Liptak later reported that "according to court personnel familiar with some of the internal discussions of the case, the three judges had difficulty finding consensus, with Judge Sack the most reluctant to join a decision affirming the district court. Judge Pooler, as the presiding judge, took the leading role in fashioning the compromise. The use of a summary order, which ordinarily cannot be cited as precedent, was part of that compromise."Out of all the Sotomayor critiques, including the kerfuffle over the "wise Latina" remark, this strikes me as the potentially most damaging. It gives the 2nd Circuit judgment a whiff of coverup, and as we know, it's the coverup that brings you down.
But if that's what happened, it might be difficult to square the panel's action with the 2nd Circuit's Local Rule 32.1(a). That rule provides that panels may rule "by summary order instead of by opinion" only "in those cases in which decision is unanimous and each judge of the panel believes that no jurisprudential purpose would be served by an opinion (i.e., a ruling having precedential effect)."
But if this is the most damaging critique, I think she still has a very good chance of being confirmed.