President Obama Nominates Sonia Sotomayor for Supreme Court

Sonia Sotomayor Pres­i­dent Oba­ma today announced (CNN sto­ry and video) his nom­i­na­tion of Sonia Sotomay­or, cur­rent­ly a Judge on the Sec­ond Cir­cuit, to fill the posi­tion on the US Supreme Court to be vacat­ed by the res­ig­na­tion of Jus­tice David Souter.

With­in a few hours of Pres­i­dent Oba­ma’s announce­ment, the CATO Insti­tute and The Her­itage Foun­da­tion had sig­nif­i­cant arti­cles devot­ed to attack­ing the nom­i­na­tion. Rush Lim­baugh this after­noon called Judge Sotomay­or a “racist”. Sean Han­ni­ty called her a “rad­i­cal” who had made “out­ra­geous” and “amaz­ing” state­ments. The lib­er­al sites raced out arti­cles attack­ing the attack­ers and defend­ing Judge Sotomay­or (Talk­ing Points Memo and The Huff­in­g­ton Post).

The first item that has been cir­cu­lat­ing about Judge Sotomay­or is a state­ment she made about appel­late courts mak­ing “pol­i­cy” dur­ing a pan­el dis­cus­sion at Duke Uni­ver­si­ty in 2005 (note: this clip is length­i­er, and pro­vides much more con­text, than the clips played on most news sites):

This state­ment is being used to char­ac­ter­ize Sotomay­or as an “activist” judge who doesn’t rec­og­nize that judges “inter­pret” (but do not “cre­ate”) law. Per­son­al­ly, I think that argu­ment is non­sense. Judges all the time ana­lyze statu­to­ry and con­sti­tu­tion­al issues by con­sid­er­ing the impact in the real world of their poten­tial deci­sions. Those are “pol­i­cy” con­sid­er­a­tions. For exam­ple:

  • If an employ­ee has to file a charge of dis­crim­i­na­tion with the EEOC with­in 300 days of the “unlaw­ful employ­ment prac­tice”, does that mean 300 days of the neg­a­tive per­for­mance review that results in low­er pay for the employ­ee, or with­in 300 days of each pay check the employ­ee receives pur­suant to the neg­a­tive per­for­mance review? That was the issue in Led­bet­ter v. Goodyear Tire & Rub­ber Com­pa­ny, 550 U.S. 618, 128 S. Ct. 2162 (2007).The Supreme Court in Led­bet­ter made a num­ber of pol­i­cy-based argu­ments in favor of its lim­i­ta­tion rule, includ­ing dis­cus­sion of a “pol­i­cy of repose” which makes it “unfair” for the wronged par­ty not to put the employ­er on notice of a claim with­in a spe­cif­ic peri­od of time. See my dis­cus­sion in this blog of the deci­sion.
  • If employ­ment dis­crim­i­na­tion law pro­hibits retal­i­a­tion against an employ­ee who oppos­es dis­crim­i­na­to­ry con­duct, what is the lev­el of sever­i­ty of the employer’s action that is nec­es­sary for the courts to rec­og­nize a retal­i­a­tion claim? That was the issue in Burling­ton North­ern & Sante Fe Rail­way Co. v. White, 548 U.S. 53 (2006).  The Supreme Court exam­ined a broad range of pol­i­cy con­sid­er­a­tions that focused on the bur­dens on employ­ers of var­i­ous pos­si­ble rul­ings, and whether employ­ee com­plaints would be encour­aged or dis­cour­aged by pos­si­ble rul­ings. See my dis­cus­sion in this blog on the deci­sion.

There is sim­ply no bright (or mud­dy) line between “law” and “pol­i­cy”, and judges rou­tine­ly for­mu­late the most appro­pri­ate rule of law by exam­in­ing how the var­i­ous options are con­sis­tent with or pro­mote var­i­ous pol­i­cy con­sid­er­a­tions.

By the time a case gets to the lev­el of a court of appeals, the judges are fre­quent­ly pre­sent­ed with com­pet­ing pol­i­cy con­sid­er­a­tions which the par­ties will argue under­gird a pro­posed inter­pre­ta­tion of a statute or a con­sti­tu­tion­al pro­vi­sion. For exam­ple, in Led­bet­ter v. Goodyear Tire & Rub­ber Com­pa­ny, 550 U.S. 618, 128 S. Ct. 2162 (2007), the Supreme Court had to inter­pret a pro­vi­sion of Title VII of the Civ­il Rights Act of 1964 which dealt with when a per­son has to file a charge of dis­crim­i­na­tion with the EEOC. With­in 300 days of a dis­crim­i­na­to­ry per­for­mance review in (for exam­ple) 2001 which sup­pressed a woman’s pay checks com­pared to her male peers, or with­in 300 days of a dis­crim­i­na­to­ry pay check she received in 2008 as a con­se­quence of that per­for­mance review? It would be intel­lec­tu­al­ly dis­hon­est to sug­gest that the answer was crys­tal clear from the lan­guage of the statute. So the Courts, rou­tine­ly, exam­ine the pol­i­cy con­sid­er­a­tion behind the statute in ques­tion. In Led­bet­ter, here is an incom­plete list of the com­pet­ing pol­i­cy con­sid­er­a­tions that were rel­e­vant to the Court’s deci­sion, and all of these poli­cies are unar­guably reflect­ed in the statute (Title VII) and rel­e­vant legal prin­ci­ples:

  • The pol­i­cy that Title VII should pro­vide a rem­e­dy to the employ­ee for dis­crim­i­na­to­ry deci­sions by employ­ers.
  • The pol­i­cy that Title VII should act as a deter­rent to pre­vent future dis­crim­i­na­tion by employ­ers.
  • The pol­i­cy that claims should be pre­sent­ed with rea­son­able prompt­ness to give defen­dants fair notice of the claims.
  • The pol­i­cy that claims should be pre­sent­ed with rea­son­able prompt­ness because claims can be adju­di­cat­ed more com­pe­tent­ly before wit­ness­es, mem­o­ries, doc­u­ments, or oth­er evi­dence fade or dis­ap­pear.

The Supreme Court in Led­bet­ter focused on the poli­cies relat­ing to prompt pre­sen­ta­tion of claims, and ruled that Led­bet­ter was required to file her charge with the EEOC with­in 300 days of the dis­crim­i­na­to­ry per­for­mance review. The dis­sent in Led­bet­ter focused on the reme­di­al and pre­ven­tive poli­cies in Title VII. Con­gress then over­ruled the Led­bet­ter deci­sion and con­clud­ed that the Supreme Court had mis­in­ter­pret­ed the rel­e­vant pro­vi­sions in and poli­cies of Title VII. The Supreme court, in its deci­sion, by any rea­son­able def­i­n­i­tion, “made pol­i­cy” in the result it reached. So did Con­gress.

Stay tuned, and I’ll dis­cuss the Sotomay­or nom­i­na­tion in com­ing days and weeks.

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Drew M. Capuder

Publisher of Drew Capuder's Employment Law Blog. Lawyer with more than 29 years experience, focusing on employment law, commercial litigation, and mediation. Extensive trial and appellate experience in state and federal courts. Call Drew at 304-333-5261
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