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):

This statement is being used to characterize Sotomayor as an "activist" judge who doesn’t recognize that judges "interpret" (but do not "create") law. Personally, I think that argument is nonsense. Judges all the time analyze statutory and constitutional issues by considering the impact in the real world of their potential decisions. Those are "policy" considerations. For example:

• If an employee has to file a charge of discrimination with the EEOC within 300 days of the "unlawful employment practice", does that mean 300 days of the negative performance review that results in lower pay for the employee, or within 300 days of each pay check the employee receives pursuant to the negative performance review? That was the issue in Ledbetter v. Goodyear Tire & Rubber Company, 550 U.S. 618, 128 S. Ct. 2162 (2007).The Supreme Court in Ledbetter made a number of policy-based arguments in favor of its limitation rule, including discussion of a "policy of repose" which makes it "unfair" for the wronged party not to put the employer on notice of a claim within a specific period of time. See my discussion in this blog of the decision.
• If employment discrimination law prohibits retaliation against an employee who opposes discriminatory conduct, what is the level of severity of the employer’s action that is necessary for the courts to recognize a retaliation claim? That was the issue in Burlington Northern & Sante Fe Railway Co. v. White, 548 U.S. 53 (2006).  The Supreme Court examined a broad range of policy considerations that focused on the burdens on employers of various possible rulings, and whether employee complaints would be encouraged or discouraged by possible rulings. See my discussion in this blog on the decision.

There is simply no bright (or muddy) line between "law" and "policy", and judges routinely formulate the most appropriate rule of law by examining how the various options are consistent with or promote various policy considerations.

By the time a case gets to the level of a court of appeals, the judges are frequently presented with competing policy considerations which the parties will argue undergird a proposed interpretation of a statute or a constitutional provision. For example, in Ledbetter v. Goodyear Tire & Rubber Company, 550 U.S. 618, 128 S. Ct. 2162 (2007), the Supreme Court had to interpret a provision of Title VII of the Civil Rights Act of 1964 which dealt with when a person has to file a charge of discrimination with the EEOC. Within 300 days of a discriminatory performance review in (for example) 2001 which suppressed a woman’s pay checks compared to her male peers, or within 300 days of a discriminatory pay check she received in 2008 as a consequence of that performance review? It would be intellectually dishonest to suggest that the answer was crystal clear from the language of the statute. So the Courts, routinely, examine the policy consideration behind the statute in question. In Ledbetter, here is an incomplete list of the competing policy considerations that were relevant to the Court’s decision, and all of these policies are unarguably reflected in the statute (Title VII) and relevant legal principles:

• The policy that Title VII should provide a remedy to the employee for discriminatory decisions by employers.
• The policy that Title VII should act as a deterrent to prevent future discrimination by employers.
• The policy that claims should be presented with reasonable promptness to give defendants fair notice of the claims.
• The policy that claims should be presented with reasonable promptness because claims can be adjudicated more competently before witnesses, memories, documents, or other evidence fade or disappear.

The Supreme Court in Ledbetter focused on the policies relating to prompt presentation of claims, and ruled that Ledbetter was required to file her charge with the EEOC within 300 days of the discriminatory performance review. The dissent in Ledbetter focused on the remedial and preventive policies in Title VII. Congress then overruled the Ledbetter decision and concluded that the Supreme Court had misinterpreted the relevant provisions in and policies of Title VII. The Supreme court, in its decision, by any reasonable definition, "made policy" in the result it reached. So did Congress.

Stay tuned, and I’ll discuss the Sotomayor nomination in coming days and weeks.

Prepared by Drew M. Capuder (contact information)

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.

Federal court of appeals nominations are usually made from lawyers with significant prior judicial experience. So the pool of lawyers to be considered will likely by the current federal district judges, and, less likely, current state court judges.

Given Presidential history since 1980, the substantial majority of federal judges are appointees of Republican Presidents (20 years of Republican presidency versus 8 years of Democrat presidency).

Of the current 11 judges on the Fourth Circuit, 6 were Republican appointees and 5 were Democratic appointees (although Judge Gregory was a "hybrid" having originally been appointed by President Clinton and then re-appointed by President George W. Bush). You can view a chart on Wikipedia that sets out the lineup of current judges and the Presidents who appointed them

Assuming President Obama fills all 4 current vacancies, then we will have a realignment on the Fourth Circuit to: 9 Democrat appointees, and 6 Republican appointees.

Prepared by Drew M. Capuder (contact information)

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)