THE DAILY BLADE: So, Sotomayor …
Crunching the identity politics numbers, Supreme Court nominee Sonia Sotomayor would be - as has oft been noted – the nation’s first Puerto Rican justice; the 11th Catholic; the third woman; the first diabetic (she was diagnosed at age 8 with juvenile, or type 1, diabetes) and the first born and raised in The Bronx (of all the “firsts,” this last distinction is likeliest to endure for decades to come as there are already questions about whether she will be the first Hispanic on the high court).
Because of the contentious debate over whether and how identity informs jurisprudence - the Supreme Court overturned Sotomayor’s rulings in the intellectual property case Tasini v. New York Times (7-2); in the civil rights case Malesko v. Correctional Services Corp. (5-4); in the shareholder’s class action suit Dabit v. Merrill Lynch (8-0); and in the environmental case Riverkeeper v. EPA (7-2) – she has detractors and defenders in equal measure.
Ronald Cass, Dean Emeritus of Boston University School of Law and author of “The Rule of Law in America” (Johns Hopkins Univ. Press, 2003), is clearly not a fan:
The essence of the rule of law is that identity doesn't matter. The law means the same thing regardless of the identity of people applying the law or subject to it. We don't have one law for Jews and another for Catholics, one for Italian-Americans and another for Hispanic-Americans. We don't need to know who the judge is to know what the law is. …
Judge Sotomayor is, in the colloquial parlance, a two-fer. She's a Hispanic woman. Her appointment appeals to two major constituencies for Democrats. …
Republicans will be gnashing teeth for a long time reading Justice Sotomayor's decisions if she gets onto the Court. And those who care about the rule of law will be appalled by at least some of what she says and does. But there's a silver lining or two here as well. For one thing, Judge Sotomayor is unlikely to be more than a single vote - someone as far from most other justices in craftsmanship and as abrasive as she is won't have much impact on her colleagues' decisions.
And the nomination just might peel away a little Teflon from a very Teflon President. The decision to nominate Judge Sotomayor will mark the time President Obama lost the pretense of being above and beyond partisan norms.
But self-described conservative Gerard N. Magliocca, a law professor at Indiana University (Indianapolis) and a former summer intern of Sotomayor’s argues that who she is - her identity – is a valuable asset to the high court:
I have known the judge for 13 years, and found myself assisting her and sometimes at odds with her professionally. …
While many have discussed her underprivileged background as a strong point for her confirmation, I think that her experiences as a lawyer and a judge are more relevant. Plenty of judges can talk intelligently about trademarks, but few have actually strapped on a bulletproof vest and taken part in law-enforcement raids on gang warehouses filled with counterfeit merchandise, as she did when she was in private practice. Many judges are knowledgeable about labor law, but few have faced a labor decision as intense as her ruling in favor of the players that ended the 1995 Major League Baseball strike.
One result of her broad experience in many different fields is a distrust of abstraction. Indeed, her stint presiding over trials in district court will help the other justices, none of whom have done so, understand the implications of their rulings on everyday litigation and criminal sentencing. …
For those of us who think that intellectual rigor and fairness are the crucial factors, no matter which party the president hails from, there is no question that Judge Sotomayor should be confirmed.
To sort this all out, Neomi Rao, George Mason School of Law assistant professor and former nominations counsel to the Senate Judiciary Committee, suggests five incisive questions about her judicial philosophy that Sotomayor should be asked during her confirmation hearings on the difference between empathy and judicial activism; whether the Constitution should evolve and how she would decide when; when it is appropriate to discard precedent; the court’s role in interpreting ambiguous laws; and whether the law or its result is more important.
Those who disagree with her judicial opinions can take small comfort in her propensity to be “technical, incremental and exhaustive,” according to The New York Times, which adds her writings “reveal no larger vision, seldom appeal to history and consistently avoid quotable language.” For its part, The Wall Street Journal characterizes her 15 years on the federal bench as “within the mainstream of Democratic judicial appointees” and notes that “[h]er record in more than 4,000 cases, including those from 11 years on the Second Circuit, shows her occasional siding with corporate defendants or diverting from a standard liberal position.”
Even knowing more about her judicial philosophy than we do now, it is impossible to predict with certainty whether she will be as reliably liberal as Souter – but odds are that Kennedy will continue to be the swing vote on the high court.
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