Comments on: Sonia Sotomayor Pick Surprised Me http://donklephant.com/2009/05/26/sonia-sotomayor-pick-surprised-me/ Big Teeth. Huge Ass. Surprisingly Reasonable. Tue, 14 Feb 2012 14:03:13 +0000 hourly 1 http://wordpress.org/?v=3.2.1 By: Simon http://donklephant.com/2009/05/26/sonia-sotomayor-pick-surprised-me/comment-page-1/#comment-469284 Simon Tue, 26 May 2009 15:48:46 +0000 http://donklephant.com/?p=14924#comment-469284 The first two talking points you mentioned are a little anæmic. As to the first: district courts are quite different animals to appellate courts, and it certainly doesn't follow that a judgment that someone is a good fit for a seat on the former implies a judgment that someone is a good fit for the latter. (The Supreme Court is, of course, is different to both in many important ways, but it is still fundamentally an appellate court.) Moreover, if the goal is to reach across the aisle, it lacks bite to point to appointment by Bush 41 as an indicator that she is a moderate given that the man she will succeed was also appointed by Bush 41 yet has been a reliable member of the liberal bloc almost ever since. As to the second: known to <i>whom</i> as a moderate? Is that 95% figure just a raw number, or is it normalized for divided panels? Only a layperson could be impressed with the claim that courts of appeals judges agree with one another in 95% of cases. Justices Thomas and Ginsburg, after all, agree with each other in north of 95% of cases; it's only when you take out the unanimous cases and look at the divided cases that things start to appear more fractious. And, lastly, it misses the mark to think only in terms of the <i>outcome</i>; in appellate judging, where one is dealing with legal issues where the case is in some ways representative of a broader class of cases involving the same issues, who wins is less important than why. In <i>MainStreet Organization of Realtors v. Calumet City</i>, 505 F.3d 742 (7th Cir. 2007), for example, one can say that the majority and the concurrence agreed on the outcome, but it would be grossly mistaken to think that they were fundamentally in accord simply because both concluded that the same litigant prevailed. The first two talking points you mentioned are a little anæmic. As to the first: district courts are quite different animals to appellate courts, and it certainly doesn’t follow that a judgment that someone is a good fit for a seat on the former implies a judgment that someone is a good fit for the latter. (The Supreme Court is, of course, is different to both in many important ways, but it is still fundamentally an appellate court.) Moreover, if the goal is to reach across the aisle, it lacks bite to point to appointment by Bush 41 as an indicator that she is a moderate given that the man she will succeed was also appointed by Bush 41 yet has been a reliable member of the liberal bloc almost ever since.

As to the second: known to whom as a moderate? Is that 95% figure just a raw number, or is it normalized for divided panels? Only a layperson could be impressed with the claim that courts of appeals judges agree with one another in 95% of cases. Justices Thomas and Ginsburg, after all, agree with each other in north of 95% of cases; it’s only when you take out the unanimous cases and look at the divided cases that things start to appear more fractious. And, lastly, it misses the mark to think only in terms of the outcome; in appellate judging, where one is dealing with legal issues where the case is in some ways representative of a broader class of cases involving the same issues, who wins is less important than why. In MainStreet Organization of Realtors v. Calumet City, 505 F.3d 742 (7th Cir. 2007), for example, one can say that the majority and the concurrence agreed on the outcome, but it would be grossly mistaken to think that they were fundamentally in accord simply because both concluded that the same litigant prevailed.

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