The Supreme Court nominee’s life story is certainly compelling. But her slim record on progressive concerns warrants a closer look.
Ex-Republican Christopher Buckley writes in his satirical novel, Supreme Courtship, that “nothing raises the national temperature more than a VACANCY sign hanging from the colonnaded front of the Supreme Court.” This has certainly been true in the days since President Barack Obama nominated Sonia Sotomayor for the highest legal office in the land.
Much of the heated public debate on Sotomayor has focused on her intellect and her views on race. Republicans such as Newt Gingrich have tagged Sotomayor a “racist,” and anonymous lawyers have smeared her as “not that smart.” Judge Barrington Parker, also a member of the 2nd U.S. Circuit Court of Appeals, who has known Sotomayor since their time at Yale, dissents: “She’s smart, she’s prepared, she’s hardworking, and she has a lovely disposition.”
But in the swirl of discussion on Sotomayor’s public statements on race and society, too little attention has been paid to the forest of opinions and rulings that comprise her judicial record. Certainly, her life story is compelling—and reams of legalese are not as sexy as the question of whether a Latina is wiser than a white man—but it has obscured the real issue facing liberals evaluating the first Democratic appointment in 15 years: Is Sotomayor sufficiently progressive?
Despite the nominee’s pride in her Puerto Rican heritage, race is not an automatic passport to the progressive chorus. (See Thomas, Clarence and Steele, Michael.) There is no question that Sotomayor has an impressive record. Charles Ogletree, a professor at Harvard Law School and expert on civil rights law, notes that Sotomayor is “the most experienced judge to be nominated for the court for a long time.” As a legal scholar and former prosecutor who has seen federal cases from both sides of the bench, “she brings a wealth of experience with her” that outstrips even current Chief Justice John Roberts, who had only two years on the federal bench when he was nominated to the court. “It means something to have heard thousands of arguments and written hundreds of opinions, and she is well-versed in that,” he adds.
At the White House this week, Manhattan District Attorney and Sotomayor mentor Robert Morgenthau stressed her “outstanding” preparation over 10 years on the federal bench. But Sotomayor does not possess a clear record on issues near and dear to liberals. With the notable exception of her bench statement in the Ricci v. DeStefano affirmative action case in New Haven, the potential junior justice is notably silent on questions of abortion, affirmative action, gay marriage, torture and executive power, among other subjects.
This is primarily because the 2nd Circuit, based in New York City, tilts heavily toward commercial cases. Alan Schoenfeld, a former 2nd Circuit clerk for Sotomayor who is now practicing law in New York, says that “heavy duty commercial cases, criminal cases and immigration cases … make up 60 or 70 percent of the docket.” The body of nine judges deals frequently with whether a securities plaintiff has a valid complaint or whether the Environmental Protection Agency’s rules are valid. All of the court insiders consulted for this article uniformly stressed that this court, covering Connecticut, Vermont and New York, does not handle social issues. “In the entire 15 years I’ve been on the bench, I don’t think I’ve seen such a case,” says Parker. “Abortion never comes up. Affirmative action doesn’t come up. It’s a commercial court.”
Indeed, the White House has emphasized that the 2nd Circuit is among the more conservative federal benches in America, and that Sotomayor—no stranger to big business—is a “moderate.” In some ways, this is a clever way to speed along Obama’s first confirmation battle. But some liberal groups have worried openly about the absence of data on pet issues such as abortion and gay marriage. Liberal columnist E.J. Dionne called Sotomayor “the most conservative choice that President Obama could have made.” And NARAL Pro-Choice America issued a letter to supporters questioning her commitment to privacy rights.
With major elements of American jurisprudence at stake—from the Voting Rights Act to Roe v. Wade—how can Democrats be sure Sotomayor will advocate a theory of law that corresponds to liberalism?
For his part, Parker insists that his colleague is an open book. “The judicial record speaks for itself,” he says. “You want to know how she thinks? Read her opinions.”
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.