Judge Sonia Sotomayor was at the top of President Obama’s short list of potential Supreme Court nominees even before Justice David H. Souter’s decision to retire. And from the start, conservative groups were denouncing her as a “liberal judicial activist.”
The ideological name-calling had little by way of substance. The three main counts consisted of a passing remark suggesting that appellate courts make policy — made in contrast to the role of trial courts; a speech voicing the “hope” that “a wise Latina judge” would “often” make a better ruling than a wise white male because of her experience and background; and her supposedly perfunctory rejection, as part of a panel of three judges, of a reverse discrimination case brought by white New Haven, Conn., firefighters.
True, at least one conservative critic — National Review Online’s Ed Whelan — examined Sotomayor’s record to document decisions in which she had been reversed by the Supreme Court. He found three: the high court's 5-4 decision rejecting an inmate’s constitutional damages claim against a private prison company; the 8-0 decision preempting state securities law suits; and a 7-2 decision favoring free-lance writers’ claims to copyright protection for works included in on-line data bases. Had Whelan updated his list, he could have added a fourth: a 5-4 decision in April allowing the Environmental Protection Agency to use cost-benefit calculations in some utility plant regulations.
To call Sotomayor’s overturned rulings in these cases the stuff of liberal judicial activism is to strip the term of any pretense of meaning. And now that Sotomayor has been chosen, a closer examination of her record is putting the lie completely to the accusation. On balance, Sotomayor falls to the left of ideological center on many legal issues, but not all. And, as SCOTUSBlog founder Thomas Goldstein aptly observed, she emerges from her 400 decisions on the Second U.S. Circuit Court of Appeals as no legal visionary but a judicial craftsperson.
The White House put its own spin on Sotomayor’s record in a fact-sheet that highlighted a handful of decisions with conservative results that judicial conservatives would have been happy to join. She refused to exclude evidence found on the basis of what proved to be an invalid arrest warrant — anticipating by a decade a position that the Supreme Court adopted in January. She backed asylum claims by Chinese women protesting their government’s one-child policy. She argued in dissent for the right of religious organizations to choose their spiritual leaders without interference from the federal government.
In a larger compilation, SCOTUSBlog found any number of decisions upholding criminal convictions, rejecting habeas corpus challenges by prison inmates or limiting civil justice remedies. Among 30 decisions included, only two stand out as arguably “activist.” In one, Sotomayor wrote the majority decision allowing merchants to bring a class action antitrust suit over credit card company fees. In another, she dissented from a decision rejecting a teenaged girl’s civil rights suit over a strip search by school officials — an issue currently before the Supreme Court in a separate case.
Sotomayor has no record on such major hot-button issues as abortion rights, capital punishment or gay rights. The White House says Obama did not discuss abortion with her in their hour-long interview. She has touched the issue only glancingly as a judge. She upheld the Bush administration’s ban on federal funding of groups that provide abortion counseling overseas. She also allowed a suit by anti-abortion protesters charging local police with excessive force in breaking up a demonstration. Those rulings may not satisfy anti-abortion groups, but they hardly give comfort to organizations that see fidelity to Roe v. Wade as the essential litmus test for any Supreme Court nominee.
Indeed, it is fair to say that Obama’s selection represents the third consecutive time that a Democratic president has avoided strict ideological litmus tests in picking a Supreme Court justice. Of the two judges Obama interviewed, Sotomayor is demonstrably less liberal than runner-up Diane Wood. In the 1990s, President Bill Clinton twice picked judges — Ruth Bader Ginsburg and Stephen G. Breyer — with reputations as moderate liberals. As justices, each has lived up to their reputations.
By contrast, President George W. Bush twice picked judges with documented records as committed conservatives. John G. Roberts Jr. and Samuel A. Alito Jr. had earned their conservative stripes in the Reagan administration and had judicial records — Alito’s longer than Roberts’ — that confirmed their generally conservative leanings. In between, Bush picked an ideological wild card, Harriet Miers, and conservative groups whacked him for it.
Obama has gained nothing from the legal ideologues for his less than ideological pick. But he has confounded them by nominating Sotomayor to be the first Latina to serve on the court. Whether or not identity politics is good for the court, it is treacherous ground for opponents. Southern Democratic senators learned that lesson in 1991 when they voted with their African American constituents to give Clarence Thomas the margin of his confirmation. Republican senators with Latinos in their states — to some degree, all of them — may buy political trouble if they give Sotomayor a less than welcoming reception as the confirmation hearings proceed.