Tote boards don’t cut it
Jun 2, 2009 Lex scripta, Medialites, Packing heat
In what I suppose amounts to an endorsement by LIKELIHOOD OF CONFUSION® of the Sotomayor nomination from the point of view of her strong intellectual property background, I made a side point decrying what we might call the “tote board” approach to reckoning a judge’s inclinations on given issues. That’s where we pile up all her published opinions, see how many went “one way” and how many went “the other way,” and declare that the nominee is “pro-gun” or “pro-government” without regard to the facts of those cases, the nature of the appellate or litigation docket that generated those opportunities to write the opinions, or even the ratio decidendi of the opinions themselves, which will be in some unknown percentage utterly unrelated to the issue being “tagged.” It’s the logical fallacy of the confusion between cause and effect, or perhaps of the “questionable cause,” I suppose.
Thus, in my post, in which I pretend to start parsing out “pro-trademark-owner decisions” versus “pro-infringement-defendant decisions,” I immediately hit PRL USA Holdings v. U.S. Polo Ass’n, Inc., reported on here. That decision by a Second Circuit panel including Judge Sotomayor was “pro-defendant” in outcome, but obviously had nothing really to do with trademark: The appeal really was about a point in connection with the Federal Rules of Evidence, not trademark at all.
It is true that some judges go where they want to go in certain kinds of cases regardless of what is really happening in a case, and without a care as to what issues are really before them — but these judges are merely robed criminals, patent abusers of their office and their oaths. It is not as if many such jurists have not achieved high office, but no one seriously suggests that Judge Sotomayor is one of that type.
Now Ann Althouse presents us with a classic example of the “surprising decision” phenomenon, in connection with what unsophisticated observers will utterly not understand. It relates to a Seventh Circuit decision, published today, holding that the Second Amendment to the Constitution is not incorporated into the Fourteenth Amendment — a potentially devastating development for gun ownership advocates. Here’s Ann:
A unanimous 7th Circuit panel, consisting of Easterbrook, Bauer, and Posner, adhering to Supreme Court precedent, says that the 2d Amendment is not incorporated in the 14th Amendment and thus does not apply to the states. Easterbrook’s opinion (PDF) — emphasizes federalism — the value of decentralized decisionmaking on the subject of gun rights . . .
The panel adheres to Supreme Court precedent, but it also lays out the federalism argument in clear bold terms for future consumption by the Supreme Court. . .
See how this helps the Sotomayor nomination?
Sotomayor was labeled “anti-gun” by Gun Owners of America for refusing to extend to the states the U.S. Supreme Court’s 2008 decision overturning a Washington, D.C., handgun ban. The group said a January ruling by a three-judge panel that included Sotomayor displayed “pure judicial arrogance” for declining to throw out a New York state weapons law.
Very cool. You don’t love the law? Then you don’t get it!
