Why God Invented C-SPAN

I wonder why that govt attorney looked so flustered by Sotomayor since she is so very unqualified.
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/snark

Sotomayor has a bee in her bonnet about Bivens, as she was harshly criticized (and reversed) by the Supreme Court in a case in which she expanded Bivens.
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Sotomayor knows the issues are much more subtle than "licenses" etc. Everything has to be looked at with the backdrop of notice pleading. Allegations get you in court and even past summary judgment if there's a "torture" cause of action. Obviously, there's a lot of mischief that can be caused by that.
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By the way, people, remember Obama's recent speech on terrorism. You'll all remember, of course, that Obama cited caselaw in which the Supreme Court rejected the Bush Administration's position and criticized Bush for that. Well, Sotomayor's positions have been rejected by the Supreme Court, shouldn't Obama be criticizing her too?

sgwhite, because Sotomayor really doesn't grasp the complexities here. But you're sympathetic . . . . After all, you think Austrian's a language and cannot even read linked material you post here, you stupid idiot.

I got the strong sense Judge Sotomayor was slowing backing this guy in to a corner from which there was no escape. He appears to get he was being lead down this path and his argument was about to blow up in face.

jsfox, it looks like a judge who's made up her mind and who is trying to browbeat a lawyer. Sotomayor has a history with Bivens, and she doesn't really seem to be empathetic for public servants who may have to defend themselves against bogus claims. That's the problem with empathy--hard to know the people to whom it should be given.

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.'”

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Oh wait, I forgot that minority opinions only count when they serve to criticise Judge Sotomayor. My bad lol

Spob is a veritable font of ignorance this week.

sgw: spob is a partisan in the strictest sense. Republicans are always right. Democrats are always wrong. If he is opposed to Sotomayor, that means everything she has ever touched is wrong and corrupt.
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Regardless of your particular policy preferences, analyzing Bivens and Malesko is relatively straightforward. In 1971 SCOTUS decided Bivens. In 2000, Sotomayor followed Bivens and decided Malesko. In 2001, SCOTUS was far more conservative than in 1971 and the majority no longer agreed with Bivens. At that point, they limited Bivens and reversed the Court of Appeals in Malesko.
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This is how the common law works. Although one may disagree with some of the reasoning (as I disagree with the Malesko majority), it is theoretically possible to believe that all three decisions were correctly decided.

God, SG, you're being stupid. My post here didn't say that Sotomayor was wrong (although I think she is), but to give some color as to why Sotomayor seemed particularly vehement here. Second, the minority opinion here is pretty disingenuous. The bottom line is that it is a stretch (under some pretty complicated law that I won't go into) to take Bivens (which rests on pretty weak grounds in the first place) and apply it to the corporation itself (cf Deshaney). In any event, the Supreme Court said she expanded Bivens, and my post cannot really be criticized for saying that Sotomayor did.
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As for your comment about when dissents matter, well, I think it pretty hard to disagree with Cabranes' dissent, as his dissent has been borne out by the subsequent happenings (i.e., that the case IS important and novel, which, ipso facto means that the original decision to non-pub this. Cabranes' point was not that the panel, which included Sotomayor, was wrong, but that the summary disposition was not appropriate given the weighty and novel issues of the case. The summary order in such a case is so unusual that the bona fides of the panel judges needs to be called into question. It looks like they were trying to lessen the chances for review by burying the case. And that is a problem.
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sqr1, i've clowned you in these threads. You're an idiot.

sg-Where is the beat down part.

Spob is a veritable font of ignorance this week.
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sqr1,
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Why limit your time frame? That statement could apply pretty much 24/7/365.

Nothing flags an idiot faster than declaring one's intelligence rather than demonstrating it.
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Self-evaluations are always suspect. In the current instance they're downright comical.

Ok, sqr1, do I really need to explain again THAT I WAS NOT GOING INTO WHETHER SOTOMAYOR WAS RIGHT. She seems to be sensitive on the Bivens point, and I was pointing out why. And you're wrong to think that Sotomayor wasn't expanding Bivens. It's a leap to impose respondeat superior in a cause of action implied by the Constitution. Like I said, cf. DeShaney.

Nothing flags an idiot faster than declaring one's intelligence rather than demonstrating it.
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PD,
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What's that saying: "Better to keep silent and be thought a fool than to open one's mouth and remove all doubt."

I am clowning you guys, and I'm the idiot. Whatever.
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so, sqr1, I'll ask you a simple question, has Cabranes criticism of the summary disposition been borne out by the subsequent events in the case? Come on. Clown yourself. Please explain how the summary order in this case was consistent with Second Circuit Local rule 32.1.

You know, people who are really good at one thing or another never have to tell people how good they are. Too many other people do it for them.
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Ass holes on the other hand....

You don't understand what respondeat superior means. Or you don't understand what Malesko was about. Most likely both.

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Some background for this clip, the Arar rendition case.
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'Bivens' refers to the ability of a person's whose rights are violated by the government to seek redress.
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This hearing is about whether or not Arar has the legal standing to seek redress for his kidnapping and torture.
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..because Sotomayor really doesn't grasp the complexities here.</i.
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You have no idea what the h3ll you are talking about, do you? Just little bits of trivia flotsam floating in the ocean of your stupidity.

gee sqr1, a lawsuit to make the employer pay damages for the employee's conduct--sounds a lot like respondeat superior.
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grape, thanks for the tip. I know what Bivens is about (and your thumbnail sketch masks a lot of complexity), but framing the question in terms of whether the government has "license" to torture obscures many issues, the first of which is whether we give potential terrorists the ability to make allegations of torture and force government agents to defend themselves in court. I know it's a soundbite, but Sotomayor seems hostile to any explanation of why we may not allow these claims.
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and sg, you brushing up on your Austrian?

I developed a superiority complex just reading this thread.

[...] Check out this clip of Supreme Court nominee Sonia Sotomayor in action last December 9, in oral arguments in Arar v. Ashcroft.  The case was filed by Arar claiming that he was arrested at JFK and shipped by the US to Syria to be tortured. This is a clip from an en banc rehearing by all twelve judges on the Second Circuit Court of Appeals.  The excerpt from the hearing starts at 17 minutes into the clip. Listen to her in her own words.  More info at Swampland. [...]

[...] our memory regarding Arar v. Ashcroft. To see Sotomayor in action on the case here is a link from Swampland. (I know. I know. The source. But I still haven’t figured out the darn video link thing yet [...]