Will Sotomayor Disappoint Liberals?
Wednesday, May 27, 2009 at 5:29 pm
Having just listened to a conference call of legal experts set up by the White House to provide reporters the Obama administration’s spin on Supreme Court nominee Sonia Sotomayor, I have to wonder if liberals, when they’re done defending Judge Sotomayor from the right’s attacks, may end up being disappointed with the president’s choice.
According to the White House’s experts, President Obama’s just chosen an extremely cautious, legalistic nit-picker.
“She’s a lawyer’s lawyer,” said Paul Smith, a partner at Jenner & Block who participated in the call.
“She’s someone who cares about the craft, about the details of facts,” he said. “She’s a cautious lawyer….who was a corporate lawyer herself….She reads statutes narrowly.”
Harvard Law Professor Martha Minow described Sotomayor’s decision in a securities case that turned on the how Sotomayor read the word “buyer.” In fact, she read the law so literally that the Supreme Court reversed her, said Minow: “they said, ‘let’s be not so stingy’ ” about it.
Sotomayor’s opinions, according to Kevin Russell, a partner at Howe & Russell who writes for SCOTUSblog, reveal a “judicial modesty” that’s “very respectful of precedent.” In a case brought by the Center for Reproductive Law and Policy, for example, she rejected a challenge to President George W. Bush’s “global gag rule,” which prevented foreign organizations receiving U.S. funding from using their own money to provide abortions or abortion assistance.
Russell added that Sotomayor has also shown herself to be very deferential to the judgments of government agencies. When passengers were bumped from a flight by an airline and claimed it was due to racial discrimination, Sotomayor ruled that the anti-discrimination laws are trumped by the international Warsaw Convention, which regulates the liability of airlines in international flights.
“Judge Sotomayor is not the sort of judge who sees it as her role to reverse every decision she disagrees with,” said Russell.
As a result, experts agree that it will be difficult to predict how she’d rule on issues like the breadth of the Second Amendment, gay rights, or other civil rights matters that have yet to come before her.
“There isn’t any indication that she has a broad reading of the liberty clause or due process clause,” said Minow. “At the same time she is a master of the interpretation of law and relating of law to fact,” she said. “She would be participating in the careful application of the constitution to facts.”
Sometimes, those applications have disappointed even plaintiffs in discrimination cases, where her own comments might suggest that Sotomayor would be more sympathetic.
In 1999, for example, she ruled against a black nurse who claimed she’d been fired due to her race, age and a disability. Sotomayor allowed the nurse to move ahead with the disability claim, but threw out the other claims.
“There was ample evidence that the hospital had accommodated white nurses with similar disabilities,” Glenn Greenwald, now a Salon columnist but then a lawyer for the nurse, told The Wall Street Journal. “She rather coldly dismissed what I thought were good claims.”
So it’s starting to sound like Obama nominated a highly capable technocrat. Setting aside her personal story of achievement against all odds, is her approach to the law the sort of change that Obama’s more progressive supporters will believe in?
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