Commentary Magazine


Lawlessness Personified

The Washington Post’s front page story on Supreme Court nominee Sonia Sotomayor waxes lyrical about her attention to detail and exhaustive review of lower court rulings. There are two problems: that is really not what appellate judges should be doing (i.e. this is further evidence of her disregard for the proper role of judges and the rule of law) and it points to just how egregious her conduct was in the Ricci case, which the Post’s report shockingly omits entirely.

As to the first issue, the Post concedes:

Legal experts said Sotomayor’s rulings fall within the mainstream of those by Democratic-appointed judges. But some were critical of her style, saying it comes close to overstepping the traditional role of appellate judges, who give considerable deference to the judges and juries that observe testimony and are considered the primary finders of fact.

“It seems an odd use of judicial time, given the very heavy caseload in the 2nd Circuit, to spend endless hours delving into the minutiae of the record,” said Arthur Hellman, a University of Pittsburgh law professor and an authority on federal courts.

Adrienne Urrutia Wisenberg, a Washington criminal appellate lawyer, said appellate judges “are not in the role of reweighing the credibility of a witness. Someone’s demeanor is not reflected on a transcript.”

But it is worse than that, actually. Judges at the appellate level, if they are following the law, generally are required to give extraordinary deference to the factual findings of lower court judges and juries. From where does she get the authority to second-guess triers of fact? Unclear. What is clear is that this is unbridled activism — a vivid example of a judge determined to bend the facts and retry a case to comport with an outcome she favors:

A Republican appointee who disagreed wrote that “appellate courts are not factfinders. . . . I do not understand it to be our role . . . to engage in this kind of dissection of the empirical evidence cited by the district court. Nor is it to identify competing studies or news articles pointing in other directions.”

In 2004, Sotomayor appeared to go beyond the facts established at trial in arguing that two teenage girls were illegally strip-searched at Connecticut juvenile detention facilities. Their lawsuit against the state was dismissed by a federal judge but reinstated in an opinion written by a Democratic 2nd Circuit appointee, who said four of the strip searches at issue were unlawful but four others were legal.

Sotomayor dissented, arguing that all were illegal and blasting any strip search as “severely intrusive.” Citing documents from pretrial discovery, she broke down all 34 strip searches at the facilities in which contraband was found on a prisoner from 1995 to 2000 — searches that were not part of the lawsuit. She concluded that there was “absolutely no evidence that suspicionless strip searches were necessary.”

And that is precisely the criticism leveled by a colleague in a child pornography case:

A fellow Democratic appointee, Judge Rosemary S. Pooler, dissented. Sotomayor’s opinion, she wrote, was based on “speculations and conjectures” and disregarded the judge’s “role as the finder-of-facts.”

“It is inappropriate in all but the most extraordinary cases for this Court to second-guess a district court’s credibility findings,” Pooler concluded. “The majority’s dissection of the district court’s decision departs from our precedents and wrongly supplants the lower court’s assessment of the evidence with its own factual inferences, never having seen or heard any of the testimony that it now seeks to discredit.

And this brings us to Ricci. Where is the meticulous search for facts in that case? Why no exhaustive review of the record by Sotomayor? A per curium opinion hardly seems appropriate or reflective of a judge who is supposed to be “extraordinarily thorough” or who “often meticulously analyzes witness testimony.” One is left to conclude that the record, in this case, wasn’t helpful to the outcome she preferred and instead was rife with all manner of messy evidence of the sort Justice Alito expertly detailed: racial politics gone wild, a bullying African American minister pressuring the city to dump a test minorities had failed, a dearth of evidence that the test was faulty, etc.

One is left to conclude that Sotomayor is devoted to certain ideological outcomes, not to the neutral application of law. When helpful to her cause, she goes rooting around for facts, disregarding the applicable standard of review and imposing her own assessment of the evidence, which should properly be left for others to determine. In other instances, when the facts are not helpful, she ignores them. This is activism of the worst kind — unprincipled and unbound to precedent. The Senate should very carefully consider whether this is the sort of judge who is deserving of elevation to the Supreme Court.

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