Why 1 Strike Against 1st Amendment Should Rule Sotomayor Out
As many of you know, I was disappointed by President Obama's nomination today of Appellate Judge Sonia Sotomayor to replace David Souter on the U.S. Supreme Court. As a lifelong advocate of the First Amendment and its protections of freedom of speech and press, and a critic therefore, of judges who do anything to dilute and undermine its protections, I wrote back at the beginning of this month that Sotomayor's Bad 1st Amendment Decision Should Disqualify Her. The decision in question was the one that Sotomayor's 3-judge Federal Second Court of Appeals made in New York last May, when it failed to uphold Avery Doninger's claim that her First Amendment rights had been violated when her high school prohibited her from running for Senior Secretary, after she had posted on her off-campus Live Journal blog that school officials were "douchebags" for canceling an event.
I recognize that there are some who think Avery was justly punished, and/or the school did not violate her First Amendment rights when it punished her.
But I'd like to now address a different objection to the problem I see with Sotomayor - one which in fact has been the most frequently raised on my blogs and status reports on Facebook, etc.
The objection is as follows: Should we let just one mistake count against a Supreme Court appointment and confirmation of a judge who has otherwise been excellent in all of her opinions? This certainly seems like a reasonable point, given that we require three strikes to be out when at bat in baseball, and we give people all kinds of second chances in life.
But I think that one strike against the First Amendment should indeed disqualify Judge Sotomayor's appointment to the Supreme Court.
First, before I explain why, let me just stipulate, for the purpose of this explanation, that Sotomayor's decision in Doninger was wrong, and all of her other decisions right. I understand that people may disagree with both parts of that stipulation, but let's proceed here as if they were right.
I maintain that Sotomayor would still be a dangerous appointment to the Supreme Court.
She made a decision on the Appellate Court that did not strongly support the First Amendment. The Appellate is itself a higher court, just one level below the U.S. Supreme Court. Why appoint someone who made even one mistake there, in a position that in this situation is in effect an audition, a farm league, for the big time? Isn't performance on the Appellate Court the best possible gauge of performance on the Supreme Court? Are not the stakes on the Supreme Court just too high, too lasting, to take a chance on an Appellate judge with even just one bad decision?
If that is the case, then the only reason we could excuse a bad decision on the First Amendment would be if we don't hold the First Amendment to be what it is - not the Tenth, the Fourth, or even the Second Amendment, but the First or most primary amendment for protection of our freedoms. An amendment, moreover, whose protections for us are eroding daily, with the FCC levying millions of dollars of fines, and Congress calling out for FCC regulation of cable, etc. All of that can hang in the balance with this appointment.
I have used baseball metaphors several times here, and let me say that it grieves me not to support Sotomayor, given that she is such as fervent Yankee fan. (Hey, I was born in the Bronx, too, proudly teach there at Fordham University, and am a lifelong Yankees fan.) Just as it grieves me not to support a woman and Latina for the Supreme Court.
But that's just not enough. I hope the Senate does not confirm Judge Sotomayor, which would require President Obama to choose someone who has not made any decisions destructive to the First Amendment of our Constitution.
TIP:
Enter the amount, and click "Tip" to submit!
bill benzon
Poppi Iceland
PattyJane
N. Jordan
Dr. Vanessa Neumann
CPH/NYC
Salon.com
Comments
In addition to her disregard of the first amendment, I also worry about the court becoming two thirds Catholic when the US population is less than a quarter Catholic. Also, Sotomayor is apparently not that liberal, siding with her more conservative colleagues 90 percent of the time.
Where is the unabashedly liberal atheist? With a clear majority in the Senate Obama could appoint a true liberal and get them confirmed, but then Obama has also turned out to be not so liberal as well. monkey fingered.
I'd welcome your thoughts or an additional post about whether the incitement was grounds for reversal or affirmation, though.
What is the basis for the seemingly now-widespread assumption that Sotomayor is some sort of left-wing pick? She was originally appointed to the bench by Bush 41 and her confirmation to the Second Circuit was supported by some of the most right-wing Senators (including Jesse Helms, Rick Santorum, Bill Frist and similar types). She began her law practice working as a District Attorney, prosecuting criminals. Anyone who wants to characterize her as "left-wing" -- especially radical left-wing or even to the left of Souter -- should be compelled to point to specific judicial rulings or other evidence for that characterization. The fact that she's Latina and from the Bronx isn't actually evidence of her ideology or judicial philosophy.
(rated)
This should definitely be one of the questions she should answer during her confirmation hearings. I criticize the US on many points, but your willingness to uphold the 1st Amendment is an area where many nations (including my own country, Norway) can learn a lot from you.
Disqualification for one felony, or one heinous act is one thing. But to disqualify for one reasoned position within the law, merely because you disagree, is draconian.
Perhaps Sotomayor said it best: "...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 hasn't lived that life."
A sure sign that you don't have much of a position or an argument when you resort so quickly to personal attacks.
If you bothered to read my posts, you'd see that the last thing I want is for Obama to fail or be humiliated.
What I do want is the best possible Justice on the Supreme Court.
Sotomayor's ruling on the Doninger case does make her a bad person, or, even a bad judge across the board. But it does make her to not the best person to appoint for the rest of her life to one of nine positions on a Supreme Court already dominated by Justices who don't care much about the First Amendment and the rights of kids.
It also has to with the people not being punished by the government for their speech. A public school is an arm of government, and it violated Avery's rights when it punished her for writing she entered in a blog, off-campus.
Second, you say one decision should disqualify her because it was on an appellate court, which is the "farm team" for the Supreme Court. Huh? If she were a pitcher on the AAA Scranton/Wilkes-Barre Yankees, and pitched a perfect game until the ninth, when she gave up one hit, she might well end up being called up to the Majors. Or to use a batting analogy, one wrong decision on an appellate court, among a hundred decisions, is still batting .990 under pressure.
As you may remember from my comments on your other post about this, I don't think "her" decision (which was actually a decision written by someone else, affirming a third judge's position, which she merely concurred with) actually violated anyone's first amendment rights. But even if I did, I wouldn't be convinced by your unbelievably purist position that "one decision I disagree with on my own pet issue should disqualify a Supreme Court justice."
I champion the first amendment and have my entire adult life. Granted, I have not done as much research on the 1st amendment as I have on the "penumbra effect" of the constitution in so far as it pertains to privacy rights.
However, I do know that had I been the father of the young woman there would have been some home consequences, not for her efficacy but for the puerile manner in which she exercised it--a manner in which people of her age and maturity are prone to do. At minimum she would have been required to apologize and perhaps even to have resigned her class office after having been "counseled" on appropriate communications.
I don't think that Sotomayor necessarily "swung and missed" on this one.
But, as my Dad always used to say: "Opinions are like asses; everyone has one."
People who think speech can be curtailed for the sole purpose of inculcating respect for authority can suck my dick. And I mean that respectfully.
J. Sotomayor is a douchebag.
Still, she's probably qualified to sit on the SCOTUS. I'm sure she won't be the first douchebag on the court and probably not the last.
Seriously, she didn't say that "speech can be curtailed for the sole purpose of inculcating respect for authority." Maybe you should read the decision instead of the bloggers bloviating about it.
What LIVINGSTON (not Sotomayor) wrote was that the student's request for a preliminary injunction did not meet the court's standard for likelihood of success of her case on the merits. Why? Because previous case law had established that schools are allowed to discipline students for speech that foreseeably might lead to a disruption of the school's activities. They concluded that her untrue claim that a campus event had been canceled, coupled with her request that her friends call the school office simply to "piss off" the "douchebag" administrators, could foreseeably lead to such a disruption, and that therefore the speech fell under the limited kind of speech that schools can legally curtail.
We may not agree with this, but it's hardly a statement that "those damn kids need to be taught to stay in line." It's a typical, boring legal technicality, but it's being made into a catastrophe by the chattering classes on the Left.
My consolation is that, while the hard Left will call her a fascist, the hard Right will call her a communist, and they'll pretty much cancel each other out. We'll still end up with a solidly left-of-center justice.
thanks for clarifying. I was going off of what I had been told in this and other posts.
I am still not convinced I agree with the decision based on what you said. It seems there was little chance of school "disruption" based on what the student did and any call for protest of unfairness could be regarded as inciting "disruption" if this students speech can be so regarded.
Still, your clarification was helpful.
She had a chance, with the Doninger case, to step up and strike a blow for the The First Amendment and the rights of minors. She could have slapped down the school officials for their punishment of Avery for her words, written outside of school. Instead, she joined an opinion that ratified and supported what the school did.
And, if you're not convinced by my "unbelievably purist position" - I guess that shows you don't care as much about the First Amendment and the rights of minors as I do.
The case speaks throughout of (variously) demonstrating, displaying, teaching, and promoting good citizenship. I would like to know what quality of good citizenship is violated by the student in this case. I find that particular aspect of the case very disquieting.
This does not look like someone who is prepared to stand behind whistleblower laws, support boycotts, support negative political campaigns, or a variety of other things. The case notes specifically that “student government should teach good citizenship and that any student who does not maintain a record of such citizenship may not represent fellow students.” I don't see any better place to teach people that what you say may not under any circumstances make you a bad citizen, and the notion that she instead upheld the notice that this speech made a person a bad citizen is very alarming.
The reason why I think it's important that Livingston and not Sotomayor wrote the decision is that Sotomayor might well have agreed with the decision, but not agreed with some of the reasoning. (In this case, it's true that she COULD have written a concurring opinion to lay out exactly what she agreed with and what she didn't, but she didn't HAVE to do that, and as far as I know she didn't.) So all we know is that she agreed that the student's case was unlikely to succeed on the merits. We do NOT know that she agreed with anything else written by Livingston.
To ignore the question she was really being asked to rule on (whether a preliminary injunction was appropriate given the case's likelihood of success on the merits) in order to "strike a blow for the first amendment" and "slap down school administrators" is the very definition of legislating from the bench, and it is frowned on, especially in SCOTUS confirmation hearings. So the behavior you say would have qualified her in your mind is precisely the behavior that might have made her unconfirmable. This is self-destructive ideological purism at its best: you insist that your candidate be so exactly in line with your personal views that they cannot, in fact, get the job.
Kent, my comments above address your concern too. Sotomayor's concurrence with the opinion is not evidence that she agreed with all the stuff about "good citizenship" contained therein.
Having said that, however, it is not necessarily true that no examples of speech would constitute poor citizenship. Poor citizenship is like "bad behavior." It's vague and situational. Many would state that attending a court case at random, simply to disrupt it by getting up and shouting "Fuck Fuck Fuck!" is both poor citizenship and bad behavior. (And, incidentally, judges are allowed to hold you in contempt of court or have you removed from the courtroom for it. )
Lying is often considered bad behavior and poor citizenship, even though it's not illegal.
The argument of this court was that "disrupting school" for children is a case in which certain punishments can be applied to certain instances of speech, and, also, that lying and using your speech to disrupt school is "poor citizenship. This may be a matter of concern to some of us, but legally it's hardly radical, and it's hard to see how it's the "one strike" that strikes her out.
When we cut through all the verbiage, we also know from Sotomayor's not writing a dissenting opinion that she does not care enough about the First Amendment and its application to the rights of minors to stand up and say so.
You keep trying to make it sound as though she wrote the opinion, When we point out that she didn't, you come up with your imagined, sinister reasons why she didn't state for the record exactly where she concurred and where she disagreed. There may be no sinister reason. Stop imagining things, and get over it.
Something about that you don't understand?
None of the judges involved thought so.
Her job was not to opine about the first amendment, it was to make a decision on that point.
Something about that you don't understand?
But Sotomajor did neither, because, also obviously, she endorsed this bad decision.
In any case, what you're asking for is, plain and simple, that she agree with you. And you have a nasty way of making fun of anyone who doesn't, with crap like "apparently you don't read very carefully."
So, too bad, she didn't come out and say that she agreed with you. Once. Guess that means she's unqualified to be a Supreme Court Justice, huh?
Why don't you go look for someone who always agrees with Paul Levinson, and writes special opinions just to make that agreement clear. That's the only person you'll find qualified for the Supreme Court! Then you can lobby for that person for the next time there's an appointment.
In the meantime, here in the real world, we'll confirm Justice Sotomayor.
Not really. Being a judge or justice isn't akin to moving up a ladder whereby you are prepped for each subsequent rung. Finding a justice requires an holistic approach that examines every part of the person's background and ability.
Moreover, dinging someone for a result while ignorning the reasoning ignores the very essence of law: the reasoning. I haven't read the opinion that has drawn your ire, but I will now and I suspect I will find in the opinion, as in most, that the reasoning discussions the tensions between various approaches, and ultimately reaches the conclusion that has so frustrated your sensibilities.
Thus, I think it isn't wise to suggest that one opinion disqualifies anyone.
You have amazingly keen insight...
Eric - but I think one bad decision does count, when it comes to something as crucial as the First Amendment.
Every decision made by the Supreme Court addresses a crucial constitutional issue. Whether it is the death penalty, the right of inventors to patent business methods, or the proper approach to applying Sentencing Commission Guidelines, every decision is crucial.
As an aside, I have now read the opinion. It is interesting to note that the opinion treaded lightly on the constitutional issue of students' rights to engage in First Amendment activity without threat of school intervention. Instead, the Second Circuit judges held that the Tinker standard, i.e., whether the activity “materially and substantially disrupt[ed] the work and discipline of the school”, applied and found that the off-campus activity was directed at disrupting activities at the school.
The Tinker case is an old case, and was not decided by Sotomayor. The fact that she applied the precedent and reached a ruling on narrow grounds, without delving into issues that needn't be addressed, suggests the she was doing her job well. The court reached a conclusion based in law that granted deference to school officials.
Two final points: (1) the ruling did not prevent the girl from proceeding to trial, but instead held that she was not entitled to a preliminary injunction; (2) the alternative to such a ruling is that courts become referees between school teachers and students.
That being the case, I think this opinion, far from amounting to a justification for exclusion, is an example of good judicial temperament.
And that is precisely part of the problem I have with Sotomayor regarding this decision - given that the First Amendment is under such fire, we need judges who will seize opportunities to stand up and fight for it.
For details on the battering the First Amendment has been taking, see The Flouting of The First Amendment (transcript or video of my keynote address both available at that link).
Glenn Greenwald (anybody want to question his First Amendment cred) had this to say about her dissent:
“As someone who has a lot of respect for those who defend the First Amendment rights of people expressing despised views -- that, after all, is where First Amendment rights are typically abridged -- this dissent of hers substantially elevates my view of her as a judge. It's not easy to be the only one of four federal judges in New York to rule in favor of a white racist NYPD employee on First Amendment grounds.”
Let’s see. Who’s more of an expert on the First Amendment – Paul, or Glenn…Hmmm, that’s a tough one!!
"swinick - right - I'm wanting a Supreme Court justice to agree with my views ....
You have amazingly keen insight..."
You, on the other hand, seem to have no insight. Can you not see that there is a difference between wanting a someone who agrees with your views and claiming that someone who disagrees with you about one case should be disqualified? It's you that you have chosen to stress that it's "one strike and you're out."
I don't object to your wanting someone who agrees with your views. I think claiming that she's disqualified because of this one decision about a preliminary injunction, which was penned by someone else, and which hinged on whether a particular, fairly weak case was likely to succeed on its merits, is a bit crazy.