Sotomayor’s stances on issues remain unclear

Freedom New Mexico

The Senate Judiciary Committee no doubt will have many relevant questions for Supreme Court nominee Judge Sonia Sotomayor concerning what role, if any, her gender, ethnicity and empathy play in her judicial reasoning, her judicial temperament and her judicial philosophy.

For today we’d like to explore what her written opinions tell us about where she stands on the conventional political spectrum.

The process of poring over decisions from her six years as a trial judge and 10 years as an appellate judge by journalists, bloggers and law professors has barely begun. So far, researchers have found no decisions on such hot-button issues as abortion, the death penalty, gay rights or national security. The 2nd U.S. Circuit Court of Appeals in New York more often handles cases involving business law, securities regulation, employment, white-collar crime and immigration.

Judge Sotomayor’s opinions are dense and methodically crafted with few memorable phrases, but a trend can be seen. Thomas Goldstein, a moderate liberal and senior partner with the firm Akin Gump who argues often before the Supreme Court and who founded Scotusblog, a Web site that covers the high court, put it succinctly after a first-pass review. “From the outcomes,” he said, “she’s certainly on the left.”

A few cases stand out.

In Ricci v. DeStefano, brought by a white firefighter in New Haven, Conn., who contended he was passed over for promotion because of his race after no black firefighters earned a qualifying score on an exam designed to be colorblind, a 2nd Circuit panel including Judge Sotomayor sided with the city and against the white firefighter in a cursory one-paragraph unpublished decision. This suggests she is a possibly uncritical supporter of affirmative action programs, whether or not they make much sense.

The Supreme Court just heard the appeal of that decision, and those who listened to the oral arguments expect the high court to reverse Judge Sotomayor’s ruling.

Five of Judge Sotomayor’s decisions have been appealed to and heard by the Supreme Court, and three were overturned. One of those upheld (Knight v. Commissioner) included a rebuke from the justices for Judge Sotomayor’s interpretation of the law. In April, the Supreme Court overturned her ruling in Riverkeeper v. EPA that the Environmental Protection Agency could not use cost-benefit analysis in considering best-available pollution-control methods but would have to mandate the most effective technology regardless of cost.

In January, Judge Sotomayor joined a majority rejecting a Second Amendment challenge to a New York law banning the possession of chukka sticks, a martial arts weapon, because the Supreme Court had not yet ruled on how its D.C. v. Heller decision establishing an individual right to keep and bear arms should be applied to the states. In a 2002 dissent, she said that a police officer fired for distributing anonymous racist comments should be allowed to appeal his firing on First Amendment grounds, even though she found the comments “patently offensive, hateful and insulting.”

Jonathan Adler, who teaches business law at Case Western law school, says there are too few cases to label Judge Sotomayor as anti-business but it may be significant that her handful of reversals come from “an excessively permissive standard for suits by anticorporate plaintiffs.”

Whether this generally liberal (by conventional terminology that sometimes drives us crazy) record supports a charge of “judicial activism” awaits more evidence and analysis.