More On Sotomayor

The WSJ editorializes against the "The Empathy Nominee".  One of the cases they cite is "Knight v. Commissioner", a thrilling tax case which hinged on the deductibility of investment advisory fees.  The Supreme Court unanimously upheld her ruling but derided her reasoning; the Tax Prof blog provides a flavor of the mockery here:

How will the case turn out? This much seems clear: the Court will not adopt the Second Circuit’s reasoning that to ask whether trust costs would have been incurred had the property not been held in trust is to ask whether the trust costs could have been incurred outside a trust. Indeed, the government’s lawyer led with this position, but just a few minutes into his argument Justice Roberts asked, to general laughter, “You didn’t think much of this argument before the Second Circuit adopted it, did you? You didn’t argue this before the Court of Appeals?” The government's lawyer acknowledged that Justice Roberts was correct.

“So you have a fallback argument,” Justice Roberts said.

“Well, that—that’s right.”

“Well, now might be a good time to fall back,” Justice Roberts suggested.

The SCOTUS blog has a detailed review of other opinions written by Ms. Sotomayor.  The summary:

Since joining the Second Circuit in 1998, Sotomayor has authored over 150 opinions, addressing a wide range of issues, in civil cases.  To date, two of these decisions have been overturned by the Supreme Court; a third is under review and likely to be reversed.  In those two cases (and likely the third), Sotomayor’s opinion was rejected by the Supreme Court’s more conservative majority and adopted by its more liberal dissenters (including Justice Souter).  Those outcomes suggest that Sotomayor’s views would in many respects be similar to those of Justice Souter.

Both the SCOTUS blog and the WSJ Law Blog note an interesting Second Amendment case, Maloney v. Cuomo.  From the SCOTUS blog:

Second Amendment:  Sotomayor was also a member of the panel that issued a per curiam opinion in another controversial case that may be headed for the Court next year.  In Maloney v. Cuomo, 554 F.3d 56 (2009), the panel considered (as relevant here) a claim by a New York attorney that a state law prohibiting possession of a chuka stick (also known as nunchaku, a device used in martial arts consisting of two sticks joined by a rope or chain) violated his Second Amendment right to bear arms.  The district court rejected the claim on the ground that the Second Amendment does not apply to the states.  On appeal, the panel affirmed.  Relying on the Supreme Court’s 1886 decision in Presser v. Illinois, it explained that it was “settled law . . . that the Second Amendment applies only to limitations the federal government seeks to impose” on the individual’s right to bear arms.  The Supreme Court’s recent decision in District of Columbia v. Heller, the court continued, “does not invalidate this longstanding principle.”  And while acknowledging the possibility that “Heller might be read to question the continuing validity of this principle,” the panel deemed itself bound to follow Presser because it “directly controls, leaving to the Supreme Court the prerogative of overruling its own decisions.”  Maloney’s lawyers intend to file a petition for certiorari in late June.

Comments

[Jane]

Apparently it's on:

From Tapper via twitter:

newtgingrich just called Judge Sotomayor a "racist" and said she should withdraw. Will ousted Speaker impact former colleagues on Hill?

[Walter]

Unfortunately, the Republican argument against Sotomayor on the tax case is undermined* by the actions of the Bush administration.

As you quote, Bush's solicitor general adopted her reasoning as its position before the Supremes.

On the other hand, the case fits into her pattern of supporting executive authority over the little guy, provided that the little guy can be viewed as the oppressor.**

I think she actually has a slight chance of being worse on business issues than Souter.

________________________
*Not the first time this sort of thing has happened.

**Funny how the person fighting the entrenched powers at city hall in Ricci can be seen as oppressing them, isn't it?

[Thomas Collins]

Sonia Sat's Knight decision isn't a model of tax insight, but I wouldn't count on mounting an attack against her based on her Internal Revenue Code Section 67 jurisprudence.

By the way, TM, I noticed the snide reference to the "thrilling" tax case. If you ever get a SCOTUS nomination, I am going to Bork you on the ground that you have no empathy for those of us who make our living toiling in the tax thicket!!! :-))

[Martin]

So Petraeus backs Obama 100% on Gitmo, and now the WSJ attacks the "empathy nominee" except they don't mean Clarence Thomas:

"PRESIDENT BUSH I: I have followed this man's [i.e. Clarence Thomas] career for some time, and he has excelled in everything that he has attempted. He is a delightful and warm, intelligent person, who has great EMPATHY and a wonderful sense of humor."

Sense he's got a great sense of humor, I'm sure CT is laughing at the conservative follies! I am.

[Jane]

Martin,

Can you link to where 41 said he was looking for a Justice with empathy? Or maybe where he said what he wanted in a Justice was delightfulness?

I wait in anticipation.

[Martin]

Sorry Jane, I'm too busy laughing at the total silence you people have to Petraeus's complete support of Obama.

[glasater]

The good general might well like to keep his job.

[narciso]

Possibly, but he probably does believe that, of course we seem to be turning over
AQ detainees to the ISI and other less delicate elements, so that becomes a moot point. we honor him for his efforts at counterinsurgency, unlike a certain other figure, who seemed to want the mission to fail; the name escapes me right now.

[Jane]

SO you expected a General who did not support his commander in chief Martin? Perhaps one that was awash with delightfulness or something?

[DrJ]

Jane, I was surprised that Patraeus made the statement at all. Given that he did, I'm not surprised that he said what he said. I'd guess it was "suggested" that he do so to support his President.

[Ranger]

Well Martin, I guess giving lip service to Barry on GITMO is the small price the good general has to pay for Obama agreeing to let the US Army stay in in Iraq for http://hosted.ap.org/dynamic/stories/U/US_US_IRAQ?SITE=TNKNN&SECTION=HOME&TEMPLATE=DEFAULT>10 more years to secure victory there.

[Martin]

We need another 10 years "to secure victory"?

That's some kind of "last throes."

We lost 20 men this month. For what I don't know.

If we leave tomorrow, or ten years, or 100 years from now, the same thing's going to happen when we leave.

Just cause you leave the kitchen light on all night doesn't mean you don't have roaches.

[Ranger]

We needed 40 years to secure the victory in Europe, but I am sure you thought that was a waste of resources too.

The point of the post though was to point out for all your complaining about how some ill defined "you people" are totally silent on what Gen. Patraeus said, when you are totally silent on Obama's total abandonment of his promise to be out of Iraq in 16 months.

[tjproudamerican]

This is great for us Liberals. Sotomayor will be the most radical leftist since Douglas and Obama's next appointee will be even more radical.

Conservatives need to stock up on guns and rations and weep bitter tears of despair,

Poor Scalia and Roberts and Alito! At least Thomas has someone he can hit on, "Guess what I am wearng under my robe?"

I bet there will be only 400 million guns in private ownership after Sotomayor gets through with the Constitution.

Before she is sworn in, Roberts needs to issue a ruling that every American is entitled to all weapons including Tanks, Destroyers, and Fighter Jets.

Alas, Democracy! Why do Liberals get to serve on the Court in the first place?

[Martin]

Ranger-Casey said that. Not Obama.

Furthermore, Gates has already flatly contradicted Casey.

There's also the slight problem that Bush himself committed the Unites States to the SOFA. How Casey ignores that is beyond me.

But whatever. Furthermore, given how you conservative types are always ranting about "socialist" Europe with their universal health care, it seems our victory was sort of hollow, since Communism triumphed.

[Ranger]

Casey's job is to plan for the reasonable future, regardless of political posturing by any given administration. That's why the US Army leased all the logistics bases in Croatia for years even though Clinton promised our deployment to Bosnia would only last "one year." The 10 year time frame is obviously what they pentagon is actually anticipating will happen, regardless of what public statements Obama or Gates makes.

Furthermore, given how you conservative types are always ranting about "socialist" Europe with their universal health care, it seems our victory was sort of hollow, since Communism triumphed.

Posted by: Martin | May 27, 2009 at 03:08 PM

Well, asks anyone who lived in Eastern Europe between the late 40s and the late 80s the difference between the structural economic stagnation in Western Europe and the communist regimes they lived under and they will clearly explain it to you.

BTW, if you want a more light hearted take, go watch The Fireman's Ball. I actual think that will illuminate a lot of things about the current regime in DC as well.

[Ignatz]

Re, that second amendment case, the ninth circuit recently held that Heller and consequently the 2nd amendment do apply to the states.
Since different districts making different rulings on the same subject is one of the prime reasons the SCOTUS certs, seems a good chance this one will end up there.

[Patrick R. Sullivan]

'The district court rejected the claim on the ground that the Second Amendment does not apply to the states.'

Oh, the fun that will ensue from that! So, after all these years, we find out that, really, we were just kidding that the 14th Amendment DIDN'T incorporate the Bill of Rights to apply to the states.

Anyone for prayer in public schools again? Laws against abortion? Censorship of anything and everything?

Delicious.

[dbp]

I'm with Patrick: In fact it should be the 1st that does not apply to the States while the 2nd should.

The 1st starts out with "Congress shall make no law..." clearly limiting only what Congress can do. The 2nd is more general and thus has no such limitation.

[Danube of Thought]

"We lost 20 men this month. For what I don't know."

For Obama. It's his war now, and so is Afghanistan. If he wants us out, he can get us out with the stroke of a pen.

Just like he could close Guantanamo with the stroke of a pen. Or abolish military commissions. Or rescind don't-ask-don't-tell. Or submit legislation to repeal the Patriot Act. Or eliminate warrantless intercepts. Or put an end to renditions. Or close Bagram.

[Danube of Thought]

"...it seems our victory was sort of hollow, since Communism triumphed."

I have seen no one here--or anywhere--assert that socialized medicine (why the quotation marks around socialized?) in Western Europe means the triumph of communism there.

In Eastern Europe a Communist army (not communism) did indeed triumph, but the communist system it imposed collapsed of its own weight after four decades.

[Danube of Thought]

"Sotomayor will be the most radical leftist since Douglas and Obama's next appointee will be even more radical."

But each will have only one vote on the Court, and since the three will simply supplant the votes of Souter, Ginsburg and Stevens, the net effect on judicial precedent coming oout of the Court will be a richly deserved zero.

Meanwhile, I got more guns than I need but not as many as I want. So I'll get more, just for fun.

[Buford Gooch]

The shallow thinking of folks like Martin always amazes me. He seems to be relatively intelligent, but can't get more than one step out from current actions. Actions have consequences, and those consequences have consequences, etc.

[Danube of Thought]

Ignatz is correct that between the Ninth and Second Circuits there is a bona fide split in the circuits, which greatly heightens the chance of review (although the Supremes ain't gonna want to do it).

The Ninth's ruling came after the Second's, and referred to it and rejected its reasoning:

"Because, as Heller itself points out, 128 S. Ct. at 2813 n.23, Cruikshank and Presser did not discuss selective incorporation through the Due Process Clause, there is no Supreme Court precedent directly on point that bars us from heeding Heller’s suggestions."

Sotomayor would have to recuse herself, but it would make no difference since (at least as I recall) Souter voted--natch--to uphold the D.C. ban.

[Danube of Thought]

"Sorry Jane, I'm too busy laughing at the total silence you people have to Petraeus's complete support of Obama."

Maybe he's simply supporting Bush, who said beginning in 2006 that he wanted to close Guantanamo. Unlike Obama, however, he didn't make a fool of himself by writing a check with his mouth that his ass couldn't cash. Every problem Obama now has with closure was considered by Bush; Obama himself has surely been considering them for however long it is since he declared his intention to close it. Yet now reality bites him, as it has with so much else. And it's delicious to behold it all.

[Danube of Thought]

"'While we're at it,' he said, 'we're going to close Guantanamo. And we're going to restore habeas corpus. ... We're going to lead by example _ by not just word but by deed. That's our vision for the future.'"

--Barack Obama, June 23, 2007

Two years to ponder it, and he still can't do it?

And what about habeas corpus for the detainees at Bagram? Was Obama simply lying?

Over to you, Martin.

[Pofarmer]

Just cause you leave the kitchen light on all night doesn't mean you don't have roaches.

Well, it certainly helps when the exterminator is sitting right next to the light.

[bad]

writing a check with his mouth that his ass couldn't cash.

perfecto!!