The Case Against Sotomayor

Indictments of Obama's front-runner to replace Souter.

Jeffrey Rosen,  New Republic, 5/4/09

This is the first in a series of reports by TNR legal affairs editor Jeffrey Rosen about the strengths and weaknesses of the leading candidates on Barack Obama's Supreme Court shortlist.

A judge on the U.S. Court of Appeals for the Second Circuit, Sonia Sotomayor's biography is so compelling that many view her as the presumptive front-runner for Obama's first Supreme Court appointment. She grew up in the South Bronx, the daughter of Puerto Rican parents. Her father, a manual laborer who never attended high school, died a year after she was diagnosed with diabetes at the age of eight. She was raised by her mother, a nurse, and went to Princeton and then Yale Law School. She worked as a New York assistant district attorney and commercial litigator before Senator Daniel Patrick Moynihan recommended her as a district court nominee to the first President Bush. She would be the first Hispanic Supreme Court justice, if you don't count Benjamin Cardozo. (She went to Catholic schools and would also be the sixth Catholic justice on the current Supreme Court if she is, in fact, Catholic, which isn't clear from her official biography.) And she has powerful supporters: Last month, the two senators from New York wrote to President Obama in a burst of demographic enthusiasm, urging him to appoint Sotomayor or Ken Salazar.

Sotomayor's former clerks sing her praises as a demanding but thoughtful boss whose personal experiences have given her a commitment to legal fairness. "She is a rule-bound pragmatist--very geared toward determining what the right answer is and what the law dictates, but her general approach is, unsurprisingly, influenced by her unique background," says one former clerk. "She grew up in a situation of disadvantage, and was able, by virtue of the system operating in such a fair way, to accomplish what she did. I think she sees the law as an instrument that can accomplish the same thing for other people, a system that, if administered fairly, can give everyone the fair break they deserve, regardless of who they are."

Her former clerks report that because Sotomayor is divorced and has no children, her clerks become like her extended family--working late with her, visiting her apartment once a month for card games (where she remembers their favorite drinks), and taking a field trip together to the premier of a Harry Potter movie.

But despite the praise from some of her former clerks, and warm words from some of her Second Circuit colleagues, there are also many reservations about Sotomayor. Over the past few weeks, I've been talking to a range of people who have worked with her, nearly all of them former law clerks for other judges on the Second Circuit or former federal prosecutors in New York. Most are Democrats and all of them want President Obama to appoint a judicial star of the highest intellectual caliber who has the potential to change the direction of the court. Nearly all of them acknowledged that Sotomayor is a presumptive front-runner, but nearly none of them raved about her. They expressed questions about her temperament, her judicial craftsmanship, and most of all, her ability to provide an intellectual counterweight to the conservative justices, as well as a clear liberal alternative.

The most consistent concern was that Sotomayor, although an able lawyer, was "not that smart and kind of a bully on the bench," as one former Second Circuit clerk for another judge put it. "She has an inflated opinion of herself, and is domineering during oral arguments, but her questions aren't penetrating and don't get to the heart of the issue." (During one argument, an elderly judicial colleague is said to have leaned over and said, "Will you please stop talking and let them talk?") Second Circuit judge Jose Cabranes, who would later become her colleague, put this point more charitably in a 1995 interview with The New York Times: "She is not intimidated or overwhelmed by the eminence or power or prestige of any party, or indeed of the media."

Her opinions, although competent, are viewed by former prosecutors as not especially clean or tight, and sometimes miss the forest for the trees. It's customary, for example, for Second Circuit judges to circulate their draft opinions to invite a robust exchange of views. Sotomayor, several former clerks complained, rankled her colleagues by sending long memos that didn't distinguish between substantive and trivial points, with petty editing suggestions--fixing typos and the like--rather than focusing on the core analytical issues.

Some former clerks and prosecutors expressed concerns about her command of technical legal details: In 2001, for example, a conservative colleague, Ralph Winter, included an unusual footnote in a case suggesting that an earlier opinion by Sotomayor might have inadvertently misstated the law in a way that misled litigants. The most controversial case in which Sotomayor participated is Ricci v. DeStefano, the explosive case involving affirmative action in the New Haven fire department, which is now being reviewed by the Supreme Court. A panel including Sotomayor ruled against the firefighters in a perfunctory unpublished opinion. This provoked Judge Cabranes, a fellow Clinton appointee, to object to the panel's opinion that contained "no reference whatsoever to the constitutional issues at the core of this case." (The extent of Sotomayor's involvement in the opinion itself is not publicly known.)

Not all the former clerks for other judges I talked to were skeptical about Sotomayor. "I know the word on the street is that she's not the brainiest of people, but I didn't have that experience," said one former clerk for another judge. "She's an incredibly impressive person, she's not shy or apologetic about who she is, and that's great." This supporter praised Sotomayor for not being a wilting violet. "She commands attention, she's clearly in charge, she speaks her mind, she's funny, she's voluble, and she has ownership over the role in a very positive way," she said. "She's a fine Second Circuit judge--maybe not the smartest ever, but how often are Supreme Court nominees the smartest ever?"

I haven't read enough of Sotomayor's opinions to have a confident sense of them, nor have I talked to enough of Sotomayor's detractors and supporters, to get a fully balanced picture of her strengths. It's possible that the former clerks and former prosecutors I talked to have an incomplete picture of her abilities. But they're not motivated by sour grapes or by ideological disagreement--they'd like the most intellectually powerful and politically effective liberal justice possible. And they think that Sotomayor, although personally and professionally impressive, may not meet that demanding standard. Given the stakes, the president should obviously satisfy himself that he has a complete picture before taking a gamble.

Jeffrey Rosen is the legal affairs editor at The New Republic.

Smear: L.A. Times Lies About Cornyns Comments on Sotomayor

May 31, 2009 by Patterico, the blog  


Today the Los Angeles Times lies to its readers about Sen. John Cornyns statements on This Week with George Stephanopoulos. Heres what the L.A. Times says:

    Only days earlier, Cornyn said in a radio interview that it was terrible for conservatives to be attacking Sotomayor as a racist. But today, the senator did not reiterate those sentiments and pledged that he and other Republican lawmakers would probe deeply into Sotomayors past comments and rulings to see if her heritage colors her ability to make fair decisions.

The hell he did. Yes, he said Republicans would closely examine her record. But he never said that Republicans would seek to learn whether her heritage would affect her ability to be a fair judge. In essence, the paper is saying, Republicans are concerned that Sotomayor might be a poor judge because she is a Latina. That is an outrageous distortion of Cornyns comments.

Rather than focusing on Sotomayors ethnicity, Cornyn focused on Sotomayors statements and rulings. Cornyn said Republicans were concerned by Sotomayors ruling in the New Haven firefighters case, and her comments about how she would be a better judge because of her Latina heritage. The focus was on her actions and words, not on her heritage.

The transcript of Cornyns appearance is here. On a separate page, I have included every single comment that Cornyn made in this mornings appearance, so you can see with your own eyes how this newspaper is lying about Cornyns comments.

Indeed, Sotomayor is the one who has claimed that her ethnicity and heritage might be relevant to her judging:

    I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasnt lived that life, said Judge Sotomayor . . . . Whether born from experience or inherent physiological or cultural differences, she said, for jurists who are women and nonwhite, our gender and national origins may and will make a difference in our judging.

Today, Cornyn actually said the exact opposite, telling George Stephanopoulos that it shouldnt make any difference what your ethnicity is.

For the L.A. Times to claim that Cornyn pledged to examine whether her heritage would make her a bad judge is an outright fabrication by the newspaper, and they should be deeply ashamed.

The L.A. Times owes Cornyn an apology. Do you think hell get one?

Why Arnold's May 19 Bailout Is Failing
Pissed off voters primed to torpedo Schwarzenegger's ballot measures

By Tibby Rothman, Jill Stewart, LA Weekly, 5/14/09 

If the polls are right, Governor Arnold Schwarzenegger is about to lay the biggest ballot-box egg of his political career, even more disastrous than his 2005 Year of Reform, when he tried but failed to curtail government growth and mend the polarized Legislature by enacting new spending and election laws.

Propositions 1A, 1B, 1C, 1D and 1E could all fail Tuesday. Only the mild-mannered Proposition 1F, which would freeze salaries of future legislators if the state was running a deficit, is expected to pass resoundingly.

Mark Baldassare, president of the Public Policy Institute of California, says the bipartisan measures are a very complicated package, and voters have low regard for the governor and Legislature that dreamed them up. Californians are disgusted by how much time Schwarzenegger and Democratic leaders, Assembly Speaker Karen Bass and Senate President Pro Tem Darrell Steinberg, wasted before adopting the state budget months past the legal deadline.

Its hard to imagine a worse time for the package. California has high unemployment and foreclosure rates, just as lawmakers are seeking tax hikes and service cuts. Recently, Speaker Bass, a political neophyte who has stumbled repeatedly during the fiscal meltdown, backed a pay raise for 120-plus employees who work for her and other politicians in the state Assembly. A wide outcry has forced her to rescind the raises.

Then Schwarzenegger, meeting in Culver City with local politicians May 11, warned that, if voters reject the new taxes, the borrowing against lottery income, and the raiding of special funds for children and the mentally ill, California will face a $21 billion real-time deficit but that even passage of the measures will mean an instant $15 billion deficit.

Ben Tulchin of Tulchin Research, polling on behalf of No on 1D and No on 1E, which would raid money set aside for preschoolers and the mentally ill and use it to reduce the fiscal crisis, says that in focus groups and statewide polling, Once voters realize what D and E are really about which is robbing Peter to pay Paul they get really pissed.

Thats been verified by the nonpartisan Field Poll. In early March, Bass, Steinberg and Schwarzenegger had a decent chance on some of the measures. A newer Field Poll shows that earlier hope foundering. Voters want to ... be for something, Tulchin says. The fact that they cant get behind virtually anything except the modest pay-cut idea is telling.

Paul Goodwin, of Goodwin Simon Victoria Research, says Angelenos are in step with statewide sentiment, harboring three distinct feelings: confusion, frustration and pessimism. Goodwin even has a new catch phrase for what awaits voters May 19: Its paralyzing-confusing.

Conservatives are generally against all but the legislative pay cut, while, As a liberal or progressive or moderate, its not clear what to do.

The measures are creating unusual friends and foes. Former Los Angeles Mayor Richard Riordan is urging a no vote on the $16 billion Prop. 1A tax hike, speaking for Californians Against New Taxes, while Riordans friend Joel Fox, president of the Small Business Action Committee, is for Prop. 1A. Many chambers of commerce support 1A through 1F, but the Republican Party leadership opposes all of them including 1D, 1E and 1F, originally proposed by Sacramento Republicans.

On the liberal side, California Democratic Party delegates couldnt drum up enough votes to endorse the core measure, the two-year tax hike and rainy-day fund of Prop. 1A. Meanwhile, progressive groups such as the Courage Campaign are opposing not only Prop. 1A, but also Props. 1C, 1D, 1E and 1F.

Sitting in the wings watching all this is an old hand at voter-outrage movements, Ted Costa, who led the signature drive to recall Gov. Gray Davis. Costa is working on a radical 2010 initiative to dissolve the Legislature if it again fails to pass a balanced budget by its legal deadline, which is June 30. The previous years budget would guide spending while the Legislature is reconstituted by a new election in which incumbents would be banned.

These ballot measures do nothing but kick the can down the street, Costa told L.A. Weekly. Hes not convinced the measures will fail, because we don’t know who comes out to vote. But he sees either outcome as untenable. We tried changing the governor, and things are even worse now. We think if we can dissolve the Legislature basically conduct a mass recall we can get back control of the government.

Campaign for budget measures struggles to appeal to voters
The governor and his allies have bounced from one strategy to another. TV ads promoting the propositions that would generate nearly $6 billion have been ditched.


By Michael Finnegan, LA Time, 5/14/09



In the final sprint to Tuesday's election, Gov. Arnold Schwarzenegger has warned day after day of teacher layoffs, fire-station shutdowns and other dire consequences if voters fail to pass budget measures that would produce almost $6 billion to ease California's fiscal crisis.

Yet Schwarzenegger and his allies have abandoned TV advertising -- the main vehicle for reaching voters statewide -- on the three measures that would generate that money: Propositions 1C, 1D and 1E.

Instead, they are running TV ads solely for Propositions 1A and 1B, measures that would do nothing to slow California's slide toward insolvency this summer, but in future years could help the budget's bottom line and Schwarzenegger's political image.

The contradiction reflects the muddled approach of a campaign that has struggled to find a coherent argument to fit the surly mood of state voters.

Led by the Republican governor and Democratic leaders of the Legislature, the campaign for six budget measures has lurched from one strategy to another, even as tens of thousands of voters were already mailing in their ballots.

At the same time, the campaign has cast about for credible representatives to market the measures, no small task when polls show that most Californians give the governor and Legislature abysmal ratings on the budget crisis.

With soaring unemployment, plummeting home values, vanishing retirement savings and a state still billions short of a balanced budget even with new tax hikes, voter wariness is no surprise.

"When you get a combination of they don't trust the messengers, and they don't trust the message," said Democratic strategist Bill Carrick, "we know what happens."

From the start, the budget package, Propositions 1A through 1F, has faced an uphill fight. With the glaring exception of 1F, which would deny pay raises to elected officials when the state is running a deficit, voters are leaning toward rejection of the measures, polls show.

The Sacramento leaders opened their campaign by trying to play off voter anger directed at them. The first TV spot featured a man on his front porch saying politicians "got us in quite a mess." By passing all six ballot measures, the man told viewers, Californians could "hold the politicians accountable and help hold the line on higher taxes."

Left unsaid was that the politicians in question were the ones running the ad. Schwarzenegger's name was buried in a blur of fine print. Also unmentioned: Proposition 1A would not just cap state spending, as the ad said, but also extend the state's recently passed tax hikes for up to two years.

"Voters knew there was more to the story, and there was," said Steve Smith, a Democratic campaign strategist.

A leader of the campaign, Assembly Speaker Karen Bass (D-Los Angeles), said voters were right to be cynical about the possibility that sponsors of the measures were "tricking them," even if, in her view, the proposals are worthy. "They always feel they're being lied to about propositions, so there's nothing unique about this," she said in an interview.

In this case, the campaign has stoked public skepticism by omitting from its ads and website crucial facts, such as the $16 billion in tax-hike extensions.

That can backfire, strategists said, with the older and relatively well-informed voters who are most likely to cast ballots in a low-turnout special election like the one next week.

"This is a case where information is not the 'yes' side's friend," Carrick said. "The more people learn, the less they like it."

In the campaign's final days, Schwarzenegger and his allies have switched strategies, warning of doomsday cuts should voters reject Propositions 1A and also 1B, which would restore education cuts in future years. In one TV spot, a firefighter walks alongside a red fire engine. "Without Props 1A and 1B," he says, "we have $16 billion in new cuts coming, could lose another 24,000 firefighters and police."

In fact, that is a roundabout reference to the $16 billion in tax-hike extensions that would not hit for more than a year -- and that have no bearing on any cuts that state leaders might impose if voters refuse to approve the nearly $6 billion tucked into Propositions 1C, 1D and 1E.

Proposition 1C would let the state instantly borrow $5 billion against future lottery revenues, while 1D and 1E would, for the current budget, free up $838 million that voters had previously restricted to children's and mental health programs, respectively. More money would be shifted from those programs in later years.

"Voters are hypersensitive to exaggerated facts, and that's why trying to threaten people in 30-second TV commercials is not going to have an effect," said Democratic pollster Jim Moore.

Also unmentioned in the ads is that California has laid off almost none of its 238,000 employees as part of the deal that Schwarzenegger and lawmakers struck in February to cut spending, raise taxes and borrow to close a $42-billion budget gap.

Asked why the campaign was no longer sponsoring TV ads promoting 1C, 1D and 1E, Schwarzenegger political advisor Adam Mendelsohn said it was sending out mail promoting the full package.

But Schwarzenegger would reap clear political benefits if voters passed the two measures his campaign is promoting on TV, 1A and 1B: a cap on state spending as a centerpiece of his legacy, along with more money for schools.

In a Field Poll last month, his job approval rating sank to a new low of 33% among registered voters, while the Legislature's bottomed out at 14%.

"People are fed up," said Republican ad consultant Don Sipple. "They expect the political leadership to take care of things and not come back to them all the time."

Feinstein gives reluctant support to two ballot measures

John Wildermuth, SF Chronicle, 5/12/09 

Sen. Dianne Feinstein finally surfaced today to announce her support for Props. 1A and 1B in Tuesday's special election, but don't expect to see her trading high fives with Gov. Arnold Schwarzenegger on the campaign bandwagon any time soon.

Treating the ballot measures as something nasty that has been dumped on her doorstep, the former San Francisco mayor said they "represent a Hobson's choice for California voters."

"I will reluctantly vote for 1A and 1B because I do not see any way to prevent a greater financial disaster for the state of California," she said.

But Feinstein then turned around and punched a $5 billion hole in next year's state budget by saying she wouldn't back Prop. 1C, which would let the state borrow that money against future state lottery earnings.

"I will vote against Prop. 1C," she said, "because I do not believe that taking money from future lottery proceeds to reconcile existing debt is advisable in public finance."

Altogether, it's a far cry from 2004, when Feinstein did an important TV ad for Schwarzenegger's Prop. 57 and Prop. 58 budget measures and then campaigned alongside the governor in the final two weeks before the election.

It's a guarantee that Team Schwarzenegger will be trumpeting Feinstein's lukewarm-at-best endorsement as a triumph for the "yes on everything" side, but it certainly isn't the "Go Team Go!" backing they had hoped for.

Still, Prop. 1A is the centerpiece for Schwarzenegger's budget reform plan, since it establishes a much larger "rainy day" reserve fund for California and puts a cap on future state spending. It also triggers a $16 billion tax extension, beginning in the 2010-11 fiscal year.

That's money the next governor will need for the budget and Feinstein still hasn't said no to a run for that office next year.

In her endorsement statement this afternoon, Feinstein avoided taking a stance on Props. 1D and 1E, which will take money from special funds for early childhood education and mental health programs and move it to the general fund. But she argued that the initiatives that established those special funds take away the flexibility the state needs during a financial crunch.

"Voters are confronted with these bad choices because we don't have a budgeting system that works effectively and efficiently in times of budget crisis," Feinstein said. "Ultimately, I believe major reform is necessary in order to put California back on track."

Schwarzenegger would stand next to Feinstein for that campaign.

State's future at stake in May 19 vote

John Wildermuth, Matthew Yi, SF Chronicle, 5/10/09

If California voters reject a package of budget measures in next week's special election, it will set off a fiscal free-for-all that could set the state's course for years to come.

Defeat of the measures on the May 19 ballot would chop nearly $6 billion in expected revenue from next year's budget, on top of a projected $8 billion deficit left by shrinking tax collections. Proposals by Gov. Arnold Schwarzenegger and others to close that gap are driving a wildfire of criticism across the state.

Deep cuts in school and law enforcement budgets, billions of dollars less for local government and slashes in state programs all will be on the table as legislators look for the least painful alternatives.

"There are no good choices," said Tim Gage, former state finance director under Gov. Gray Davis. "There are options, but they're all really ugly."

After billions of dollars in budget cuts in the past two years, the easy trims have been made. Schwarzenegger, Democratic legislative leaders and unions such as the California Teachers Association are using television ads to lay out what they say are the dire consequences of voting down the budget measures.

"If these measures fail, Plan 'B' on May 20th involves even more cuts to education, health care and public safety," Jeannine English, California president of AARP, said in a statement Wednesday.

Papers prepared by the governor's financial team paint a grim picture of a post-May 19 budget, calling for deep cuts in school spending, prisons and fire protection, along with redirecting $2 billion in local property taxes to the state.

Although the property taxes would be repaid in three years, that's small solace to cities facing desperate budget problems of their own. San Francisco, for example, would be forced to surrender $61.8 million to the state, even as it's struggling to close a projected deficit of nearly $500 million. San Jose would lose $12.8 million, Oakland $6.3 million, Pleasanton $3.2 million, Fremont $3 million and Berkeley $2.9 million.

The suggested cuts in state fire protection services would close several conservation camps and small stations and eliminate more than 1,700 full- and part-time firefighters.

If the Almaden station in Santa Clara County, which covers the coastal range to west San Jose between Morgan Hill and Los Gatos, were closed, its three permanent firefighters would be relocated and seven seasonal firefighters wouldn't be hired, said Battalion Chief Dave McLean, who runs the station.

Prison cuts would send more offenders to county jails and through early release of as many as 19,000 lower-risk offenders, although "the release of this many low-level offenders into communities throughout the state could have an effect on local law enforcement agencies," the budget paper reported.

A possible $3.6 billion cut in school spending could force teacher layoffs across the state, larger class sizes, loss of programs like music and art, and elimination of janitors, bus drivers and support workers.

That's ominous news for school employees. In the Mount Diablo Unified School District, 15 of the 24 teachers at Rio Vista Elementary have learned they could lose their jobs next year, including Julian Marchesano, who has taught first grade for three years.

"I'll have to look for a job in another district or look for a job in another field," he said. "I'd like to teach if I could, but I have no clue. I'd probably pick up a paper and see what jobs were available."

But opponents of the ballot measures charge that the threatened cuts and closures are little more than political scare tactics designed to frighten voters, who aren't backing the budget package, according to polls.

Last month's vote by Democratic lawmakers to save the Integrated Waste Management Board, whose $132,000-a-year board members include three former Democratic legislators, shows how little concern there is in Sacramento for making budget cuts, said Jon Coupal, president of the Howard Jarvis Taxpayers Association.

"The Democrats could have taken the first baby steps by eliminating the ... board, a move that falls squarely into the 'no brainer' category," he said. "The state should not be waiting until May 20 to start rolling up their sleeves and going line by line over the budget to set priorities."

But those priorities are much different for Republican and Democratic legislators who will be wrangling over budget decisions. It took months of negotiations and the threat of a fiscal meltdown before the two sides reluctantly approved a mix of program cuts and tax increases to patch a $42 billion budget deficit and put the package of measures on the May 19 ballot.

If the ballot measures fail, "everyone will go back to the bunkers," said Tim Hodson, executive director of the Center for California Studies at Cal State Sacramento. "It will be a long, hot summer that will make last summer (with its 85-day impasse) look like a picnic."

Assemblyman Mike Villines, R-Clovis (Fresno County), and state Sen. Dave Cogdill, R-Modesto, the GOP legislative leaders who agreed to the February budget compromise, have been forced from their posts and their successors have vowed to block any tax increases.

A defeat of Proposition 1A, which calls for a spending cap and triggers $16 billion in tax extensions, would fuel Republican plans to balance the state budget without new taxes, said state Senate GOP leader Dennis Hollingsworth of Murietta (Riverside County).

Voters "don't want to see their taxes raised yet again, and for politicians to come back when that message is so loud and clear would be absolutely irresponsible," he said.

But Democrats will fight just as hard against devastating cuts that would be needed to balance the budget without new revenue.

"The reality is that the Republicans only control about one-third of the Legislature," Hodson said. "The Democrats are not going to simply roll over and say the voters have decided they only want cuts."

But Schwarzenegger and the legislators may not have the luxury of long, drawn-out negotiations. While the state has a budget in place for the fiscal year that begins July 1, the numbers in it are woefully out of balance.

A report by the Legislative Analyst's Office on Thursday said the state could be forced to borrow as much as $20 billion in short-term loans or face the possibility of running out of cash by the end of July unless the Legislature quickly deals with the anticipated deficit.

That warning turbocharges upcoming discussions about a new budget deal. But it also targets voters, who need to recognize the stakes in the upcoming election, officials on both sides of the measures say.

"People don't believe that those draconian cuts are going to happen," said Joel Fox, a former Schwarzenegger aide. "The public doesn't believe anything ever gets cut. They don't believe the state has a real budget problem that's going to affect them."

Budget measures on May 19 ballot

Prop. 1A: Caps future state spending, increases the state's rainy-day fund and triggers $16 billion in tax extensions.

Prop. 1B: Provides $9.3 billion in new school funding, but only if Prop. 1A passes.

Prop. 1C: Modernizes the state lottery and allows the state to borrow up to $5 billion against future lottery revenues.

Prop. 1D: Moves $600 million in 1998's Prop. 10 tobacco tax money to the general fund to help balance the budget.

Prop. 1E: Moves $450 million over two years from 2004's Prop. 63 mental health money to the state's general fund.

Prop. 1F: Bars raises for government officials in deficit years.

.