Friday, June 26, 2009

Nomination Watch: CRS Finds No Tilt in Sotomayor's Rulings

      Supreme Court nominee Sonia Sotomayor’s opinions on the federal appeals court mark her as a judge who adheres to precedent, carefully applies facts to legal issues, and dislikes courts’ overstepping their judicial role.
      That is the central conclusion of a 55-page report by the Congressional Research Service, an arm of the Library of Congress, that analyzes Sotomayor’s opinions subject by subject from her 17 years on the Second U.S. Circuit Court of Appeals.
      The report, with separate sections written by a total of 18 CRS legislative attorneys, appears to cover no Sotomayor opinions that have not already attracted comment in the month since President Obama nominated her to succeed retiring Justice David H. Souter. But the generally favorable evaluation of her work strengthens the view of her as a mainstream judge espoused by Democrats, liberal groups and many academic expects and undermines efforts by Republicans and conservative groups to depict her as a liberal judicial activist.
      “Perhaps the most consistent characteristic of Judge Sotomayor’s approach as an appellate judge has been an adherence to the doctrine of stare decisis, i.e., the upholding of past judicial precedents,” the report states in its opening summary. “Other characteristics appear to include what many would describe as a careful application of particular facts at issue in a case and a dislike for situations in which the court might be seen as overstepping its judicial role.”
      The report was dated June 19 and began circulating among interest groups and others several days later. In an initial reaction, Wendy Long, general counsel of the conservative Judicial Confirmation Network and an opponent of Sotomayor’s confirmation, was sharply critical. "CRS is one-upping the White House doubletalk about Judge Sotomayor that is intended to obscure the liberal judicial activist, and frankly, the sub-par judge that she really is,” Long wrote on National Review Online.
      The report finds no overall pattern in Sotomayor’s opinions in race-related cases. Sotomayor, who would be the court’s first Latina justice if confirmed, has attracted substantial criticism for speeches spanning several years discussing the influence of her gender and her ethnicity in her decision making.
      Out of seven opinions she authored, Sotomayor ruled in favor of the party claiming discrimination in three and against the party claiming discrimination in four, the report states. “Her opinions seem to betray neither a particular sympathy for nor hostility toward alleged victims of discrimination,” the report concludes.
      The report does, however, find Sotomayor generally supportive of civil rights claims by individuals with disabilities. In areas of international concern, Sotomayor is described as having “a tendency to make the Second Circuit available to plaintiffs unless circuit precedent or the political branches have indicated otherwise.”
      Sotomayor’s role in the reverse discrimination suit by white New Haven, Conn., firefighters now pending before the Supreme Court is described in the report as “somewhat ambiguous.” Sotomayor was part of a three-judge panel that summarily affirmed a district court’s decision to permit the city of New Haven to scrap the results of a civil service exam after no African Americans scored high enough to qualify for promotions. The Supreme Court heard arguments in the case, Ricci v.DeStefano, in April and is due to issue a decision on Monday [June 29], the final day of the term.
      In a second major area, criminal law, the report discounts some published comments suggesting Sotomayor may be more conservative than Souter has been. The report catalogues decisions alternately favoring or rejecting Fourth Amendment claims and alternately granting or refusing to extend qualified immunity to police officers in civil suits.
      In general, the report says Sotomayor adheres to precedent in criminal cases, but notes that when she disagrees with colleagues, her stance has generally favored defendants. Among Fourth Amendment cases noted is a decision, N.G. ex rel. S.C., finding no justification for a juvenile detention facility to strip search female residents. In a press release, the liberal group People for the American Way pointed to the Supreme Court’s June 25 decision finding a constitutional violation in a strip-search of an Arizona middle school student as vindicating Sotomayor’s position on the issue.
      The report finds no strong inclination in Sotomayor’s opinions in several other areas, including the First Amendment and securities and tax cases. The report notes three opinions that were reversed by the Supreme Court but not a fourth and makes no overall assessment of her reversal rate.
      The report also discounts Sotomayor’s participation in a recent, unsigned decision, Maloney v. Rice, declining to extend the newly recognized Second Amendment right to individual possession of firearms to state and local governments. Out of three appeals courts to rule on the issue, two circuits — the Second and the Seventh — have both held that it is up to the Supreme Court to decide whether to overrule a 19th century decision holding the Second Amendment inapplicable to the states. The Ninth Circuit took the opposite stance in a decision striking down a local ordinance that banned gun shows at a municipal facility. The National Rifle Association has asked the Supreme Court to review the Seventh Circuit’s decision.

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