Supreme Court Nominee Sotomayor's Cyberlaw Record

Hugh Pickens writes "Thomas O'Toole writes that President Obama's choice for Associate Supreme Court Justice, Sonia Sotomayor, authored several cyberlaw opinions regarding online contracting law, domain names, and computer privacy while on the Second Circuit. Judge Sotomayor wrote the court's 2002 opinion in Specht v. Netscape Communications Corp., an important online contracting case. In Specht, the Second Circuit declined to enforce contract terms (PDF) that were available behind a hyperlink that could only be seen by scrolling down on a Web page. 'We are not persuaded that a reasonably prudent offeree in these circumstances would have known of the existence of license terms,' wrote Sotomayor. Judge Sotomayor wrote an opinion in a domain name case, Storey v. Cello Holdings LLC in 2003 that held that an adverse outcome in an administrative proceeding under the Uniform Domain Name Dispute Resolution Policy did not preclude a later-initiated federal suit (PDF) brought under the Anticybersquatting Consumer Protection Act (ACPA). In Leventhal v. Knapek, a privacy case, Judge Sotomayor wrote for the Second Circuit that New York state agency officials and investigators did not violate a state employee's Fourth Amendment rights when they searched the contents of his office computer (PDF) for evidence of unauthorized use of state equipment. While none of these cases may mean much as far as what Judge Sotomayor will do as an Associate Supreme Court Justice 'if confirmed, she will be the first justice who has written cyberlaw-related opinions before joining the court,' writes O'Toole."

Comments

Cyberlaw

[2names]

Can we please stop with the "Cyber-" every damn thing?

Re:Cyberlaw

[Itninja]

I grow tired of that too. But I think of no more concise way to define laws relating to IT principles. I am open to suggestions however. Maybe, "Elaw" or "Etherlaw"??

Re:Cyberlaw

[frosty_tsm]

NO!

Correction: Cyber-NO!

Re:Cyberlaw

[Itninja]

The nomination of a Chief Justice is not in any way News for Nerds

I disagree. There are many kinds of nerds. It's only presumed that /. is for computer nerds. But there are band nerds, civil war nerds, and even Supreme Court nerds. If you had ever met Nina Totenberg you would know I speak the truth.

Re:Cyberlaw

[Phoenixhawk]

/law

Re:Cyberlaw

[eln]

There are already like 10 threads dedicated to that exact quote. It's been talked to death, and like most things in politics, no one is going to change their minds and everyone is being driven by their own ideology. It's pointless to start a new discussion of it here.

Re:Cyberlaw

[lgw]

If slashdot is not the home of pointless discussions, I've been mistyping the URL for the past 10 years.

Re:Cyberlaw

[bonch]

What did you say? I was too busy surfing the information superhighway for info on the long tail using podcast-enabled Web 2.0 productivity enhancers while blogging and tweeting in the cloud. LOLWUT. THIS. FIXED. AMIRITE? ^_^

Sometimes I wish the internet would disappear. Excuse me, I mean that it should DIE IN A FIRE.

Re:Cyberlaw

[RepelHistory]

Besides, it would take a Supreme Court Nerd to remind you that she's up for the position of Associate Justice, not Chief Justice as grandparent says. That position was filled by Bush's appointee John Roberts. The Chief Justice serves as the chief administrator and spokesperson for the Judicial branch, presides over the impeachment of presidents, gets automatic seniority over his or her colleagues, and has a few additional administrative responsibilities. Associate Justices just vote on cases and write opinions.

Re:Cyberlaw

[sexconker]

Cyber-Correction: Cyber-Correction: Cyber-NO!

Re:Cyberlaw

[AuMatar]

He's waiting for after 2010 to do that, when all current polling shows that the Democrats will have more than 60 votes and be able to break a fillibuster without republican crossovers.

Re:Cyberlaw

[Dragonslicer]

We can't. The nomination of a Chief Justice is not in any way News for Nerds and would not fit anywhere on Slashdot except maybe the Politics section.

Just to make sure that this is directly pointed out, Sotomayor is not being nominated for Chief Justice. That would be John Roberts, who was appointed only a couple years ago, and will likely remain Chief Justice for somewhere around 20 years.

Re:Cyberlaw

[shaneFalco]

As a Supreme Court nerd.... she is nominated for Associate Justice. John Roberts is the Chief Justice and will likely remain so for the next 30 years or so.

Re:Cyberlaw

[Captain Splendid]

take a coupla vicodin with three fingers of rye whiskey

I didn't know Dr. House had a slashdot account.

Re:Cyberlaw

[Captain Splendid]

To be honest I would rather deal with a David Duke or Al Sharpton - at least they are more open about their racism and you know exactly what you are getting.

Shit, you must be great fun at parties.

"Yeah, he raped my wife, but at least he told me he was going to do it beforehand!"

Wait, what?

[SatanicPuppy]

How could he cry unreasonable search on a computer that didn't belong to him? It's the property of his employer, and, unlike a case where he would be leasing it, and thereby be able to claim some contractual ownership rights, in this case it is clearly their property.

I think if there is anything resembling a reasonable search, that's it. You have no reasonable expectation of privacy on a work computer.

Re:Wait, what?

[fm6]

I'm not going to pretend to have the legal expertise, but I can think of situations where a person's legally protected privacy extends to spaces they don't own.

Student locker: The school can search it, but not arbitrarily. The standard is "reliably believe" based on actual information that the locker needs to be searched. Not as stiff a requirement as the "probably cause" the police need to get a search warrant, but still something.

Employee locker: Employer can search it if the employee has been notified through an employee handbook or some such. I got this from the Nolo book "Dealing with Problem Employees: A Legal Guide". This book advises consulting a lawyer before a search of a locker if you haven't made it clear that you reserve the right to do so. This same books says something similar about an employee's right to privacy of communication in their work space: the employer is entitled to spy on employees if they've been warned that spying might happen. Come to think of it, that's awfully similar to the case we're talking about, since workplace computers are primarily instruments of communication.

Rental housing: I'm a renter, and not even my landlord is allowed to enter my apartment without advance notice, except in an emergency. And no, "I wanted to see if he was keeping the place clean" is not an emergency.

Yet another legal principle that's more complicated than people assume it is.

That's what she said

[Bobb Sledd]

"I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion [as a judge] than a white male who hasn't lived that life."

-Judge Sonia Sotomayor

I'm no expert, and usually the last to cry "racist!", but that sounds pretty racially-biased to me.

Re:That's what she said

[Anonymous Coward]

"I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion [as a judge] than a white male who hasn't lived that life."

-Judge Sonia Sotomayor

I'm no expert, and usually the last to cry "racist!", but that sounds pretty racially-biased to me.

Actually, that quote seems to be refuting the idea that race/sex has anything to do with it. She is saying that wisdom+experience wins over non, regardless of sex+race affiliation...

Re:That's what she said

[whiledo]

The key part of the phrase here is who hasn't lived that life. That's the context.

Now there's an understandable difference of opinion on whether the statement about reaching a "better" conclusion based on experiences similar to the plaintiff/defendant is valid, but I don't think it's racially biased in the sense of "race X is better than race Y."

Re:That's what she said

[Naturalis Philosopho]

"...than a white male who hasn't lived that life"

It's called a dependent clause. Learn about it, says a white male (me). I've seen extreme poverty, I've lived around it, and therefore I have some understandings of it. But I don't know it the way someone who's lived it does. And I have no clue what it must be like to grow up as a female. Repeat after me, "I don't know everything."

Re:That's what she said

[sesshomaru]

Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O'Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, I would hope 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.

Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case. I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown.

However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Others simply do not care. Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.
http://www.brianmclaren.net

Re:That's what she said

[MozeeToby]

I believe what she's trying to put across here is that a person who grew up as a poor minority woman is more likely to reach a fair conclusion than an old money white male would. Specifically, I think she's referring here to questions about those issues: poverty and discrimination.

It's equivalent to saying "I think an IT expert turned judge would be more likely to reach a fair decision in technology cases than an a judge that doesn't know how to send email would".

Re:That's what she said

[OverlyGenericUsernam]

To be able to do that, you wouldn't be human.

Re:That's what she said

[scubamage]

I agree with her statement. You expect a rich white man who lives in the Hamptons or Bel Air, and spends his days doing nothing but politicking and playing golf to be able to hand down a just sentence on someone who comes from a completely different part of society? You expect him to fairly judge someone who is starving, homeless, and steals a loaf of bread, and (I shudder at the thought) some baby formula? He has no context or even a remote claim to empathy with that person. He exists completely outside that part of the world and society.

You expect him to be suited for telling a young woman that she has to bear the child of a man who raped her, despite never being in a situation where someone he knew/loved was raped? This is a very real possibility for this judge to have to face.

He'd be fine for passing sentences on white collar offenders, but for those who live in the ghettos, someone from the ghettos will be better suited.

Re:That's what she said

[courtjester801]

On the inverse, would you expect someone starving, homeless, and bearing a child after being raped to fairly judge someone not in that circumstance? Life experiences don't mean squat when it comes to the bench. What experiences I have in life shouldn't matter if I'm called to make a judical call on someone else; it's based on law, not feelings.

Re:That's what she said

[0xdeadbeef]

I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion [as a judge presiding over cases on the violation of civil rights by discrimination based on race or sex] than a white male who hasn't lived that life.

If you're going to insert your own words into a quotation, insert the proper context.

Re:That's what she said

[Thyrsus]

The 60% figure is bogus. Of the thousands of decisions she's made, only 5 have been taken up by the Supreme Court, and of those 3 were reversed, one affirmed and one has not yet been decided. That is similar to the outcome for most appeals court judge decisions: thousands are never taken up by the Supreme court, 70% of those which are taken up are reversed, and 30% of those which are taken up are affirmed. The Supreme Court only looks at cases it seems likely to reverse. Appeals court judges decide the vast majority of cases in the same way the Supreme Court would, so the Supreme Court doesn't say anything about them, letting them stand. The vast majority of the time, the system works.

Re:That's what she said

[courtjester801]

If we're going to spout off insults, the world you live in has way too many emotional nuances to even have reality.

The law 150 years ago wasn't changed due to some decisions of the SCOTUS to consider all humans, human. It was however changed by the will of the people and their legislative officials, as well as the executive branch.

The law 60 years ago wasn't changed due to the feelings of the SCOTUS either, to remove segregation. It was changed due to the unconstitutionality of the laws that were passed. The whole checks and balances thing in play.

SCOTUS in your example: conservative, progressive, liberal, are all political goals, aspirations or choices. I'd much rather have them doing their jobs, being a check in the system so the other cogs don't do stupid shit like enslave half of the country, or whatever comes next down the pike, then try to legislate on the bench (one political direction or the other, it's not their job).

Re:That's what she said

[Estanislao Mart�nez]

It's not quite as blatant as most people are assuming from the one sentence at the end. However, she clearly pits a "Latina woman" against a "white male." That's a very interesting choice. To me, it demonstrates that she has a bit of a bone to pick with "white males." Why couldn't she have chosen, I dunno, an female Arab and a male Indian? Why did she choose her race/gender and the white male.

Because she's talking about the SCOTUS' actual record in deciding cases about gender and race issues when the court was all white male. She's not talking about hypotheticals, she's talking about history. It's right there in the next paragraph:

"Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case."

Secondly, she seems to think that "inherent physiological or cultural differences" come to play in decisions.

Um, no, you're reading that completely backwards. I'll quote that bit again:

"Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging."

The key word there is "whether." That sentence is not endorsing either inherent physiological or cultural differences"; it's disclaiming the assumption of either, for the sake of the point that she's making.

Re:That's what she said

[fm6]

Excuse me? Did she say Latinas are smarter than other groups? More qualified? Or "better" in any way? No, she's saying that a Latina is likely to contribute life experience that makes for a better decision-making process than a court that's populated entirely by WASP Yale graduates.

There are many times when the needs of an institution are not served by a simple merit-based approach. For example, the leading universities could fill every freshman class if they only admitted straight-A students from high schools with excellent academics. But they don't do that, because that would result in a student body with a very narrow cultural background. Even without Affirmative Action, they need to mix things up a little.

(I'm reminded of Brandeis University, which has a primary goal of providing an education to observant Jews whose strict lifestyle would isolate them at most universities. Which wouldn't work very well if there weren't a big non-Jewish population on campus. I don't know the numbers, but they do have Catholic and Protestant churchs on campus. And how do you get enough non-Jews to enroll in such an institution if you don't give some of them a leg up?)

Then there's the military. During the Vietnam war, enlisted military were disproportionally racial minorities. (Still true, but not so much, now that we no longer have a draft you could avoid just by going to college.) Officers were almost all white, and mostly from relatively privileged backgrounds. This was a bad situation, and it had bad results. So now the military is very pro Affirmative Action, especially when it comes to admission to colleges with ROTC programs.

A more personal example: I'm a technical writer. In my opinion, a good technical writing team has a lot of technical expertise, but needs at least a few non-techies to ask the techies "stupid" questions. (Stupid questions are very important to good technical writing, if the person asking them is smart enough to ask the right ones!) Most tech writing teams have the opposite problem, but I've been on teams where all the writers had strong technical backgrounds, and the lack of stupid question asking did hurt us. In such a situation, suppose you have two potential hires, and the more qualified one is a techie, while the less qualified one (say, somebody who's smart and has good training, but not much experience) is technically naive. I'd vote to hire the non-techie.

Not picking the most qualified person may not be "fair" but the effectiveness of an institution is more important than the fairness of how you select its members. And when you consider the cultural background of a potential new member, that may be unfair to those better qualified. But racism? No.

Re:That's what she said

[swillden]

Of the thousands of decisions she's made, only 5 have been taken up by the Supreme Court, and of those 3 were reversed, one affirmed and one has not yet been decided

According to CNN's list she's had eleven cases decided by the Supreme Court. Of those, eight were reversed, and of the three upheld two of them were upheld in spite of unanimous rejection of her reasoning. I'd put "got it right by accident" in the "got it wrong" category, myself, so the Supreme Court said she got it wrong 10 out of 11 times.

And it seems very likely that the Ricci case will soon make it 11 out of 12.

Re:That's what she said

[swillden]

I'm more concerned with her competence than her politics. In particular, the four unanimous rejections of her reasoning, from a court that would split 5-4 on the color of the sky.

Re:Goodstart I suppose

[gubers33]

Is she really that knowledgeable though? Some of the decisions make sense, but Specht v. Netscape Communications Corp. she ruled in favor of Specht just because the license terms were behind a hyperlink on the webpage. I feel like this is exactly like not reading the fine print on a paper document. Just because someone neglects to read the terms when they are readily available they aren't obligated to follow those terms. I'm just saying the two are very a like, but if she thinks the hyperlink is not readily available then she definitely is not that knowledgeable on technology.

Re:Bigger question than her tech positions

[morgan_greywolf]

Just proves I really don't understand the progressive mind. I really wish you guys could settle what the rules are in such a way you could actually enumerate them in public. Which of course is exactly what will never happen because to speak them would give up the game as any sane person could only laugh.

Racist and sexist speech are politically incorrect, but only when the speaker is white and male. All others may proceed with their bigotted remarks; often these are deemed to be funny.

Re:Goodstart I suppose

[Naturalis Philosopho]

It's not whether or not it's available, it's whether an average person would scroll down, follow the link, read it, understand it, and consider it a legally binding contract. That's what a lot of contract law is about: defining what things mean so that both parties can reasonably be expected to understand and therefore be held to the meat of the contract. Right?

Re:Goodstart I suppose

[2short]

If you can get what you want from a web page, do you scroll down to see if there is a hyperlink going to some fine print? Before you posted, did you scroll to the bottom of this comment page to see if there was any such link?

On a paper document, the fine print comes before the place you sign. You might not read it, but you know it is there. If you want people bound by your terms, online or on paper, you don't have to make sure they read them, but it is up to you to make sure they know they are there.

In any case, there's no lack of knowledge here. She knew exactly how accessible the terms were, whether you disagree about the legal implications of that accessibility or not.

Re:Overturned?

[staeiou]

60% of her decisions that were appealed to the Supreme court were overturned. Was this one of them?

The Supreme Court overturned 68% of all cases it decided to hear last year (and 74% the year before that!), so she actually is below average in terms of reversals. But you're confusing appealed with heard - every decision gets appealed to the Supreme Court, if the client still has money to pay for the lawyer. She only had 1.2% of her decisions overturned, which is a far lower figure.

Source: Newsweek http://www.newsweek.com/id/199955

Re:Bigger question than her tech positions

[timeOday]

Probably because it's the majority group that generally has the power in society to enforce prejudices by denying housing, voting rights, employment, etc.

Anyways, I would like to know if she is actually racist, as evidenced by the rulings she has made? So far all I have heard is one or two statements from a talk (not a legal proceeding) a number of years ago. It's silly to base one's opinion on that, when she has gone "on the record" through her rulings countless times. If she has made racist rulings, then we don't need her on the bench.

First Judge That Has Made Any Sense

[Fantom42]

This is the first judge (featured on Slashdot) who I've read that has written opinions that made a lick of sense.

Wow.

Re:scroll down

[_xeno_]

Read the linked decision - this didn't say that you don't have to read past Page 1, it said that only informing the user of the existence of licensing terms if they scroll to the very bottom of the page doesn't make the terms binding.

Essentially, if the plugin installer used a "clickwrap" license - as explicitly stated by Sotomayor in a footnote - it could have been binding.

But instead, there was a single sentence at the bottom of the page: "Please review and agree to the terms of the Netscape SmartDownload software license agreement before downloading and using the software." Installing the plugin didn't show the license, and if you didn't scroll down past the download button, you wouldn't see anything about the license.

You should read the ruling, it seems pretty clear to me that Sotomayor did indeed know what she's talking about and came to the correct decision.

License, not Contract

[Thyrsus]

From a quick reading of the decision, this was a license *not* a contract. And instead of making people click an "I Agree" button, the license link was non-obviously tucked away. The defendants did not present sufficient reason to overturn the lower court ruling. In my non-lawyer opinion: ggod decision.

Re:Overturned?

[Kozz]

Hush! You're cluttering the emotional, reactionary and contrarian arguments with the facts!

Mod parent up

[Reality Master 201]

Context matters, and if you pay attention to everything she said, it's not really racist at all.

Sadly, complex thoughts and context don't seem to fare well in the minds of many people these days - maybe it's because they don't make for quick, easy to digest sound bites.

Re:Goodstart I suppose

[Jeng]

As long as the lawyers can shop around as to which district they can sue in then the lawyers will still purposely find the stupidest judge for the case. So its kinda a weakest link sort of situation.

She has no respect for private property

[MalleusEBHC]

It's not tech related, but everyone should read up on her Didden v Port Chester case. I used to think Kelo v New London was the most disgusting eminent domain ruling, but Didden puts it to shame.

Re:She has no respect for private property

[Todd Knarr]

I found Kelo v. New London to be eminently correct. All it said, after all, was "Yes, the local government does have the power of eminent domain. The law giving it to them doesn't place any restrictions on it. If the people want it limited, they need to change the law to add limits. It's not the court's place to rewrite the law.".

Big Lie

[Estanislao Mart�nez]

60% of her decisions that were appealed to the Supreme court were overturned.

This statistic is a big lie, in that it fails to put the number in a correct context; see this article.

So yes, 60% of her decisions that the Supreme Court reviewed were overturned. The problems are:

1. that 60% comes out to 3 out of 5, literally;
2. 60% is actually a below average rate of overturns of reviewed cases;
3. the 60% figure doesn't count decisions of hers that the SCOTUS declined to review (and thus allowed to stand);
4. the statistic used would count a 9-0 overturn the same way as a 5-4 overturn, when they just don't mean the same thing.

Re:Bigger question than her tech positions

[Etrias]

By "this bigot", I assume you are referring to Sotomayor? By calling her a bigot, I assume that you are referring to her comment about Latinos which has become the rallying cry of conservatives saying she's unqualified because she's "racist"?

Here's the thing I don't understand about some people (I'm just going to use your comment because it so perfectly illustrates my thought). In one way, you get smug about your obvious conservative position (highly likely that you tell people that you're not really conservative, but rather libertarian) and say that you want the other side to define their position, then immediately dismiss it as being ridiculous.

Internet society has allowed us to create our own echo-chambers, listening over and over again to "your side" and dismissing the other side as just wrong--never really hearing the other side, just straight dismissal. And it is easy in this day and age to do so. Instead of being in a society and a community where you every day experience and deal with opposing opinions, we voluntarily shut ourselves out. It's easier to dismiss people who you don't agree with. I don't understand how we can get past this where people like you who have made up your mind will listen to others of opposing views.

Public figures face enormous scrutiny, expanding by leaps and bounds every year as recordings seem ubiquitous and YouTube makes it easy to post anything. How well would you do in today's society? I wouldn't likely do well. I would rather look at her opinions and judge from there. That, after all, is what is important in this case.

Anyway, this is just a rant and I'll probably get modded down for off-topic or worse. I just don't see how we go forward in a society when we refuse to listen to someone you don't agree with.

Wrong, 60% figure totally meaningless

[SuperKendall]

Well, 60% of her decisions have been overturned... some by the Supreme Court Justices she will join... so...

That figure is dramatically incorrect - read Powerline's take on this, certainly no friend of hers. An excerpt:

"It relates only to Sotomayor's decisions as to which a petition for a writ of certiorari was granted by the Supreme Court--a total of only five. (The overwhelming majority of such petitions are denied.) Of the five cases in which the Supreme Court granted the writ of certiorari, it reversed three. Not only is this a ridiculously small sample, the overall rate of reversal of cases in which the Supreme Court grants cert appears to be around 70 percent."

Even if you do not approve of her (I myself am neutral) that's not a good figure to quote.

Re:Bigger question than her tech positions

[hardburn]

She did not rule to deny the promotions regardless of the test results. She ruled that the city had the right to throw out the test results if they so choose.

Sotomayer is a nightmare

[fyngyrz]

She's an outright constitutional nightmare, chief or associate position notwithstanding. Exactly the kind of thinker who erodes the constitution at a terrifying pace. Her history as a judge contains an amazing number of constitutional misinterpretations, misrepresentations, and outright bewilderment.

Odds are excellent that's she's going to be confirmed, though; get ready to bend over for "enhanced legislation." The light in this tunnel is definitely a train.

Re:Sotomayer is a nightmare

[commodoresloat]

That's a very one-sided view of Sotomayor's record on constitutional issues. I share your concerns but I think she's very much a case-by-case jurist and concluding from these cases that she's a "constitutional nightmare" is a bit extreme. Here's a much more detailed and careful rundown of her first amendment rulings than the link you gave, which only mentions the infamous "douchebag" decision. I agree that's a pretty sad decision in terms of student first amendment rights, but she's also got the Guiles v. Marineau case to her credit on the same issue (the difference being the latter more obviously dealt with clearly political speech). I agree Sotomayor raises cause for concern, but calling her a "constitutional nightmare" is a bit hysterical.

Re:Sotomayer is a nightmare

[fyngyrz]

I agree that's a pretty sad decision in terms of student first amendment rights, but...

No, sorry, I'm not going to give her first amendment credit because she sometimes gets some parts of it right. Not to mention the fact that she fails hard in several other constitutional areas (which the blog post also points out.) Her entire job is to get all of it right all the time. It's plain English, for crying out loud:

"...shall make no law... abridging the freedom of speech"

This applies within the states via the 14th amendment's incorporation doctrine. For a judge to misunderstand that they either have to have a major head injury or be an outright traitor to their oath. How is it that I, a common person, easily understand this, and this "wise latina" (her own characterization, not mine) does not???

She definitely doesn't deserve to serve as one of the nine final arbiters of 1st amendment rights if she thinks muzzling young people's speech and opinions outside of school by enforcement actions inside of school is an appropriate use of government power. She directly creates an environment here where a person's free speech outside of school will engender thoughts (and correct ones, at that) of government punishment and intervention. The woman is a constitutional nightmare.

Re:Sotomayer is a nightmare

[number11]

Her entire job is to get all of it right all the time. It's plain English, for crying out loud:
"...shall make no law... abridging the freedom of speech"

Agreed. But conventional wisdom is, that's a radical bomb-thrower nutcase position.

She's "mainstream" (i.e., "doesn't entirely get it") on the First Amendment. But none of the other 8 Justices gets it, so what is it that makes her so much of a "constitutional nightmare" in comparison? Can anyone say with a straight face that she'd be as bad as Scalia or Thomas?

There is no, repeat, no chance of getting a First Amendment absolutist appointed to the Supreme Court.

Re:Sotomayer is a nightmare

[Repossessed]

Criticism of government employees (the targets of the douche bag comment) isn't political speech?

Re:Sotomayer is a nightmare

[fyngyrz]

But conventional wisdom is, that's a radical bomb-thrower nutcase position.

I don't buy it. Conventional wisdom among who? Almost no one I know - and that's quite a few people - subscribes to the idea that the US government -- at any level -- should repress speech and opinion. My impression is that is just propaganda we hear from the government itself. Who do you consider "conventional"? Old USSR expatriates? Saudi Shaikhs? Colonel Gaddafi? Sonia herself? Seriously, who can you point to that supports the government should suppress free speech and opinion position such that you characterize it as "conventional"? Do you think that because the government says so, it must be so? They lie, you know -- they lie a lot.

There is no, repeat, no chance of getting a First Amendment absolutist appointed to the Supreme Court.

Well, there certainly isn't if people are passive in the face of the appointment of known to be constitutionally destructive judges. Are you suggesting I just say "well, she's only confused on about half the amendments and the commerce clause, so, "Hurray Obama"? Or that I pimp her as a good idea because Scalia is a complete and utter idiot and she isn't? It isn't like she's going to replace him, you know. Why shouldn't I push for someone better than her, since she has such obvious and profound warts? I'm sorry, I just can't see your POV here.

what is it that makes her so much of a "constitutional nightmare" in comparison?

The fact that it isn't just the first amendment she screws up on. She screws up on the commerce clause; she screws up on the 2nd amendment (and badly, and even according to the most recent SCOTUS ruling); she screws up on the 4th amendment; she screws up on the 5th amendment.

That is why she's a constitutional nightmare. Add to that the fact that she thinks she's a "wise latina" (oh, brother) and that her POV is inherently better than that of a "white male." She doesn't even belong on the bench, never mind on the bench of the highest court in the land, as far as I'm concerned. Do you really want to get her in there and see how much of what remains of constitutional principles she completely misinterprets?

Re:Sotomayer is a nightmare

[number11]

I don't buy it [that conventional wisdom is that it's a radical bomb-thrower nutcase position to hold that the government may not restrict any speech]. Conventional wisdom among who? Almost no one I know -

You must not get out much. The "falsely yelling fire in a crowded theatre" opponents, the people who believe in laws against libel and slander, people who believe that there should be penalties for false claims in advertising, people who believe that threats of violence (and not just the acts themselves) should be against the law, that it should be prohibited to advocate the positions of Al Quaida or Hamas or Nazis or Communists or anarchists or whoever the bete de jour is, that it should be prohibited to write fiction that involves children in a sexual way... It's a long list. AFAIK speech in the US (and everywhere else) has always been regulated in one way or another, the 1st Amendment notwithstanding. So yes, the 1st Amendment, as written, is an extremist position. That doesn't make it bad, but it does make it unconventional.

Why shouldn't I push for someone better than her, since she has such obvious and profound warts?

No reason, it's just that you seemed to be pushing against her, not "for" anybody. So, assuming you do have a clue, who are you pushing for?

Re:Sotomayer is a nightmare

[fyngyrz]

Most issues that come before the Court are not as clear cut as you seem to want them to be

I think most actually are, once you strip the illegal modifications that have been made to the legal system. Once the question is down to what the constitution actually says, the answer is pretty much staring us in the face, until we begin to pretend that "interstate" means "intrastate" and "reasonable" is undefined, and "make no law" means "make law", and "shall not be infringed" means "infringe all you want at every level", and "be secure in their persons, houses, papers and effects" means "unless we decide to look", and "shall not be deprived without due process" means "indefinite jailing on a whim", and "nor shall be compelled in any criminal case to be a witness against himself" means "waterboard 'em, fuck 'em with a lightbulb, rape 'em, stick electric prods on their gonads", and "the right to a speedy and public trial" means "half a decade in prison without even a bloody phone call", and "no cruel and unusual punishment inflicted" means "make our prisons the involuntary ass fuck center of the universe", not to mention "waterboard 'em, rape 'em, torture 'em, isolate 'em, deny them representation, trial, due process of ANY kind..."

No, I think these things are pretty damned clear, actually. I just think our justice system and large swaths of our government are comprised of evil and/or deluded people. If you'd like, throw me a court case you think isn't clear or that I would find difficult to determine the constitutionality of the issue at hand. I'll be happy to see if I agree, and tell you why.

By your standard there is no Supreme Court justice on this Court who isn't a "Constitutional nightmare." I'm not sure there ever was one.

Is that a reason not to seek them? In fact, I have to ask, why do you even think that's germane?

what decision did she make "without regard" to the Constitution

More than one. For instance, the constitution CLEARLY protects all speech, political or not, by unequivocally forbidding the government from interfering with it. Yet she supported the use of government power to repress that speech. If you think that decision was made with regard to what the constitution authorizes the government to do, then you're very confused. There is no such authorization; not anywhere in the main body, not in the first amendment, and not in any other amendment. I think what you may be trying to say is that she may be putting reliance on the existing body of unauthorized law which imposes unauthorized power, but that is not at all the same thing as doing what the constitution authorizes her to do, or refraining from doing what it forbids.

That's not all, either. One case pointed out (quite correctly) that the use of a telephone for a local, intrastate call did not fall under the authorization of the commerce clause, which ONLY authorizes regulation of commerce BETWEEN the states. She decided wrongly there, as well. She thinks the 2nd amendment doesn't apply to the states. Even the majority of the current SCOTUS don't agree with her there; that's just idiotic (and yes, there are a lot of similar idiots out there, but they're uniformly and without exception people who cannot support that position. No one can, because the 2nd is, in fact, crystal clear.) You want to try and argue for her position on the 2nd, I'll be happy to completely and utterly destroy your arguments, point by point, with references. :o) And so on.

"Constitutionally invalid" is nonsense

No sir, it is not. If the constitution says "the government can't do this", then it isn't authorized to, until or unless it has been changed via amendment. Doing said thing without authorization is unauthorized use of power, and is no different in character from the actions of any tin pot dictator you woul

Re:Sotomayer is a nightmare

[commodoresloat]

Oh no, I get your point loud and clear. My point is twofold: (1) you confuse disagreement with idiocy or with not understanding the constitution. That is itself idiotic; what you don't seem to understand is how common law works. The fact that the only good candidates you can think of for the Court position are yourself and some guy with an English degree but no law experience whatsoever speaks volumes. (2) you don't seem to realize that your view, as admirable as it may be, is a radical fringe view that bears no resemblance to anything in twentieth century jurisprudence. You think ideology trumps the facts of the case -- I'm sorry, but I don't. That makes every case easy for you to judge, perhaps, but that's one good reason we don't put people like you on the Court.

Re:Sotomayer is a nightmare

[nomadic]

The list of badly thought out rationalizations to prohibit free speech is indeed long, but the number of people who subscribe to them that I know is not large. Admittedly, I live in an area where even the state government has rejected the federal position on many of these issues -- we have laws *against* eminent domain, *against* federal firearms authority,

You think a state can outlaw a federal authority? Interesting...

The legal system is being driven by people in violation of the highest law in the land. Fact.

Actually, that's opinion. You can't make something fact by saying something is fact.

If the nation really wanted a really good SCOTUS justice, it should obviously pick me. I'd protect rights as written in the constitution

You presumably don't have legal training and your post evidences a fanaticism and paranoia that would not serve you as a justice. The Constitution is ambiguous, intentionally so, and interpreting takes more background than reading through a list of libertarian talking points.

I suppose if I had a choice in the matter, I'd probably pick a thinker like Nick Gillespie. But I don't.

Thinker? Reason Magazine is a bastion of shoddy thinking and dishonest analysis. Rather than honestly analyze issues, they start with an ideological position and then massage the facts to fit into that ideology. Most of them would make lousy Justices too.

Re:Sotomayer is a nightmare

[DigiShaman]

think a state can outlaw a federal authority? Interesting...

You know, Texas just might leave the union (with other states not far behind) in the next eight years if our nation's situation doesn't improve at the federal level. It started with FDR for sure. But honestly, power corrupts. If not for FDR, I'm sure someone else would have taken his place to forge a similar path ahead. Our nation was bound to fail as quickly as it was formed. The rise and fall of nations is part of what defines us as humanity at work.

Seriously, does anyone think China, Africa, Middle East, and Europe will still have the same national status and legal system in the next hundred to a thousand years? America is not immune to another revolution, (or two, or three etc) in the future.

Re:Sotomayer is a nightmare

[Omestes]

You know, Texas just might leave the union (with other states not far behind) in the next eight years if our nation's situation doesn't improve at the federal level.

On the behalf of the rest of the nation; is that a promise?

Good. I wouldn't miss Texas, nor much of the South or Bible Belt. I'd be thrilled if they formed their trickle-down theocratic wonderland, and leave the rest of the US in peace. They could call themselves the United States of Backwardia.

I don't think Texas has much going for it in the constitutional sense, they kill a lot of people, they really like their religion, and to enforce it on others, etc...

To the rest of the South, and sane Texans, your more than welcome to join the rest of us. I know there are sane people over there. The generalization was for humor. Though it would be nice if all the "red state"-Limbaugh folk left the rest of us alone.

-this post was bought to you by beer and fatigue.

Re:Sotomayer is a nightmare

[cayenne8]

"Talk about screwing things up -- you're just repeating right wing talking points here and they're not even close to true. Read the full speech [nytimes.com] in context."

If a white man had said the same thing she did, but, in reverse with a white man making better decisions that a latin woman, he would have been crucified at least 3x by now...and immediately disqualified.

Why the double standard with this woman?

Re:Sotomayer is a nightmare

[TheoMurpse]

Riddle me this:

1. Do you believe nonverbal communication/expression is speech? If not, then diaries and handwritten letters are not protected, as they are neither verbal nor "the press" for First Amendment protection. We're done with the inquiry. If you believe they are, continue to number 2.

2. Murder is nonverbal communication of the idea "I want you to die." Under your absolutist approach, illegalizing murder is unconstitutional. We're done.

A better way to look at it is to look at historical practices that were constitutional as far as the Founding Fathers were concerned and treat those as persistently constitutional (laws against libel, slander, copyright infringement, etc.) unless they step beyond their historical bounds.

In any case, you make an ill-informed argument about the Constitution. First of all, it's pretty obvious from history that libel/slander laws were intended to remain constitutional. The Founding Fathers endorsed such laws. If the guys who wrote the Constitution believed they were constitutional under the document they themselves created, does that not strike against your absolutist position? Unless, of course, you wish to claim that the Founding Fathers were terrible draftsmen and the Constitution itself is a poorly written document.

Second of all, after drafting the Constitution, the Founding Fathers were tasked with convincing their individual states to ratify the Constitution. Each interpreted the Constitution a different way. Hamilton, Madison, and Jay argued for one interpretation of the Constitution in New York. For one thing, they argued the Bill of Rights were unnecessary because the Constitution didn't give the federal government the right to infringe, say, the freedom of speech, so the First Amendment was unnecessary.

The Anti-Federalists, on the other hand, argued strenuously for a Bill of Rights. Some of its more illustrious members were S. Adams, Henry, and Mason. They argued that without a Bill of Rights, the government would be too powerful (i.e., the Constitution sans Bill of Rights did not protect certain liberties the Federalists believed it did). This argument was sold in particular to Massachusetts and even affected the way Massachusetts ratified the Constitution: by attaching to its ratification a recommendation that a Bill of Rights be added.

So we see that the states ratified the Constitution under different understandings of what the Constitution actually means. How can we have one authoritative interpretation of the Constitution when the very basis for ratification is so wildly different?

Re:Sotomayer is a nightmare

[Uberbah]

There is no "double standard", only wingnuts focusing on glittering trivialities. Sotomayor was speaking in the context of racial and sexual discrimination - something that white men have never had to deal with in this country. So your "what if I white man said the same thing" wouldn't have the same context, and thus a completely irrelevant comparison.

Re:Bigger question than her tech positions

[syphax]

I explain:

1. It is logical that it is more egregious for a member of a historically dominant group (that previously denied other members of its society from voting, considered other members of its society as property, etc.) to make statements that appear to support reasons for that dominance.

2. Larry Summers is currently one of the most powerful people in the US; his comments didn't exactly torpedo his career (many people at Harvard hated him for reasons far beyond his gender comments; the latter were just the spark the kindling needed).

3. Sotomayor did not assert "there are fundamental differences between both the genders AND races[1] as if it were a settled fact." In the quote that everyone is hot and bothered about, she spoke about how her experiences that were due to her gender and ethnicity might shape her decisions. If you don't get why such experiences might matter, I ask you this- what would have happened if Frederick Douglass had been on the court for Dred Scott v. Sanford?

4. Here are some key excerpts from Sotomayor's speech:

Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case. I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown.

However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Other simply do not care. Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.

5. Horrified by #4? How about Justice Alito, during his confirmation:

When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account. When I have a case involving someone who's been subjected to discrimination because of disability, I have to think of people who I've known and admire very greatly who've had disabilities, and I've watched them struggle to overcome the barriers that society puts up often just because it doesn't think of what it's doing -- the barriers that it puts up to them.

I know some white males (full disclosure: I am a white male) like to pretend that we live in a race- and gender-blind society, but we don't.

Re:Overturned?

[Todd Knarr]

Just remember this though: the Supreme Court (and in fact the Appeals Courts) generally only agree to hear cases where they think from the filings that they're going to want to overturn the ruling. If they agree with the ruling, they generally simply refuse to hear the appeal. So just on that alone you have to expect the SC to overturn more often than not.

More interesting are two other statistics: how many of the cases she ruled on were appealed, and how many of those did the Court agree to hear? She made 232 appellate rulings, of which the Supreme Court reviewed 5 and overturned 3. Turning that into percentages, in 97.8% of her cases either the losing party couldn't find anything to justify an appeal or the Court agreed with her ruling. The Court only found reason to look at 2.2% of her rulings, and disagreed with only 1.3% of them. That's a pretty solid record.

Re:Overturned?

[Tibor the Hun]

I don't understand, are you saying he's a latina, and not a white male?

Re:Yep, that's rasism.

[Captain Splendid]

How can you presume to know what experiences even someone who grew up around money had?

I can. I grew up around them, as that's who my dad worked for. In general, the most horrific bunch of hideous, unhinged zombies I'll ever have the pleasure to meet. No skills, no manners, no intelligence (no need, really, in this world, it's all about connections), and zero idea of how 99.99% of their fellow humans live.

Not that it should be a requirement for rich people to be cognizant of how everybody else gets along, but insularity breeds contempt, so it's on them.

In short, rich white people* are fucking clueless, and I've certainly don't want some freak oligarchy being the one that calls the shots, especially when they're so woefully unprepared.

*Plenty of non-white rich assholes too. Though, to be fair, there's a certain curiosity still present in most cultures that the anglo ones I've experienced just don't have as much.

It is the distant future, the year 2000.

[protein folder]

We no longer say "yes", we say "Affirmative!" Unless we know the other robot really well.

Re:It is the distant future, the year 2000.

[sexconker]

Finally robotic beings rule the world.

Re:Bigger question than her tech positions

[jmorris42]

> You assume she's a member of "La Raza" (a supremacist group) just because she's latina?

No, I am taking the American Bar Association's word for it. Being published in the Berkley La Raza Law Journal isn't final proof, but if ya can't trust the ABA to know basic facts about a sitting Federal Judge could somebody explain why we take their opinion on appointments seriously?

> So you also assume that all white males are members of the KKK?

Again, no. Ones that open their chowhole in public to spout nonsense about white supremancy? Yup.

Re:Bigger question than her tech positions

[ptbarnett]

You assume she's a member of "La Raza" (a supremacist group) just because she's latina?

In addition to her work on the bench, Judge Sotomayor is an adjunct professor at New York University School of Law and a lecturer-in-law at Columbia Law School. She is a member of the American Bar Association, the New York Women's Bar Association, the Puerto Rican Bar Association, the Hispanic National Bar Association, the Association of Judges of Hispanic Heritage, and the National Council of La Raza.

Re:Bigger question than her tech positions

[Kerrigann]

I understand what you're trying to say about equality being blind, and I agree with you, but... talking about a world without prejudice is like the scientist saying "imagine a spherical cow...".

You seem to have a chip on your shoulder when it comes to gay people (this post, and a few of your previous posts). Do you think this is influenced by your experience? Do you have any gay friends? No? Do you think that might influence your decision in regards to a court case on, say, "Don't Ask, Don't Tell"? I'm gay, and as much as I would try not to, my background would influence me.

So, what do you do? You can either balance the equation by ensuring diversity, or you can ensure perfect application of logic. I like your idea of Vulcans on the court btw... (the REAL vulcans, not the "I'm gonna get mad and hit people every 20 seconds vulcans" :)

So, is anyone who suggests diversity as a... say... first step, automatically an "evil progressive"? I don't doubt that there are people out there who fall into this category. But, like the Sotamayor said, there have been an awful lot of otherwise logical people who have made decisions that, in hindsight, look an awful lot like prejudice.

Can you go to far? Absolutely. I'm fairly liberal, but I'm no real fan of affirmative action (also female, so would benefit from it). Was it necessary at one point? Maybe...

Now back to Sotamayor's comment... After reading the whole piece, I think I understand what she was trying to say, but it wasn't a great way of saying it. Saying she's a no better than a white supremacist? maybe a little too far...

I guess I'm really just repeating the parent's arguments. You seem like an intelligent person, and I like hearing intelligent people with different views than mine... but after reading your posting history, I think I'm the sort of person you hate.

I'd like to think that I'm a member of camp A by your definition. I'd also like to think that our goals aren't really all that different, and that we don't have to be angry at each other. Maybe I'm dead wrong, and I'm just a progressive hippie lesbian liberal whacko?

That does it

[2names]

I'm laying off the CLI for a while. I just read your comment and wondered what the hell a "misty ping" was.

Re:Well, now!

[realnrh]

Points repeatedly debunked already on this page. The paraphrase is inaccurate *and* taken out of context (since she was discussing a bad decision made by Oliver Wendell Holmes), and the 'overturn rate' is both factually inaccurate, a misquote of the original inaccurate claim of 60%, statistically insignificant, and actually represents a better success rate than the average of cases that reach the Supreme Court anyhow. Talk radio might let right-wing talking points go unchallenged, but it's a lot harder to make a claim stick without facts when you can't cut off the other guy's microphone.

counter racism

[sikanappikiisseli]

To figure out, if her comments were racist, just think about the reverse situation: a white male giving a similar statement.
This would have blocked the nomination of this person right there.

The US needs to get rid of reverse racism, which shows up in many places. For example, scholarships only to certain races etc. Again, think if one would be offering a scholarship to only white people or something similar but somehow it is OK to offer there to hispanics or african americans (and before you bring in poor economic background etc., one should make such scholarships dependent on their income NOT race). I grew up in Europe where these sort of things would be highly illegal.

Everyone must be treated equally regardless of their race! If things were messed up in the US in the past, the solution is not to go to the other extreme.

Re:Bigger question than her tech positions

[Monsuco]

Just because you don't like that a bunch of white men lost their case does not mean the law said they should win or that she misinterpreted it.

The 14th Amendment states that nobody can be denied "equal protection under the law". The fact that she ruled that it is legal for a city to decide to throw out a test on the basis of race is disturbing. Add to that her statements on how a "wise latina woman" would render a better verdict than a white male and her nomination appears troublesome. While this point has been brought up before, I think it bears repeating; imagine if someone like Scalia had said a white male would make a better justice than a latina woman, the Senate would have a cow at such a nomination.

I hope the Senate can remain civil about the Sotomayor nomination but still leave it open to questioning. The Senate has occasionally gone into hissy fits over SCOTUS nominees. In particular the case of Reagan's failed nomination of Robert Bork (Reagan eventually successfully nominated Anthony Kennedy) and Bush41's successful nomination of Clarence Thomas Democratic Senators turned the process into a circus of personal attacks. Clarence Thomas, who is black, refered to the largely baseless series of bizzare allegations of sexual harrasment and personal attacks as being nothing more than a "high tech lynching". During the Bork nomination Ted Kennedy issued a series of very personal attacks, Bork's video rentals (of which there was nothing interesting) were spied on, and a large number of attack ads were run by various left wing special interest groups. At the end of either case, the public was left wondering if the Senate had been abusive of its "advice and consent" powers. Hopefully in the Sotomayor case, Republicans can get some answers without engaging in similar tactics.

I do hope that we can get some answers, the current knowledge we have of Sotomayor makes me uneasy.