Drew Capuder’s Employment Law Blog

President Obama today announced (CNN story and video) his nomination of Sonia Sotomayor, currently a Judge on the Second Circuit, to fill the position on the US Supreme Court to be vacated by the resignation of Justice David Souter.

Within a few hours of President Obama’s announcement, the CATO Institute and The Heritage Foundation had significant articles devoted to attacking the nomination. Rush Limbaugh this afternoon called Judge Sotomayor a “racist”. Sean Hannity called her a “radical” who had made “outrageous” and “amazing” statements. The liberal sites raced out articles attacking the attackers and defending Judge Sotomayor (Talking Points Memo and The Huffington Post).

The first item that has been circulating about Judge Sotomayor is a statement she made about appellate courts making “policy” during a panel discussion at Duke University in 2005 (note: this clip is lengthier, and provides much more context, than the clips played on most news sites):

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2/1/09: The US Fourth Circuit Court of Appeals hears appeals from federal district courts in West Virginia, Virginia, Maryland, North Carolina, and South Carolina. The Fourth Circuit has 15 judges when all of the judicial positions are occupied. However, 4 of the 15 judge positions are currently vacant. That means that President Obama will be able to appoint those 4 judges.

Appointments to these federal judicial positions require the confirmation by the US Senate. The Democrats control at this time 58 votes in the Senate, through 56 Democrats and 2 Independents (Joe Lieberman, CT; Bernie Sanders VT) who caucus with the Democrats. If Al Franken eventually is declared the winner in Minnesota, which is expected, the democrats will have 59 votes. President Obama only needs 51 votes to confirm one of his judicial nominations. If the Republicans chose to filibuster any of President Obama’s nominations, the Democrats need 60 votes for cloture to cut off the filibuster and force a vote (cloture requires a three-fifths vote of the voting Senators). If the Democrats will be starting with 59 votes, they will likely frequently be able to “peel off” a Republican or two to break the filibuster.

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2/1/09: The National Labor Relations Board (NLRB) consist of 5 members, and the NLRB board issues important decisions on a broad range of union issues.

There are currently only 2 members, so there are 3 vacancies. Wilma Liebman is considered liberal and pro-union. Peter Carey Schaumber is considered conservative and pro-management.

President Obama will be able to fill the 3 vacancies, with a likely significant shift in labor law in the United States.

Prepared by Drew M. Capuder (contact information)