine political maneuverings that take place behind the scenes in many judicial nominations. Several elements of the Sotomayor case are odd, White House officials and Democrats in Congress say, but the chief one is the fact that there is no vacancy on the Supreme Court, and no firm indication that there will be one soon. Nor is there any evidence of a campaign to put Judge Sotomayor under consideration for a seat if there were a vacancy.

Judge Sotomayor’s nomination was approved overwhelmingly by the Senate Judiciary Committee in March. Of the judicial nominees who have cleared the committee in this Congress, she is among those who have waited the longest for a final vote on the floor.

Senate Republican staff aides said Trent Lott of Mississippi, the majority leader, has agreed to hold up a vote on the nomination as part of an elaborate political calculus; if she were easily confirmed to the appeals court, they said, that would put her in a position to be named to the Supreme Court. And Senate Republicans think that they would then have a difficult time opposing a Hispanic woman who had just been confirmed by the full Senate.

And, in fact, Clinton never got that chance.  He appointed Stephen Breyer and Ruth Bader Ginsburg before his first midterms, and another opening didn’t occur for 11 years. The Republican effort went to naught, at least at that time.

Interestingly, though, all of the objectionable statements coming to light now from Sotomayor date significantly later than 1998.  They objected to a case in which she found against businesses who gave work experience to the homeless without paying minimum wage, but that seems like a rather narrow basis for the opposition at that point.  Neil Lewis reported that the Hispanic National Bar Association had lobbied the Clinton administration with a list of six jurists for a Supreme Court appointment, but that Sotomayor was not one of them.

She is now, and she has a track record on which Republicans can base their opposition.  I’ve already posted about her most controversial statements, and The Right Scoop sends this list of reversals noted at Judgepedia:

  • In Knight v. C.I.R., (128 S.Ct. 782, 2008.), the Court found that, based on an erroneous interpretation of the tax code, Judge Sotomayor applied an incorrect standard.
  • In Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Dabit, (547 U.S. 71, 2006), the Court found that Judge Sotomayor failed to apply precedent correctly in interpreting a scope of preemption provision of the Securities Litigation Uniform Standards Act.
  • In New York Times, Inc. v. Tasini, (533 U.S. 483, 2001), the Supreme Court affirmed the Second Circuit’s reversal of Judge Sotomayor’s district court ruling that the Copyright Act permitted electronic publishers to reproduce all articles in a periodical under a “collective works” privilege, concluding that Sotomayor erred in her interpretation of “revision of [that] collective works” privilege in the Act.
  • In Correctional Servs. Corp. v. Malesko, (534 U.S. 61, 2001), the Court reversed Sotomayor for allowing an inmate to sue a halfway house operator for negligence based on a Bivens claim. After the trial court dismissed the case, Judge Sotomayor reversed and reinstated the litigation. The Supreme Court reversed Judge Sotomayor’s decision, holding that the former inmate did not lack effective remedies and that he had full access to remedial mechanisms established by the Bureau of Prisons. The Court also held that the former inmate’s suit would not have advanced Bivens’ core purpose of deterring individual officers from engaging in unconstitutional wrongdoing.

If that’s all of her reversals, it hardly amounts to the “high rate” Wendy Long noted at Bench Memos earlier, but I imagine more will come to light after eleven years on the appellate court.  The above examples seem pretty technical, although at first blush it does appear that they resulted from an “empathetic” view rather than a correct application of the law.

Will this be enough to derail her now?  Reversals never look good, and Republicans can use them to paint her as something less than brilliant.  However, they’ll need more than four in eleven years to make that argument stick.  How many reversals did Roberts and Alito have?

Update: As long as we’re talking about her reversals, a couple of her notable rulings should be highlighted, too:

  • U.S. v. Giordano, 442 F.3d 30. At issue was whether the conviction of a former mayor of Waterbury, Connecticut should be overturned. The conviction stemmed from the mayor’s repeated sexual abuse of the minor daughter and niece of a prostitute. The defendant’s prosecution on the charges that led to this appeal grew out of an unrelated investigation by the FBI and IRS into political corruption in the city of Waterbury. In the course of this surveillance, the government intercepted 151 calls on the defendant’s cell phones to or from a prostitute with whom the defendant had a long-term sex-for-money relationship. These calls showed that the prostitute was bringing a nine-year-old girl for sex upon the request of the Defendant. Sotomayor, writing for the majority of the court, held that the Defendant’s conviction should not be overruled because all of the Defendant’s appeals lacked merit. Specifically, the Court ruled: (1) defendant’s mere use of a telephone satisfied the jurisdictional element of the statute prohibiting the knowing transmission of minors’ names by use of facilities and means of interstate commerce with intent to entice, encourage, and solicit them to engage in sexual activity (2) statute prohibiting the knowing transmission of minors’ names by use of facilities and means of interstate commerce with intent to entice, encourage, and solicit them to engage in sexual activity did not exceed Congress’ authority under Commerce Clause.
  • Ricci v. DeStefano. In this 2008 case, Sotomayor participated in a one-page decision that allowed the City of New Haven, Connecticut to scrap the results of a promotion test for the city’s firefighters because no African-Americans passed the test. In April 2009, the Supreme Court said that it would review the Second Circuit’s decision.[3]

The first one shows, I think, a proper application of the law in pursuit of a real scumbag.  The second will get a lot of attention, especially if the current court overturns Sotomayor in the next few weeks.  Keep an eye on that, especially in how the vote goes.


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Comments

If nothing else, she sure has empathy empty judgement.

Kini on May 26, 2009 at 12:59 PM

People like this scare the hell out of me.

.

GT on May 26, 2009 at 1:01 PM

Sotomayor: You have nominated me to serve legislate from the highest court…

Kini on May 26, 2009 at 1:03 PM

Sotomayor decapitating Justicia

poster, tshirt, bumpersticker

maverick muse on May 26, 2009 at 1:04 PM

Breaking……

Court upholds Prop 8 in California

Knucklehead on May 26, 2009 at 1:04 PM

Prop 8 Stands, but for how long?

Kini on May 26, 2009 at 1:05 PM

Knucklehead on May 26, 2009 at 1:04 PM
Ah!!! beat me to it :D

FontanaConservative on May 26, 2009 at 1:06 PM

California courts just upheld Prop 8, so she has her work cut out.

Vashta.Nerada on May 26, 2009 at 1:06 PM

Time for the most fabulous rioting evah!!!

battleoflepanto1571 on May 26, 2009 at 1:06 PM

Upcoming Headline:
“Sotomayor discovered to be a tax cheat”
in 3…2…1…

stonemeister on May 26, 2009 at 1:07 PM

Laura Ingraham also hit her record, as does DrewM. @ Ace of Spades HQ.

Squishy ain’t what this world needs.

No, you can’t take away my Constitution with a song and dance.

maverick muse on May 26, 2009 at 1:08 PM

Time for the most fabulous rioting evah!!!

battleoflepanto1571 on May 26, 2009 at 1:06 PM

Perez Hilton’s head explodes in 5…4…3

Knucklehead on May 26, 2009 at 1:09 PM

I KNOW, Puerto Rico ain’t Mexico.

maverick muse on May 26, 2009 at 1:10 PM

I’m no lawyer, and certainly no expert at legal matters, but these overturns on her judgements, almost seem elementary. That she knew the rule of law, and chose to ignore it, to favor a particular litigant?

If I am wrong, it means she’s not very bright, or knowledgable when it comes to matters of law.

Either way, this I think truly should concern many people, and question her ability to sit on the highest court, and base her rulings on laws, and the constitutions. If my first comment is right….she is not suitable.

capejasmine on May 26, 2009 at 1:11 PM

The Last Two Times Around [David Freddoso]

When Sonia Sotomayor was confirmed to the second circuit, she received ‘yea’ votes from Jesse Helms, Rick Santorum, and Orrin Hatch. Of course, as Ed Whelan has noted, much of the controversy over Sotomayor has to do with decisions and statements she has made since then.

A GOP Senate office also draws my attention to a 1992 article in the New York Law Journal regarding the circumstances surrounding her appointment by George H. W. Bush. She was actually the pick of the late Senator Daniel Moynihan (D., N.Y.). Bush chose her as part of a deal in which Moynihan and former Sen. Al D’Amato (R., N.Y.) split up seven of New York’s long-vacant district court seats.

jp on May 26, 2009 at 1:12 PM

The Ricci case deserves a lot of attention. The plaintiffs in that case (firefighters who’d passed a promotions test) were treated so unfairly it was outrageous — and it was all because they were white. Sotomayor sided against them without giving any real consideration to their constitutional claims — and was rebuked for doing so by one of her judicial colleagues. Apparently she has a lot of “empathy” for working class types so long as they’re minorities. But if they’re working class white guys who’ve been screwed over with no justification (as the Ricci plaintiffs are), then forget about it.

AZCoyote on May 26, 2009 at 1:13 PM

So we’re still playing Mini-Clinton. Greaaat, the 90’s are back!

I hated grunge music.

emailnuevo on May 26, 2009 at 1:17 PM

Knucklehead on May 26, 2009 at 1:09 PM
They already got human chains forming in an intersection

FontanaConservative on May 26, 2009 at 1:18 PM

AZCoyote on May 26, 2009 at 1:13 PM

Sotomayor was rebuked in writing by a Latino judge appointed by Clinton, for completely ignoring the laws, issuing her extremely bigoted blatant reverse discriminatory decision.

In her own words, Sotomayor “hopes” she can project her biases beyond rule of law.

maverick muse on May 26, 2009 at 1:22 PM

If that’s all of her reversals, it hardly amounts to the “high rate” Wendy Long noted at Bench Memos earlier…

That’s a pretty ignorant statement, Ed. I work for one of the 13 federal circuit courts of appeals. Do you know how very few cases the SOCTUS reviews in a year? How few opinions of a single Court of Appeals judge the SCOTUS reviews, even over a 10 year period? If I understand the statistics correctly, SCOTUS has reviewed five of her decisions and reversed her in four of them. And will probably reverse the Ricci/DeStefano firefighters case, too.

If you don’t think that 4 out of 5 – possibly 5 out of 6 – reversals isn’t a high rate, then what is?

dhawbake on May 26, 2009 at 1:25 PM

Maybe cause of this:
http://jumpinginpools.blogspot.com/2009/05/sotomayor-gun-ownership.html

orfannkyl on May 26, 2009 at 1:26 PM

And just in case anyone here is buying into Bambi’s and Chucky Schumer’s claim that Sonia is a moderate because she was appointed by Bush 41…here’s an easy-read, well expressed excerpt from Ed Whelan back in March of 2008 at NRO about how that whole deal got played…

… Sotomayor is often painted as a moderate by virtue of the fact that President George H.W. Bush formally appointed her to a district-court seat. But, as I’ve explained before, when President Bush nominated Sotomayor to the district court in 1991, the New York senators, Moynihan and D’Amato, had forced on the White House a deal that enabled the senator not of the president’s party to name one of every four district-court nominees in New York. Sotomayor was Moynihan’s pick. I am reliably informed that Bush 41’s White House nonetheless resisted nominating her because she was so liberal and did so in the end only as part of a package to move along other nominees whom Moynihan was holding up.

I’ll also highlight that in 1998, on the roll-call vote on President Clinton’s nomination of Sotomayor to the Second Circuit, 29 Republican senators (including John McCain) voted against her confirmation.

marybel on May 26, 2009 at 1:28 PM

Upcoming Headline:
“Sotomayor discovered to be a tax cheat”
in 3…2…1…

stonemeister on May 26, 2009 at 1:07 PM

With Obama’s track record who would really be suprised.

azcop on May 26, 2009 at 1:29 PM

Instead of making guns illegal, she argues that they have been illegal for individuals to own since the passing of the Bill of Rights.

Uh oh.

Campaign promise about to expire……..

BobMbx on May 26, 2009 at 1:32 PM

Breaking……

Court upholds Prop 8 in California

Knucklehead on May 26, 2009 at 1:04 PM

So will the court appease voters on this, and overrule the voters on the tax proposals?

capejasmine on May 26, 2009 at 1:34 PM

Instead of making guns illegal, she argues that they have been illegal for individuals to own since the passing of the Bill of Rights.

Uh oh.

Campaign promise about to expire……..

BobMbx on May 26, 2009 at 1:32 PM

But I’m sure it’s ok, if criminals have them. The poor down trodden murderers, rapists, pedophiles, and felons.

capejasmine on May 26, 2009 at 1:36 PM

Update: As long as we’re talking about her reversals, a couple of her notable rulings should be highlighted, too:

Here is one straw in the wind that does not bode well for a Sotomayor appointment. Justice Stevens of the current court came in for a fair share of criticism (all justified in my view) for his expansive reading in Kelo v. City of New London (2005) of the “public use language.” Of course, the takings clause of the Fifth Amendment is as complex as it is short: “Nor shall private property be taken for public use, without just compensation.” But he was surely done one better in the Summary Order in Didden v. Village of Port Chester issued by the Second Circuit in 2006. Judge Sotomayor was on the panel that issued the unsigned opinion–one that makes Justice Stevens look like a paradigmatic defender of strong property rights.

I have written about Didden in Forbes. The case involved about as naked an abuse of government power as could be imagined. Bart Didden came up with an idea to build a pharmacy on land he owned in a redevelopment district in Port Chester over which the town of Port Chester had given Greg Wasser control. Wasser told Didden that he would approve the project only if Didden paid him $800,000 or gave him a partnership interest. The “or else” was that the land would be promptly condemned by the village, and Wasser would put up a pharmacy himself. Just that came to pass. But the Second Circuit panel on which Sotomayor sat did not raise an eyebrow. Its entire analysis reads as follows: “We agree with the district court that [Wasser’s] voluntary attempt to resolve appellants’ demands was neither an unconstitutional exaction in the form of extortion nor an equal protection violation.”

Maybe I am missing something, but American business should shudder in its boots if Judge Sotomayor takes this attitude to the Supreme Court. Justice Stevens wrote that the public deliberations over a comprehensive land use plan is what saved the condemnation of Ms. Kelo’s home from constitutional attack. Just that element was missing in the Village of Port Chester fiasco. Indeed, the threats that Wasser made look all too much like the “or else” diplomacy of the Obama administration in business matters.

Rae on May 26, 2009 at 2:00 PM

FWIW: in discussing any case in which Sotomayor was involved, it’s very important to mention whether she was acting as a federal district court judge, in which case she acted as a trial judge, or acting as a federal appeals court judge, in which case she acted as one of a three-member panel (more if the case was heard by the entire group of the Second Circuit judges). The roles of a trial judge and an appeals court judge are different, so identifying the capacity helps to flesh out what role she played in the decision.

BuckeyeSam on May 26, 2009 at 2:05 PM

I think everyone needs to see this, at the Volokh Conspiracy.

The short of it: she thinks the Second Amendment is not a fundamental right.

newton on May 26, 2009 at 2:25 PM

But I’m sure it’s ok, if criminals have them. The poor down trodden murderers, rapists, pedophiles, and felons.

capejasmine on May 26, 2009 at 1:36 PM

Under the new hate crimes law, they might as well be.

newton on May 26, 2009 at 2:26 PM

I wish no one harm and I’m not trying to be provocative,, but as a practical matter, since we are getting a leftist no matter what, why not put one on the court who isn’t in perfect health.

rock the casbah on May 26, 2009 at 4:29 PM

Earlier to day SRN (Salem Radio News) made reference to a book on Sotomayor, but I couldn’t catch whether it was BY her or ABOUT her. The reference was that she is one who believes it’s correct to consult and apply rulings from foreign courts when ruling on U.S. litigation. The following is a quote from Christian News Wire:

http://www.christiannewswire.com/news/331810476.html

“In a 2002 speech at Berkeley, Judge Sotomayor stated that she believes it is appropriate for a judge to consider their “experiences as women and people of color,” which she believes should “affect our decisions.” She went on to say in that same speech “I would hope that a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn’t lived that life.” She reiterated her commitment to that lawless judicial philosophy at Duke Law School in 2005 when she stated that the “Court of Appeals is where policy is made.”

She also been referred to one who will be the new “liberal anchor”.

May The GOD and Father of our Lord Jesus Christ have mercy on the United States of America.

oldleprechaun on May 26, 2009 at 4:51 PM

Why aren’t you posting her ridiculously juvenile and racist statement — invidiously comparing the “rich experiences” of Latina women to “white men”? Such a statement, with the references flipped, would have instantly disqualified Roberts or Alito. Or any “white man.”

rrpjr on May 26, 2009 at 7:30 PM

Wasn’t Bush’s second pick not mature enough for the job, that eventually he was forced to rescind that pick?

James on May 26, 2009 at 8:32 PM