Here.
Sotomayor Confirmed — But You Knew That Already, Didn’t You….
Here.
Sonia Sotomayor
A Call to Senator Al Franken re: Sotomayor Confirmation Hearings
It looks like Sen. Al Franken of Minnesota is the only Democratic member of both the Judiciary and Indian Affairs committees. Sen. Franken, who visited Indian Country a few times in his campaign for the Senate, may be the only Senator who would even consider asking Judge Sotomayor a question about Indian law.
A straight up question about Indian law doctrines is likely to get a response about how the nominee would not comment on a particular case, and a question asking her what she knows about Indian law might do nothing except embarass her, so here are a few potential topic areas that could get at how the nominee might view tribal interests.
1. Federalism. Would she be persuaded by a canon of statutory construction that would construe very narrowly a law that limits state authority? Does she think the Constitution establishes a hierarchy of sovereigns, with state governments at the virtual top?
2. Minority property rights. Is Judge Sotomayor aware of how the U.S. acquired sovereignty over Puerto Rico, or New Mexico and California, or Indian Country east of the Mississippi, or Indian Country west of the Mississippi? How about the different character of treaties that both established and preserved property rights for discreet catagories/classes of Americans? Would she respect them? One expects the answer to the Puerto Rico question is yes.
3. Rule of Law. Tribal interests, like many other plaintiffs, raise claims based on clear violations of law by state or other actors. The Roberts Court often reaches outcomes rejecting those claims by relying on arguments never or only partially presented by the parties, often creating entirely new law to undermine the claims. Would Judge Sotomayor respect the rule of law in these contexts? Under what circumstances would she be willing to go beyond the arguments of the parties to decide a case?
Sen. Franken would make a huge splash in federal Indian law and policy by even hinting at caring about Judge Sotomayor’s views on tribal interests. Here’s hoping he does it.
ICT: “Courting Sotomayor”
By Rob Capriccioso (article link):
WASHINGTON – She grew up in poverty. She has diabetes. She has familial roots in a non-state with special rules of governance (Puerto Rico). She’s an underrepresented minority. She’s proud of her unique heritage.
She’s Sonia Sotomayor; President Barack Obama’s pick to replace retiring Justice David Souter to serve on the U.S. Supreme Court.
And some Native American legal advocates think all of the above qualities are some pretty good starting points to help her understand how much she has in common with many in Indian country.
Stanley Fish on a Justice with Empathy
From the NYTs:
What Kind of Judges Do We Want?
Last week I participated in a discussion of judging under the auspices of the Brennan Center for Justice. The event was held at the New York University School of Law, where an invited audience of about 80 interacted with three panelists – John Payton, head of the NAACP’s Legal Defense Fund, Burt Neuborne, professor of law at NYU and me. We were held in check by moderator Dahlia Lithwick of Slate.com and Newsweek.
The question we were there to take up was, “What kind of Supreme Court justices do we want?” The topic was set before the nomination of Sonia Sotomayor, but of course the upcoming hearings of the Judicial Committee were on everyone’s mind. And so there was a lot of talk about empathy against the background of President Obama’s praise of it and Judge Sotomayor’s now famous or infamous speculation that a wise Latina might know something an old white guy did not.
At one point moderator Lithwick asked, “Is empathy a useful term? Is it helpful?” I replied that it’s probably a bad idea to use a word that has to be explained or explained away five times a day. It’s been useful and helpful to conservative bloggers but not to either Obama or Sotomayor. Of course it’s too late to retire it; we’re stuck with it.
Turtle Talk 