Few serious people will argue that Sonia Sotomayor has been
nominated to the Supreme Court because she is the best candidate
for the job. ABC News correspondent Jan Crawford
Greenburg reports
that President Obama’s political advisers favored nominating
Sotomayor to “energize a key and growing constituency,” while his
legal advisers “wanted, as they saw it, a more collegial and
intellectual heavyweight. They favored Solicitor General Elena
Kagan, the former dean of Harvard Law School, or Chicago based
federal appeals court Judge Diane Wood.”
Obama sided with the politicos.
Still, Sotomayor is an experienced appellate judge; though
she seems to have rubbed some people the wrong way, her
résumé certainly qualifies her for the high court according to
the old-fashioned standard whereby a president has wide latitude
to have his nominees confirmed — though not according to the
standard that Obama applied as a senator, where he voted against
confirming John Roberts and Samuel Alito on ideological grounds.
Republican senators will have to decide whether to take the
deferential position that most of them did when Bill Clinton
nominated Ruth Bader Ginsburg and Stephen Breyer, who were
confirmed 96-3 and 87-9, respectively, or to follow Obama’s lead
and evaluate Sotomayor based on how she is likely to act on the
bench.
Sotomayor is a liberal, of course, and since she is replacing
David Souter, another liberal, one might assume that she wouldn’t
change the makeup of the court very much. But there are some
areas of the law where Souter has provided
the fifth vote in close decisions — and where Sotomayor may
well move the court to the left.
Business law is a particular area of concern. Souter voted with
5-4 majorities to limit punitive damages based on maritime common
law (Exxon v. Baker), require plantiffs initiating
lawsuits to “raise a reasonable expectation” that relief is
required (Bell Atlantic v. Twombly), and limit the class
of people who may sue government contractors under the False
Claims Act to those with “direct and independent knowledge of the
information” alleged in the suit (Rockwell International Corp
v. US).
Sotomayor, by contrast, has tended to lean more toward civil
plantiffs. In In re Visa Check, a class action antitrust
case, her majority opinion (on a divided three-judge panel)
suggested a standard under which a trial judge should grant class
certification, even in the face of conflicting evidence as to
whether it was appropriate, unless the plantiff’s expert
testimony is “fatally flawed.” The Second Circuit later
explicitly overruled this decision in In re IPO.
Similarly, Sotomayor ruled in Merrill Lynch v. Dabit
that state courts could hear certain securities lawsuits despite
the preemptive effect of federal law; the Supreme Court reversed
her ruling 8-0.
Is there any area where Sotomayor might be an improvement over
Souter? There is one. In some instances, Sotomayor may be
slightly better on First Amendment issues.
In Pappas v. Giuliani, Sotomayor dissented from a panel
that held it constitutional for a New York Police Department
officer to be fired for anonymously distributing racist and
anti-Semitic material through the mail from his home, writing
that the court should not “gloss over three decades of
jurisprudence and the centrality of First Amendment freedoms in
our lives because it is confronted with speech it does not like
and because a government employer fears a potential public
response.”
Sotomayor’s willingness to let freedom of speech take precedence
over anti-discrimination policy contrasts favorably with Souter’s
position in Boy Scouts of America v. Dale, where his
dissent would have elevated New Jersey’s anti-discrimination laws
above the Boy Scouts’ freedom of association (the case turned out
whether the Scouts’ were required to allow gay scoutmasters). The
legal issues involved are somewhat different, and judges are
often maddeningly inconsistent on First Amendment issues, but at
least it’s something that determined optimists can latch onto.
It is not, however, much of a reason for committed originalists
in the Senate to support her confirmation — at least if they
apply Obama’s own standard.
