The Atlantic - Latest Comments in Judges May Be Less Liberal Than They Appear

Re: Judges May Be Less Liberal Than They Appear

Phoebe — Sun, 31 May 2009 16:16:18 -0000

Yes. Thank you.

Re: Judges May Be Less Liberal Than They Appear

Phoebe — Sun, 31 May 2009 16:07:30 -0000

Hey. Kneejerks. I was a criminal defense atty and p.d. too. I know cops lie, or, as they like to call it, "testilying", and I hate all prosecutors by default, until proven not assholes.

But you guys need to at least respond to sporcupine's analysis, and not just repeat the "she thinks cops don't lie" smear. Sporcupine says it's not the basis of the decision, is nowhere in the decision, and that the decision has nothing to do with the veracity of the cop, and that it accepts the jury's findings of fact, which would have to include whose story was true.

One thing I found a bit squirrelly was that in the reporter's initial description of the event, she says only that Jocks yelled back. Later, in her description of the analysis, it appears that Jocks hit the cop in the face with the phone. This omission is pretty crucial, and leads me to suspect the entire article's bent as a result.

You people need to do your homework, like sporcupine. I'm too lazy, so I'm going to reserve judgment and defer to sporcupine's reading of the case, as it seems cogent and reasonable. And if you aren't going to read the case yourself, at least ADDRESS sporcupine's analysis.

Thanks. Continue, please.

Re: Judges May Be Less Liberal Than They Appear

superdestroyer — Sat, 30 May 2009 19:57:35 -0000

Judges have a bad habit of drifting to the left during their time on the Supreme Court. Maybe is seeing everything in terms of government and the law. Even if Sotomayor is the moderate that everyone is claiming (she is not). She will quickly move to the left because she no longer has to worry about being overturned.

Re: Judges May Be Less Liberal Than They Appear

Bill — Sat, 30 May 2009 17:29:04 -0000

BTW, Alito tried cases when he was an AUSA in New Jersey.

Re: Judges May Be Less Liberal Than They Appear

Bill — Sat, 30 May 2009 17:16:46 -0000

I am a former criminal defense attorney, but I left law more than a decade ago. The more I look at Sotomayor, the less I like her. The only reason I can see to support her is the racism of her opponents. She seems always or almost always support authority, no matter what. If she were white, she could have been a Republican nominee.

Re: Judges May Be Less Liberal Than They Appear

gwangung — Fri, 29 May 2009 21:14:57 -0000

Bravo, bravo, bravo.

This deserves wider circulation.

(And all I can say about liberal reaction is....everyone loves dynamiting fish in a bucket.)

Re: Judges May Be Less Liberal Than They Appear

Miles Ellison — Fri, 29 May 2009 21:14:23 -0000

This is a great post. The last sentence in particular. From the beginning, I've had the sense that Obama is speaking a language with which the media, Republicans, and even Democrats are completely unfamiliar. Hardly anyone has pointed out that she would be the only justice with actual trial experience. More time and noise has been spent calling Sotomayor a racist, an undeserving product of affirmative action, and a loathesome example of identity politics at its worst than has been spent on her actual experience in court.

Re: Judges May Be Less Liberal Than They Appear

sporcupine — Fri, 29 May 2009 20:49:03 -0000

The opinion didn't say the cop in question told the truth.

It didn't say all cops tell the truth, or most do so, or we should assume they do until there's evidence.

It said that when a cop is looking at a guy who did something that fits arrest rules, except that the guy is yelling "emergency," the cop doesn't always have to investigate first and arrest after. Not checking out the claim about an emergency doesn't make it false arrest.

And it also said that when a cop is looking at a guy who did something that fits arrest rules, but the guy did it in self-defense, the self-defense part does make it false arrest.

Judge Sotomayor deserved to be judged on what was actually said and what was actually written.

Re: Judges May Be Less Liberal Than They Appear

RL — Fri, 29 May 2009 20:48:35 -0000

Thanks sporcupine. Clear explanation. Grateful for the hours that must have consumed.

Re: Judges May Be Less Liberal Than They Appear

RL — Fri, 29 May 2009 20:24:55 -0000

Illuminating & interesting, abc. Earlier you wrote "Maybe you think only other judges or Senators have the goods to form an opinion about her judging, but if so I disagree." A bit of your own strawman there because no one had suggested that. No argument tho. I agree with your disagreement. I remark on it because your sentence is suggestive.

To my point - very clear to me that you know more about and understand more thoroughly the epistemology of judicial decision-making than I do (which is why it's illuminating... thanks). That has me thinking. I wonder, in a hypothetically anti-democratic way, whether a pure meritocracy of judicial selection has ever been tried or worked. Or whether a system of oligarchic selectors of judges (you could have my proxy) has ever worked... anywhere.

I'm not suggesting that such a system even be considered. Democracy is messy, elections have consequences, etc etc. As citizens we have the responsibility to be informed. Just wondering.

Re: Judges May Be Less Liberal Than They Appear

sporcupine — Fri, 29 May 2009 19:44:54 -0000

I've just worked my brain through the whole court order, and I think I've got it straight.

The big question was about the rules for having probable cause.

The trial judge told the jury they had to decide the facts, but there were two ways the facts could add up to no probable cause and to false arrest:

1. If the cop knew the trucker was acting in self-defense.

2. If the cop heard the trucker say there was an emergency and didn't investigate.

The appeals court said the judge was wrong on part 2. They said that cops don't have to check out claims about an emergency before making an arrest. If a guy is doing something that usually is probable cause for arrest, but he's also saying something about an emergency, a cop gets to decide whether to believe him and investigate or not.

Then the appeals court said they couldn't tell whether the jury went with argument 1 or argument 2 or both.

Finally, since it was too late to go back to that jury, the appeals court said a new jury should hear the case and make a new decision about whether the facts fit argument 1 on self-defense.

That's the way appeals courts are supposed to work. They have to assume the jury got the facts right. Their job is to check that the law was applied right. That's what they did.

Reading everything on paper, there's nothing there that suggests they believe one guy or the other guy. There's nothing there that says they generally trust or generally distrust the police.

(Yes, that kind of tilt could be there between the lines. But there's not enough evidence to say for sure. There's only a written opinion that doesn't make a tilt clear.)

Re: Judges May Be Less Liberal Than They Appear

CitizenE — Fri, 29 May 2009 18:58:02 -0000

Thanks. One would have thought someone might have raised this point by now, but reading the blogs all around, I've never picked up on this before.

Re: Judges May Be Less Liberal Than They Appear

sgwhiteinfla — Fri, 29 May 2009 18:12:39 -0000

Here was the most important line in the Slate piece to me.

And in the end, the other two judges involved agreed she was right on the law.

In general I try to make sure I always click source links when reading a blog post. I don't know how they ended up with the verdict but if you go to the link on the case from the Slate piece it seems to be a lot more complex than Bazelon makes it out to be. For one we don't know if the truck driver Jocks threw the phone or not. The cop had three witnesses to testify for him and two of them were unavailable at first and when they became available before the case was over they weren't allowed to testify because of a stipulation. There was also evidently some improper instructions from the Judge in the case to the jury.

Now to be honest with you I want a Judge who goes by the law, not one that makes up some shit even if it is a case dealing with a cop who may or may not have abused his power. So when both judges say she was actually right on the law that's really where it begins and ends for me. I don't think it has even a single thing to do with being a prosecutor or anything else other than the fact that she did her job. Isn't that what all of us are supposed to do?

Re: Judges May Be Less Liberal Than They Appear

Adolphus — Fri, 29 May 2009 18:01:18 -0000

This sounds like a good idea on first blush, but I think it would be, ultimately, unworkable. I've served on three juries and it was hard enough to decide guilt or innocence. Make it any more complicated and it would take weeks or months. Besides, I doubt, even though the jury reached a unanimous decision in the trial that doesn't mean all 12 jurists agreed on the particulars. Some could have completely believed one or the other, believed some things one said but not others and vice versa, some could have even disbelieved Jocks, but thought truck drivers in general were more trustworthy than cops because they once dated a cop who cheated on them.

I sat on a jury that deliberated for three days on whether two men, whom we all agreed killed a guy, committed manslaughter or second degree murder. If we had to create opinions on why we reached the decision we ultimately did, more an excercise in horse trading and compromise than anything else, I suspect we'd end up in there for months and produce 14 different opinions.

Sounds like a good idea, but would bring the system to a screeching halt.

Re: Judges May Be Less Liberal Than They Appear

Shine — Fri, 29 May 2009 17:20:55 -0000

As someone who deals with the Circuit Courts as part of their job description (Federal Public Defender/Appellete), be careful when analyzing/attacking Circuit Court opinions, since Circuit Courts are restricted by the record, by what issues are deemed appropriate for review (determined by the certificate of appeal) and by precedent, both of the Circuit and of SCOTUS. Circuit Court opinions, in and of themselves, really tell you nothing. Might as well read Sotomayor's palm.

The best way to see what kind of judge she might be, at least in my opinion, is to read the Statement of Facts in the appellant's AOB (Opening Brief), the Appellee's Statement of Facts in their Reply, and see which version is adopted and how the law is applied to the adopted facts. This is something that absolutely no one outside of the White House or, perhaps, Congress, does, with the occasional exception of the SCOTUS Blog. That why when I read articles similar to the ones published by the Philly Inquirer, with thumbnail, black-letter summaries of what are most always very, very complex cases (especially those cited insurance cases), I discount them as determinative of anything of importance.

Better is to see how she performed as a US District Court Judge. But District Judges don't publish that much, much of what they rule is buried within the RT's (Reporter's Transcripts) so unless they are in a unique position to issue lots o' interlocutory orders or injunctive relief (or have been a USDCJ for a significant period of time), or are cursed with incompetent US Magistrates below them, you aren't going to learn much unless you have access to the record of each individual case and the patience of Job. So that is why peer review, so to speak, comes in play.

Remember that one of Jeff Rosen's beefs with Sotomayor was that she pissed off a few prosecutors. That, to me, says 1.) Excellent! Prosecutors are used to getting their way (outside of the Bill of Rights, the law is designed to assist the Gov't, not the defendant) and a few DA's and AUSA's are very self-righteous and suffer from permanent diaper rash, so they'll throw tantrum over any and all rulings that don't go their way; and 2.) she isn't afraid of prosecutors (they can, if pushed, make life difficult for a Trial Judge) and she won't rubber stamp their arguments. Far too many USDCJ's do just that.

As for Holden's assertion that Sotomayor is naive in believing that the Police always tell the truth, that is dead wrong. Trust me, she knows the police are lying, the AUSA and DA know the police are lying, the defense counsel knows the police are lying, the defendant knows the police are lying, the Court personnel know the police are lying, the police know the police are lying, everyone except the jury knows the police are lying (watch any episode of The Wire that takes place in Court). Why does this dynamic exist? I think Alan Derhsowitz wrote a long law review article years ago about this, so it suffices to say that this post has gone on long enough, and I don't have the time or energy to explain what is also a very complex dynamic. Maybe Scalia, with no experience as a DA or as a USDCJ (he went from private civil practice at Jones Day to the Nixon Administration to law professor to the bench), or Roberts (again, from White House to private civil practice to the bench) are that naive, but trust me when I write that Sotomayor with her experience as both DA and a USDCJ is not naive enough to believe the police always tell the truth.

Look at the current composition of the Court. Not one justice has any trial judicial experience. Not one has any significant or recent real-world trial lawyer experience. Instead every single justice except Souter, Stevens and Thomas was either a full-time or part-time law professor prior to their appointment to the Circuit Court, Stevens taught law for a few years before going into private practice, and Thomas had no experience whatsoever outside of the conservative Washington political establishment before he was appointed to the Circuit Court. The closest any justice has come to having to deal with the hoi-poloi on a more or less daily basis is Souter, who was very early in his career assistant state attorney general, and even then he didn't have to deal with real human beings in all their glory and shame, most state AG's represent the state on appeal or administrative matters.

When Obama said the wanted a judge with empathy, and the mentioned her work as a DA and as USDCJ, I assumed that at least a few progressive legal writers with pick this up, that Sotomayor, if confirmed, will be the only Justice who doesn't come from either academia or the legal arm of White House. To me, it's a plain as the nose on my face. Instead all the chattering class, left and right, is focused on is her ethnicity as determinative of her experience and intelligence due to a few lines taken from a single speech made a what, six, seven years ago. Yet neither Brazelton, nor Lithwick nor Tottenberg (if she can be even called progressive) nor progressive bloggers like Ygelsias or Klein or Benen or Marshall, nor sympathetic conservatives like Sullivan mention anything about her experience in the sausage-making part of the law and how that in and of itself may (or may not) change the composition and tenor of the Court. It's like her entire legal career, and, by association, her entire adult identity up to her Berkeley speech has been nullified. I expect the right to use race as a cudgel, but for the so-called progressive media apparatus to allow the right to frame the terms of the debate and to completely whiff on what Obama is trying to do, it's like Obama is operating on a whole different level and no one, not even progressives, have caught up with him.

Re: Judges May Be Less Liberal Than They Appear

abcommentator — Fri, 29 May 2009 17:00:37 -0000

Well, sure, a decision honestly made is something to respect, but that's kind of beside the point. Further, "honestly made" does not = correct.

Your set up that she (and Obama) is correct here just because she's between the right and the left is a cop out. As is the strawman lumping of liberal views based on "lockstep political allegiance" vs. other views arrived at through "intelligence and fairness".

I'm not arguing that she should just follow liberal policy on some partisan tribal allegiance basis. To my knowledge, no one is arguing that. But I will say that I think our courts overall lean too much towards trusting police and prosecutors, and also that these types of issues don't get enough attention because the groups advocating for them just don't have the high profile or power of many other interest groups. I am not certain, but I think TNC probably shares that view - that seems to be what started this thread. And I don't think he came to that view through "lockstep political allegiance".

I like the idea and the premise of the officers you speak of, but it only goes so far. And I think there's a difference between avoiding partisan association, and avoiding having any views at all. Obviously she shouldn't decide based on partisan tribal sympathies, but the opposite idea -- that the right answer is just sitting there if we can just put on the proper blinders--is exactly contrary to what Obama himself has been trying to explain with his "empathy" speeches (which I agree with very much). Judges should not let their views override the law, but they are going to have views, and in this world (and this legal system), those views are going to come into play.

Re: Judges May Be Less Liberal Than They Appear

Sebastian H — Fri, 29 May 2009 16:50:31 -0000

No. Perhaps I wasn't precise enough.

Juries have a place in the legal system, it is to find facts.

Judges have a place in the legal system, it is to apply the law.

(In some cases (bench trials) the judge does both, but that has nothing to do with what we are talking about).

The case of finding one witness more credible than another is a finding of fact. That is a question decided by juries, not by judges.

Re: Judges May Be Less Liberal Than They Appear

Neil — Fri, 29 May 2009 16:23:39 -0000

Isn't it amazing in the hubbub over her race and gender everyone's forgotten to actually look at her actual judgments and decisions?

Wow, it just makes me feel such shame that we have one party so rabid and insane that it can't see human beings beyond the color of their skin and the other one has to spend all their time combating that that we can't even have a serious discussion in this nation about a SCOTUS nominee's opinions. It's truly disturbing.

On the bright side I think it says something about the country on the whole, how crazy the Republicans have looked in their exasperated attempts to stave off the brown menace! The fact that the virulent racism of that country has been laid so bare and displayed for how ugly it is, with between 70% and 80% of the country shaking its head in disgust is somewhat uplifting.

Mostly though, it's a damn shame that the only people looking at the things she's actually done and said are slate. I would be able to take that whole article way more seriously if wasn't them. I hate to write off an entire news magazine, especially one with such intelligent and talented people working for it. But their mission statement is to be contrarian at all costs. Sometimes I read their articles and I get tricked into believing its a genuine and well thought out piece. But then I come back and read it again and recognize the holes in logic and reason. I would love to see a legitimate criticism of Ms. Sotomayor, but I can't trust in Slate to give it to us.

Re: Judges May Be Less Liberal Than They Appear

RL — Fri, 29 May 2009 16:15:11 -0000

Someone later on the thread asks, "Are there no more liberal judges in America?". In best of all possible worlds, I'd reply I Hope Not. As you are a lawyer, you know more of this than I but my hope is that judges don't bring their politic leanings to the case, but apply the law fairly. That may not be reality but it is what we should ask of our judges.

Brings to mind stories of Civil War officers and early 20th century West Pointers who were proud that they never voted in their life. Because they served the nation and not political parties.

But to the point. I agree with you that Judge Sotomayor is not as liberal as some conservatives seem to think. And neither is President Obama. I'll take intelligence and fairness over lockstep political allegiance every time. I may disagree with specific decisions made by these men and women, but will respect them as honestly made. I think that's a point on which we agree.

Re: Judges May Be Less Liberal Than They Appear

deva — Fri, 29 May 2009 16:08:50 -0000

Yeah, she is far from a lefty dream candidate. Thw White House is not just selling her as moderate, she IS a moderate. One who got her feet wet as a prosecutor, not a public defender. Truth is, we've no idea what she'll do on the court. She could move right or left, or plunk herself down right next to Kennedy and be completely unpredictable. Far from ideal. But, she's the 1st of at least two and perhaps more shots that this administration will have at the big bench.

Re: Judges May Be Less Liberal Than They Appear

Jingo Killah — Fri, 29 May 2009 15:43:05 -0000

I totally agree that I'm a sideliner, and that as such my opinion matters very little. However, the article IS being pitched to me in a "We report you decide" manner. I think that ideally we might all have a sort of continual agnosticism when it comes to reportage, but it hit me sideways when I read this - "How do I know what was right in this case?" Inasmuch as we're debating it here.

Hope this isn't redundant.

Re: Judges May Be Less Liberal Than They Appear

abcommentator — Fri, 29 May 2009 15:42:57 -0000

I disagree with your reading of Jingo. But in any event, Jingo and you may feel you don't have any knowledge or ability to question Sotomayor's decision, but I am a good lawyer, and don't feel that way myself. And I think that Bazelon, who wrote the piece, has a very sharp understanding of the law, as seen in her extensive legal writing. Maybe you think only other judges or Senators have the goods to form an opinion about her judging, but if so I disagree.

I support the nomination and from what I have seen I agree with you that on the whole, she does tend to judge individual cases based on the law that she sees it, as best she can. But I also agree with Obama that the letter of the law is not always going to give you the full answer. And I think this case is one of a few we'll see that tends to show that in situations like that, her sympathies are not going to be liberal across the board. Not earth-shaking, but a reality that should be recognized.

Re: Judges May Be Less Liberal Than They Appear

j.e.b. — Fri, 29 May 2009 15:39:00 -0000

This case reminds me of something I've occasionally wondered about in the past: Shouldn't we have juries write "opinions", making clear what findings of fact, etc. they have made. In this case, it seems like a big part of the issue is that while the jurors' verdict seems to imply that they believed Jocks' rather than Tavernier's account, it is not inconceivable that they could have found for Jocks while believing Tavernier's account. In such a case, the appeals court's decision would be pretty clearly correct. On the other hand, if it was formally known that the jury had made a finding of fact that Tavernier had been the aggressive party and had ignored Jocks' pleas that there was an emergency, it would have been much harder for the appeals court to overturn the jury's verdict, wouldn't it?

Re: Judges May Be Less Liberal Than They Appear

RL — Fri, 29 May 2009 15:29:29 -0000

But you miss Jingo's point.

We are sitting at home. And we have no way to know "whether she should have overturned the jury." We do not know the applicable law and precedents, we did not hear witnesses, we did not question lawyers, we did not judge the quality of the cases presented by the lawyers.

I read Jingo to say that sitting at home, we don't have the perspective necessary to say a judgment was just plain downhome wrong. We can have a bias or a gut feeling or a belief structure. But that's about it. Nothing so consequential as to have any usefulness in fairly judging Judge Sotomayor.

Re: Judges May Be Less Liberal Than They Appear

LarryGeater — Fri, 29 May 2009 15:17:04 -0000

This is the same kind of issue that I thought we should have used to argue againse Alito and Roberts instead of harping on abortion. I gues it wold not have mattered because apearantly even the Democrats are conservative on issues of government power.

Is there a liberal judge left in America?