Is Sotomayor Liberal Enough?

The Supreme Court nominee’s life story is certainly compelling. But her slim record on progressive concerns warrants a closer look.

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Tom Goldstein writes on the influential SCOTUSblog that these opinions “put her in essentially the same ideological position as Justice [David] Souter.” But she agreed with the Bush administration in a 2002 case surrounding the so-called “global gag rule” on providing money to overseas groups that perform or inform women about abortion. Ogletree says that in “many of the major criminal cases that did come before the court, she generally sided with the government.” And Souter, who was nominated by a Republican but eventually became a consistent member of the court’s left wing, is the encyclopedia entry for a lifetime appointment gone haywire.

Sotomayor’s life story offers compelling hints to her values. Clerks say she admired Souter and Justice Benjamin Cardozo. But even her protégés, who can offer detailed accounts of her “perfectionist” style, warm demeanor and attention to the rule of law, seem to know very little about her personal views on social issues. Though she would, if confirmed, be the sixth Catholic member of the court, her colleagues had no sense of her faith or how she would spend weekends or religious holidays. “I don’t know whether she went to church regularly,” says Schoenfeld.

The process of lawmaking, then, seems to be the most telling part of Sotomayor’s biography. And in her shop, every case, big or small, was very process-oriented. “You don’t do anything different because a case is political,” says Charu Chandrasekhan, who clerked for Sotomayor from 2004 to 2005, and said there was nothing particularly controversial during her tenure. “You treat every single case the same way—you look at the precedent, you see what subsequent decisions have been made … I can confidently say the process is uniform.

It’s good that she’ll be fair—and Obama, who did not ask Sotomayor for her opinion on abortion or apply a “litmus test” on other issues, seems unworried that she’ll betray the progressives that elected him. But for liberals looking for a voice to rival vocal Supreme Court conservatives like Antonin Scalia, Sotomayor’s ability to lobby others is arguably the most important thing to know about her. The Nine, Jeffrey Toobin’s chronicle of the court under late Chief Justice William Rehnquist, notes that good bilateral relationships were at times key to changing the outcome of cases. Retired Justice Sandra Day O’Connor, for example, was a particularly influential voice on the court, in part because she occupied the role of both confidante and caretaker. Rehnquist once intervened when Scalia attacked an O’Connor opinion, snapping, “Nino, you’re pissing off Sandra again.” 

This means there is a vacancy of another kind to fill. Sotomayor’s colleagues say she has been an occasional voice of persuasion in the courtroom and behind the scenes—which is largely the result of her “den mother” approach to the 2nd Circuit community. The standard adage in the chambers was “do other people’s work first”—a professional courtesy that Sotomayor strictly enforced. “She was the one who took the lead on getting [other judges] together in a stress-free social atmosphere,” says Schoenfeld. “She takes that aspect of decision-making very seriously. That there’s a collegial nature to the process and it’s important to have a good relationship with her colleagues.”

This may be the news that liberals have been waiting for. Ideology aside, it seems that Obama has chosen someone who, like O’Connor, knows how to get what she wants. That in itself is change we can believe in.

Dayo Olopade is Washington reporter for The Root.