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Monday, June 29, 2009

Ricci, politics, and the appellate process

Dan asked for initial thoughts on Ricci. I have not had a chance read it, but here are a few initial comments on the procedure and politics of the decision, piling on earlier comments from Media Matters and from Jonathan Adler.

First: Appellate courts get reversed; that's why we have a three-tiered judiciary (two in Nebraska) and appellate review. Reversal does not mean Judge Sotomayor was "wrong" in any normative sense; it means only that a majority of the higher court disagreed and (as Justice Jackson reminded us) is "right" only in the descriptive sense of having the last word. (I would recommend former guest Chad Oldfather's comments on lower-court error). Reversal does not reflect on Sotomayor's ability as a judge or her style of judging, anymore than her being affirmed would allow for the argument of "see, she was right". And I would hope that, at least, intelligent legislators and law-trained commentators will avoid making a mountain of a quite common event. [Update: Or not so much].

Second: Jonathan suggests that the short shrift the panel gave the case (originally wanting to affirm by non-precedential memorandum, then affirming with a one-paragraph precedential adoption of the district court's analysis) might reflect poorly on her judgment, but that it will not derail the nomination in the end. I am not sure I agree that it reflects poorly on her judgment any more than reaching a different conclusion reflects poorly on her judgment. The procedures through which appellate judges handle cases (argument or no, summary disposition or opinion, precedential or non-precedential) are one aspect of the resolution of those cases. And they may be just as disputed and just as subject to differences of opinion as the merits. There can be differences of opinion as to the importance or ease) of the case, just as to the merits. And just as disagreement with the outcome does not mean the appellate panel was wrong in any absolute sense, neither does disagreement with the process employed (or views about simplicity) mean the panel was wrong in any absolute sense in using (or attempting to use) that procedure. Especially since there are indications that the practice is quite common on the Second Circuit, suggesting other court interests and concerns (maintaining unanimity, something the Chief Justice purports to like) legitimately play a role in the choice of process. That the panel thought the case an easy one (and thus chose a particular procedure) and the Supreme Court disagreed does not tell me anything. And although I have not looked into this, I am fairly certain the Court occasionally takes cases that were subject to more-summary disposition below.

Third: The Media Matters piece points to several cases in which Alito was reversed while on the Third Circuit (including Planned Parenthood v. Casey), as well as Hamdan v. Rumsfeld, in which the Supreme Court reversed the D.C. Circuit panel (of which Roberts had been a member) after Roberts became Chief. No one suggested that those reversals made either unfit for the Court. Alito was probed about those reversals (especially Casey) to try to get a sense of his judicial philosophy; he also was asked about several cases in which the Supreme Court affirmed.

Fourth: To the extent Republican Senators and/or conservative commentators are able to make hay (whether real or just noise in the media) out of this reversal to cast doubt on Sotomayor's "judgment," I think it will be another illustration of why the conservatives and the GOP are better at the confirmation/judicial-politics game. Alito was reversed in Casey? Well that just shows how out of control the Supreme Court (especially Justice O'Connor, who Alito had been nominated to replace) is and why it was important to put good, smart "strict-constructionist," non-activist judges (such as Alito) on the Court. Sotomayor was reversed in Ricci? That just shows why she is an out-of-control activist who decided the case based on her own politics and not the law and who should not be on the Court.

Posted by Howard Wasserman on June 29, 2009 at 04:09 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink


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Jonathan: Fair enough. The problem might have been at the first step: Using summary procedures as political compromise on the panel.

Posted by: Howard Wasserman | Jul 1, 2009 4:41:41 PM

Howard --

Given the facts of the case, I do think the question of whether summary judgment was appropriate below was not nearly as close a question as to what the proper standard should be for evaluating the city's actions -- and what we know about how the case was handled by the panel suggests that they knew it too.

Based upon what the NYT has reported (and I noted in the post to which you link), the Second Circuit panel did not think "the case an easy one." Rather, according to the Times, the panel was split and the initial unpublished, nonprecednetial order was a compromise -- the majority of the panel dictated the outcome, but there would be no new circuit precedent established. This compromise was undone when the panel was called to task by Judge Cabranes, and yet the panel did not explain itself. If, as the panel apparently recognized, the case was a difficult one, the subsequent publication of a summary precedential opinion was inappropriate.

This conclusion does not change my view that Judge Sotomayor should be confirmed, as I believe the Senate should be fairly deferential to the President's judicial nominations. But I also think the facts here provide a legitimate basis upon which to criticize her performance in this case.


Posted by: Jonathan H. Adler | Jul 1, 2009 4:14:22 PM

I agree that the reversal on the merits does not say much, but I'm with Adler on the "short shrift" argument. Yes, panels must manage big dockets by making some opinion short and unpublished, but this case had "SCOTUS potential" written all over it. As some other piece pointed out, it had a ton of amici filings, too.

No one is well-served by a short opinion that buries (or tries to bury) a difficult case. Wny even have judicial opinions, rather than just a legislative-style yes/no vote, if that duty is shirked more in the harder cases than in the easier ones? What would we say if the Supreme Court wrote an opinion like the panel's, in either direction? I think most of us would criticize the Court, and rightly so.

Circuit courts, like SCOTUS, have a duty to explain themselves to the public generally, to lawyers and parties who need guidance, and lower courts. In fact, the 7-6 en banc vote may have reflected not only a concern about outcome, but it also may have reflected some judges' view that they owed the world some real reasoning and analysis. I can see giving district courts a pass on writing, even in hard cases, but not circuit courts.

None of this derails confirmation, and likely doesn't even move a single vote, but it does warrant some criticism along the way. That is especially so if one motivator for the short-shrift WAS a savvy concern with confirmation politics (c'mon, she's been a short-lister forever, and some GOP Senators tried to stop her circuit elevation with SCOTUS in mind). So letting this pass too easily just encourages others to do the same, while a little heat does the reverse.

Another motivator for the short-shrift was likely to hide the ball on cert, or to "cert-proof" it, and that, too, is a bad thing and should be discouraged.

So my bottom line questions for those defending the short-shrift are

(1) Do you dispute that the case had flashing red lights as it came to the panel? If you do so dispute, how do you explain away the merits and the amici etc.?

(2) If you agree that the case was A-list, what general guidance can you give for when A-list cases deserve D-level treatment? Would you be comfortable if this trend grew?

Posted by: anonner | Jun 30, 2009 11:39:47 AM

JP - you're right that Ginsburg has the background to fit within that category, but I don't think her lower court jurisprudence made anyone think that she would be anything but a moderate liberal, like she has been. Republicans can nominate the right-wing equivalents of Brennan and Marshall. Democrats can't find it in themselves to nominate actual Brennans and Marshalls.

Posted by: David S. Cohen | Jun 30, 2009 11:08:41 AM


What is a "movement liberal?" To the extent there existed such a category during the Clinton administration, how does Ginsburg not fall within that category?

Posted by: JP | Jun 30, 2009 10:51:15 AM

I know you (rightly) don't feel obligated to take requests from the peanut gallery, but if you're so inclined, I would love to see a post on Ricci that ties back to your great posts on Iqbal.

Specifically, the lineup in the two cases is the same, although in Ricci it is now the dissent that is concerned about meritless-but-costly litigation, while the majority is now completely dismissive of the fear-of-litigation justification. (Ginsburg's fleeting citation to Iqbal in footnote 21 suggests she is aware of the irony.)

Posted by: JP | Jun 30, 2009 10:49:00 AM

Howard - I think your fourth comment is excellent (not to say your others aren't as well). I think another piece of evidence on that point is who Republicans nominate versus who Democrats nominate. Think of the last three Republican nominees - Thomas, Roberts, and Alito. They're, at their most moderate, died-in-the-wool movement conservatives. And everyone described them as such during the confirmation process, without any compunction.

On the other hand, who do Democrats nominate, even when they have complete control over the executive and legislative branches? Ginsburg, Breyer, and Sotomayor. Good moderate liberals, at best. And everyone shies away from calling them even that. Where are the movement liberals from the Democrats when they have the opportunity to nominate them?

Posted by: David S. Cohen | Jun 30, 2009 10:38:40 AM

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