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  • Ricci Shenanigans

    Sen. Jeff Sessions (R-AL) is currently questioning Judge Sonia Sotomayor about her Ricci v. DeStefano decision. Yesterday at Bench Memos, Heritage fellow Robert Alt blogged about Sotomayor’s role in the case:

    Ed Whelan has rightly referred to Judge Sotomayor’s dismissive procedural treatment of the Ricci case—in which the panel simply affirmed on the basis of the district court opinion in a single paragraph instead of actually issuing a substantive opinion—as “shenanigans.” Stuart Taylor has a must read commentary explaining just how this procedural maneuver very nearly shielded the case from Supreme Court review. Because summary orders are not circulated to all circuit judges in the same way as full opinions, Clinton appointee Judge Cabranes only found out about the Ricci case by reading about it in a local newspaper. Given the importance of the issues, he sought review of the decision by the full (en banc)court. As Taylor notes, Cabranes’s en banc request and blistering dissent from the en banc court’s decision not to hear the case brought Ricci “forcefully” to the Supreme Court’s attention. Were it not for Cabranes’s opinion, it is far more doubtful that the summary disposition in Ricci would have caught the attention of the Court among the 7,000-plus other petitions vying for review.

    Taylor also raises questions as to whether the summary treatment by the panel comports with Second Circuit Local Rule 32.1(a), which provides that a panel may dispose of a case “by summary order instead of by opinion” only “in those cases in which decision is unanimous and each judge of the panel believes that no jurisprudential purpose would be served by an opinion (i.e., a ruling having precedential effect).” In light of Judge Cabranes’s dissent from denial of en banc, in which he emphasized that the case raised significant issues never before decided in the Second Circuit, and the Supreme Court’s decision not only to take the case but to reverse the opinion below, it would be hard to say that there was no jurisprudential purpose in even bothering to issue an opinion. Indeed, it is difficult to see the purpose in disposing of the case by summary order, other than to make sure that it didn’t see the light of day.

    Posted in Legal [slideshow_deploy]

    2 Responses to Ricci Shenanigans

    1. Pingback: Ricci Shenanigans « Conservative Thoughts and Profundity

    2. Roger S., MA. says:

      Apparently there are honest jurists on appeals court benches, like Judge Cabranes, the actual hero in Ricci. It also appears that they are not very numerous and are frequently overworked. Whelan and Taylor, if their comments are read carefully, however paint a much more sinister picture of the handling of this case.

      Discernible is more than just a hint of attempted judicial malfeasance on the part of the 3-judge panel of which Sotomayor was a member. There is an odor of having found out just in time that their callous prior disposition per "summary order" was about to be exposed, and quickly converting it to a "per curiam" decree. An unfine appearance of kids getting caught with their hands in the cookie jar remains.

      Which raises the question of why not more people with the qualities of character of a Judge Cabranes get nominated for an SC vacancy?

      Could this tidbit from the comments on Stuart Taylor's blog supply some insight? (I have no way of knowing its authors actual meaning or intent.)

      (name deleted to protect the maybe innocent)

      "Stuart, you continue to be a traitor to your class. It was you who provided the legal argument for Paula Jones to persecute our former president, simply because he used state troopers as his procurers. And now, at a moment in history when we have unified the left behind a skilled White House salesman, you subvert national unity and, quite possibly, hamper the evolution of a Supreme Court disposed to deal sternly with those who oppose the redistribution of wealth and privelege.

      I'm very angry about your betrayal, Stuart. Every other legal academic is on the bandwagon — and the ones that aren't have the good sense to stay mum, knowing what's good for them.

      May the batteries in your Prius go flat!"

      Irony, sarcasm, genuine vitriol? Who knows? Or, an apt description of what underlies the mad political experiences of the last few months?

      Either way, a clear "down"-vote on Sonia is in order.

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