Mike Sacks has a good reply to an article about Sotomayor and Kagan that he rightly is suspicious of as some stretching to find a way to promote a book. It is a bit early to to say much about Justice Sotomayor during her second year on the Court, even though there is already a biography out and Joan Biskupic is starting on her next project, which in part involves her as well. Assuming what will become of Kagan is even more of a stretch, but that is the nature of much commentary, political, legal or sports related: a lot of assumptions.
Still, especially after Professor Tribe's bad mouthing of her when she was first nominated coming to light, we can talk a bit about her all the same. Linda Greenhouse has another good NYT blog post that covers ths issue some, including addressing some background to a dissent from denial of cert.* by Sotomayor that has received some attention from those who pay attention to such things. You know like me or Orin Kerr, who I suggested at the time framed things in a somewhat slanted fashion. It is that sort of thing, even though on the whole he is a pretty good sort on the Republican side of things (he did work for Senate Republicans), that is a red flag for me. LG adds more detail that underlines the case wasn't just a throwaway:
I am not aware of the level of such denial opinions during the Rehnquist years in part because it is a lot easier now to keep track of such opinions. I recently found an old tape recorder (audio tapes -- no, I'm not that old, really) and started playing Peter Irons' May It Please The Court series again. Back in the early 1990s, it was a big thing to listen to excerpts, even excerpts that was put together in a somewhat messy way as some critics have pointed out. Later on, I could get a CD with whole arguments on them. Then, listen to them at Oyez.com. Now, the Supreme Court itself provides recent audio. [Why not provide earlier audio?]
As with everything else, one can be overwhelmed. After all, we have trivia down to appointment of counsel in a case the Obama Administration conceded. [It's okay: it's not related to executive immunity, secrecy, gays in the military or such. Snark.] But, it remains a remarkable resource, and sometimes it is good to remember that. Ah, per a recent post, another "but." That should be part of the subtitle of my blog.
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* Linda Greenhouse summarizes:
Still, especially after Professor Tribe's bad mouthing of her when she was first nominated coming to light, we can talk a bit about her all the same. Linda Greenhouse has another good NYT blog post that covers ths issue some, including addressing some background to a dissent from denial of cert.* by Sotomayor that has received some attention from those who pay attention to such things. You know like me or Orin Kerr, who I suggested at the time framed things in a somewhat slanted fashion. It is that sort of thing, even though on the whole he is a pretty good sort on the Republican side of things (he did work for Senate Republicans), that is a red flag for me. LG adds more detail that underlines the case wasn't just a throwaway:
The justices treated Mr. Pitre’s appeal, Pitre v. Cain, as something more than completely routine when it arrived at the Supreme Court last spring. First, the court instructed the Louisiana prison officials to respond to the petition, which they had failed to do. Then the justices considered the case three times in conference. In the end, perhaps Justice Sotomayor was the only member of the court who wanted to hear the case. Maybe there were others at one point. All we know for certain is that she was the only one to note her dissent from denial and to explain her reasons.Greenhouse notes that it is not surprising that the Court did not take the case, since it would be basically for "error correction," which they say is not really their job. OTOH, voices from the left aren't the only ones who sometimes want that sort of thing, providing an example. Also, both sides have now and then -- it's like a little ray of sunshine for SC nerds keeping track on its website -- did what she notes was more disfavored in the Rehnquist years, providing dissents from cert. as a window into dissent among the justices.
I am not aware of the level of such denial opinions during the Rehnquist years in part because it is a lot easier now to keep track of such opinions. I recently found an old tape recorder (audio tapes -- no, I'm not that old, really) and started playing Peter Irons' May It Please The Court series again. Back in the early 1990s, it was a big thing to listen to excerpts, even excerpts that was put together in a somewhat messy way as some critics have pointed out. Later on, I could get a CD with whole arguments on them. Then, listen to them at Oyez.com. Now, the Supreme Court itself provides recent audio. [Why not provide earlier audio?]
As with everything else, one can be overwhelmed. After all, we have trivia down to appointment of counsel in a case the Obama Administration conceded. [It's okay: it's not related to executive immunity, secrecy, gays in the military or such. Snark.] But, it remains a remarkable resource, and sometimes it is good to remember that. Ah, per a recent post, another "but." That should be part of the subtitle of my blog.
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* Linda Greenhouse summarizes:
Against this background, a solo dissent from denial that Justice Sotomayor published last month was telling. A Louisiana prison inmate, Anthony C. Pitre, refused to take his H.I.V. medication in protest against a transfer from one prison to another. He then sued prison officials on the ground that they unconstitutionally retaliated against him for his recalcitrance by assigning him to especially hard outdoor labor, including working with hand tools on the prison farm in temperatures of over 100 degrees and pushing a 150-pound lawnmower in similar temperatures. He suffered various medical complications, but when he complained and asked for lighter duty, he was told that the situation was his own fault and that he should take his medicine.Kerr framed the facts -- see various comments -- in a way that is arguably (to be generous) misleading.