Were the Republicans Paying Any Attention?

As we watch this week’s Senate floor debate on the confirmation of Judge Sonia Sotomayor to the Supreme Court, it is a good time to look back and see how the debate over Judge Sotomayor’s record has evolved in the three months since her nomination.

The remarkable thing is that on the Republican side of the aisle, the debate does not seem to have evolved one little bit. Last week, as all but one Republican on the Committee voted against confirmation, they raised the same concerns about the same cases, despite Judge Sotomayor’s clear testimony that should have put at least some of those concerns to rest. Sadly, the “case” against Judge Sotomayor was the same coming out of the hearing as it had been going in.

A good example is the post-hearing explanation given by Sen. Jeff Sessions (R-AL), ranking Republican on the Judiciary Committee, for not supporting Judge Sotomayor’s confirmation, a statement that pretty much sums up the Republicans’ “case” against her — that she is hostile to property rights, equal protection, and the Second Amendment right to bear arms. These concerns center on three cases in which Sotomayor participated as a Judge on the U.S. Court of Appeals for the Second Circuit, all cited last week by Sen. Sessions: Didden v. Village of Port Chester, Ricci v. DeStefano, and Maloney v. Cuomo.

These are the same three cases — out of several thousand in Judge Sotomayor’s long judicial career — that Sen. Sessions and other conservatives cited as troubling prior to Judge Sotomayor’s hearing before the Committee. Much was written about them, and, not surprisingly, the Judge was questioned extensively about each of them at her hearing. But it does not appear that everyone was listening to her answers, or paying attention to the facts of these cases.

Didden, for example, has been cited by Sen. Sessions and others as alleged proof that Judge Sotomayor is hostile to property rights. If you were unfamiliar with the facts of the case, or not listening to the Judge’s testimony, you would think that Judge Sotomayor and her colleagues had given the green light in that case to condemnation of private property for purely private gain, on the threat of extortion, no less. Nothing could be farther from the truth.

As we have explained previously, here, Didden concerned the efforts of the Village of Port Chester, New York, to redevelop its blighted downtown and waterfront. The property owner who brought the lawsuit, Bart Didden, initially had no objection to the Village’s finding of a “public purpose” for the revitalization project that subjected his land to condemnation. It was only years later, when Didden and the private developer handling the project could not come to terms about Didden’s property, that Didden decided to sue. A federal district court judge held that Didden had sued too late, and a unanimous panel of the Second Circuit, including Judge Sotomayor, agreed. As Judge Sotomayor explained patiently and carefully during her testimony, the basis for the ruling against Mr. Didden was his failure to bring suit within the time specified by the applicable statute of limitations. Apart from steadfastly mischaracterizing the Didden case, Sen. Sessions and others bent on portraying Judge Sotomayor as hostile to private property rights have also ignored her ruling in favor of another Port Chester property owner in a separate lawsuit growing out of the same redevelopment project, a ruling highly protective of private property rights, as we’ve discussed at length here.

Republicans also seemed not to be listening to Judge Sotomayor’s testimony about the Second Circuit’s decision in Ricci — the New Haven firefighters case in which Judge Sotomayor joined a unanimous ruling that the City had had the right to suspend use of a promotional exam that it suspected of having a severe disparate impact on minorities. In particular, Sen. Sessions and other conservatives have strongly criticized Judge Sotomayor for joining a summary (unpublished) order upholding the district court’s dismissal of the case. However, as Judge Sotomayor explained at her hearing, the Second Circuit disposes of 75% of its cases via summary order. Such orders are used, for example, where, as here, the appellate court’s ruling was controlled by existing precedent. And following such precedent — the obligation of all lower court judges — was the substantive basis for the Second Circuit’s ruling in Ricci, as Judge Sotomayor also explained. That the Supreme Court narrowly disagreed with the outcome, in a 5-4 ruling, is the High Court’s prerogative, but it does not negate the fact that Judge Sotomayor and her colleagues were following what they believed to be binding precedent.

Finally, Sen. Sessions and other opponents of Judge Sotomayor’s confirmation have fixed on her alleged hostility to gun rights, a concern raised before the hearings and unchanged since, despite Judge Sotomayor’s repeated explanations of the basis for the ruling that she joined in Maloney. At issue in that case was whether the Second Amendment right to bear arms was incorporated into the 14th Amendment and thus protected against infringement by the states. As Judge Sotomayor explained at her hearing, because the Supreme Court to date has held that there is no such incorporation, lower court judges applying those precedents cannot properly hold otherwise. In fact, a panel of the Seventh Circuit, including two of the nation’s conservative icons — Judges Frank Easterbrook and Richard Posner — reached precisely the same result in a subsequent Second Amendment case as had Judge Sotomayor’s court.

Just last week, the one appellate court – the Ninth Circuit Court of Appeals — that had found “incorporation” of the Second Amendment, despite the Supreme Court’s precedents, vacated this ruling and decided to have a larger panel of judges decide the issue. Sen. Sessions had been touting the now vacated Ninth Circuit’s ruling as evidence of the errors in Judge Sotomayor’s ruling. Surely, he’ll drop that talking point, but it’s unlikely the message will change. Expect to hear a lot this week about how Judge Sotomayor is hostile to gun rights. The reality is that she was just doing her job as a lower court judge in our federal system.

Judge Sotomayor’s opponents appear to have gone into the hearings with points they wanted to make about hot button issues, regardless of the Judge’s patient attempt to answer their questions. We should be concerned that the Supreme Court confirmation process has become little more than a political charade.