Friday, June 12, 2009

The bigger the issue, the less Judge Sonia Sotomayor has to say. Known for exhaustive written opinions, she was terse, even dismissive, when ruling against individual weapons rights, property rights and the employment rights of white firefighters and against a state’s traditional authority to prohibit currently imprisoned felons from voting.

Judge Sotomayor’s astonishingly brief opinions in those important cases ill served not just the litigants and the attorneys involved in the cases, but also the entire national bar and the American public - all of whom should expect full explanations of legal reasoning in landmark decisions.

The most controversial of the judge’s short opinions - this one so short that M. Edward Whelan III of the Ethics and Public Policy Center called her actions “shenanigans that fellow Clinton appointee Jose Cabranes exposed in a blistering dissent” - involved her three-judge panel’s deeply unpopular decision denying white firefighters a promotion they had earned via a race-neutral exam (Ricci v. DeStefano). Even liberal Washington Post columnist Ruth A. Marcus, one of Judge Sotomayor’s fiercest defenders in print, wrote Thursday that she “agree* with Sotomayor’s appeals court colleague, Jose Cabranes, that the dispute was important enough to merit more than the brief paragraph with which the three-judge panel dispatched the white firefighters’ claims.”

Judge Sotomayor’s longtime mentor, Judge Cabranes, again was at odds with her dismissive approach in the felon-voting case of Hayden v. Pataki. Judge Cabranes wrote a 36-page decision for the court, and Judge B.D. Parker wrote a 32-page dissenting opinion. Yet Judge Sotomayor wrote separately to deny - contradicting every other judge on the court - that the case was even complex. “It is not [complex],” she wrote. “It is plain.”

Again, the position she said was “plain” was one in which she would be overthrowing literally hundreds of years of the legal tradition of forbidding jailbirds from voting. Her high-handed opinion - just 240 words long, or only half the length of this editorial - showed utter disrespect for all who would rely on it to understand her interpretation of the law.

The same short shrift is evident in the case Didden v. Village of Port Chester, in which Judge Sotomayor approved a radical government seizure of private property to give directly to another private party. The judge provided a mere six-paragraph order, described by George Mason University law professor Ilya Somin as being “without serious examination of the legal issues to any significant degree.”

In the Maloney v. Cuomo case, in which Judge Sotomayor ruled against a person’s right to own a “nunchaku” martial arts stick, the judge took a mere 1,300 words, with only a cursory constitutional analysis, to determine that “neither of [the weapon owner’s] arguments has any merit.”

Surely the U.S. Supreme Court deserves a justice who is willing to provide more reasoning than a few hundred words for controversial cases in which the public clearly sides against that justice’s position. The public rightly expects to be told why its collective understanding of the law is being jettisoned so freely.

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