Constitutional Opinions

Sonia Souter Left

An ideological selection clearly less business friendly than the justice she replaces.

By 5.28.09

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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.

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About the Author

John Tabin is a frequent contributor to The American Spectator online.