A REAL argument against Sotomayor

There actually is one non-laughable argument against Sotomayor — but advancing it will also reveal that she’s a very good judge.

…but one the Republicans won’t use. It involves a crucial case concerning climate change: Connecticut v. American Electric Power.

This is a case in which several attorneys general sued a consortium of electric power producers, alleging that the carbon emissions from power generation constitute a “public nuisance.” For obvious reasons, it’s an extremely important case, and I’ve spilled some ink on it in the past.

So what does this have to do with Sotomayor? Well, she was on the panel, the court heard the case in June 2006, and has not issued an opinion nearly three years later. That’s actually not a record, but to my mind, it represents at best extremely bad judicial form and at worst a sort of dereliction of duty. It doesn’t speak well of the panel in general, but of course we don’t know what’s causing the holdup. Suffice it to say, though, that we shouldn’t expect a decision anytime soon. (They might even rehear the case. Grrrrr….).

But anyone inclined to fall for the right-wing meme that Sotomayor lacks the intellectual chops for the court should examine the oral argument closely, as I have. Sotomayor was clearly the smartest and best prepared judge on the panel: she asked the right questions, and steered the advocates back to the critical issues at hand. Sorry, Senator Inhofe: she’s a very good judge.

Author: Jonathan Zasloff

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic - Land Use, the Environment and Local Government. He grew up and still lives in the San Fernando Valley, about which he remains immensely proud (to the mystification of his friends and colleagues). After graduating from Yale Law School, and while clerking for a federal appeals court judge in Boston, he decided to return to Los Angeles shortly after the January 1994 Northridge earthquake, reasoning that he would gladly risk tremors in order to avoid the average New England wind chill temperature of negative 55 degrees. Professor Zasloff has a keen interest in world politics; he holds a PhD in the history of American foreign policy from Harvard and an M.Phil. in International Relations from Cambridge University. Much of his recent work concerns the influence of lawyers and legalism in US external relations, and has published articles on these subjects in the New York University Law Review and the Yale Law Journal. More generally, his recent interests focus on the response of public institutions to social problems, and the role of ideology in framing policy responses. Professor Zasloff has long been active in state and local politics and policy. He recently co-authored an article discussing the relationship of Proposition 13 (California's landmark tax limitation initiative) and school finance reform, and served for several years as a senior policy advisor to the Speaker of California Assembly. His practice background reflects these interests: for two years, he represented welfare recipients attempting to obtain child care benefits and microbusinesses in low income areas. He then practiced for two more years at one of Los Angeles' leading public interest environmental and land use firms, challenging poorly planned development and working to expand the network of the city's urban park system. He currently serves as a member of the boards of the Santa Monica Mountains Conservancy (a state agency charged with purchasing and protecting open space), the Los Angeles Center for Law and Justice (the leading legal service firm for low-income clients in east Los Angeles), and Friends of Israel's Environment. Professor Zasloff's other major activity consists in explaining the Triangle Offense to his very patient wife, Kathy.