Wednesday, May 27, 2009

Sotomayor is a Baseball Fan? What were her rulings as a Judge?


*** To Fight Or Retreat? While Washington gears up for a Supreme Court fight, do remember this: Sonia Sotomayor wouldn't change the court's ideological make up. After all, swapping a reliably liberal vote in Souter for an apparently liberal vote in Sotomayor is a wash. Perhaps realizing that -- as well as looking at the polls and the selection's historic nature -- Republican senators were very measured with their statements yesterday. Their response was essentially the same: Sotomayor deserves a fair hearing where they can scrutinize her record. In fact, Mitch McConnell's office this morning sent an email to reporters hitting President Obama on job creation, not Sotomayor. That may be the most telling response. But the reaction coming from the conservative base is MUCH different. The National Republican Trust PAC, for instance, called Sotomayor a "radical nominee," adding: "Republican senators should strongly oppose her nomination. The NRT PAC and their constituents will hold them accountable if they do not." Also, Rush said she was a "reverse racist," and Mitt Romney called her nomination "troubling." This divide between the base and the senatorial establishment presents a potential quandary for Republicans: The GOP base wants a fight, while their elected officials want to hold off -- for now.

*** A 2012 Litmus Test? Also remember that John Roberts and Samuel Alito became Democratic presidential primary litmus tests -- explaining why anyone with White House ambitions (Obama, Hillary Clinton) voted against them.
The Sotomayor vote for Republicans thinking about 2012 might play out similarly. If you are wondering who is pondering a presidential run in 2012 among GOP senators, our guess is that the "no" vote roll call will be a good starting place.

*** Roll Out The Barrel, We'll Have A Barrel Of Fun: For Supreme Court nominations, Rollout Day is always important. And -- to borrow a metaphor from Sotomayor's favorite sport -- yesterday was a homerun for the Obama White House.

In fact, it was as good as the Roberts rollout. A misty-eyed mom? Check. Multiple references to Sotomayor's humble background? Check. Adding that she saved Major League Baseball? Check. The only thing that seemed to be missing was the apple pie. Also, the Democratic responses yesterday were measured, as were the GOP ones (it probably helped that Obama waited until Congress was on recess to unveil his pick). In short, with 60 Senate Democratic votes in reach, Sotomayor's odds of being confirmed are extraordinarily high. Then again, as we learned with Tom Daschle's HHS nomination, nothing is ever a sure thing in American politics.

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Previous rulings:

1994 baseball strike
On March 30, 1995, as a district judge, Sotomayor issued the preliminary injunction against Major League Baseball, preventing MLB from unilaterally implementing a new Collective Bargaining Agreement and using replacement players. Her ruling ended the 1994 baseball strike after 232 days, the day before the new season was scheduled to begin. The Second Circuit upheld Sotomayor's decision and denied the owners' request to stay the ruling.[9][32][47]

In New York Times Co. v. Tasini, freelance journalists sued the New York Times Company for copyright infringement for the New York Times' inclusion in an electronic archival database (LexisNexis) the work of freelancers it had published. Sotomayor (who was then a District Judge) ruled that the publisher had the right to license the freelancer's work. This decision was reversed on appeal, and the Supreme Court upheld the reversal; two dissenters (John Paul Stevens and Stephen Breyer) took Sotomayor's position.[48]
In Castle Rock Entertainment, Inc. v. Carol Publishing Group, Sotomayor ruled as a district judge that a book of trivia from the television program Seinfeld infringed on the copyright of the show's producer and did not constitute legal fair use. The United States Court of Appeals for the Second Circuit upheld Sotomayor's ruling.

In Center for Reproductive Law and Policy v. Bush,[49] Sotomayor upheld the Bush administration's implementation of the Mexico City Policy which requires foreign organizations receiving U.S. funds to "neither perform nor actively promote abortion as a method of family planning in other nations". Sotomayor held that the policy did not constitute a violation of equal protection, as the government "is free to favor the anti-abortion position over the pro-choice position, and can do so with public funds".[50]

First Amendment rights
In Pappas v. Giuliani,[51] Sotomayor dissented from her colleagues’ ruling that the NYPD could terminate an employee from his desk job who sent racist materials through the mail. Sotomayor argued that the First Amendment protected speech by the employee “away from the office, on [his] own time,” even if that speech was “offensive, hateful, and insulting," and that therefore the employee's First Amendment claim should have gone to trial rather than being dismissed on summary judgment.
In Dow Jones v. Department of Justice,[52] Sotomayor sided with the Wall Street Journal in its efforts to obtain and publish a photocopy of the suicide note of former White House Counsel Vince Foster. Sotomayor ruled that the public had "a substantial interest" in viewing the note and enjoined the Justice Department from blocking its release.

Second Amendment rights
Sotomayor was part of the three-judge Second Circuit panel that affirmed the district court's ruling in Maloney v. Cuomo.[53] Maloney was arrested for possession of nunchakus, which are illegal in New York; Maloney argued that this law violated his Second Amendment right to bear arms. The Second Circuit's per curiam opinion noted that the Supreme Court has not, so far, ever held that the Second Amendment is binding against state governments. On the contrary, in Presser v. Illinois, a Supreme Court case from 1886, the Supreme Court held that the Second Amendment "is a limitation only upon the power of Congress and the national government, and not upon that of the state." With respect to the Presser v. Illinois precedent, the panel stated that the recent Supreme Court case of District of Columbia v. Heller (which struck down the district's gun ban as unconstitutional) "does not invalidate this longstanding principle." Thus, the Second Circuit panel upheld the lower court's decision dismissing Maloney's complaint.[54]

Fourth Amendment rights
In N.G. ex rel. S.G. v. Connecticut,[55] Sotomayor dissented from her colleagues’ decision to uphold a series of strip searches of “troubled adolescent girls” in juvenile detention centers. While Sotomayor agreed that some of the strip searches at issue in the case were lawful, she would have held that due to the “the severely intrusive nature of strip searches,” they should not be allowed “in the absence of individualized suspicion, of adolescents who have never been charged with a crime.” She argued that an "individualized suspicion" rule was more consistent with Second Circuit precedent than the majority's rule.
In Leventhal v. Knapek[56], Sotomayor rejected a Fourth Amendment challenge by a Department of Transportation employee whose employer searched his office computer. She held that “[e]ven though [the employee] had some expectation of privacy in the contents of his office computer, the investigatory searches by the DOT did not violate his Fourth Amendment rights” because here “there were reasonable grounds for suspecting” the search would reveal evidence of “work-related misconduct.”

Employment discrimination
Sotomayor was a member of a Second Circuit panel in a high-profile case that upheld without significant comment a lower court decision backing the right of the City of New Haven to throw out its promotional test for firefighters and start over with a new test, because the City believed the test had a "disparate impact" on minority firefighters and it might therefore be subject to a lawsuit from minority firefighters under Title VII of the Civil Rights Act of 1964 if it certified the test results. (No black firefighters qualified for promotion under the test, whereas some had qualified under tests used in previous years.) Several white firefighters who had passed the test, including the lead plaintiff who has dyslexia and had put much extra effort into studying, sued the City of New Haven, claiming that their rights were violated because the test was thrown out. The case was recently heard by the U.S. Supreme Court as Ricci v. DeStefano,[57][58][59] and a ruling has not yet been issued.

In Clarett v. National Football League[60] Sotomayor upheld the NFL's eligibility rules requiring players to wait three full seasons after high school graduation before entering the NFL draft. Maurice Clarett challenged these rules, which were part of the collective bargaining agreement between the NFL and its players, on antitrust grounds. Sotomayor held that Clarett's claim would upset the established "federal labor law favoring and governing the collective bargaining process." She wrote: "We follow the Supreme Court's lead in declining to 'fashion an antitrust exemption [so as to give] additional advantages to professional football players . . . that transport workers, coal miners, or meat packers would not enjoy.'"

Civil Rights
In Malesko v. Correctional Services Corp.[61], Sotomayor, writing for the court, supported the right of an individual to sue a private corporation working on behalf of the federal government for alleged violations of that individual's constitutional rights. Reversing a lower court decision, Sotomayor found that an existing Supreme Court doctrine, known as "Bivens" — which allows suits against individuals working for the federal government for constitutional rights violations — could be applied to the case of a former prisoner seeking to sue the private company operating the federal halfway house facility in which he resided. The Supreme Court reversed Sotomayor's ruling in a 5-4 decision, saying that the Bivens doctrine could not be expanded to cover private entities working on behalf of the federal government. Justices Stevens, Souter, Ginsburg, and Breyer dissented, siding with Sotomayor's original ruling.

Property Rights
In Krimstock v. Kelly,[62], Sotomayor wrote an opinion halting New York City's practice of seizing the motor vehicles of drivers accused of driving while intoxicated and some other crimes and holding those vehicles for "months or even years" during criminal proceedings. Noting the importance of cars to many individuals' livelihoods or daily activities, she held that it violated individuals' due process rights to hold the vehicles without permitting the owners to challenge the City's continued possession of their property.
In Brody v. Village of Port Chester, [63], a takings case, Sotomayor wrote an opinion remanding the case to the district court for further proceedings on whether Brody had adequate notice of the Village's condemnation proceedings against his property. (A related proceeding in the lower court was called Didden v. Village of Port Chester. The case has drawn attention from conservative commentators.[64][65])

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