As featured on p. 218 of "Bloggers on the Bus," under the name "a MyDD blogger."

Thursday, May 28, 2009

Not A Liberal Lion?

The demonization of Sonia Sotomayor on the right should not comfort liberals that Obama has necessarily made a perfect choice. It can sometimes work to choose allies based on whether or not they have the right enemies, but conservatives would have opposed Ted Olson if Obama appointed him (after all, that guy's down with the homosexual agenda). We must do our own work, our own due diligence on Sotomayor, and decide for ourselves whether she is a solid candidate for the bench. And the early analysis of that work raises some concerns that she may be absolutely qualified and worthy of the seat, but also a fairly narrow moderate technocrat.

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.

If you believe that judges should display a narrow reading of the law and rely heavily on precedent, Sotomayor looks to be your kind of judge. If you're worried about losing the fundamental rights of women to make medical decisions, you may become alarmed (although respect for precedent would seemingly include Roe, and I don't think that the evidence in the article comes down on either side definitively).

The evidence points to Sotomayor as a somewhat moderate textualist who will respect precedent and find her opinions in the law. In other words, pretty much like Souter. You can consider that a missed opportunity for Obama, but you'd have to expect him to do something different, which I pretty much don't.

...E.J. Dionne's really down on her:

And even though they should support her confirmation, liberals would be foolish to embrace Sotomayor as one of their own because her record is clearly that of a moderate. It is highly unlikely that she will push the court to the left. Indeed, on many issues of concern to business, she is likely to make the Chamber of Commerce perfectly happy [...]

They want to turn Obama’s argument on its head and claim that Sotomayor would show bias in favor of those who share her background—and never mind that they dismiss such assertions when they are raised with respect to white, conservative, male nominees.

The problem is that this approach is untrue to who Sotomayor has been and has little relationship to the decisions she has actually rendered as a judge. News accounts from the 1990s consistently described her as a “centrist” in her politics. Her lead sponsor when she was first named as a judge, the late Sen. Daniel Patrick Moynihan, was hardly a conventional liberal. Obama may have found himself an empathetic judge, but she practices her empathy from the middle of the road.

A careful analysis of her record by Business Week, for example, concluded that she is a “moderate on business issues” and would fit the court’s current alignment of such questions.

The reference to business issues really disappoints me because this is where the Court as currently constructed is at its worst.

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