Wednesday, May 27, 2009

Sotomayor is Obama's first Supreme Court pick

President Obama has made his first Supreme Court selection by choosing Sonia Sotomayor.

I became familiar with Judge Sotomayor, as did much of the country, when she effectively ended the 1995 Major League Baseball strike ruling against the team owners in a decision that delighted baseball fans but left constitutionalists scratching their heads as to what right the court had to tell private owners how to run their business. Ironically the Major League Baseball case will probably be the main sticking point with conservative questioners at her confirmation hearings as it seems to reveal an invasive view of the court in private affairs, a liberal mainstay in judicial philosophy.

Yes Sotomayor leans liberal, which should be no surprise as an Obama nominee, however she has been favored by both political parties throughout her impressive career. She was nominated to the U.S. District court by George H.W. Bush in 1992, then elevated to the highly active 2nd Circuit by President Clinton in 1998.

Sotomayor is a very safe political pick for Obama at a time when he needs a high profile appointment like this to pass. I think she will be confirmed relatively easily. Compared to what most judicial conservatives thought Obama would put forward, Sonia Sotomayor is mild. I figured he would appoint someone who made Ruth Ginsberg look conservative, the Sotomayor selection has surprised me a bit.

On the two "culture war" issues that gain the most attention- abortion and gay rights- Sotomayor has ruled very little. She has a scant track record on these unless I'm missing something. I'm sure conservatives will do their best to bring up any and all liberal rulings she has made but off the top I can't find any significant rulings in favor of abortion rights or gay rights. Interestingly reports the following on Sotomayor-

"Despite 17 years on the bench, Judge Sotomayor has never directly decided whether a law regulating abortion was constitutional," the pro-life group Americans United for Life noted in a recent analysis of potential Supreme Court candidates.

Sotomayor participated in a decision concerning the Mexico City Policy, which President Obama recently overturned and which prohibits sending taxpayer dollars to groups that promote and perform abortions in other nations.

Writing for the Second Circuit, Judge Sotomayor upheld the Mexico City Policy, but AUL says the significance of the decision "may be minimal because the issue was largely controlled by the Second Circuit's earlier opinion in a similar challenge to the policy."

AUL notes that Judge Sotomayor also upheld the pro-life policy by rejecting claims from a pro-abortion legal group that it violated the Equal Protection Clause.

Sotomayer's thin ruling history on these issues makes it very likely she'll fly through confirmation hearings.

What does this mean? It's really hard to say at this point. I think we will soon have another judge who takes a relatively intrusionist view of the judiciary. On the other hand, regarding abortion and gay rights, it's hard to say what she'll do based on her judicial history. What gives me pause is how comfortable Planned Parenthood is about her nomination stating- "she understands the importance of ensuring that our Supreme Court justices respect precedent while also protecting our civil liberties." Gay rights legal activist Paula Ettelbrick made this telling statement about Sotomayor's nomination- "I believe she has the demonstrated commitment to principles of equal protection and inclusion that defines a good nominee to the Supreme Court. In choosing Judge Sotomayor, the first Latino candidate for the Supreme Court, President Obama has made a strong and appealing nomination that should and will receive the support of those committed to equality for lesbians and gay men."

Abortion and gay rights advocates are comfortable with Sotomayor which makes me uncomfortable. She must have given some kind of back room assurances to President Obama and these groups, otherwise they would not be so supportive.

Personally I am relieved Obama didn't select someone more radically liberal, so I see hope in her selection. The person she will replace, David Souter, was supposed to be a more conservative judge (appointed by George H.W. Bush) and turned out to be quite the opposite. Sandra O'Connor was similarly selected by Ronald Regan and also turned out to be liberal in her rulings. It would be nice to see a Supreme Court appointment turn out to be a disappointment to the liberals for once. Maybe Sotomayor will be such a one?


Frontier Forest said...

Thanks Tony! Some great thoughts that have given a bit of relief. Tried to search her records on “the passionate issues” yesterday but came up blank. So you have help fill in the gap. God is sovereign and rules over ALL mankind. Only HE makes men (woman) great and gives them strength.

reformationfaith said...

Tony, I really did not expect any nominee to be less than radical. She is in may ways as radical as they come, just with a scant record on abortion, etc.

The major objection in my book is her judicial philosophy. The "empathy" factor. If you read her statements (posted on my blog and elsewhere) it is apparent that she does not view her role as judge in the constitutional sense. Race, gender, station in life can affect her decisions. I'm sure you've seen the quote:

"“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.”

Further, she is no friend at all to those of us who cherish the 2nd amendment.

But, I would have expected no less that someone like her from Obama. Elections do have consequences.

Rick Calohan said...

I could go on and on about this selection but it is pointless since a liberal radical President has every right (no pun intended) to select a liberal radical nominee. Elections matter people this is what happens when you allow ACORN, LaRaza, and the Oprahnites rule the country.

For more on Sotomayor you can go to

Justice [Sandra Day] O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases.... I am... not so sure that I agree with the statement. First... there can never be a universal definition of wise. 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. - Sonia Sotomayor

Lyle said...

Good analysis, Tony.

Roger Mann said...

In 2002, at a speech in California, Sotomayor said:

“I would hope that a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn’t lived that life.”

And in 2005, at a Duke Law School discussion, she stated:

“Court of Appeals is where policy is made. And I know - I know this is on tape, and I should never say that because we don't make law. I know.”

I can’t imagine how someone holding such views will “fly through confirmation hearings.” But, then again, I never would have imagined that a guy who attended Jeremiah “G-D America” Wright’s church for almost 20 years and who rubbed elbows with an unrepentant domestic terrorist could have ever been elected as President of the United States! So what do I know?!

Reepicheep said...

To be clear, I'm not saying she's a good choice or one I would make. Of course not.

The fact is, President Obama was elected and has the right to nominate who he wants.

The selection could have been worse if you look at his supposed shortlist of nominees.

Roger, sorry, she'll fly through.

Zach said...

I think your analysis is right on, Tony. She has the potential to be something less than awful, which is perhaps the best we can expect.

I also pray that her truncated, reportedly abandoned Catholic faith is revived in the company of faithful Catholics like Scalia, Roberts, Alito, and Thomas. If that were to happen, she could be, as you suggest, David Souter in reverse.

Brother Titus said...

The good thing about the Sotomayor nomination is that even if she sits on the court in October, or whenever, there are still good men of good will on the Supreme Court whom have the best interests of America as their intentions. So, that, at least for the short term, not all the judical decisions coming out of, D.C., will be damaging to the Ameican way of life, nor run roughshod over the greatest human-authored document the world has ever known, the U.S. Constitution.

Reepicheep said...

The U.S. Constitution is a masterpiece...but not better than the Westminster Confession of Faith in so far as "written by man" is concerned.