Judging Sonia Sotomayor

As it was only a few weeks ago that I wrote about opposing only judges who were judicial activists, I decided to give Obama's SCOTUS nominee a good week and a lot of research before I rendered a final verdict (or as final as I get). Of course, I've heard all the pro-Sotomayor talking points (from a perticularly stupid and irrelevant MoveOn email). I've also heard all the criticism from the usual sources (from Rush to Heritage), as well as arguments and counter-arguments (and blather) on the blogs from last week. So for me, it comes down to two questions ( the second of which I researched in detail):

1. Does she possess the qualifications and experience to be a Supreme Court Justice? The short answer is yes (I knew this answer, but I did a little research anyway).

(Excerpted from Wikipedia): Sotomayor entered Yale Law School in fall 1976, where she became an editor of the Yale Law Journal. She published a law review note on the effect of possible Puerto Rican statehood on the island's mineral and ocean rights. In her third year, she filed a formal complaint against a Washington, D.C. law firm for asking discriminatory questions during recruiting; the firm apologized. She obtained her J.D. from Yale Law School in 1979.
On the recommendation of Yale professor and future judge José A. Cabranes, Sotomayor was hired out of law school as an Assistant District Attorney under New York County District Attorney Robert Morgenthau starting in 1979. There she prosecuted everything from shoplifting and prostitution to robberies, assaults, murders, and police brutality.
In 1984, she entered private practice, making partner at the boutique commercial litigation firm of Pavia & Harcourt, where she specialized in intellectual property litigation
n 1987, Governor of New York Mario Cuomo appointed Sotomayor to the board of the State of New York Mortgage Agency.
Sotomayor was appointed in 1988 as one of the founding members of the New York City Campaign Finance Board, where she served for four years. She was a member and top policy maker on the Board of Directors of the the Puerto Rican Legal Defense and Education Fund for 12 years.
Sotomayor was nominated on November 27, 1991, by President George H. W. Bush to a seat on the U.S. District Court for the Southern District of New York vacated by John M. Walker, Jr. She became the youngest judge in the Southern District [irrelevant data removed]....
On June 25, 1997, she was nominated by President Bill Clinton to the seat she now holds, which was vacated by J. Daniel Mahoney.

In other words, she has experience in all aspects of the law and possesses the qualifications we would expect for someone of the highest court.

2. Does she follow a philosophy of judicial restraint, ruling based on existing law, or is she a judicial activist, using her rulings to create new law in line with her political philosophy?

When I typed this question, I didn't have a researched answer. But with the experience being there, my decision regarding her fitness for the court comes down to her judicial philosophy (her liberal political philosophy being irrelevant if she doesn't filter her decisions through it. So let's look at the pertinent points I have heard first. The two points, in short that I've heard from the right are the accusation that she's advocated legislating from the bench, and that she holds a racist judicial view.

Baking Up Policy

To begin, here's a longer version (nod to Dee) of the following quote: "All of the legal defense funds out there, they're looking for people with Court of Appeals experience because it is -- Court of Appeals is where policy is made. And I know, and I know this is on tape, and I should never say that because we don't make law, I know. (laughing) Okay, I know. I know. I'm not promoting it and I'm not advocating it. I'm -- you know. (laughing) [emphasis added]"


Now I listened to it a few times to get a sense rather than just the automatic knee-jerk response to the bolded part (which I had, of course). As I listened to what she said after (the backpedaling), I came to two thoughts. First, she does believe that the courts have some control over deciding what the law says.

However, there is some argument in the idea that the whole body of law relies on three key points: The written laws, precedents of cases involving the written laws, and specific application of the law in individual cases.

This is both a blessing and curse that our judicial system has. Take the Heller decision handed down by the court last year (I'm picking this one because I read the whole damned thing). The majority opinion, in this case, affirmed the contents of the Second Amendment as an individual right, subject to some regulation, but not the kind of regulations that create a de facto abridgement of that right.

In short, it took a court decision, backed by a couple centuries of precedents, to tell us what the Amendment says, i.e. the court made policy.

Roe v Wade is another example of this. But I'm not even going there on that one (and I'll delete anyone who does).

In short, the idea of the courts "making policy" could mean either interpretation and application of the law for specific cases that weren't covered clearly in the original law, or it could mean magically pulling the law out of your ass and ruling it into existence.

So on this alone I would not automatically disqualify her, although she should be grilled damned hard in her confirmation on it.

Latina Power on the Court

Here's the short quote in question:

“I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”

Now I'm hesitant as hell to call anyone racist. And on the face, the quote does have a focus on racial superiority. The full texts of the speech can be found here.

Now after I put the link above in the post, I read the whole speech. First to put it in perspective, the speech was: "the text of the Judge Mario G. Olmos Memorial Lecture in 2001, delivered at the University of California, Berkeley, School of Law, by appeals court judge Sonia Sotomayor. It was published in the Spring 2002 issue of Berkeley La Raza Law Journal, a symposium issue entitled 'Raising the Bar: Latino and Latina Presence in the Judiciary and the Struggle for Representation.'"

In other words, it was a speech about the differences in perspective of judges due to race, sex, and culture. After uttering the above line, which got her pegged with the "racist" label, she went on, in the next sentences, to cite a possible bias by Supreme court Justices Oliver Wendell Holmes and Benjamin Cardozo concerning sex and race discrimination cases.

While Constitutional law itself must be fairly inflexible, the decisions of individual cases must be flexible, based on the judgements of the people deciding the case. A simple example of this is a statutory rape case where an adult is branded a sex offender for decades, forced to register, and can be found online. Simple? What if the "adult" is 18 and the "child" 15, and they're boyfriend/girlfriend? Not simple at all. I wouldn't call the 18-year-old a sex offender, just horny and stupid.

So while I happen to believe the original quote reflects a sentiment that may not be true, it is part of a valid idea, and should be discussed. It's also a reflection of the more liberal mindset that divides us into groups based on skin color, country of origin, parts between our legs, etc. Being an individual that doesn't fit into any group well (other than the aforementioned junk I'm carrying (and even there I'm a little bi)), it's a concept that I loathe on principle. And I can see where someone with a black and white (pun unintended) view of the world can see racism, because I can if I think that way. However, the fixation on race and sex does not necessarily make one a racist.

And specifically, it's something else she needs her ass grilled over heavily in her confirmation.

Overturning in to the Grave

So with those two points at least fuzzy in my mind (enough so that they need to be addressed, but not a singular reason for vehement opposition) , I had to look to her judicial record.

Without getting into the details, here are a smattering of cases (all from the Wikipedia article):
On March 30, 1995, Sotomayor issued the preliminary injunction against Major League Baseball, preventing it from unilaterally implementing a new collective bargaining agreement and using replacement players. Her ruling ended the 1994 baseball strike after 232 days, the day before the new season was scheduled to begin. The Second Circuit upheld Sotomayor's decision and denied the owners' request to stay the ruling.
In Dow Jones v. Department of Justice (1995), Sotomayor sided with The Wall Street Journal in its efforts to obtain and publish a photocopy of the suicide note of former Deputy White House Counsel Vince Foster.

In New York Times Co. v. Tasini (1997), freelance journalists sued the New York Times Company for copyright infringement for the New York Times' inclusion in an electronic archival database (LexisNexis) the work of freelancers it had published. Sotomayor ruled that the publisher had the right to license the freelancer's work. This decision was reversed on appeal, and the Supreme Court upheld the reversal; two dissenters (John Paul Stevens and Stephen Breyer) took Sotomayor's position.

In Castle Rock Entertainment, Inc. v. Carol Publishing Group (also in 1997), Sotomayor ruled that a book of trivia from the television program Seinfeld infringed on the copyright of the show's producer and did not constitute legal fair use. The United States Court of Appeals for the Second Circuit upheld Sotomayor's ruling.

In the 2002 decision Center for Reproductive Law and Policy v. Bush, Sotomayor upheld the Bush administration's implementation of the Mexico City Policy, which states that "the United States will no longer contribute to separate nongovernmental organizations which perform or actively promote abortion as a method of family planning in other nations." Sotomayor held that the policy did not constitute a violation of equal protection, as "the government is free to favor the anti-abortion position over the pro-choice position, and can do so with public funds."

In Pappas v. Giuliani (2002), Sotomayor dissented from her colleagues’ ruling that the New York Police Department could terminate an employee from his desk job who sent racist materials through the mail. Sotomayor argued that the First Amendment protected speech by the employee “away from the office, on [his] own time,” even if that speech was "offensive, hateful, and insulting," and that therefore the employee's First Amendment claim should have gone to trial rather than being dismissed on summary judgment.

So far, without delving into the minutia of the cases, I see a judge who's all over the ideological map, which dispels the the idea that she has a distinct ideological slant. Hell, even Rush Limbaugh acknowledged that her record did not look like the record of a rank ideologue:

You know what else is interesting? I have had friends of mine who are legal beagles and scholars. They have researched her decisions on the Second Circuit and throughout her career as a judge, and they have found something very interesting. Aside from the Ricci case in Connecticut, her decisions do not mirror the racism and bigotry of that speech. So it's going to be hard to go back and say, "Well, she said this, and therefore she gonna rule --" she hasn't ruled, there have been exceptions, but she hasn't ruled as a radical.

Which brings me to the Ricci case. As it is currently a matter under consideration by the Supreme Court, it's not yet settled. And if the SCOTUS upholds the appeals court's ruling, it will go back and be tried.

(For the WSJ story with full audio of the hearing, click here, and let me know if you stay awake, because I'm not losing the hour it'll take.)

Judge Sotomayor was one of a three-judge panel for the appellate court that simply affirmed, without comment, the ruling of the lower court. It was the full appeals court that overturned the panel. And Sotomayor appears to have leaned toward the idea of letting the city redesign the test (to cover their ass), stating, “If your test is going to always put a certain group at the bottom of the pass rate so they’re never, ever going to be promoted, and there is a fair test that could be devised that measures knowledge in a more substantive way, then why shouldn’t the city have an opportunity to try to look and see if it can develop that?”

Answering the Question (and surprising myself)

So let's go back to the question I posed earlier:

2. Does she follow a philosophy of judicial restraint, ruling based on existing law, or is she a judicial activist, using her rulings to create new law in line with her political philosophy?

As far as I can tell, there is no significant evidence that indicates she is a committed judicial activist, bent on recreating the law. Therefore, despite my instinctive distrust of Obama's first choice of a nominee (which was absolutely a politically motivated choice), her record indicates she does appear to have some degree of judicial restraint.

Now this is not a guarantee of the kind of Supreme Court Justice she will be. Look at who she's tapped to replace, Justice David Souter (surprise, surprise, surprise). And she may be a stealth activist (sitting on that tendency for 17 years!). But the only reasons on paper that I see to oppose the hell out of her (despite the fact that the GOP can do nothing to stop even a bad nominee) would be on purely ideological grounds. But just being a commie liberal is not a reason to shoot down a nominee, if their legal judgment is logical, restrained, and sound (or as sound as liberal thought can be).

In the end, she should be questioned vigorously, extensively, and on every point I've highlighted, and every significant decision she's made in court. Perhaps something will emerge then that will disqualify her then. But as of right now, I see no reason for the GOP senators to actively and preemptively oppose her.

Case closed.