Sonia Sotomayor and Legal Opinions on her Nomination

Ask any of this blog's four consistent readers, my Mom, Dad, crazy Uncle Lenny, and my loony, progressive minded, Obama voting Basset hound, and they will tell you that I have the utmost respect for the Supreme Court of the United States and for its members, both liberal and conservative.

This brings me to the point of this post. First off, while I have a rabid fascination with the law, I am not a lawyer nor do I have a desire to sell my soul and become an proselyte of Satan by becoming one. (I do play one on television though.) Subsequently, lawyers and judges are the resident experts on the law and it behooved me to explore their opines on Judge Sotomayor's past rulings to form a more perfect opinion on her nomination. Because this "analysis" involves the Supreme Court, I am taking even greater caution to remain thoughtful and avoid any cognitive dissonance entering into the equation. (That is, a healthy and fair analysis free of any political leanings or contempt for the administration which has appointed her.)

Many an argument has been raised by Sotomayor's detractors as to why the Judge should not be appointed to the SCOUTS. They have ranged from charges of reverse racism due to her comment given at the Judge Mario G. Olmos Memorial Lecture in 2001, delivered at the University of California, Berkeley, School of Law, "Second, 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."

Or her supposed reputation for a bad temperament, "The most consistent concern was that Sotomayor, although an able lawyer, was "not that smart and kind of a bully on the bench," as one former Second Circuit clerk for another judge put it."

Or as noted in a previous article here at PACT, her idea that federal judges create policy, not interpret the law.

These are minor flags which could indicate a woman whom has tightly restrained her true political disposition and has been very careful not to reveal her thoughts to avoid drumming up any controversy. Controversy which could impede her ambitions and aspirations. It does deserve some thought.

More specifically are her rulings. These are much more indicative of her leanings and attitude towards the law. A person is free to feel as they will about contentious issues. However, there is a very large difference between applying the law and interpreting it. This is a compilation of various law related blogs and the rigorous analysis their authors have provided on a myriad of cases Judge Sotomayor has ruled in or presided over.

ProfessorBanbridge.com-Stephen Bainbridge asks the question as to whether or not Judge Sotomayor is to far out of the mainstream to be confirmed. His conclusion is, no, she isn't.

The Volokoh Conspiracy-Jonathan Adler points out that as far as being anti-business, citing four cases; Merrill Lynch v. Dabit, Knight v. Commissioner, Malesko v. Correctional Services, and Entergy Corp. v. Riverkeeper, the judge shows a lean in this direction. Although it should be noted that Adler does raises the question that it is difficult to determine her overall approach based on a handful of cases.

Patterico's Pontifications- A conservative lawyer based in California, Patterico explains the context of Sotomayor's statement concerning the appellate courts making policy and states that she " worded the concept especially badly." And notes that one silver lining to her appointment is that she is tough in criminal law cases and issues.

ClassActionBlawg.com-Paul Karlsgodt does an exhaustive study into Judge Sotomayor's rulings concerning class action cases and other related litigation, here and here. His final conclusion, "Overall, her decisions on class action issues do not suggest a pro-plaintiff or pro-defense bias. Rather, they seem to reflect a willingness to consider each case on its own merits and to either admit when she has made a mistake or at least be guided by changing circumstances rather than any ridged adherence to a predetermined philosophy or idealogy."

Opino Juris-Julian Ku shows a strong degree of evidence based on United States v. Ni Fa Yi, European Commission v. RJR Nabisco, Beharry v. Ashcroft, and Center for Reproductive Law v. Bush that the Judge does not engage in transnationalist justice. For a brief explanation of transnational law.

Forbes.com-Richard A. Epstein, professor of law at the University of Chicago and senior fellow at the Hoover Institution, is concerned that Sotoamyor is extremely weak on property rights based on her ruling in Didden v. Village of Port Chester. Bart Didden, a pharmacist, was opting to build a pharmacy in the redevelopment district in the town Port Chester on land he owned there. Greogry Wasser, to whom the municipality inexplicably delegated its regulatory authority of this particular part of the town, told Didden that if he did not give him $800,000 or controlling interest the land would be condemned by the township. Inevitability, it was. Here is an excerpt from Second Circuit panel's ruling, "We agree with the district court that [Wasser's] voluntary attempt to resolve appellants' demands was neither an unconstitutional exaction in the form of extortion nor an equal protection violation." Judge Sotomayor was a member of the panel an was a participant in this ruling.

Bench Memos-Ted Frank, of the American Enterprise Institute, brings up point about Sotomayor being on the wrong side of the law in Ricci v. DeStefano. A case involving fireman, Frank Ricci, suing the city of New Haven, CT. for reverse discrimination. Frank and I also seem to agree on the possibility of Sotomayor hiding her true feelings towards "judicial activism" on the chance it could impede her SCOTUS appointment.

My final conclusion is that Judge Sonia Sotomayor, is not a vapid, vitriolic liberal, bent on jamming activist causes down everyone's throat via the Supreme Court. She, to me, is a moderate liberal in the Souter fashion.

Her credentials, as far as education is concerned, are more than appropriate. Although, there seems to be an ambiguity to her rulings and by compiling all of the evidence together, that being her rulings and opinions which she has given, I am left with doubt that she can be classified as a stalwart and pragmatic defender of the Constitution and what it stands for. This does not fit my own personal expectation of how a Supreme Court Justice should do their job.

Simply put, if I were a Senator I would not vote for Sotomayor as a nominee for the SCOTUS. As previously noted, based upon the evidence I am left with "reasonable doubt" as to whether she would fit within the originalist or consrtuctionalist philosophies and has displayed tendencies towards legal realism.

While I admittedly find it difficult to support Judge Sotomayor as a nominee for the Supreme Court, I do not fear the inevitable fact that she will be appointed either.

Final Note: I would like to give many thanks to Walter Olson of the Manhattan Institute, for providing many of the links to various sites I used, from Point of Law blog. Mr. Olson is also the proprietor of Overlawyered.com, which delves into the abuses and consequences of the American litigation process.

Update: The SCOTUS blog has just released an interesting piece concerning Sotomayor's "racism." Here are two very different opinions from blogging law professors concerning the SCOTUS blog's article, Legal Insurrection and Dissenting Justice.

Enjoy!!