More still about the details of the Ricci case, particularly the decision to use a summary order. Here's what we've said about that aspect of the opinion in the past:
...the panel of judges considered itself bound by Second Circuit precedent, which was discussed at length by the district court, and issued a summary order pursuant to Second Circuit Rule 32.1 that adopted the district court's reasoning. That Rule allows for summary orders when "no jurisprudential purpose" would be served by publishing a lengthy opinion; if a case is controlled by existing precedent, then "no jurisprudential purpose" is served by publishing an opinion. This practice is far from unusual: the Second Circuit Handbook notes that approximately 75% of the Circuit's cases are disposed of by summary order. (The practice isn't even unusual in the specific context of these sorts of discrimination claims: the Sixth Circuit Court of Appeals issued an unpublished decision in Oakley v. City of Memphis, 2008 WL 4144820 (2008), rejecting arguments that the City of Memphis violated Title VII when it refused to act on promotion exam results that had a disparate impact on minority test-takers, citing the district court's opinion in Ricci in support.) The Ricci panel then converted the exact text of this order--the only addition was a citation to the district court's opinion--into a published per curiam order, and the dissents from rehearing en banc (which disagreed with the panel's ruling and initial decision to issue a summary order) were published on the following page of the Federal Reporter. It is unsurprising that this published order would be an unsigned, per curiam order, given that the panel was adopting the exhaustive reasoning of the district court. And, as noted by one of Judge Sotomayor's colleagues, Judge Parker, there is also nothing unusual about adopting the reasoning of the district court in a published per curiam opinion--the court has been doing so for over a century, even in high-profile cases.
Updated 11:51: Sen. Hatch is walking through Maloney and Ricci, in pretty mind numbing detail. It's unclear to me whether he is making any headway in undermining Judge Sotomayor's assertion that she was simply following settled law in her Circuit.
Updated 11:48: Sen. Hatch is the first Republican to raise what I think is a ludicrous claim: the idea that all 9 justices disagreed with Judge Sotomayor's ruling in the Ricci New Haven firefighters case. That was a 5-4 ruling, and even the majority agreed it was moving the law in a new direction. For more on this, see our post here.
Updated 11:45: Dispatch from the third row. The recess has taken its toll. The room is half empty. Only 4 Democrats are back at there seats, and 4 Republicans.
Updated 11:42: Sen. Hatch is raising a fascinating issue here about whether and how the Second :Amendment is "incorporated" against state action. For background here, read our report the Gem of the Constitution, and our brief arguing that the Second Amendment is incorporated against the states through the Privileges or Immunities Clause.
Updated 11:33: Predictably, also, Sen. Hatch follows up with a question about Judge Sotomayor's earlier statement suggesting that the Second Amendment right to bear arms is not "fundamental." Judge Sotomayor answer, that she's using "fundamental" in the legal sense, concerning whether that right is "incorporated" against state action, comes across as, well, a little legalistic. (Again, to understand the three Second Amendment/incorporation cases at the Circuit level Sotomayor mentions, which will likely result in this issue coming before the Court very soon, see this piece.)
Updated 11:30: We're back. Predictably, Sen. Hatch starts off by asking Judge Sotomayor what "settled" means, and whether the Court's ruling in Gonzalez v. Carhart (the case upholding partial birth abortion) is also "settled." Sotomayor explains that all prior rulings are settled law, subject to the doctrine of stare decisis (meaning settled doesn't really mean settled).
Updated 11:22: While we're on the break, for additional perspective on the hearings check out Tom Goldstein's liveblog over at SCOTUSBlog.
Updated 11:09: Leahy has just called a "flexible" 10 minute break. We'll resume liveblogging shortly.
Updated 11:08: In answering a long question by Sen. Kohl about antitrust law and the Supreme Court's rulings in the Leegin case, Judge Sotomayor raises the question about the different views by members of the Court about the application of stare decisis (the idea the Court has to respect its prior rulings), but she doesn't give an indication of when she believes prior rulings should be discarded. She'll be pushed on this throughout the day.
Updated 11:03: Another dispatch from the third row, this one on fashion. Sen. Hatch hasn't been seen on TV yet but he's dressed like the flag: blue shirt, white collar, red tie. Meanwhile Sen. Kyl has taken off his jacket, while the others remain formal.
Updated 11:01: Sen. Kohl just quickly ran through some of the most contentious issues in modern constitutional law, including the right to privacy and the Court's rulings in Griswald, Roe, and Casey. Judge Sotomayor's fairly predictable answer is that these rulings are "settled" in that they are precedents of the Court. She does not give much away in terms of how she feels about these precedents or the right to privacy.
Updated 10:55: Sen. Kohl just asked about eminent domain in the Kelo case. For background on Judge Sotomayor's record on property rights, see here and here.
Updated 10:53: Judge Sotomayor's identification of Justice Cardozo as the justice with whom she most identifies seems a little odd because Justice Cardozo only spent 6 years on the Supreme Court and made his greatest mark on the law as a member of the New York Court of Appeals, where he was among America's most celebrated state court judges.
Updated 10:47: Sotomayor does, however, name Benjamin Cardozo as the past Supreme Court justice with whom she most identifies, explaining Cardozo is known for his "respect" for precedence and "deference" to the political branches of government.
Updated 10:45: First question that Judge Sotomayor won't answer: What current Supreme Court justice do you most identify with?
Updated 10:42: Sen. Kohl is now questioning Judge Sotomayor, and her entire demeanor is far less tense. She just gave a nice description of the role precedents of the Supreme Court play in "guiding and giving stability to the law." This will be an important topic throughout the day.
Updated 10:38: Sotomayor: "we were sympathetic to the white firefighters and expressed that sympathy" but the law, expressed the district court's opinion, was against them. This passage does a nice job of turning around the empathy issue, suggesting it's Sen. Sessions's who wants empathy for a litigant to trump the law.
Updated 10:35: Sen. Sessions just explained how important the Ricci case is based on the statement of Mr. Ricci's lawyer that the case was important. Most of the time, the lawyer will say the case is important. That's generally the lawyer's job.
Updated 10:26: Sen. Sessions is getting into the procedural issues involving the Ricci (New Haven white firefighters) case. For more on how Ricci represented an instance of judical restraint, read this.
Updated 10:08: Dispatch from the third row: You can't appreciate watching on TV how loud the constant clicking of the cameras is. However, even the photographers stopped clicking to listen to Sotomayor's answer regarding Ricci.
Updated 10:05: Judge Sotomayor just gave her first extended discussion of an issue that is likely to come before the Supreme Court: the question of the whether the Second Amendment individual right to bear arms, recognized in Heller, applies to limit the actions of states and local governments. She gave a pretty comprehensive answer, indicating she would be pretty forthcoming in discussing pending cases -- at least in terms of legal background. The gun rights community probably won't like her assertion about gun rights not being "fundamental," though she was careful in explaining what she meant.
Updated 10:00 : Sen. Leahy is asking about her Second Amendment ruling in Maloney v. Cuomo, which we discussed here.
Updated 9:58: Judge Sotomayor's response here was effective upfront but got a little confused, as did her attempt to compare her remarks to those of Sandra Day O'Connor. She'll have plenty of opportunities to come back to this. Sen. Leahy helpfully brought her back to her judicial record.
Updated 9:56: Judge Sotomayor clarifies the "wise Latina" comment "upfront, unequivocally, and without doubt." She says: "I do not believe any ethnic group has an advantage in wise judging...Men and women are equally capable of being wise and fair."
Updated 9:52: Sen. Leahy just said "wise Latina." You know the drill. (Drink!) Leahy's giving Sotomayor the first chance to respond to attacks from conservatives. Her answer here will be key.
Updated 9:47: After being criticized for her ruling in the Ricci case for the last six weeks, Judge Sotomayor is finally getting a chance to explain her ruling as simply following the law of her Circuit, in response to a very friendly question from Sen. Leahy.
Updated 9:43: Judge Sotomayor is in the middle of a long and captivating story about how she brought the "Tarzan murderer" in New York City to justice as a prosecutor. She's in her element here, and is helping herself by establishing her tough-on-crime credentials, as well as reinforcing her point about the need for understanding -- in this case toward the victims of crime.
Updated 9:38: Judge Sotomayor started out this morning a little haltingly and seemingly a little nervous. She now appears to have hit a rhythm and comfort level -- evening smiling -- in describing her record as a prosecutor.
Updated 9:36: Judge Sotomayor, in response to Sen. Leahy's first question just carefully fleshed out her opening statement remarks about how good judging starts with an understanding of the perspectives of all the parties before the Court, but ends with a judge following the law. Expect to hear that explanation in a lot of different variations over the course of the day.
Updated 9:31: Sen. Leahy has just now said we will have 30-minute rounds of questions, meaning we will be here late into the night simply to complete a single round of questioning from the 19 members of the Senate Judiciary Committee.
Good morning, everyone. Let's get started this morning with a little recap of yesterday and an assessment of what Republicans, Democrats and Judge Sotomayor are looking to accomplish as questioning begins this morning.
Republicans launched a blistering and well coordinated attack on Judge Sotomayor yesterday, stringing together President Obama's statements about the importance of "empathy" with Judge Sotomayor speeches, which suggest that her heritage ("wise latina," drink!) and powerful life story will influence/improve her decisionmaking, to argue that Judge Sotomayor will not be a fair and neutral arbiter of cases that come before her. There are huge evidentiary failures with this case -- most importantly, it cannot be squared with Sotomayor's long and distinguished judicial record -- but this is otherwise a very smart strategy: American's are deeply committed to the idea of fair and impartial judges.
The response to this onslaught from Democratic Senators felt a bit schizophrenic. Some Senators, such as Chairman Patrick Leahy focused on Sotomayor's judicial record, which, in Leahy's words, "reveals her to be a careful and restrained judge with a deep respect for judicial precedent and for the powers of the other branches of the government, including the law-making role of Congress." "In her service as a Federal judge, Sonia Sotomayor has kept faith with that promise. She understands that there is not one law for one race or another. There is not one law for one color or another. There is not one law for rich and a different one for poor. There is only one law."
Others, notably Senators Cardin, Whitehouse, and Durbin focused more on defending the idea that a judge's perspective and her "empathy" matters. Thus, we heard for example, Senator Whitehouse state that Judge Sotomayor's "wide experience brings life to a sense of the difficult circumstances faced by the less powerful among us" and that her "broad and balanced background and empathy prepare you well for this constitutional and proper judicial role." Both these arguments are effective on their own, but there is clearly some tension here. Is the story that Judge Sotomayor puts aside her background and perspectives in ruling in a fair and neutral matter, or is it that Judge Sotomayor's background and perspective will make her a great justice?
A similar tension is muddling the Democrat's message on the Roberts' Court. As I noted in my Democratic drinking game yesterday ("Umpire," drink!), Democratic Senators remain fairly obsessed with responding to Chief Justice Roberts' 2005 claim that good judges are like umpires, simply calling balls and strikes. But I listened carefully yesterday and couldn't tell whether the main problem was (1) that judging is not really like being an umpire or (2) that Chief Justice Roberts is not really acting like an umpire. Both may be true, but it would be more effective if the Democrats could agree to focus on one of these two lines of attack.
For her part, Judge Sotomayor was effective but very brief. Sotomayor's opening statement does a nice job of explaining how "understanding" the perspectives of different litigants and "applying the law" can go hand-in-hand in "the larger interest of impartial justice." These remarks start to bridge the gap between the two lines of defense offered by Democratic Senators. What Sotomayor needs to do today is reinforce this frame in responding to pointed questions from Republican Senators. Those Senators in turn will be trying to undercut that frame and portray her as a judicial activist. Hopefully the Democratic Senators will get in line behind Sotomayor's frame while consistently attacking the Roberts Court for being activist.
[A programming note: We were bumped out of our skybox today (back tomorrow) and will be liveblogging from a remote location. CAC's Judith Schaeffer is in the confirmation room and will be supplmenting our coverage.]
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