Surely the Senate has the right to demand better than this

Roger Clegg reports that, under questioning by Senator Kyl about the Ricci case, Judge Sotomayor offered up a howler that raises serious questions about either her competence or her honesty. Specifically, Clegg reports that Sotomayor claimed it was difficult to tell whether all nine Justices rejected her position in Ricci because “there are a lot of opinions in that case.”

What nonsense. First, the existence of multiple opinions doesn’t make it hard to tell where the Justices stand. All you have to do is read the opinions. If the Justices are clear, it becomes easy to tell whether all of them have rejected a given position.

Second, in Ricci, there were four opinions, but two of them (Scalia’s and Alito’s) concur in full with the majority opinion and say so up front. The majority opinion, of course, is a clear rejection of Sotomayor’s position. Sotomayor affirmed judgment in favor of the City of Haven. The majority directed that judgment be entered in favor of Ricci and the other plaintiffs. Nothing tricky about that.

This leaves one opinion, Justice Ginsburg’s dissent. As I have explained, that opinion clearly rejects Sotomayor’s approach, as well. Unlike both Sotomayor and the majority, Ginsburg would have remanded the case to the district court for further consideration. And she would have done so to enable the district court to apply a standard that differs from Sotomayor’s.

To be sure, you have to read the footnotes to determine this (perhaps Ginsburg was trying to obscure her rejection of Sotomayor’s approach). But it’s not too much to expect a potential Supreme Court Justice to read the footnotes.


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