Patterico's Pontifications


Likely Souter Replacement: “Court of Appeals is where policy is made”

Filed under: General,Judiciary — Patterico @ 8:00 pm

I am going to predict that Sonia Sotomayor will be Obama’s nominee to replace Souter. Conventional wisdom is that he “has” to pick a woman. He won the 2008 election on the strength of the Latino vote in the West, and no doubt feels that it will shore up his standing among Latinos to appoint the first Latina to the High Court. Sure, it would be a grander gesture closer to the next election . . . but who knows if he’ll get another chance?

With that in mind, savor this clip of Judge Sotomayor saying that “Court of Appeals is where policy is made” — followed by a quick “D’oh!” moment as she realizes she’s on tape, at which point she backtracks in a rather lame and insincere fashion:

Whoever it is will be liberal and will be confirmed. Still, I think it would be educational and enjoyable to watch a Senator confront her with this clip in televised nationwide hearings.

Until then, you can enjoy this: an article about her shortcomings, in which one of her supporters says: “She’s a fine Second Circuit judge–maybe not the smartest ever, but how often are Supreme Court nominees the smartest ever?”


UPDATE: Orin Kerr has a link to the entire video, which he says places the comment in context, as distinguishing the roles of district courts (which decide individual cases) and courts of appeals (which must consider the wider impact that their ruling will have on other cases). This explanation mitigates the damage slightly, but I think it’s a poorly phrased comment at best.

80 Responses to “Likely Souter Replacement: “Court of Appeals is where policy is made””

  1. Until then, you can enjoy this: an article about her shortcomings, in which one of her supporters says: “She’s a fine Second Circuit judge–maybe not the smartest ever, but how often are Supreme Court nominees the smartest ever?”

    Still the Party of No. So much for the Pizza Parlor pitch.

    DCSCA (9d1bb3)

  2. The assclown continues to spew his nonsense. Which party savaged Supreme Court nominees? Why do they call it borking? Note how black Clarence Thomas was vilified and lied about. Oh, he told ribald jokes to a bimbo who followed him from job to job. A pubic hair on a can of coke nonsense.

    I guess it would be too much for GOP to actually point out the latina bimbo’s flaws? Might agitate the left and cost Republican NOW voters? Or Latinos who were not going to bite the hand that feeds them anyway. Yes, another believer in an evolving “progressive” constitution that should emulate the Euroweenie elites.

    aoibhneas (0c6cfc)

  3. It will be interesting to see how badly her decision in Ricci is reversed by SCOTUS, and then to see if anyone on the Sen Judiciary Cmte has the gumption to ask her about it.

    AD - RtR/OS! (37764e)

  4. With D’s outnumbering R’s 12-7, the R’s would have to be unanimously opposed, and 3 of the D’s would have to be forced by this video going public to pretend to be moderate for once. I suppose stranger things have happened, but I wouldn’t bet on it.

    Dave (in MA) (d51df8)

  5. maybe not the smartest ever

    Well, if she’s of the left, she automatically is almost brain dead when it comes to common sense and basic logic.

    Mark (411533)

  6. Supreme Court nominations always go to the full Senate for an up or down vote no matter the Judiciary Committee recommendation.

    nk (edb3d7)

  7. Has the Senate ever gone against the JC’s recommendation? I can’t find the info anywhere.

    Dave (in MA) (d51df8)

  8. Prepare for comparisons to Harriet Miers, and how a ‘qualified’ woman should have been placed by Bush to replace what’s-her-name.

    davidt (0c740c)

  9. If The One is anxious to appoint someone from the Bronx, he should surprise everyone and appoint Michael Mukasey.

    Ira (28a423)

  10. #6 NK == not so sure that is the case. While they all might go to the floor, they don ‘t go with the recommendation of the committee — not that anyone will care this time.

    Unless one member of the minority votes in favor of the nominee, the nominee goes out without a recommendation. That is the rule that some are predicting will be changed in no Rep. agrees to support the nominee, and it’s the reason being speculated about by some that Lindsay Graham was invited to lunch at the WH on Friday.

    WLS Shipwrecked (53653f)

  11. If the NR article is accurate, then put her on the court. She’s simply a liberal blowhard who decides cases according to her gut, and that doesn’t make for lasting authority. The conservatives will eat her alive, and as a result she won’t author any significant opinions.

    Remember, its the most senior member of the court not in the majority — when the CJ votes in the minority — that assigns the writing of the decision in any particular case.

    Right now that is Stevens. When Stevens leaves the Court it will be Kennedy when he votes with the liberals, otherwise it’ll be Ginsburg, then Breyer.

    WLS Shipwrecked (53653f)

  12. I find it ridiculous that the next justice has to be a woman or Hispanic or African-American. Why can’t we pick the best person for the job? Pick a person who isn’t going to bring an agenda to the court, whether that be conservative or liberal. Pick a person who understands the law and can apply it to the facts.

    mj (e102c6)

  13. mj, that would be what Bush did with Roberts and Alito.

    Just one of many examples of how Bush had our backs from time to time.

    Juan (4cdfb7)

  14. I’ll play devil’s advocate here. In law school, we are taught to make public policy arguments to the court. In fact, if we represent a position that is not supported by case law, we are taught to make a public policy argument as a last resort. I think it’s accurate that federal appellate court is a place where policy is made. Whether it ought to be is a legitimate question, but she was factually correct. At least she’s self conscious enough to realize that it’s a point of controversy.

    grs (b9e726)

  15. *gives a double thumbs up*

    I feel good about this choice! I can’t wait for one of Obama’s pics to be the first to ruin the SCotUS claim to fame that they all get along really well with each other. Hell, Scalia goes fishing with Breyer, for crying out loud…

    No one Obama picks will be capable of decency in the face of disagreement…

    Scott Jacobs (90ff96)

  16. Justice Thomas was sent to the floor with no recommendation (7-7 split), and I believe Bork with a negative recommendation.

    nk (edb3d7)

  17. I have a feeling he might surprise everyone and pick a conservative with left-leaning proclivities. Someone no one is thinking about. That will be consistent with the Obama-style. You see, Obama is not as liberal as most people think. Underneath that mixed skin is a lot of unknowns.

    The Emperor7 (0c8c2c)

  18. Barcky has already told us who he would pick, Chimperor. Teh One states that emapthy and a desire for social and economic justice are his primary qualifications, and apparently a good dose of identity politics too. The idea that he would nominate a conservative is laughable. At this point, we can just pray for the least collectivist of the bunch.

    JD (42a8c3)

  19. “You see, Obama is not as liberal as most people think.”

    Proof please.


    daleyrocks (5d22c0)

  20. Don’t count your chickens before they hatch, people. It was reported on Fox this morning that JaNa may get the nod!
    She’s too bloody dumb to be Homeland Security Secretary. But obviously can sit on the Supreme Court from now til Hell freezes over.

    Joseph Brown (ea51e1)

  21. Yeah right, Obama is a Trojan horse rightwinger who loves Amerikka. Look at his lifetime of past associations and his buddies in the Chicago Way, not to mention Soros, ACORN, his proposed brown shirt gestapo civilian security force to rival budget of Pentagon, the tax cheats running his various cabinet posts. I’m sure socialism/communism is what he aims for in striving to make US more like the enlightened Eurocretin elites. Demonize and prosecute your predecessor- check….kiss the arses of despots like Chavez and ‘lil Kim- check. Apologize endlessly for America’s past- check. Trillions in new deficit spending- check. Waterboarding of islamo-murderers is VERY BAD. Allowing surviving late term abortions to die unattended-merely a woman’s choice. Yes, Duh-1 has real conservative propensities and the Japanese condom wannabe poster here has continued delusions and sexual fantasies about the magic negro.

    aoibhneas (0c6cfc)

  22. Comment by aoibhneas — 5/4/2009 @ 6:00 am
    I might be a Japanese condom. Condoms ensure that you are safe. Better think of that next time. I have saved the lives of millions. Including yours. Think about it.
    And BTW, tiny dick, I have been right on this blog, most of the time.

    The Emperor7 (1b037c)

  23. Comment by JD — 5/4/2009 @ 4:55 am
    You forgot to wash your hands, JD.

    The Emperor7 (1b037c)

  24. Weren’t you accused of rampant sockpuppetry here just a few days ago?

    Dmac (1ddf7e)

  25. …but how often are Supreme Court nominees the smartest ever?”

    Easy — Antonin Scalia, Sam Alito, and John Roberts. Roberts’ impressive performance during his confirmation hearing raised the bar and will make Sotomayor’s shortcomings even more evident.

    Even her supporters recognize the importance of having an intellectual heavyweight to battle the superior ability of the conservative wing, as suggested by the opinions of her former law clerks and colleagues (from the article):

    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.

    Identity politics gave us an unaccomplished, second-rate intellect for President who was able to hide his shortcomings from the public until he took office. Sotomayor may well end up on the Court anyway, but if she’s a lightweight she’ll be exposed and her critics won’t have to resort to smears about pubic hairs on soda cans.

    Armadillo (211a15)

  26. Oh, and anyone who thinks I’m being too tough on Obama as a second-rate intellect, read this and cringe.

    Armadillo (211a15)

  27. Abe Fortas was the last (and maybe only) SC nominee (promotion to CJ) to be filibustered, by a combination of Republicans and Dixiecrats, and I think the filibuster was over overruling the Senate Judiciary Committee’s Chairman’s privilege to perpetually postpone his hearing. (I could be wrong about that last part.)

    nk (edb3d7)

  28. And BTW, tiny dick, I have been right on this blog, most of the time.

    Comment by The Emperor7 — 5/4/2009 @ 6:53 am

    Only in your own mind. You’ve been blown out more often than the Washinton Generals by the Harlem Globetrotters.

    PCD (02f8c1)

  29. Comment by Dmac — 5/4/2009 @ 7:39 am
    Not likely. I have not been commenting on this blog for more than a month before I resumed last week friday. Sockpuppetry is not my thing.

    The Emperor7 (1b037c)

  30. Comment by PCD — 5/4/2009 @ 7:55 am
    I have been right about the outcome of the last election. While most of you were prophesying doom and gloom on Obama. That he did not stand a chance. I said he would win and he did. Not even by a narrow margin. That in itself is not an achievement though. More than winning an election, is governing well. And so far I would give him a “B+”.

    The Emperor7 (1b037c)

  31. “B+” … that’s hilarious.

    SPQR (72771e)

  32. If you are a collectivist like Barcky, I can see where you might come up with a B+ grade at this point, Chimperor.

    JD (e5521e)

  33. Have you washed your hands yet, JD? Didn’t think so.

    The Emperor7 (1b037c)

  34. Comment by SPQR — 5/4/2009 @ 9:59 am
    SPQR, you are one of the very few commenters here who strive to maintain a level of civility on this blog. Not that we always agree, you try to make your comments more about the comment and not about the person. Now, tell me, how would you grade the President’s performance in 100 days. I gave him a “B+”. Based on the fact that most of the promises he made during his campaign, he has kept or tried to keep. You may not agree with all his policies. But you must give him some credit for doing something about them. How would you grade this President after 100 days?

    The Emperor7 (1b037c)

  35. Reading lovey’s drivel requires a washing of the mind, not the hands.

    AD - RtR/OS! (0f8a36)

  36. Am I the only person having problems with posting comments on this blog?

    The Emperor7 (1b037c)

  37. Washed my hands yet? Explain, douchenozzle.

    JD (6ef9a2)

  38. The Emperor7, it takes quite a stretch of the imagination to conclude that Obama has kept “B+” worth of his promises. He simply hasn’t. His actions with respect to the War on Terror have almost universally been superficial symbolism at best, and utter incompetence at worst such as his mishandling of the issue of prosecuting Bush administration officials and the disasterous effects on our intelligence services.

    His actions with respect to the economy have been disasters – such as the botching of the AIG situation, the enormous expansion of government debt for little more than a fiesta of pork and both GM and Chrysler.

    SPQR (72771e)

  39. So what’s O’s biggest accomplishment to merit a B+? And why not an A?

    Let’s face it, you’re giving him a B+ because you don’t want to appear to have your nose pinned by O’s butt cheeks. You should have just given him an A, said he was way cool, and moved on. Because that’s the way I’m reading you anyway.

    EBJ (2fd7f7)

  40. Chimperor – You are not having problems posting comments, you are having problems with rational thought.

    JD (6ef9a2)

  41. such as the botching of the AIG situation

    To be fair, Paulson deserves some of the blame for that fiasco – primarily for going to the mat for them in the early days, when it most likely should’ve been allowed to go under. Yeah, it’s classic Monday Morning Quarterbacking, but there you go.

    Dmac (1ddf7e)

  42. How would you grade this President after 100 days?

    Comment by The Emperor7 — 5/4/2009 @ 11:12 am

    Poster wasn’t addressing me, but what the hey. F+. The “+” is for not starting another war by his mad inexperience skillz. Seriously, Emperor7: he’s reversed himself so many times I can’t even keep track anymore. Has broken bunches of promises, just in his first 100 days not including all the ones he broke before that, including some I’m glad he broke, such as the one that getting FOCA through was going to be his “first priority.” The man is so inexperienced, tone deaf and arrogant (“I won” to Republican leaders?!!? WTH?), not to mention his word simply cannot be trusted, that he is not fit to be President of the US, imo.

    Like EBJ above I’d also like to know why you didn’t give Obama an “A” instead of a B+. Thanks.

    no one you know (65b7aa)

  43. Dmac, I was referring more to the inept handling of the controversy regarding bonuses. If the viability of AIG was an Obama administration goal, as he has claimed it is, then undermining the credibility of his own administration by demogoging the bonus issue shows either simple incompetence or an absence of leadership skills. Or more likely both.

    SPQR (72771e)

  44. Why don’t you tell me how you would grade him? I gave him a “B+” becos I think he is heading in the right direction. Why not give him an “A”? becos he is not perfect and I don’t agree with him on all points. It may surprise you that I don’t agree with him on waterboarding and torture. For me, he is moving the country in the right direction. Atleast economically.
    What about you? How would you grade him? Partisanship aside.

    The Emperor7 (0c8c2c)

  45. I was referring more to the inept handling of the controversy regarding bonuses

    I missed the context; agreed, that was the worst kind of cheap political hackery seen in quite awhile…or at least until he topped himself regarding the torture memos.

    Dmac (1ddf7e)

  46. The “right direction” ? That’s pretty meaningless. And Obama is especially not moving the country in the “right direction” economically as a socialist economy is the wrong direction.

    Partisanship aside, and ideology aside, he gets a “C” so far. This is from the incompetence of so many failed cabinet appointments, the hypocrisy of appointing a tax cheat at Treasury, the many clumsy missteps in things like AIG, GM and Chrysler ( and the thuggish behavior of his administration toward Chrysler creditors and TARP recipient banks ).

    Likewise, his foreign policy beginnings are “C” efforts, gentlemen’s C at best.

    SPQR (72771e)

  47. Moving in right direction, at least economically?
    That Bush W is cause of all our ills and forced Duh-1 to spend run deficits in the next few years greater than the aggregate total of all deficits from George Washington’s time through Bush II (including all the wars)? Give us a break, Obot apologists. Just take a look at California under the dems and Arnie- a horror show for taxpayers…maybe ok for illegals and gangbangers.
    Oh, and give Barney Frank, Chris Dodd and assorted other sumwads a pass on the Housing debacle. And no problemo too with Bonuses if it was Raines and Gorelick skimming off over $100 mil from The Fannie/Freddie slush funds. Of course the media is not at all interested in THAT camel dung, eh???

    aoibhneas (0c6cfc)

  48. Comment by SPQR — 5/4/2009 @ 4:02 pm
    Fair enough. You are very generous. A lot still needs to be done. He is not perfect. Yes. But he has enough sense to know that.

    The Emperor7 (0c8c2c)

  49. Washed my hands yet? Explain.

    Comment by JD — 5/4/2009 @ 11:37 am
    Not until you wash your hands and tell me you have. Now off you go, junior!

    The Emperor7 (0c8c2c)

  50. Lovey – Have you washed yourself between customers? Ahmed will be angry if any of get the pig flu or something worse.

    daleyrocks (5d22c0)

  51. Comment by aoibhneas — 5/4/2009 @ 4:04 pm
    Can you try to be any less incoherent? My head hurts just reading your slabber.

    The Emperor7 (0c8c2c)

  52. On the contrary, this POTUS’s arrogance is truly breathtaking – he never admits a mistake, and deems anyone who opposes him unworthy of anything except his mockery and scorn. Teh One has the thinnest skin of any POTUS since Tricky Dick.

    Dmac (1ddf7e)

  53. Comment by daleyrocks — 5/4/2009 @ 4:45 pm
    Hey Drivelrocks. Taking a break from molesting dogs and cats? I see.

    The Emperor7 (0c8c2c)

  54. Comment by Dmac — 5/4/2009 @ 4:48 pm

    On a scale of 1 to 10. How would you rate Obama’s humility? Is Barack Obama a proud and arrogant man or is he humble? And please give examples. Thanks.

    The Emperor7 (0c8c2c)

  55. For a while, Goatmolester2008 was going around as “Nemesis”. And it left a comment on my site which showed that it came from Upper West Gahna. It’s a spammer.

    nk (edb3d7)

  56. #55
    You can’t even spell “Ghana” properly. Who is the spammer, pig?

    The Emperor7 (0c8c2c)

  57. Duh-1 is a classic narcissist. Examples abound. But it should be self-evident. Even the Euroweenies notice his demeanor of priggishness. Funny though how W was considered the Village Idiot with better college grades and IQ than either algore or Lurch. Duh-1’s past is mostly quite secretive and he won’t reveal his scchool records. The brilliant dude did manage to be head of Harvard Law Review without even doing any publishing of his own. Affirmative action pu**y in my eyes.

    aoibhneas (0c6cfc)

  58. Go suck an arugula, goatmolester.

    nk (edb3d7)

  59. TheEmperor7 writes: “He is not perfect. Yes. But he has enough sense to know that.

    Really, that was even more hilarious. Obama shows not the slightest hint that he realizes how many times he has stepped in it.

    SPQR (26be8b)

  60. 🙂

    The Emperor7 (1b037c)

  61. “TheEmperor7 writes: “He is not perfect. Yes. But he has enough sense to know that.””

    SPQR – That’s one of my theories on why he picked Biden as a running mate. Obama had to pick some one dumber than himself to make himself look good in comparison. Biden is about the only retard in politics who can make Obama look like a genius.

    daleyrocks (5d22c0)

  62. From MKH over at the Weekly Standard – Our Freaking genius in the White House:

    Our Genius President: ‘Happy Cuatro de Cinco!’
    I like to note these little incidents when they happen, not because I think it makes Obama an idiot because he occasionally stumbles over his words, but because his somewhat overblown reputation as the most cerebral, eloquent, utterly erudite president of all time could really use a pricking every now and then.

    Also, because if Bush had made such a blunder, it would have been the basis of a four-part MSNBC investigative series on the malapropism’s deleterious effects on the Republican Party’s attempts to woo Hispanic voters, Mexican-American relations, and our “place in the world.”

    So, Obama, I will not turn your tendency to mispeak (and, then reprimand your Teleprompter) into an international incident, but I will note it with some glee:

    On the eve of the Mexican holiday, Obama on Monday had an event in the East Room of the White House with Mexico’s Ambassador Arturo Sarukhan (sahr-oo-KHAN’).

    Obama joked that it was “Cinco de Cuatro,” botching a play on the Spanish word for “four” when he meant to say “Cuatro de Mayo,” or the Fourth of May. He tried again, but he still did not get it right.

    This from a unilingual man who’s embarrassed that more of us can’t speak French. If only he were as conversant in Spanish as he is in noted non-language “Austrian,” this wouldn’t have happened.

    daleyrocks (5d22c0)

  63. Is Barack Obama a proud and arrogant man or is he humble? And please give examples. Thanks

    Sure, but there are so many, it’s impossible to keep up:

    – snubbed the Prime Minister of Britain by returning a bust of Churchill, even though it was not asked to be returned, and not expected:

    – snubbed the Prime Minister further by giving him a “gift” of a bunch of DVD’s, and even that paltry and pathetic gift didn’t even work on European DVD recorders. All this, and after he had received an amazing and historical gift from the Prime Minister in return:

    – when the GOP started making some objections to his stimulus plan, Obama responded by saying “I won.” This, after campaigning on a platform of always listening to the other side of the aisle, and trying to reach bipartisan approval whenever possible.

    – after ignoring the tea party protests across the country for over two weeks, he went to a pre -selected audience to give a canned speech. He then proceeded to mock the protesters at will:

    – called anyone living in rural areas as “clinging to guns and religion.”

    This guy is the most arrogant POTUS since Nixon, hands down.

    Dmac (1ddf7e)

  64. Go suck an arugula
    How do you really “suck” on a vegetable? You really need help. Do you even know what it is?

    The Emperor7 (0c8c2c)

  65. Arugula is pretty bitter. Some might even say it sucks.

    Anon (b0f193)

  66. Learn how to do it and Achmed will you a raise.

    nk (edb3d7)

  67. will *give* you

    nk (edb3d7)

  68. #62
    snubbed the Prime Minister of Britain

    Yes he did. He was simply paying them back in kind.

    snubbed the Prime Minister further by giving him a “gift” of a bunch of DVD’s, and even that paltry and pathetic gift didn’t even work on European DVD recorders

    Come on. That was a gift from the heart. That hardly qualifies as a snub. At best it could be an uninformed blunder on his part. Nothing personal.

    when the GOP started making some objections to his stimulus plan, Obama responded by saying “I won.” This, after campaigning on a platform of always listening to the other side of the aisle, and trying to reach bipartisan approval whenever possible.

    I agree. That could come across as cocky. Then again the GOP had to be reminded that he got the majority vote because the people were voting for change. THey were not voting for him to go back to the same policies of the last 8 years. But I would have phrased it in a more congenial fashion. It reminds me of George Bush using the term, “Presidential capital” after he won the 2004 elections. No need rubbing it in.

    called anyone living in rural areas as “clinging to guns and religion.”

    For which he has apologized severally. Yes that was a stupid thing to say. Not necessarily arrogant.
    You will really have to do better than this to prove that this President is the most arrogant and proud “POTUS” since Nixon. Thanks for the effort though.

    The Emperor7 (0c8c2c)

  69. OiNK!

    The Emperor7 (0c8c2c)

  70. Look, Chimperor. We know you worship at the altar of Teh One, Barcky.

    JD (9c9b67)

  71. And you prefer to eat with unwashed hands, JD. Not hygienic my little friend.

    The Emperor7 (0c8c2c)

  72. Yes he did. He was simply paying them back in kind

    I’m not aware of any snub to Obama from the Prime Minister – please detail said snub and link to source, please.

    Dmac (1ddf7e)

  73. #72
    It was widely reported during the primaries that Brown seemed not to be too enthusiastic about Obama’s candidacy. But later amended his ways when he saw he had a chance. This was also reported during Obama’s visit there as candidate last July.
    I can’t seem to find something better than this for now.
    Here. I am having difficulty posting a link now. So you can check this out.

    The Emperor7 (0c8c2c)

  74. With Obama now pressuring the Democratic leadership in Congress to pass new taxes on energy using AGW as the justification for paying for his unspecified new takeover of the healthcare industry, it is pretty clear that Obama has no clue about the disasterous effects of his whacky policies.

    Imagine Obama doing for health care what he’s done for GM, Chrysler and AIG …

    SPQR (72771e)

  75. On the contrary, that link further supports my contention about his arrogance – the Prime Minister didn’t want to appear to be taking sides during the Presidential campaign, so he chose to decline to meet with Obama and Clinton. So Teh One gets his nose all out of joint, then responds childishly during the official meeting after the election. Wonderful.

    Dmac (1ddf7e)

  76. Dmac: can’t you just let him eat his waffle?


    Eric Blair (33cc23)

  77. Would it be legal to appoint an illegal alien to the Supreme Court?

    Wesson (db1c66)

  78. […] the early lightning rod. Patterico’s Pontifications got the first potential smoking gun (you can find the video here): I am going to predict that Sonia Sotomayor will be Obama’s nominee to replace Souter. […]

    Weekend Opinionator: The Early Line on the High Court - The Opinionator Blog - (0fa76b)

  79. Maybe Obama will surprise everyone and nominate Judge Posner – now there is an intellectual heavyweight.

    Edward Kelly (d3d991)

  80. […] conservative bloggers dug up this exchange from 2005, in which Sotomayor contends that “court of appeals is where policy is made.” Sotomayor […]

    The Hill’s Blog Briefing Room » Bad few days for Sotomayor (75c1c5)

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