Victory for Troy Davis at Supreme Court!

NAACP email, Aug. 17, 2009

We won! Thanks to you and 35,000 other NAACP members and supporters, the U.S. Supreme Court today announced that Troy Davis will finally get his day in court…and a chance to prove his innocence.

The court ordered a federal judge in Georgia to review, what we and many others believe is, the overwhelming evidence of Troy's innocence. Troy was sentenced to death for the 1991 killing of a police officer in Savannah, Georgia.

As you know, the NAACP and other organizations have been fighting to save the life of Troy Davis. There was no physical evidence tying him to the crime and seven out of nine witnesses have recanted or contradicted their testimony. And today, finally, the Supreme Court gave Troy a chance to present this evidence and prove his innocence! That's a victory for Troy and his family — and for all of us.

Thank you for all your work to make this happen. I'll be in touch again soon to let you know how else you can help.

Sincerely,

Ben Jealous
Benjamin Todd Jealous
President and CEO
NAACP

*****************
Amnesty International USA email, Aug. 17, 2009

Just hours ago, we heard big news that proves that miracles do happen!

The U.S. Supreme Court granted Troy Davis the chance to finally present crucial evidence in court that may prove his innocence.

Until now, Troy has been denied the opportunity to present all the facts supporting his case. But after a 6-2 ruling from the nation's highest court, Troy will get that chance at justice we've been fighting for since day one.

The power that we've seen building behind Troy's case is awe-inspiring. Your heart-felt emails, letters, phone calls and actions are opening doors that many said were shut for good.

It's working. But we won't stop pushing until Troy Davis is granted clemency!

Right now, Troy Davis sits on death row. So keep telling his story to those who haven't heard it. Keep hoping for more miracles, because given today's news, it's clear – anything is possible!

We can't say it enough – thank you,

Laura Moye
Director, Death Penalty Abolition Campaign

Race, Racism & the Sotomayor Nomination

by Mumia Abu-Jamal, Prison Radio, Written 5/30/09, Recorded 5/31/09

click here to listen to audio column

click here for short version

It would be easy to describe the present faux controversy over the nomination of 2nd Circuit of Appeals Court judge, Sonia Sotomayor, to the U.S. Supreme Court as media-generated, and thus, unreal.

But that would be too easy.

As forces on the political right decry the jurist as "racist", "reverse racist", or "biased", such terms do far more than spur flagging newspaper sales, it amps up the summer hearings for her nomination.

And while it may not reach the temperature of the Clarence Thomas - Anita Hill senate hearings, it will get plenty of attention, if only for the wrong reasons.

It is almost laughable to seriously consider the 'racist' claims launched by the Limbaugh, Gingrich and Tancredo axis of the Republican Party, given their manic xenophobia when it comes to Mexican immigrants, an issue that has driven millions of Latinos away from the GOP.

But, for argument's sake, let's examine the question, from a central core issue. Are Latinos a race?

The short answer is no.

Latinos, or Hispanics, are a linguistic and cultural community, but one of stunning diversity. In fact, Hispanics are a conglomeration of many races -- and indeed, many cultures, formed over centuries.

There are millions of people who are as dark-skinned (or darker) than African Americans, but are classified as Latinos, who are of Puerto Rican, Dominican or Mexican heritage.

The lesson in this is that race is often a national construct, which may be transformed by crossing a border.

Decades ago, one would think, there were no Hispanics (or at least the term wasn't used). People were classified according to their national heritage, or they were called "Spanish -surnamed."

But the lives, experiences, and dreams of people can be profoundly different, depending on where one's family hails: Mexico, Puerto Rico, Panama, Dominican Republic, Ecuador, Argentina or Cuba.

All of these people may be called Latinos, but they are white, red, brown and black. Their familial and genetic histories draw Spain, Italy, the Americas and Africa.

In sum, Latinos are not a race, as race is understood in this country, but a linguistic and multi-cultural community of breathtaking diversity.

The irony is that Judge Sotomayor, if she were born in many Latin American countries (instead of the Bronx), would have "blanca", or "claro" on her birth certificate (meaning white). Only in the US does she become a 'person of color', simply because whiteness in the American sense, is a narrow, exclusive domain.

Many millions who now consider themselves white had grandparents who weren't considered white, especially given their southern European places of origin.

But, things change; even our definitions of race.

--(c) '09 maj

[Note: Mr. Jamal has recently published his latest book, Jailhouse Lawyers: Prisoners Defending Prisoners vs. the USA (San Francisco: City Lights Bks, Dr. Angela Y. Davis. For more info: www.citylights.com; or write: City Lights Books, 261 Columbus Ave., San Francisco, CA 94133

===================

The Power of Truth is Final -- Free Mumia!

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Mumia Abu-Jamal's new book -- JAILHOUSE LAWYERS: PRISONERS DEFENDING PRISONERS V. THE USA, featuring an introduction by Angela Y. Davis -- has been released! It is available from City Lights Books: http://www.citylights.com/book/?GCOI=87286100448090

If you are planning to organize an event or would like to order in bulk, you can also receive a 45% discount on any bulk orders of 20 copies or more. The book retails for $16.95, for orders of 20 copies or more the discounted price would be $9.32 per book, plus shipping and handling. Prepayment would be required and books are nonreturnable. If you or your organization would like to place a bulk order, please contact Stacey Lewis at 415.362.1901 or stacey@citylights.com

Let's use the opportunity of the publication of this brilliant, moving, vintage Mumia book to build the momentum for his case, to raise the money we desperately need in these challenging economic times, to get the word out – to produce literature, flyers, posters, videos, DVD's; to send organizers out to help build new chapters and strengthen old ones, TO GET THE PEOPLE OUT IN THE STREETS … all the work that we must do in order to FREE MUMIA as he faces LIFE IN PRISON WITHOUT PAROLE OR EXECUTION!

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Brown at 55 and counting

by Mumia Abu-Jamal, Prison Radio, Recorded May 21, 2009
Written May 17, 2009

click here to listen to audio column

Brown v. Board of Education

It has been over 1/2 a century (55 years) since the U.S. Supreme Court decided the Brown vs. Board of Education case, desegregating American public education.

The decision came to be regarded as a landmark ruling, one which transformed the very nature of U.S. public schools.

Or did it?

There is no question but that Brown dealt a severe blow to the common American practice of educational apartheid, by finding the nation's public school systems, which were unevenly divided between Black and white institutions, were separate and unequal, and thus violative of the equal protection clause of the 14th Amendment. As such, Brown became the precedent by which all racial segregation came to be declared unconstitutional.

But back to the public schools.

Who can doubt that millions of public school students now attend inner-city schools that are just as segregated as they were 50 years ago?

How can this be, we wonder?

Well, there are differences. Funding for schools is based on property taxes, and as inner cities are sited in poor urban cores, where taxes are lessened, there are fewer resources for such schools.

And while racial segregation is unconstitutional, class segregation is not. This, coupled with the segregated housing customs which still determines where people live, also determines where young people go to school.

Just because a law changes, doesn't mean life does.

There are other reasons, as well.

Millions of whites fled to the suburbs, and many built private schools that could legally segregate. Much of this energy went into the voucher school movement, so that parents could siphon off public monies to pay for private, and even religious schools.

With some major American cities facing drop-out rates of 50%, public schools are failing in their mission of teaching and training children to handle the glaring needs of tomorrow.

And what of No Child Left Behind? It was by any honest measure, a disaster.

The less said about it, the better.

--(c) '09 maj

The Power of Truth is Final -- Free Mumia!

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Judge Sotomayor’s Appellate Opinions in Civil Cases

Tom Goldstein, SCOTUSblog, May 15, 2009

Judge Sonia Sotomayor is an obviously serious candidate to serve on the Supreme Court. We have been struck by how the amount of commentary about Judge Sotomayor has ignored the most accessible and valuable source of information: her opinions as an appellate judge. Last year, I directed a project in which a team of Akin Gump summer associates extensively reviewed Judge Sotomayor’s opinions. Amy Howe subsequently revised and expanded their work, with contributions by me.

Here, we make our first effort at summarizing what we regard as Judge Sotomayor’s principal opinions in civil cases. Our only goal is to identify and summarize the opinions, not evaluate them.

A summary of additional civil cases, as well as Judge Sotomayor’s leading criminal law opinions will follow.

CIVIL LITIGATION

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.

Abortion Rights: Although Sotomayor has not had a case dealing directly with abortion rights, she wrote the opinion in Center for Reproductive Law and Policy v. Bush, 304 F.3d 183 (2d Cir. 2002), a challenge to the “Mexico City Policy,” which prohibited foreign organizations receiving U.S. funds from performing or supporting abortions. An abortion rights group (along with its attorneys) brought claimed that the policy violated its First Amendment, due process, and equal protection rights. Relying on the Second Circuit’s earlier decision in Planned Parenthood Federation of America, Inc. v. Agency for International Development, which dealt with a virtually identical claim, Sotomayor’s opinion rejected the group’s First Amendment claim on the merits. Turning to the plaintiffs’ due process claim, Sotomayor held that they lacked standing because they alleged only a harm to foreign organizations, rather than themselves. Sotomayor held that the plaintiffs did have standing with regard to their equal protection claim, but she ultimately held that the claim failed under rational basis review because the government “is free to favor the anti-abortion position over the pro-choice position” with public funds.

First Amendment - Speech: Sotomayor has considered First Amendment issues relatively infrequently. In addition to Center for Reproductive Law and Policy (just discussed), one of her more controversial cases was Pappas v. Giuliani, 290 F.3d 143 (2d Cir. 2002), involving an employee of the New York City Police Department who was terminated from his desk job because, when he received mailings requesting that he make charitable contributions, he responded by mailing back racist and bigoted materials. On appeal, the panel majority held that the NYPD could terminate Pappas for his behavior without violating his First Amendment right to free speech. Sotomayor dissented from the majority’s decision to award summary judgment to the police department. She acknowledged that the speech was “patently offensive, hateful, and insulting,” but cautioned the majority against “gloss[ing] over three decades of jurisprudence and the centrality of First Amendment freedoms in our lives just because it is confronted with speech is does not like.” In her view, Supreme Court precedent required the court to consider not only the NYPD’s mission and community relations but also that Pappas was neither a policymaker nor a cop on the beat. Moreover, Pappas’s speech was anonymous, “occur[ring] away from the office on [his] own time.” She expressed sympathy for the NYPD’s “concerns about race relations in the community,” which she described as “especially poignant,” but at the same time emphasized that the NYPD had substantially contributed to the problem by disclosing the results of its investigation into the racist mailings to the public. In the end, she concluded, the NYPD’s race relations concerns “are so removed from the effective functioning of the public employer that they cannot prevail over the free speech rights of the public employee.”

More recently, in Kraham v. Lippman, 478 F.3d 502 (2d Cir. 2007), she wrote an opinion holding that a rule prohibiting high-ranking political party officials from receiving court fiduciary appointments (such as appointments as guardians ad litem) in New York state courts did not violate the plaintiff’s right to freedom of political association. Sotomayor acknowledged that the rule required individuals to choose between holding a high-ranking party position and receiving court appointments, but she ultimately concluded that such an “incidental effect on individual decision-making, however, furthers the rational and legitimate goal of eliminating corrupt court appointments.”

First Amendment - Religion: In addition to her dissent in Hankins v. Lyght, 441 F.3d 96 (2d Cir. 2006), discussed below, in Ford v. McGinnis, 352 F.3d 382 (2d Cir. 2003), Sotomayor wrote an opinion that reversed a district court decision holding that a Muslim inmate’s First Amendment rights had not been violated because the holiday feast that he was denied was not a mandatory one in Islam. Sotomayor held that the inmate’s First Amendment’s rights were violated because the feast was subjectively important to the inmate’s practice of Islam. But in Duamutef v. Hollins, 297 F.3d 108 (2d Cir. 2002), Sotomayor wrote an opinion holding that an inmate’s First Amendment rights were not violated by prison officials’ monitoring of his mail - prompted by the inmate’s receipt of a book with the title “Blood in the Streets: Investment Profits in a World Gone Mad” - because the inmate had previously caused disturbances and the prison needed to forestall security problems.

Civil Rights: During her years on the Second Circuit, Sotomayor has decided cases involving race, sex, age and disability discrimination. In these cases, she has often - but not always - sided with the plaintiffs.

Sotomayor’s dissent in Gant v. Wallingford Board of Education, 195 F.3d 134 (2d Cir. 1999), is perhaps her most strongly worded opinion addressing discrimination. Plaintiff Ray Gant, who was transferred mid-year from first grade to kindergarten because of academic difficulties, alleged that the school was deliberately indifferent to racial hostility that he suffered and discriminated against him through the transfer. Sotomayor agreed with the majority’s decision to dismiss the racial harassment claim, but she rejected their conclusion that the transfer was not race discrimination. In her view, the transfer was “unprecedented and contrary to the school’s established policies”: white students having academic difficulties, she noted, received compensatory help, whereas Gant - the “lone black child” in his class - was not given an “equal chance” but was instead demoted to kindergarten just nine days after arriving at the school.

However, in Norville v. Staten Island University Hospital, 196 F.3d 89 (2d Cir. 1999), Sotomayor wrote an opinion that dismissed claims brought by a disabled black woman, who alleged that her employer did not give her the same accommodations for her disabilities that it provided to white employees, on the ground that the plaintiff had failed to prove that she was similarly situated to the white employees. Similarly, in Williams v. R.H. Donnelly Co., 368 F.3d 123 (2004), she wrote an opinion holding that an employee alleging racial (as well as gender) discrimination had not proven she was the victim of discrimination when her employer declined to create a position for her when the employer had never created a position for any particular employee.

In two cases, Sotomayor has voted to sustain claims alleging a hostile work environment. In Cruz v. Coach Stores, 202 F.3d 560 (2d Cir. 2000), she wrote for the panel in a case brought by a Hispanic woman alleging, inter alia, claims arising from a hostile work environment, failure to promote, and retaliation. The Second Circuit affirmed the district court’s dismissal of the failure-to-promote and retaliation claims but reversed the district court’s decision granting summary judgment on the hostile work environment claim. Citing the allegations of racial slurs by the plaintiff’s supervisor and sexual harassment, as well as the plaintiff’s assertion that she was fired “under the pretext of fighting in the workplace after she was physically beaten and sexually assaulted,” the panel acknowledged that “Cruz might have stated her claim of hostile work environment harassment more artfully,” but emphasized that “the essential elements of the charge do appear in the complaint.” And, the panel continued, the “physically threatening nature of [the supervisor’s] behavior, which repeatedly ended with him backing Cruz into the wall . . . brings this case over the line separating merely offensive or boorish conduct from actionable sexual harassment.” Moreover the opinion noted, “a jury could find that [the supervisor’s] racial harassment exacerbated the effect of his sexually threatening behavior and vice versa.”

And in Raniola v. Bratton, 243 F.3d 610 (2d Cir. 2001), she was part of a panel that considered hostile work environment and retaliation claims by a female police officer who was allegedly denied desirable shifts, threatened with physical violence, and implicated as a “rat” in front of her male co-workers. The district court had granted the defendants’ motion for judgment as a matter of law. In rejecting Raniola’s hostile work environment claim, it described the “camaraderie of a precinct house,” which lacks “some of the niceties of expression.” With Sotomayor writing, the Second Circuit reversed. In the panel’s view, Raniola had presented enough evidence to take both her hostile work environment and retaliation claims to a jury. With regard to the hostile work environment, it emphasized that during a two-and-a-half-year period, “Raniola was subjected to offensive sex-based remarks, disproportionately burdensome work assignments, workplace sabotage, and one serious public threat of physical harm.” And it rejected the district court’s “conclusion that ‘there is no evidence that plaintiff herself felt that the use of barnyard expletives directed to her or others made her work environment offensive.” Similarly, although all of the disciplinary actions at issue took place after Raniola transferred to another precinct, her former supervisor’s role “in prosecuting her charges, the timing of the prosecution, and the surrounding events all lend support to Raniola’s retaliation claim.”

Sotomayor has rarely written in age discrimination cases. However, she authored a forceful dissent in Hankins v. Lyght, 441 F.3d 96 (2d Cir. 2006), a case involving a minister who filed suit under the Age Discrimination in Employment Act (ADEA) after he was forced by his church to retire at the age of 70. The district court dismissed the claim; on appeal, the Second Circuit reversed, holding that the Religious Freedom Restoration Act (RFRA), which - subject to certain exceptions - prohibits the government from substantially burdening the exercise of religion, had effectively amended the ADEA by providing a defense for ADEA violations. In her dissent, Sotomayor complained that the majority had “violate[d] a cardinal principle of judicial restraint” when it - unnecessarily, in her view - held that the RFRA was constitutional. Moreover, she deemed the panel’s decision to remand the case to the district court for briefing on the RFRA issue “a wasteful expenditure of judicial resources and an unnecessary and uninvited burden on the parties.” Instead, she would have affirmed the district court’s dismissal and held that the ADEA does not apply to employment suits against religious institutions by their leaders.

Sotomayor has been perhaps most sympathetic to claims of discrimination arising from a disability. In Parker v. Columbia Pictures, 204 F.3d 326 (2d Cir. 2000), she was the author of an opinion that followed decisions of other circuits applying Title VII’s “mixed motive” analysis to the Americans with Disabilities Act (ADA), holding that the case should be remanded to the district court because the plaintiff satisfied the elements for a prima facie case of discrimination based on disability. And she has twice dissented from the majority’s decision to deny a discrimination claim. In EEOC v. J.B. Hunt Transportation, Inc., 321 F.3d 69 (2d Cir. 2003), she would have held that the plaintiff had made out a prima facie case of disability discrimination because the defendants rejected all applicants for long-haul truck driving who took certain medications. See also Nielson v. Colgate-Palmolive, 199 F.3d 642 (2d Cir. 1999) (citing Goldberg v. Kelly for the proposition that “the opportunity to be heard must be tailored to the capacities and circumstances of those who are to be heard” and arguing that when “a party exhibits a limited ability to understand a proceeding affecting her rights, the court must undertake even more strenuous efforts to explain the process”)

Sotomayor has twice weighed in on retaliation claims: in Raniola (described above) and in Washington v. County of Rockland, 373 F.3d 310 (2d Cir. 2004). In Raniola, Sotomayor wrote an opinion in which the panel agreed with the plaintiff that her suspension, probation, and termination occurred in retaliation for her discrimination complaints: one week after Raniola filed a complaint, her supervisor told her that he would give her a poor work evaluation, transfer her from her precinct, and charge her in administrative proceedings. This evidence, along with witness testimony, provided a reasonable basis to find that any legitimate reasons for her termination were pretext for retaliation. However, Sotomayor wrote an opinion rejecting retaliation claims in Washington, in which the plaintiffs - African-American correction officers - were subjected to administrative disciplinary proceedings after filing discrimination complaints. The panel agreed that the administrative proceedings had adverse employment consequences on the plaintiffs, but in her view those adverse consequences, standing alone, did not demonstrate retaliation.

In Malesko v. Correctional Services Corp., 229 F.3d 374 (2000), an inmate who served time in a halfway house operated on behalf of the Bureau of Prisons by a private corporation sought to sue the corporation (and its employees) for injuries that he suffered in the halfway house. In an opinion by Sotomayor, the court of appeals reversed the district court, holding that the inmate could bring a Bivens action against a private corporation acting under color of federal law. Such a result, she explained, “furthers Bivens’s overriding purpose: providing redress for constitutional rights.” Moreover, in the absence of any allegations that the government played a role in the “various policies or practices [that] led to” the inmate’s injury, the corporation was not shielded from liability under the government contractor defense. The Supreme Court granted certiorari and reversed by a five-to-four vote. 534 U.S. 61 (2001). In an opinion by then-Chief Justice Rehnquist, the Court held that Bivens was “concerned solely with deterring the unconstitutional acts of individual officers” and that there was “no reason for us to consider extending Bivens beyond this core premise here.” Justice Stevens - joined by Justices Souter, Ginsburg, and Breyer - dissented. In their view, because the violation at issue “was committed by a federal agent - a private corporation employed by the Bureau of Prisons to perform functions that would otherwise be performed by individual employees of the Federal Government,” the question before the Court was merely “whether the Court should create an exception to the straightforward application of Bivens” and its progeny, “not whether it should extend our cases beyond their ‘core premise.’”

Perhaps the highest-profile discrimination case in which Sotomayor has participated (though she did not write a signed opinion) is Ricci v. DeStefano, a challenge by a group of white firefighters in New Haven, Connecticut to the city’s decision not to certify an employment test for use in promotions when the use of the test results would have made a disproportionate number of white applicants eligible for promotions than minority applicants. The city defended its conduct on the ground that it feared that certifying the results of the test would expose it to a discrimination suit by minority applicants. Sotomayor was part of a three-judge panel that initially affirmed the district court’s judgment in the city’s favor with a summary order that described the district court’s decision as a “thorough, thoughtful, and well-reasoned opinion.” The order noted that the judges were “not unsympathetic to the plaintiff’s expression of frustration,” but it explained that “it simply does not follow that he has a viable Title VII claim.” The panel eventually replaced the summary order with a per curiam opinion that was otherwise virtually identical to the order. 530 F.3d 87 (2008). Sotomayor was one of seven judges of the Second Circuit to vote to deny rehearing en banc; six other judges dissented from the denial. In January 2009, the Supreme Court granted certiorari, and it heard oral argument in April 2009. A decision in the case is expected by late June, and it is likely that the Supreme Court will reverse.

Environmental Law: Sotomayor’s most notable environmental-law opinion is Riverkeeper v. EPA, 475 F.3d 83 (2d Cir. 2007), a challenge to an EPA rule regulating cooling-water intake structures at power plants. To minimize the adverse impact on aquatic life (which could otherwise be trapped against the intake structure or, if small enough, sucked into the pipes themselves), the Clean Water Act requires the intake structures to use the “best technology available,” without specifying what factors the EPA should consider in determining what constitutes the “best technology available.” Sotomayor wrote and opinion holding that the EPA was not permitted to engage in a cost-benefit analysis to determine “best technology available”; instead, it could consider cost only to determine “what technology can be ‘reasonably borne’ by the industry” and whether the proposed technology was “cost-effective” - which, she concluded, requires the EPA in turn to determine whether the technology at issue is “a less expensive technology that achieves essentially the same results” as the best technology that the industry could reasonably bear. Thus, she explained, “assuming the EPA has determined that power plants governed by the Phase II Rule can reasonably bear the price of technology that saves between 100-105 fish, the EPA, given a choice between a technology that costs $100 to save 99-101 fish and one that costs $150 to save 100-103 fish . . . could appropriately choose the cheaper technology on cost-effectiveness grounds.” On this issue, Sotomayor remanded to the EPA, finding it “unclear” how the EPA had arrived at its conclusions and, in particular, whether the EPA had improperly weighed costs and benefits.

Sotomayor also held that the EPA could not consider restoration measures - such as restocking fish to compensate for fish killed by an intake system - when determining the best technology available for a particular power plant. Sotomayor wrote that “[r]estoration measures are not part of the location, design, construction, or capacity of cooling water intake structures, and a rule permitting compliance with the statute through restoration measures allows facilities to avoid adopting any cooling water intake structure technology at all, in contravention of the Act’s clear language as well as its technology-forcing principle.” Finally, Sotomayor also determined that, at a minimum, EPA’s determination that the CWA provision at issue applies to existing and new facilities was a reasonable interpretation of the statute.

The industry plaintiffs filed petitions for certiorari, which the Supreme Court granted in April 2008 to review the cost-benefit issue. By a vote of 6-3, the Court reversed. In an opinion by Justice Scalia, the majority deemed “[i]t . . . eminently reasonable to conclude that” the CWA’s silence with regard to determining the best technology available “is meant to convey nothing more than a refusal to tie the agency’s hands as to whether cost-benefit analysis should be used, and if so to what degree.” Justice Stevens wrote a dissenting opinion, which was joined by Justice Souter and Ginsburg. In their view, because “Congress granted the EPA authority to use cost-benefit analysis in some contexts but not others” and intended “to control, not delegate, when cost-benefit analysis should be used,” Congress’s silence on this issue did not constitute “an invitation for the Agency to decide for itself which factors should govern its regulatory approach.”

Privacy and Information: Sotomayor has encountered a wide variety of privacy and access-to-information issues in her time on the Second Circuit, including cases involving the Freedom of Information Act and employer searches of employee workspaces.

In two cases involving requests under the Freedom of Information Act (FOIA), Sotomayor wrote an opinion that declined to order the release of the requested information, explaining that she did not want to “unreasonably hamper agencies in their decision-making.” Thus, in Tigue v. DOJ, 312 F.3d 70 (2d Cir. 2002), the panel denied a tax attorney’s request for a memorandum written by a Deputy U.S. Attorney outlining the office’s opinions and policies regarding tax investigations, notwithstanding that the memorandum had been cited in a publicly released report. And in Wood v. FBI, 432 F.3d 78 (2d Cir. 2005), while acknowledging that FOIA exemptions should be construed “narrowly, resolving all doubts in favor of disclosure,” her opinion denied a reporter’s request for an FBI memorandum regarding local FBI agents accused of lying. She reasoned that the “unwarranted invasion of privacy” for the individuals whose names would be released outweighed the public interest in disclosing a government employee’s identity.

In a case involving privacy issues, Leventhal v. Knapek, 266 F.3d 64 (2001), Sotomayor wrote an opinion that rejected a Fourth Amendment challenge to a public employer’s search of an employee’s computer after the employee was accused of being late, coming to the office infrequently, and spending his free time discussing personal computers with his coworkers. Although she agreed that the employee had a “reasonable expectation of privacy in the contents of his office computer,” Sotomayor also cautioned that “workplace conditions can be such that an employee’s expectation of privacy…is diminished.” Here, she explained, the search was permissible because it could have revealed employee misconduct.

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.

Voting Rights: In Hayden v. Pataki, 449 F.3d 305 (2d Cir. 2006), the en banc Second Circuit rejected a challenge under the Voting Rights Act to a New York law denying convicted felons the right to vote. The plaintiffs in the case had argued that in light of the long history of discrimination, both in society and in the New York criminal justice system specifically, the state’s disqualification of felons constituted disqualification based on race. The majority reasoned that Congress did not intend the VRA to apply to state felon disenfranchisement laws. Moreover, extending the VRA to the state statutes would “alter the constitutional balance” between states and the federal government, and the VRA lacked a clear statement by Congress that it intended to upset that balance.

Sotomayor joined the main dissent from the en banc court’s decision but also wrote a short dissenting opinion of her own in which she opined that the issue was actually much simpler than the majority and concurring opinions would suggest: the VRA “applies to all ‘voting qualifications,’” and - in her view - the state law “disqualifies a group of people from voting.” “These two propositions,” she concluded, “should constitute the entirety of our analysis.” Rejecting what she regarded as the majority’s failure to grapple with the plain text of the statute, she emphasized that “[t]he duty of a judge is to follow the law, not to question its plain terms. I do not believe that Congress wishes us to disregard the plain language of any statute or to invent exceptions to the statutes it has created. . . . But even if Congress had doubts about the wisdom of subjecting felony disenfranchisement laws to the results test of § 2, I trust that Congress would prefer to make any needed changes itself, rather than have courts do so for it.”

International Law: Sotomayor wrote a dissenting opinion in Croll v. Croll, 229 F.3d 133 (2d Cir. 2000), which considered whether a ne exeat clause - that is, a clause prohibiting one parent from removing a child from the country without the other parent’s consent - constitutes a “right of custody” for purposes of the Hague Convention on International Child Abduction, thereby requiring the child’s return when the clause is violated. In holding that the ne exeat clause does not constitute a “right of custody,” the majority - among other things - declined to attribute any weight to contrary holdings by courts in other signatory nations, dismissing them as “few, scattered, [and] conflicting.” In her dissent, Judge Sotomayor concluded that the Convention’s drafters had in mind “a notably more expansive definition of custody rights” than the “parochial” definitions - from U.S. dictionaries - on which the majority relied. Moreover, she noted, “most foreign courts to consider the issue” had held, as she would have, that a ne exeat clause does indeed constitute a “right of custody.” Although certiorari was denied in the Croll case, the question is once again before the Supreme Court in No. 08-645, Abbott v. Abbott (disclosure: Howe & Russell and Akin Gump represent the petitioner in the case). In January 2009, the Court called for the views of the Solicitor General, who is expected to file her brief this month. In an interesting coincidence, one potential candidate for the Supreme Court (Solicitor General Elena Kagan) will have the opportunity to comment on the merits of the opinion of another (Judge Sotomayor).

Obama nominates Sotomayor to Supreme Court

CNN.com, May 26, 2009

WASHINGTON (CNN) -- President Obama on Tuesday nominated federal appellate Judge Sonia Sotomayor to the U.S. Supreme Court.

If confirmed, Sotomayor, 54, would be the first Hispanic U.S. Supreme Court justice and the third woman to serve on the high court.

Sotomayor "is an inspiring woman who I believe will make a great justice," Obama said at a White House announcement.

She "has worked at almost every level of our judicial system, providing her with a depth of experience and a breadth of perspective that will be invaluable as a Supreme Court justice," he added.

Obama said Sotomayor would bring more experience on the bench than anyone currently serving on the Supreme Court when appointed.

"Thank you, Mr. President, for the most humbling honor of my life," Sotomayor said.

She thanked family members and mentors who helped her throughout her life and career.

"My heart is bursting with gratitude," she said. She gave special recognition to her mother, who was sitting in the audience. Video Watch Sotomayor's emotional tribute to her mother »

"I am an ordinary person who has been blessed with extraordinary opportunities and experiences," Sotomayor said.

Sotomayor, a judge on the 2nd U.S. Circuit Court of Appeals, was named a U.S. District Court judge by President George H.W. Bush in 1992, and was elevated to her current seat by President Bill Clinton.

She has minimal personal assets compared with many of her judicial colleagues; a 2007 financial disclosure form showed her with a checking and savings account valued at between $50,000 and $115,000.

Sotomayor, who is of Puerto Rican descent, rose from humble beginnings at a housing project in the South Bronx and went on to attend Princeton University and Yale Law School.

The president met with Sotomayor at the White House for an hour last Thursday, according to a senior administration official, and came away impressed with her personal story and professional qualifications.

Solicitor General Elana Kagan, Homeland Security Secretary Janet Napolitano and federal appeals court Judge Diane Wood were among the candidates who received serious consideration, the official said. Video Watch CNN's Jim Acosta break the news of Sotomayor's nomination »

The president made his final decision after the weekend and called Sotomayor around 9 p.m. ET Monday, a senior administration official added.

Obama "was looking for someone with a balance of skills: very, very smart; independent thinker; highly regarded for integrity and commitment to the law," another senior administration official said.

"He found all of those things with her, including his goal of selecting someone with the empathy factor -- real-world, practical experience and understanding of how the law affects real people." Video Watch as Obama cites Sotomayor's three decades of experience »

Supporters say her appointment history, along with what they call her moderate-liberal views, would give her some bipartisan backing in the Senate.

A senior White House official noted that 99 percent of Sotomayor's decisions have been upheld by higher courts.

Senate Judiciary Committee Chairman Patrick Leahy, D-Vermont, issued a statement calling Sotomayor's record "exemplary."

"I believe [she] understands that the courthouse doors must be as open to ordinary Americans as they are to government and big corporations."

However, Sotomayor has endured recent criticism in the media and blogs from both the left and right over perceived -- some defenders say invented -- concerns about her temperament and intellect.

"Judge Sotomayor is a liberal judicial activist of the first order who thinks her own personal political agenda is more important that the law as written," said Wendy Long, counsel to the conservative Judicial Confirmation Network. Learn about the other Supreme Court justices »

"She thinks that judges should dictate policy, and that one's sex, race, and ethnicity ought to affect the decisions one renders from the bench," she said. "She has an extremely high rate of her decisions being reversed, indicating that she is far more of a liberal activist than even the current liberal activist Supreme Court."

As she has risen through the judicial ranks, Sotomayor increasingly has drawn the ire and opposition of conservatives. A majority of Republican senators opposed her elevation to the appellate court in 1998. Read about Sotomayor's record »

Conservatives point to, among other things, her authoring of a 2008 opinion supporting a decision by the city of New Haven, Connecticut, to throw out the results of a firefighter promotion exam because almost no minorities qualified for promotions.

The Supreme Court heard an appeal of the case in April; a final opinion is pending.

Her critics also highlight comments she made during a panel discussion at Duke University in 2005, where she told students that the federal Court of Appeals is where "policy is made."

"I know that this is on tape," she then immediately said. "I should never say that. Because we don't 'make law'... I'm not promoting it, and I'm not advocating it. Having said that, the Court of Appeals is where ... the law is percolating." Video Watch how conservatives are gearing up for a fight »

However, an official with the Republican National Committee promised that the GOP will be equitable toward Sotomayor.

"The Republicans are going to strike a tone that's fair, that allows the vetting process to happen like it should, and that's in stark contrast to how the Democrats dealt with Judge [John] Roberts when you look back a couple years ago," the official said.

Senate Republicans "will thoroughly examine [Sotomayor's] record to ensure she understands that the role of a jurist in our democracy is to apply the law even-handedly, despite their own feelings or personal or political preferences," said Senate Minority Leader Mitch McConnell, R-Kentucky.

McConnell said he trusts that the Democratic majority "will ensure there is adequate time to prepare for this nomination, and a full and fair opportunity to question the nominee and debate her qualifications."

The hot-button social issue of abortion also promises to play a contentious role in Sotomayor's confirmation process.

Charmaine Yoest, head of Americans United for Life, ripped Obama's choice of Sotomayor, calling it "a radical pick that divides America."

Sotomayor's appointment, Yoest said, "would provide a pedestal for an avowed judicial activist ... at a time when the Courts are at a crossroads and critical abortion regulations -- supported by the vast majority of Americans -- like partial-birth abortion and informed consent laws lie in the balance."

Sotomayor "will serve the nation with distinction," countered Kim Gandy, head of the National Organization for Women.

"She brings a lifelong commitment to equality, justice and opportunity, as well as the respect of her peers, unassailable integrity, and a keen intellect informed by experience."

Obama's nominee will replace retiring Justice David Souter, who announced this month he would step down when the court's current session ends this summer. Video Watch why Democrats want the process to go quickly »

The president has said he hopes to have hearings in July, with the confirmation completed before Congress leaves for the summer.

Sotomayor's nomination will go before the Senate Judiciary Committee and the full Senate. Obama's Democratic party controls the Senate, so Sotomayor is not expected to have difficulty being confirmed in time to start the new court session in October.

There had been widespread speculation that Obama would name a woman to the court, which has only one female justice, Ruth Bader Ginsburg.

Obama was also under pressure to nominate a Hispanic justice to the court.

"Republicans have to be very careful and not oppose this nomination just for the sake of it," warned Brent Wilkes, executive director of the League of United Latin American Citizens.

The Latino community's "hopes and aspirations are all tied up in this nominee," he said.

CNN's Peter Hamby, Ed Henry, Suzanne Malveaux and Bill Mears contributed to this report.

Supreme Court Limits Warrantless Car Searches

By Robert Barnes, Washington Post, April 22, 2009

The Supreme Court yesterday sharply limited the power of police to search a suspect's car after making an arrest, acknowledging that the decision changes a rule that law enforcement has relied on for nearly 30 years.

In a decision written by Justice John Paul Stevens, an unusual five-member majority said police may search a vehicle without a warrant only when the suspect could reach for a weapon or try to destroy evidence, or when it is "reasonable to believe" there is evidence in the car supporting the crime at hand.

The justices noted that law enforcement for years has interpreted the court's rulings on warrantless car searches to mean that officers may search the passenger compartment of a vehicle as part of a lawful arrest of a suspect. But Stevens said that was a misreading of the court's decision in New York v. Belton in 1981.

"Blind adherence to Belton's faulty assumption would authorize myriad unconstitutional searches," Stevens said, adding that the court's tradition of honoring past decisions did not bind it to continue such a view of the law. "The doctrine of stare decisis does not require us to approve routine constitutional violations."

Stevens was joined by two of his most liberal colleagues -- Justices David H. Souter and Ruth Bader Ginsburg -- and two of his most conservative -- Justices Antonin Scalia and Clarence Thomas.

The decision overturned a three-year prison sentence for Arizonan Rodney Gant, who had been convicted of cocaine possession. Police found the drug in a search of his car after his arrest for driving with a suspended license. Gant had walked away from his car when he was arrested, and he sat handcuffed a distance away while police searched his vehicle.

"Police could not reasonably have believed either that Gant could have accessed his car at the time of the search or that evidence of the offense for which he was arrested might have been found therein," Stevens wrote.

Justice Samuel A. Alito Jr., writing for the four dissenters, said the court's insistence that its precedents had been misinterpreted was simply a cover for getting rid of a decision with which it disagreed.

He said the replacement of what had been an easy-to-understand "bright line" rule for police "is virtually certain to confuse law enforcement officers and judges for some time to come."

The court's new rules will endanger arresting officers, he said, and "cause the suppression of evidence gathered in many searches carried out in good-faith reliance on well-settled case law."

He was joined by Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy and Stephen G. Breyer.

The case is Arizona v. Gant.

http://www.washingtonpost.com/wp-dyn/content/article/2009/04/21/AR2009042102125.html

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Court sides with Wall Street banks

By PETE YOST, Associated Press Writer, AP, June 18 2007

WASHINGTON - Investors who lost money when the dot-com bubble burst suffered a Supreme Court setback Monday, and the justices are poised to issue yet another important decision that could restrict shareholder lawsuits.

The court sided with Wall Street banks that were alleged to have conspired to drive up prices on about 900 newly issued stocks in the late 1990s.

The justices reversed a federal appeals court decision that would have enabled investors to pursue their case for anticompetitive practices.

The outcome of the antitrust case was vital to Wall Street because damages in antitrust cases are tripled, in contrast to penalties under the securities laws.

But the Supreme Court may be about to raise the bar as well for cases under the securities laws.

Upcoming this week or next is a ruling in a stockholders' suit against high-tech company Tellabs Inc., alleged to have misled investors by engaging in a scheme to inflate Tellabs' stock price. The suit says the company's CEO provided false assurances of robust demand for the company's products in 2001.

The Bush administration is supporting the company's position that would impose a stringent standard on such investor lawsuits.

The Supreme Court term that begins next fall could provide still more problems for trial lawyers and their clients who bring securities fraud cases, particularly those in the Enron scandal.

At issue are efforts to recover investment losses from Wall Street institutions that allegedly collude with scandal-ridden companies.

Companies like Enron have few assets for investors to recover. So that leaves investment banks, attorneys, accountants and others who did business with Enron and companies like it as the only places to sue.

President Bush recently conveyed his feelings about lawsuits to the Justice Department solicitor general, who decided not to side with investors in the Supreme Court case that will impact Enron.

The president's message was that it's important to reduce unnecessary lawsuits and that federal securities regulators are in the best position to sue.

Private class-action lawsuits, say plaintiffs' attorneys, provide a significant supplement to the limited resources available to the Justice Department to enforce the antitrust laws.

Monday's decision focused on whether Wall Street's allegedly anticompetitive conduct regarding new high-tech stock issues was immune from antitrust suits. The conduct is already the focus of extensive federal regulation by the Securities and Exchange Commission.

An antitrust action raises "a substantial risk of injury to the securities market," Justice Stephen Breyer wrote. He said there is "a serious conflict" between applying antitrust law to the case and proper enforcement of the securities law.

Temple University law professor Salil K. Mehra said Breyer's use of the word "risk" is significant because it sets up a low legal threshold that will result in immunity applying in a greater number of cases.

In dissent, Justice Clarence Thomas said the securities laws contain language that preserves the right to bring the kind of lawsuit investors filed against the Wall Street investment banks.

In 2005, the 2nd U.S. Circuit Court of Appeals said the conduct alleged in the case is a means of "dangerous manipulation" and that there is no indication Congress contemplated repealing the antitrust laws to protect it.

Investors allege that the investment banks agreed to impose illegal tie-ins, or "laddering" arrangements. Favored customers were able to obtain highly sought-after new stock issues in exchange for promises to make subsequent purchases at escalating prices. The investment banks allegedly conspired to levy additional charges for the stock.

As a result of the conspiracy, the investors say, the average price increase on the first day of trading was more than 70 percent in 1999-2000, 8 1/2 times the level from 1981 to 1996.

Lawyers for Wall Street investment banks say it is a highly technical matter where the line is drawn between legal and illegal activity in the sale of newly issued stock. It must be left to highly trained securities regulators to decide, rather than to courtroom juries in antitrust lawsuits brought by investors, the industry says.

The Supreme Court opinion concluded that "antitrust courts are likely to make unusually serious mistakes" that hurt defendants. As a result, investment banks must avoid "a wide range of joint conduct that the securities law permits or encourages."

Wall Street institutions in the case before the Supreme Court were Credit Suisse Securities (USA) LLC, formerly Credit Suisse First Boston LLC; Bear, Stearns & Co. Inc.; Citigroup Global Markets Inc.; Comerica Inc.; Deutsche Bank Securities Inc.; Fidelity Distributors Corp.; Fidelity Brokerage Services LLC; Fidelity Investments Institutional Services Co. Inc.; Goldman, Sachs & Co.; The Goldman Sachs Group Inc.; Janus Capital Management LLC; Lehman Brothers Inc.; Merrill Lynch, Pierce, Fenner & Smith Inc.; Morgan Stanley & Co. Inc.; Robertson Stephens Inc.; Van Wagoner Capital Management Inc.; and Van Wagoner Funds, Inc.

The case is Credit Suisse v. Billing, 05-1157.
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