You should read this NYT article on Obama's choice of Judge Sotomayor this morning, and my comment posted therein, which I repeat here:
Sotomayor’s Rulings Are Exhaustive but Often Narrow
8:11 am
Wednesday, May 27, 2009
News Analysis: Sotomayor’s Rulings Are Exhaustive but Often NarrowBack to Article »
By ADAM LIPTAK
Judge Sonia Sotomayor’s opinions are marked by diligence, depth and unflashy competence, but reveal no larger vision.
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May 27th, 2009 8:10 am
This article, and the discussion of the case that was handled in a cursory fashion, leads to a hitherto unreported shame of the federal courts -- the skirting of the rules to dismiss discrimination cases at the "summary judgment" stage, so that there is no opportunity to have the jury hear and decide the case.
As a trial and appellate lawyer representing individuals who have been discriminated against, and practicing in Cincinnati, where the Sixth Circuit Court of Appeals "resides," (more on "resides" later) I have personally witnessed (and suffered from) this tragedy in case after case, by both Republican and Democratic (and so-called liberal) appointments, and I have attended a Federal Bar Association conference at the Hilton at Weston in Columbus (2005 or so) where the first speaker, speaking mainly to federal judges and corporate defense lawyers, called discrimination cases "the slip and fall cases of the federal bar," thus "educating" the newer attendees that it was all right to throw the cases out, or into the dustbin.
From the federal judge's point of view (I imagine) these cases take a lot of time as each one is fact-intensive and the issue is not simple (to decide)--whether there was "intent" by the employer (to discriminate). Also, once the judge has heard the case at the preliminary stage of summary judgment he becomes bored with the prospect of having to sit through a week trial while the jury hears the same facts, so he dismisses it.
This problem does not exist so much in the state courts on these types of cases, nor in "good cause" cases where there is a public employee or union and a statutory duty of the employer not to dismiss an employee except for good cause. In state courts, however, there are other problems dealing with quality and knowledge-base of the judge.
I am also struck by the articles and interviews (e.g. Charlie Rose last night) over yesterday's appointment, that are ignorant that on the federal circuit courts cases are heard only by a panel of three (out of perhaps 18 judges) and therefore one judge may not sit in on many cases or "know" another given judge. Plus the judges live scattered and separated lives throughout the circuit (usually 3-7 states) territory and only fly in for the week they are hearing cases.
Your article should be read along with the New Yorker's recent piece by Jeffrey Toobin on Justice Roberts. I was especially interested in the obvious fact that Justice Roberts, along with many of the judges in the federal system, have spent their professional lives (pre-appointment) among other millionaire lawyers, in the big cororate law firms (I started out in one myself and know the environment), and cannot even comprehend the environment of the practicing plaintiff's lawyer representing discrimination victims.
Grisham's recent book, "The Associate," has already started to turn heads and the concept of "the chargeable hour." I have taken the time to "Nuance" and therefore quote verbatim a couple of passages from that book on my blog http://www.natgagu.blogspot.com/ (search for "Grisham" therein).
In one he makes the simple but amazingly correct point that once the top-of-class star is wined and dined the one summer, going to Yankee games, doing simple but interesting tasks, socializing with designated partners, then is hired the following spring (big NY law firm practice), "his life is essentially over." Plain and simple.
— bruce abel, cincinnati
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