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Sonia Sotomayor

A few more notes on the case already covered yesterday in tweet form:

Scalia sets the stage beautifully: “[In this] jurisprudential twilight zone… we confront a frighteningly bizarre question: does the Equal Protection Clause of the Fourteenth Amendment forbid what its text plainly requires?” The drama, however, is not destined to play out on that rhetorical stage, since all eight Justices, even Sotomayor and Ginsburg, claim to believe that the Equal Protection issue is only whether Michigan citizens chose a constitutionally valid method by which to end preferences.

To me, this much increased the interest of the case. The constitutionality of racial preferences as such has been thrashed out for years in so many high-profile Court decisions that anyone who cares has had ample chance to think about the issue. There has been far less attention to the unprincipled, un-administrable, substance-masquerading-as-procedure Reitman/Hunter/Seattle line of cases, by which the Court occasionally and selectively intervenes to reverse democratically arrived-at processes when they come out with the “wrong” policy answer. Scalia and Thomas are ready to overrule this bad line of cases directly; the plurality, for better or worse, are not (yet) willing to do so, and instead limit the cases’ reach in ways that neither Scalia nor Sotomayor find logically compelling.

Sotomayor’s mantra “Race matters” is likely to thrill some readers — it has already been in use for a while as a catch-phrase in academia and elsewhere — but as a device for organizing a legal opinion, it’s at best … imprecise. All the other Justices agree that race matters, but disagree on how. As Ilya Somin and David Bernstein point out at Volokh Conspiracy, Sotomayor also gerrymanders “race” in a way convenient to her purposes, using it to include Hispanic-Americans (who aren’t a race) while breathing not one word about Asian-Americans (a more genuine racial classification whose situation of being both historically disadvantaged *and* discriminated against in university admissions cries out for recognition). “Race matters,” indeed. More thoughts: Roger Pilon and Ilya Shapiro, Cato. (adapted newer version at Cato at Liberty, and thanks for SCOTUSBlog mention).

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Yesterday the U.S. Supreme Court, over two dissents, ruled that the voters of Michigan were within their rights under the Constitution’s Equal Protection Clause to enact an amendment to the state constitution barring racial preference in public university admissions. (Earlier here, here, etc.) Justice Kennedy wrote a plurality opinion for three Justices, while Justice Scalia, joined by Justice Thomas, Justice Breyer, and Chief Justice Roberts wrote separate concurring opinions. Justice Sotomayor dissented, joined by Justice Ginsburg, and Justice Kagan was recused. Both sides maintained that the core controversy was not over whether Michigan was obliged to keep racial preferences as such, but rather over whether the state’s way of banning them (through voter constitutional amendment) had fallen afoul of the Court’s holding in earlier cases that the Equal Protection Clause requires that the political process itself not be arranged in ways unfavorable to minority interests.

I sent out tweets and retweets summarizing highlights of the Roberts, Scalia, Sotomayor, and plurality opinions and reprint them here, earliest first (starting with the Roberts and Scalia opinions).

More in a second post; and Hans Bader has an extensive analysis, including implications for costly preferences in public contracting.

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My new post at Cato at Liberty takes a look at yesterday’s Supreme Court decision in Williams v. Illinois, a Confrontation Clause case involving an accused rapist. It’s one more data point bolstering the observation that if the three most liberal members of the current Court (Ginsburg, Kagan, and Sotomayor) vote together with some frequency, it’s more because they share a certain philosophy about the law than because they’re all women.

P.S. I see Eugene Volokh got there first, drawing similar conclusions (& welcome Nabiha Syed, SCOTUSblog readers).

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James Beck explains and Orac has some strong views as well (“I’m afraid Justice Sotomayor borders on the delusional when she blithely proclaims that courts are so good at efficiently disposing of meritless product liability claims.”) More: Kathleen Seidel and footnotes.

P.S. But preemption does not carry the day in an automotive case, Williamson v. Mazda.

November 2 roundup

by Walter Olson on November 2, 2010

Headline stories of the week:

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Justice Alito wittily defends Justice Sotomayor. [BLT/NLJ]

July 16 roundup

by Walter Olson on July 16, 2009

  • Bad move for GOP to call disappointed litigant as witness at Sotomayor hearing [Taranto via Barnett] Nominee’s disavowal of Legal Realism and identitarian/viewpoint-based judging should be seen as a victory for legal conservatism [Copland at PoL, related Examiner and NRO "Bench Memos"; Adler/WaPo; coverage in NYT] Why do Senators speechify instead of asking questions? “Why does the rain fall from up above?” [Althouse]
  • “Illinois Law Dean Announces New Admission Policy in Wake of Scandal” [NLJ; earlier] “U of I Law School Got Scholarship Cash for Clout Admissions” [ABA Journal]
  • Weird warning sign in Swedish elevator [BoingBoing; commenters there disagree as to whether the elevator in question is of an old continuous-motion type called a Paternoster which has fallen out of use in part because of its high accident risk, or an elevator of more conventional design but lacking an inner door]
  • “Gambler Appeals; Wants More of His Money Back From Casino” [South Korea; Lowering the Bar]
  • The price of one Ohio Congresswoman’s vote on Waxman-Markey [Washington Times via Coyote, who has a followup]
  • “Want to live like tort king Melvin Belli?” [real estate listing in Pacific Heights; WSJ Law Blog]
  • Fierce moral urgency yada yada: “Put nothing in writing, ever” advised Carol Browner on CAFE regs [Mark Tapscott, D.C. Examiner] Alex Beam zings Obama on signing statements [Boston Globe]
  • Constitution lists only three federal crimes: treason, piracy, and counterfeiting. How’d we get to 4,500 today? [Ryan Young, CEI "Open Market"]

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On the radio

by Walter Olson on July 15, 2009

RadioMicI’ve been appearing on a number of radio shows to comment on the Sonia Sotomayor confirmation hearings. Yesterday I joined Jim Vicevich on WTIC (Hartford) for a preview of the Senate proceedings, and this morning I was a guest on “York Morning News” on WSBA (York, Pa.), the Wills and Snyder show on WTAM (Cleveland), the Morning News with Lana Hughes and J.P. Pritchard on KTRH (Houston), Helen Glover’s show on WHJJ (Providence), and “Morning News and More with Matt Ray and Kelly Sanchez” on KPAY (Chico, Calif.). If you’re interested in having me on your show, contact Hannah Martone at the Manhattan Institute: 212-599-7000.

Blawg Review #220

by Walter Olson on July 13, 2009

Welcome to Blawg Review #220, rounding up some highlights of the past week from around the legal blogosphere. It’s my second time hosting it here at Overlawyered, a blog that as its name implies maintains a certain critical distance from many of the doings of the legal profession. Despite (or because of?) that, lawyers make up a large share of our most loyal and valued readers. Overlawyered just celebrated its tenth anniversary, which so far as I know (though someone may come along to prove me wrong) makes it the oldest blog about law.

In addition to being a blogger, I’m an author of books (The Litigation Explosion, The Excuse Factory, The Rule of Lawyers) as well as many articles and shorter pieces, and a senior fellow at the Manhattan Institute, the think tank in New York City. Joining me in occasional posts is American Enterprise Institute resident fellow Ted Frank (who’s just launched a promising new venture called the Center for Class Action Fairness; his objection in a Bluetooth class action settlement won coverage in the NLJ on Friday) and even more occasionally by David Nieporent. Ted contributes a portion of this Blawg Review which is indented below.

Torts, Liability and Trial Practice

The week’s most widely blogged story, well documented by Above the Law, is a South Florida lawyer’s “Motion to Compel Defense Counsel To Wear Appropriate Shoes” at a personal injury trial, from fear that his opponent would employ a certain pair of hole-worn loafers to practice the arts of aw-shucksery on the jury. A mistrial resulted after press coverage of the motion came to the attention of jurors.

In other news, the Wall Street Journal law blog reported on the New York Yankees’ settlement with a fan who sued over not being allowed to get up and move about during the performance of “God Bless America”. Kevin Underhill at Lowering the Bar has the story of a Pomona juror who was really eager for deliberations to finish up so he could attend the Michael Jackson memorial, and wonders if the case was resolved unusually speedily that day.

On the plaintiff’s side, Steve Gursten of Michigan Auto Lawyers charges that the city of Detroit discourages the issuance of traffic tickets to its bus drivers as one way of dodging liability in subsequent accident cases where the driver’s record of violations could be used against the city. John Hochfelder at New York Injury Cases Blog says a lawsuit against the city subway system on behalf of a grossly drunk patron who tried to board between train cars is the sort of action that brings litigation into public disapprobation and might even fuel interest in relatively far-reaching reforms, like loser-pays. And Tennessee’s John Day catches a noteworthy automotive preemption case: “The Supreme Court of Appeals of West Virginia has ruled that a products liability claim was preempted by FMVSS 205, a safety standard that it says permits vehicle manufacturers to make a choice between tempered glass and laminated glass in side windows. … The United States Court of Appeals for the Fifth Circuit reached the opposite result in O’Hara v. General Motors Corp., 508 F.3d 753 (5th Cir. 2007).”

At Citizen Media Law, Andrew Moshirnia reports on a defamation lawsuit filed by a northern Illinois newspaper against a blogger: “That’s right, a newspaper (the Jeffersonian protectors of democracy) and a blogger (saving the world one lolcat at a time) are duking it out, each trying to out chill the other’s speech.”

The defense-side post of the week comes from the Beck & Herrmann team at Drug & Device Law. Mark Herrmann takes a big-picture look at how pharmaceutical product liability law has evolved over the past quarter century, and in particular how well it has done in pursuing the goal of appropriately screening out meritless cases. He gives the law a grade of “A” or thereabouts in tackling dubious expert testimony (with the Daubert revolution), in preventing the unwarranted extension of class action concepts from financial-injury cases to the realm of personal injury, and — a much newer development — in introducing serious scrutiny of claims at the pleading stage through the Supreme Court’s recent Twombly and Iqbal decisions. He is also relatively pleased with trends on preemption (despite the widespread view that defendants have suffered a decisive rebuke on that front) and on resistance to novel theories of action. On the other hand, he gives the courts a “D” on their handling of discovery and its burdens, and a grade of “F” when it comes to their overall inability to reduce the amount of litigation.

Emergency room doc/blogger White Coat has been serializing a first-person account of his malpractice trial; you can read parts eleven and twelve, bearing in mind that you’re coming in partway through the story. (The trial has concluded, but he’s not yet revealing how it ended.)

Stephanie West Allen at Idealawg, picking up on a discussion in Plaintiff magazine, says to watch out for how the other side is likely to retell your story: that way you won’t be surprised when the other side’s lawyer gets up at trial to claim the wolf was framed while portraying the scarlet-clad Miss Hood as the most heartless femme fatale since Barbara Stanwyck in Double Indemnity. And if you’re headed for alternative dispute resolution, Nancy Hudgins can tell you “A secret about mediators“.

In the News

Alas, in today’s wounded economy bankruptcy law is a standout practice area. In the case of General Motors, however, the process has gone far more quickly than most expected. John Wallbillich at Wired GC reflects on the giant automaker’s egg-timer reorganization: “The joke around Detroit is that GM went through bankruptcy in less time than it took outsiders pre-filing to get a response to voicemails and schedule a meeting.” On the consumer side, BankruptcyProf Blog (via Carolyn Elefant, Legal Blog Watch) reports that bankruptcy filings in the Central District of California have risen sharply over the year, up more than fifty percent from 5,999 in January to 9,578 in June. The year-over-year increase since the first half of 2008 is 45 percent.

Disgraced lawyer Marc Dreier is due to be sentenced this week for some of the worst defalcations laid to the account of an American lawyer in many a year; Peter Henning has commentary at the WSJ Law Blog. At a newly launched blog called Unsilent Partners, two well-known figures in the blogosphere, Colin Samuels of Infamy and Praise and Mike Semple Pigott of Charon QC, discuss recent white-collar criminal sentencing, the point of departure being federal judge Denny Chin’s sentencing of Bernard Madoff to a 150-year term.

The week’s biggest upcoming legal story is likely to be the confirmation hearing of Supreme Court nominee Sonia Sotomayor, and I’ll turn the floor over to colleague Ted Frank for some remarks on that:

The Sotomayor nomination continued to be a notable topic in the legal blogosphere this week. Jennifer Rubin noted that former Secretary of State Colin Powell, sharing Judge Sotomayor’s position favoring race-based preferences, had thrown his support behind her nomination. Meanwhile, Eric Turkewitz’s previous investigation of the judge’s “Sotomayor and Associates” law practice and the ethical implications of her choice of firm name was picked up by the New York Times, albeit (as he and Scott Greenfield both noted) without any recognition of Turkewitz’ key role in bringing this issue to light. Greenfield criticized the Times: “make no mistake about it. [Turkewitz] is the source of the New York Times story, and the absence of his name, and his blawg, in the piece is a shoddy reflection of its journalistic integrity. Don’t ask the blawgosphere to love you when you won’t love us back, boys.” But Windy Pundit defended the Times. Turkewitz found the Administration’s explanations and justifications of Sotomayor’s choice to be unpersuasive; some members of the Senate Judiciary Committee may as well, and they’ve been in contact with Turkewitz. Beldar’s reaction to the Associates flap: Meh. The WSJ Law Blog looks at the “meticulousness” characterization of Sotomayor. Stuart Taylor has a must-read blog post on how the Sotomayor panel almost succeeded in burying the Ricci case through its summary order; having failed to bury the case, Sotomayor’s supporters are making personal attacks on Ricci, who will be testifying at Sotomayor’s hearing, himself. Heather Mac Donald calls for tough questioning of Sotomayor about Ricci. If you plan on attending the hearing, watch what you wear. The Federalist Society is sponsoring an on-line debate on the nomination that includes lawyer-bloggers Tom Goldstein and Ed Whelan. And Jonathan Adler asks questions about that 1100-professor-petition in favor of Sotomayor’s nomination.

The D.C. Circuit ruled that police checkpoints in Washington, D.C., along “State Your Business, Citizen” lines, violate the Fourth Amendment. Ken at Popehat is glad. More: Volokh, Greenfield.

Allegations of egregious racial discrimination at the swimming pool of a northeast Philadelphia club are making news and seem likely to break out before long as a national story. Max Kennerly of The Beasley Firm tells the story and analyzes its legal implications here and here, while Jon Hyman recalls memories of growing up near the club.

Finally, the Scruggs judicial scandals may have faded from the national headlines in the past year but in Mississippi they’re still very much an unfolding story. Tom Freeland at North Mississippi Commentor continues to track developments.

Advice for clients

Week in and week out, one of the functions legal blogs fulfill is to advise clients and prospective clients on when to use lawyers and what to expect when using them. Thus Hingham-based Danielle Van Ess explains what estate planning does and who needs it at her blog on Massachusetts wills, trusts and estates law. At South Carolina Family Law, Ben Stevens offers a list of Facebook “don’ts” for divorcing couples, which might usefully be read in conjunction with Lawyerist’s advice on how to subpoena Facebook pages. Of course cutting through the hype is important, which is why potential clients susceptible to being impressed by “Super-Duper-Lawyer” awards and commendations might want to check out Brian Tannebaum’s amusing discovery that “in Gainesville, Florida, apparently two Super criminal defense lawyers are prosecutors”. Whoops!

Employment law

Perhaps the week’s most buzzed-about employment law case came from Hartford where veteran political reporter Shelly Sindland filed a sex and age bias complaint against Tribune Co.’s Fox 61, charging that execs at the TV station rewarded female on-air talent on the basis of bodily attractiveness rather than conventional journalistic criteria. Daniel Schwartz at his Connecticut employment law blog took a relatively sober look (and followup), but given its mature content this was a story destined to wind up at Above the Law, which gave it the full treatment.

Employees’ sometimes-imprudent talk both on the job and off continues to provide steady fodder for employment law decisions and controversies. Doug Cornelius discussed a New Jersey decision on whether and when an employer can read an employee’s email to her lawyer sent from a company-owned laptop. At Employee Rights Post, Ellen Simon discussed a recent Ninth Circuit case in which a school employee got in trouble for inflammatory online remarks. And Jon Hyman at Ohio Employer’s Law wonders how employers are supposed to avoid what has been called a “sexualized work environment” offensive to some employees when the popular culture seeping in to the workplace from all sides is often itself highly sexualized, a topic that has come up in these columns as well.

Commercial, business and tax law

Unincorporated Business Law Blog brings word of a bill being introduced by Sen. Carl Levin (D-Mich.) to crack down on state-incorporated “shell” corporations. Corporate law specialist Larry Ribstein of the University of Illinois writes, “The motivation for this piece of legislative detritus seems to be that since a tiny percentage of LLCs are being used for criminal activity let’s wreck LLCs for all firms. Hey, sounds sensible to me.”

In other news, Peter Pappas awarded his “Rick Moranis Awards” for the best tax nerd blogs. Kevin LaCroix at D & O Diary has an update on the rising tide of Foreign Corrupt Practices Act (FCPA) enforcement activity. Charon QC conveys a bit of gossip about the questionable contract terms prescribed by a well-known U.K.-based real estate firm. And Ken Adams at Adams Drafting advises that if contract-drafting seems like a boring and unrewarding part of your work day, you’re probably not doing it right.

Finally, this unsettling observation from Dan Harris at China Law Blog: “If you owe money to a Chinese company for product and you cannot pay all of your creditors, skip out on the Chinese company. Near as I can tell, there is nearly a 100% chance they will never sue you to recover.”

Intellectual property law

The Pope issued an encyclical earlier this month which, notes Cal Law Legal Pad, included the following statement: “On the part of rich countries there is excessive zeal for protecting knowledge through an unduly rigid assertion of the right to intellectual property, especially in the field of health care.” If the pontiff wasn’t upset by the story of the Mexican yellow bean patent recounted by Patently-O, it’s probably because he hadn’t heard of it. Speaking of moral authority, The Prior Art takes GOOD magazine to task for according a glowing profile to a systematic asserter of patent license rights whom some might belittle as Totally Reliant On Litigation Leverage, and suggests the magazine missed a chance to evaluate the gap between what might be remunerative legal-business strategy and what is beneficial to society. For a more upbeat view of the value of patents in spurring innovation since colonial days, Gary Odom at Patent Hawk offers a short history of patents in America.

Finally, I blogged last week about the lawsuit filed by Pez against a Pez museum that some fans had set up in California’s San Mateo County, but Ron Coleman at Likelihood of Confusion was funnier about it.

Legal issues of new media

Remember the unsuccessful suits by companies upset to discover that when Google users searched on their firm’s name, AdWords would serve them an ad for some competitor? Ryan Gile at Vegas Trademark Attorney thinks Mary Kay Cosmetics faces an “uphill battle” in a new suit against Yahoo (over mouseover search popups in email) that raises some similar issues. And Venkat Balasubramani raises the question whether Twitter has been lax, or clever, or both, in letting various other entities use Twitter-related words and phrases in their own names and promotions.

At gamelaw blog Law of the Level, Shawn Foust discussed how online games can protect the integrity of their online currencies from thefts, at least until a corps of “Space Prosecutors” can be formed. And Eugene Volokh brings news from Michigan of one of the first, if not the first, libel lawsuits arising from Wikipedia edits. It seems to raise garden-variety rather than novel issues, though, and is not filed against Wikipedia itself.

Family law

In the U.K., Justice Minister Jack Straw has announced a second round of family-court reforms. Lucy Reed at Pink Tape is anything but enthusiastic about some of the “de-lawyerizing” aspects of the proposals. John Bolch at Family Lore comments as well, and separately notes “that Conservative think tank the Centre for Social Justice will recommend that there be a compulsory three-month ‘cooling off’ period before divorce proceedings can be commenced, one of a number of proposals contained in a report Every Family Matters, to be published [July 13].” Presumably coincidentally, here in the U.S., Solangel Maldonado at Concurring Opinions considers whether current divorce laws unduly steer couples toward ending marriages rather than working through difficulties: “Given society’s interest in marriage and all of the negative consequences of divorce, should law incentivize couples to repair the marriage after infidelity? … many couples do reconcile after separation. Maybe they would not have done so had they been able to seek a divorce immediately.”

“Father Shall Not Use Profanity or Racial Epithets in the Boys’ Presence or Within Their Earshot”. Eugene Volokh wonders about the free speech implications.

Law schools

It being July, law schools are relatively quiet on the student front, but certainly not on the faculty front. Hackles have been rising over the NYU law school’s selection of Li-Ann Thio for a visiting spot in human rights law, given that in her native Singapore Thio crusaded against rights for gays. [Above the Law]. Jane Genova at Law and More covers a judge’s threatened sanctions against Harvard lawprof Charles Nesson for posting deposition excerpts online from a case in progress in which he is helping defend music downloaders. And although Ave Maria Law School is not a part of the Roman Catholic Church, it is asserting church autonomy as a defense to a suit filed by several former faculty members; Howard Wasserman at Prawfsblawg and Rick Garnett at Mirror of Justice discuss.

Many would have nominated law schools as a nearly recession-proof sector of the economy, but that’s turned out to be wrong, what with bleak prospects for many new graduates and sometimes plunging endowments at parent institutions. Famed UCLA lawprof Stephen Bainbridge asks “Is Law a Mature Industry?” and examines the implications for legal education (do we really need at least ten new law schools, as are on the drawing board now?), while the Canadian site Law21.ca wonders whether the demographics of an aging world mean that we can “say goodbye to a lot of law schools“.

State of the blawgosphere

There’s nothing like a discussion of the state of blogs to get people going. At Crime and Federalism, Mike Cernovich thinks legal blogs have gone downhill since he got online: things have grown cliquish, and the “biggest – and worst – change to the legal blogosphere has been the Rise of the Marketers,” the ones who are intent on promoting their firms and practices but don’t have anything in particular to say. If bloggers get cliquish, notes Robert Ambrogi, it’s only human nature: “With too many blogs to choose from, we tend to stick with those we know and find comfort with.”

Have you ever considered turning the best bits of your blog into a book? Join the club. Evan Schaeffer at Legal Underground shows how to make a convincing case for that kind of transformation.

Finally, if you’re looking for an old-fashioned blogger dustup complete with asperity and risk of hurt feelings, Scott Greenfield is feeling snappish toward Adrian Dayton and several others on a variety of topics that include Generation Y, social media and work/life balance (Greenfield’s basically against the latter: “When the going gets tough, no one needs a lawyer who leaves the office whenever they have something more fun to do.”) Diane Levin suggests room for accommodation, which however is not forthcoming.

Need a break from contentiousness? Check out Scott Kreppein’s pictures of the Bronx County courthouse, a building that boasts marmoreal, heroic bas-relief sculptures in what I believe is the early-FDR-period style referred to as “Greco-Deco“.

International

For a view of American law from Central and Eastern Europe, Bruce MacEwen at Adam Smith Esq. interviews Tomasz Wardynski of a large Warsaw law firm. At Arbitration Forum, Kenneth Cloke tells “Why We Need to Mediate [International] Environmental Conflicts“. Cynthia Alkon at ADR Prof brings word that the Truth and Reconciliation Commission (TRC) in the African nation of Liberia released its report this week. Chris Borgen at Opinio Juris reports on the possible disintegration of Belgium (Flanders is thinking of pulling out). Is the EU actually going to hasten the breakup of some of its ethnically diverse member states? Charon QC decides to find out how easy it is to pry information out of private British law schools. And proving that the U.S. is not always in the forefront of colorful litigation, a Polish mother has sued saying that her 13-year-old daughter came back pregnant from an Egyptian resort because of, er, male-related contamination of the hotel’s swimming pool. Michael Krauss has the story at the Manhattan Institute law blog Point of Law (disclosure: I’m its editor and also blog there).

Many thanks to Colin Samuels and Victoria Pynchon for their helpful suggestions on links to use. H. Scott Leviant will be hosting Blawg Review #221 at The Complex Litigator next week. Blawg Review has information about that, and instructions how to get your blawg posts reviewed in upcoming issues. [Edited 1 pm Monday to remove one link at the request of its site]

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A White House press release quotes my comments on Judge Sotomayor (in which I have been critical of some of the critics). More: Boston Globe.

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A majority of right-leaning bloggers (as well as virtually all the left-leaning) agree with me in predicting (at least on current evidence) that the Sonia Sotomayor nomination will prove more politically helpful to the Democrats than to the Republicans. The poll, also picked up in National Journal’s Ninth Justice column, quotes me as saying, “Her actual rulings don’t bear out the ‘scary radical’ meme. That Senate Dems were equally unfair to Miguel Estrada will, along with $3.26, buy you a latte at Starbucks.”

Relatedly, I can’t vouch for the methodology, which is not one that would have occurred to me, but this analysis by Corey Yung of five federal appellate circuits, based on an attempt to quantify what is meant by “activist” behavior in judges, tends to back up my sense that among judges with a liberal reputation, Obama could have found many who have shown a more adventurous disregard for precedent, less deference to other constitutional actors, etc. More: Marcia Coyle, National Law Journal.

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As I mentioned last week at Point of Law:

The one case of [Sotomayor's] of which I’ve been most sharply critical over the years is Bartlett v. Bar Examiners, the famously long-drawn-out disabled-rights case in which Judge Sotomayor ruled that a seriously learning-disabled bar applicant who’d already failed the bar exam several times with extensive accommodations was legally entitled to yet further chances and accommodations. I wrote up the case here and here, among other places; Jim Dwyer of the Times has an account that is much more sympathetic to Bartlett’s cause.

Now a post by Anthony Dick at NRO “Bench Memos” gives a quick summary of why the case is so controversial:

you might think that, since reading ability is an important part of practicing law, and the bar exam is designed to ensure minimal competence among lawyers, papering over a test-taker’s lack of reading ability would somewhat defeat the purpose. It would seem clear to most people that, in the language of the ADA, compromising the standards of the test regarding a basic legal skill would not qualify as a “reasonable accommodation.” But that would be a decidedly unempathetic point of view. Such an attitude is in fact “invidious,” according to Sotomayor’s opinion.

It is far from clear that any of this will constitute so much as a speed bump on the path to Senate confirmation for Sotomayor, since lawmakers on the Hill have shown little or no interest in reining in adventurous interpretations of the Americans with Disabilities Act — indeed, when the Supreme Court moved on its own to rein some of them in, Congress responded with legislation to overturn the decisions and re-liberalize rights to sue under the law (cross-posted at Point of Law). A different view: Larry Ribstein.

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For those who imagine that Ted and I are always in accord on each and every topic of the day, he’s got a post at NRO “Bench Memos” correcting that impression. And the nomination-blogging continues at Point of Law with links to Jim Copland and John Hasnas columns, and an Ilya Somin podcast; and Jim reacts to the widely discussed Thomas Goldstein analysis of the judge’s rulings (about 100 of them) in race cases.

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In today’s San Francisco Chronicle, Carolyn Lochhead quotes me on the Supreme Court pick:

“It’s not as if I think Obama’s incapable of nominating someone who is more adventurous and more activist by nature,” said Walter Olson, a senior fellow at the conservative Manhattan Institute. “Maybe we should save the all-out blast for when he nominates that one.”

I also have a comment on Ricci v. DeStefano, the lawsuit that arose from relatively blatant discrimination by the city of New Haven against non-minority firefighter applicants. I would not be surprised to learn that Sotomayor’s views on reverse discrimination differed widely from my own, but still note that it’s vaguely incongruous to treat as Exhibit A for a charge of judicial activism an instance in which the judge and her colleagues ducked a case.

Finally, my postings on the Sotomayor nomination continue at Point of Law, including an item on a Connecticut school discipline case where the nominee has drawn fire for (as part of a unanimous panel) siding with the school authorities. More: Jake Tapper, ABC.

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I’m quoted today in the Times (and this site is linked — way to go Times!) in John Schwartz’s piece on Sonia Sotomayor’s opinions in civil litigation, where she comes across as generally on the liberal side, but not an anti-business crusader (see also Adam Liptak’s Times account). Here’s what I said:

Some of the attacks against the judge’s business rulings turn a complex legal record into a caricature, said Walter K. Olson, a senior fellow at the Manhattan Institute, a conservative organization, and the editor of a blog, Overlawyered.com. While expressing some qualms about Judge Sotomayor’s views, Mr. Olson said “she will not be as liberal as many of the Republicans are saying — but no one could be that liberal, even if they tried.”

For more of the reasons that enter into this opinion, see my roundup yesterday at the Manhattan Institute’s Point of Law, where I and others have been blogging on many angles of the Sotomayor nomination, with more to come.

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[Bumped May 27 to reflect added material] I’ve written a piece for Forbes.com on President Obama’s nomination of the Second Circuit judge to the Supreme Court. In addition, expect coverage of the nomination from multiple voices over the next week at Point of Law; Marie Gryphon has already started off with a post on Sotomayor’s controversial ruling on a Second Amendment issue (Heller incorporation, for those who follow that area). More: SCOTUSBlog has a four-part series on Sotomayor’s rulings in civil litigation: first, second, third, fourth. Michael Fox catalogues her rulings in labor and employment cases, to which Daniel Schwartz adds analysis. And thanks to Instapundit, Eugene Volokh, Carter Wood/ShopFloor, Joe Weisenthal, Carolyn Elefant/Legal Blog Watch, Henry Stern/Yonkers Tribune, and Jonathan Adler at both Volokh.com and NRO “Corner” for the links.

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On the radio

by Walter Olson on May 26, 2009

I was a guest today on three radio shows to discuss the Sonia Sotomayor nomination: Air Talk with Larry Mantle (KPCC, Southern California public radio), Vicki McKenna (WISN Milwaukee), and Portland, Oregon-based Lars Larson. Tomorrow morning I’ll be a guest on Preston Scott’s program in Tallahassee, Florida, at about 8:05 a.m.

I’ve been added to the contributors at NRO’s Bench Memos discussing the Sotomayor nomination, and my first post skeptically looks at the talking point that she “saved baseball” in 1995.

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