Sotomized:  Dumbing Down the Court

At the beginning of the film, The Paper Chase, the somber professor tells his classroom of first year law students that they would have to learn to think like lawyers. He meant the need to cultivate the skill of analytical thinking that is required to understand legal issues. Understanding basic contract or tort law isn’t the great struggle in law school. Figuring out how to spot an issue, understand the rule of law and apply it to a given set of facts is the mission. Next is grappling with the Weltschmerz of not being the smartest one in the room anymore. Core courses are commonly studied for a year; the art of legal analysis starts on day one and doesn’t end until the bar exam.

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Presumably, when presented with a dispute, a capable lawyer knows how to ferret out the actual issues involved. Much of what people want to sue each other over is, legally, nonsensical. Any litigator in practice will tell you about the equanimity required with clients who don’t understand how to articulate an actual point to their stories of being done wrong. It works like this: you hit my parked car and damaged it. I want you to pay for the damage. You don’t want to pay for the damage. The issue would be the legal question we want the court to settle: are you responsible to pay for damages to my car? Perhaps you and I have a long personal history and I am convinced you hit my car on purpose. Now the lawyers have to figure out if this new fact gives rise to yet another issue. Is there a law that is applicable to intentional property damage rather than simple negligence? Is this new fact provable in a court of law? If you want to see how imperative adequate legal reasoning skills are in court, spend a few hours at your local small claims court. Then spend some time in a real courtroom with actual litigators. The lay litigants will be all over the map, trying to drag in all kinds of extraneous contentions, “Well yes, he did give me all my money back but he was so RUDE I should get something for my emotional distress!” When I worked as a counselor at a charter Special Ed School, I was sometimes conscripted to take over a classroom while the Special Ed teacher was in meetings. I was awarded the coveted Gerbil Class one afternoon. The Gerbils were the six to nine year old learning and emotionally disabled cuties. I taught them some basic contract law: offer, acceptance, consideration, crayons exchanged. They were most impressed with the application of the Statue of Frogs. Inspired by the Gerbil success, I signed on to teach a class of paralegal students and was commissioned to teach legal research and writing. My paralegal students had to master the art of issue spotting. Only when they could define the issue in dispute could they start casting about for a rule of law that may apply. “My neighbor really hates me because I complain about his loud music. So he built a really ugly fence that I have to look at all day and I want to sue him to make him take it down.” An attorney should be able to figure out if there is an actual legal issue in there or not. If there is an actionable issue, the attorney has to assess whether there is some law that would apply to this particular set of facts. Cases that turn up in front of the Supreme Court of the United States are typically complex, but the analytical process is the same. Nonetheless, Barack Obama is inflicting us with a judge who would have been fully self actualized presiding over municipal traffic court.

Lacks ample legal acumen to forge lucid analyses

You can recuse yourself from watching the entire Wise Latina show. It is not essential to excogitate over her asinine rulings. Sotomayor should be swiftly dismissed on the basis of her manifest incompetence. The woman does not understand the job. When probed about her legal reasoning, she wobbles sloppily because she lacks ample legal acumen to forge lucid analyses. Judge Sotomayor has been preoccupied with outcomes; heedless of the need to trouble herself with accurately pinpointing issues and impartially applying the law. "My experiences will affect the facts that I choose to see as a judge." (Washington Times) In other words, Sotomayor has no trepidation about manipulating facts to achieve a desired conclusion. While Sotomayor fits the typical liberal judicial activist archetype, it’s becoming plain that she is hobbled as much by her lack of intellectual prowess as she is by her radical ideology. Notwithstanding the advantage of fervid preparation, her prosaic performances at her confirmation hearings expose her cerebral paucity when measured against the keen legal minds of other recent nominees, including Alito and Roberts. Sotomayor meanders in jejune banalities about how lawyers should be educating the public about law and other nebulous policy twaddle. A position as a bureaucrat in a social services agency would be far more befitting to Judge Sotomayor than a seat on the highest court in the land. Much will be and should be made of Sotomayor’s perfidious handling of the Ricci v. De Stefano case. The facts of the case are straightforward; a group of white and Hispanic firefighters sued the city of New Haven after the city threw out the result of a standardized fire fighter’s exam. Only white and Hispanic firefighters scored high enough for immediate promotion, the black candidates were to be eligible for future promotions. By now everyone knows Sotomayor ruled against the plaintiffs. It’s worse than that; she did it by way of a summary judgment; meaning, Sotomayor ruled without giving the firefighters a trial on the merits of the case. Or as Ann Coulter describes the process: talk-to-the hand. “A procedural device used during civil litigation to promptly and expeditiously dispose of a case without a trial. It is used when there is no dispute as to the material facts of the case and a party is entitled to judgment as a Matter of Law.” (Legal Dictionary) Summary judgments are used sparingly, as this is still the United States and we are supposed to let everyone have his day in court. In a matter as substantial as the careers and training of firefighters, the granting of summary judgment is beyond merely incompetent. In other words, your case has no merit and I don’t have to sit through a trial to get the results I want. “Your honor, my neighbor is beaming microwaves at my head through his satellite dish and they are telling me I have to go to Jupiter.” A motion for summary judgment could properly be entertained in the above case. Or, you hit my car and I sued you in a Los Angeles court, winning a money judgment. Now I am suing you in a San Diego court for the same accident and same damages. Again, summary judgment would be in order as there is no cause of action here upon which the court could grant relief. The matter has already been heard. In Ricci, however there was plenty to talk about. Sotomayor did not want a trial on the merits because she wanted a specific outcome. She also did not want the case reviewed by a higher court. Scrutiny regularly goes badly for Judge Sotomayor. Fortunately, this time the Supreme Court did take the case up and sensibly held 5-4 that her ruling was entirely defective. Even the dissenters rejected her convoluted cogitations about discarding an exam based on its outcome. The selection of Sonia Sotomayor is revealing. The Obama administration has no use for excellence, only for compliance. Liberals are off on an inordinately emotional bender about Sotomayor’s imaginary travails in hopes of distracting the public from noticing she’s not very smart. Emphasis on a counterfeit personal narrative served them well the last time. Dianne Feinstein launched the Wise Latina Tour with a sophomoric screed about Sotomayor’s STORY. Like a junior high school guidance counselor, Feinstein gushed with spurious pride about her lackluster student’s modest accomplishments. If compelling life story was the optimum benchmark for choosing a Supreme Court Justice, Clarence Thomas’s confirmation hearings would have been a trip to the moon on gossamer wings. As the nation attends to Stuart Smalley’s convincing approbation of the Perry Mason devotee; behold Barack Obama predictably using the Sotomayor diversion to Cloward and Piven us by overloading the system with pernicious policies. If you factored out Sotomayor’s leftist ideology, she would still be unfit to serve on the court; she is just not up to the job.