There has been much criticism, not all of it from conservatives, alleging that Judge Sonia Sotomayor is "an intellectual lightweight." As we'll see in three First Amendment related cases, that charge does not hold up under examination of Judge Sotomayor's decisions. Or I should say, decisions attributed to her. One of the cases for which she's been most criticized is a decision she didn't even write.
More below the fold....
Sonia Sotomayor - Three Heavyweight Cases
When even liberal legal icon Jonathan Turley says Judge Sonia Sotomayor "lacks intellectual depth," conservatives don't have to work hard to fashion evidence to fit their claim. Instead, it's up to progressives to defend President Obama's nominee to replace Justice David Souter on the U.S. Supreme Court. Fortunately, Judge Sotomayor has given us plenty of reference material in her hundreds of written opinions in the ten years she's served on the Second Circuit Court of Appeals. (For a brief summary, see here.)
I've decided to take three cases, all relating to First Amendment free speech rights, two of which have drawn sharp criticism. Ironically, one of those cited by Turley - Doninger v. Niehoff - is a decision that wasn't even written by Judge Sotomayor. But as Turley and others have chosen to criticize her for the holding, I'll cite it in her defense. And what I see in examining her decisions is a judge who carefully examines the law and precedent, thinks and writes clearly, and has the courage to avoid easy but incorrect decisions. Your mileage may vary.
Doninger v. Niehoff - A Concert Gone Awry
This is the infamous "douchebag" case, though that word plays only a trivial role. The case began with a scheduling problem over a concert involving several student bands, and escalated into a student being held ineligible to run for Senior Class Secretary after she posted a blog entry from her home calling the school principal a "douchebag" and inviting other students to call and/or email the principal's office "to piss her off more."
As I've said, Judge Sotomayor didn't write the decision. However, as she's been criticized for it, then if it is a sound legal decision she should be given credit for its soundness. And it is. The Second Circuit found that the trial court had not abused its discretion in denying Ms. Doninger's request for an injunction invalidating the student election results and requiring the school to hold new elections with her on the ballot. The standard of review - abuse of discretion - was both legally proper and important, as it narrowly limits the appellate court's role.
The Circuit Court agreed with Ms. Doninger's claim that "the punishment did not fit the crime," and it's possible any of the Circuit Court judges might have decided the case differently at trial. But under the law they were not allowed to retry the facts of the case; rather they were limited to assessing whether the trial court had abused its discretion in its findings of fact that Ms. Doninger's blog entry - although made at home - was likely to interfere with the school's educational mission.
The trial court found that it was not only likely to do so but was intended to do so, as evidenced by Ms. Doninger's inviting her fellow students to call and/or email the principal "to piss her off more." The trial court found this brought Ms. Doninger's off-campus speech into the reach of school discipline, as the speech was intended to disrupt school activity rather than simply express an opinion. The Circuit Court held this was not an abuse of the trial court's fact-finding discretion, and I think the Circuit Court applied that standard correctly.
Pappas v. Guiliani - Private Bigotry, Public Punishment
This case involved a sixteen-year New York City Police Department officer named Thomas Pappas. By the time of the case, Pappas was no longer on the street; he was working in the NYPD computer office, maintaining the system. Pappas received charitable solicitations from a nearby police auxiliary organization, and responded by sending envelopes filled with racist, white supremacist rants against blacks and Jews. He mailed the fliers from his home, anonymously. The Nassau County Police Department sent out another solicitation, this time with coded response envelopes, and traced the fliers to a P.O. box registered to "Thomas Pappas/The Populist Party for the Town of North Hempstead." After repeating the solicitation and getting the fliers for a third time, the NCPD contacted NYPD Internal Affairs, and Pappas ultimately admitted to sending out the fliers. The NYPD found Pappas had violated department regulations by disseminating defamatory materials through the mail, and fired him. Pappas sued, arguing the regulations violated his First Amendment rights.
While Judge Sotomayor agreed that Pappas' fliers were ugly, racist, and hateful, she argued they were protected private speech. Pappas had not sent them as representing the opinions of the NYPD; indeed he sent them anonymously. He was not in a policy-making position. By that time he wasn't even dealing with the public. His personal opinions, expressed anonymously, could not adversely affect the image or effectiveness of the NYPD. Indeed, his opinions only became a matter of public controversy after the NCPD and NYPD contacted the media to announce his arrest. By that standard, Judge Sotomayor argued, it would be impossible for any NYPD officer to express any unpopular political opinion, in any form or forum. And if the First Amendment does not protect unpopular political speech, it protects nothing at all. But hers was the lone dissenting opinion, and the Second Circuit upheld Pappas' dismissal.
Turley and others have criticized Judge Sotomayor's dissent for lacking intellectual rigor. But it's worth noting that the majority opinion is nothing but a rebuttal of Judge Sotomayor's dissent. Her reasoning dominated the debate, laying out the relevant legal issues clearly and concisely. The other judges on the panel disagreed with her conclusions, but they did not offer any alternative analysis. When the dissenting opinion defines the scope of the majority's ruling, it's hard to claim the dissent "lacks intellectual depth."
Amnesty America v. West Hartford - Free Speech meets Excessive Force
Finally we turn to a case that some have suggested indicates Judge Sotomayor may be weak on abortion rights. In fact, I suggest the case indicates she's wary of excessive use of force by police, even when the police are breaking up an anti-abortion protest.
In this case, an anti-abortion group calling itself Amnesty America staged two protests at a clinic in West Hartford. The protesters chained themselves together in front of the clinic, and refused to give way when ordered to move by the police. The police response allegedly involved excessive force. The legal details involve procedural arcana, having to do with whether and how affidavits were cited in briefs filed pursuant to motions for summary judgment. Judge Sotomayor noted that Amnesty America did not file its briefs by the strict letter of the trial court's rules, and cautioned Amnesty America's counsel to follow those rules in future filings. Still, she found, the facts alleged - if they could be proved at trial - would make a case for the police having used excessive force, and because the town's police chief was personally present at both of the protests, his presence made the town liable for the officers' actions. Three things strike me about this case.
First, Judge Sotomayor has said she believes the law exists to serve the people, rather than vice versa. This is not the only case where she has held that technical arcana alone do not constitute grounds to dismiss a case if the pleadings otherwise allege legally sufficient facts. In law school speak, there are "facts lawyers" who tend to focus on the facts of a given dispute, "law lawyers" who focus on the rules of law, and "rules lawyers" who focus on whether a pleading dots every i and crosses every t. Judge Sotomayor is certainly not a "rules lawyer," and I think that's a good thing. She'll tell lawyers what they need to correct if there is a procedural deficiency, and even criticize those who ignore that advice, but she's still willing to work with them to get through the rules to the facts and the law.
Second, having found that legally sufficient facts might exist, Judge Sotomayor wanted the police brutality case to go to trial. She could have used the rules arguments to dismiss the case and let the government off the hook, but she didn't. If the pleadings were true, the police had violated the protesters' rights, and the protesters deserved their day in court to prove it. For those who are concerned about other government brutality cases, that ought to be a hopeful indicator.
Third, the legal arcana of this case highlights Judge Sotomayor's intellectual rigor. She parses carefully through the complex rules of civil procedure, looking not only at what the rules require but also at the purpose those rules are written to serve. It's a fascinating, well-written analysis by a judge who wants the law to work for real people in real cases, rather than for abstract rules-writers.
I'm sure any of us could find decisions Judge Sotomayor has written with which we'd disagree. But she's no "intellectual lightweight," and we progressives ought not to buy into those arguments. Read her dissent in Pappas. Then read the majority opinion, which is to say ... you get to read the majority disagree with her dissent. Because her dissent drove both sides of that argument. That's a powerful argument indeed.
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Happy Thursday!