Thursday, May 28, 2009

Could Sotomayer be Obama's Souter? Probably not, but we can hope

Republican President George H.W. Bush nominated outgoing Justice David Souter to the Supreme Court. Counter to his nominating President, Souter subsequently took his place on the bench and became a solidly and reliably liberal voice on the court.

Now liberal Democrat President Barack Obama has nominated Sonia Sotomayer to take Souter's seat. Blogs and columns are aflutter with the potential irony that Sotomayer may turn out to be a conservative surprise, the mirror image of the justice she is replacing. They quote the following statement from LifeNews:

"Despite 17 years on the bench, Judge Sotomayor has never directly decided whether a law regulating abortion was constitutional," the pro-life group Americans United for Life noted in a recent analysis of potential Supreme Court candidates. Sotomayor participated in a decision concerning the Mexico City Policy, which President Obama recently overturned and which prohibits sending taxpayer dollars to groups that promote and perform abortions in other nations.

Writing for the Second Circuit, Judge Sotomayor upheld the Mexico City Policy, but AUL says the significance of the decision "may be minimal because the issue was largely controlled by the Second Circuit's earlier opinion in a similar challenge to the policy." AUL notes that Judge Sotomayor also upheld the pro-life policy by rejecting claims from a pro-abortion legal group that it violated the Equal Protection Clause.

Sounds pretty good, huh? Not so fast, my friend. Unlike David Souter, Sotomayer has a well established liberal track record. She has sung the praises of legislating from the bench. In 2005 she is quoted,

"All of the legal defense funds out there, they are looking for people with court of appeals experience because the court of appeals is where policy is made. And I know this is on tape and I should never say that because we don't make law. I know. Okay, I know. I'm not promoting it. I'm not advocating it. I know."
Also problematic is her record of opinions being overturned by the Supreme Court. Of the five majority opinions written by Judge Sotomayor and later appealed to the U.S. Supreme Court, three of them have been reversed. There is a sixth case involving minority preferences in career advancement currently being considered by the high court. If the Supreme Court sides with the New Haven firemen in this case, as many believes it will, her reversal record will be four out of six.

Why is this problematic? If she is seated on the Supreme Court, there is no higher authority to overturn her. Once she's there, she becomes a deliberating member of the body that reversed her so many times.

Is Sotomayer the conservative version of Souter? I don't see it. Should Republican Senators filibuster? Probably not, as her appointment is a liberal for liberal replacement and doesn't represent a net change on the court. Should the minority party roll over and give her a free pass? No. GOP members of the Senate need to ask the tough questions about her view of judicial activism and expressed role of racial and cultural bias in the law.

Raise the objections. Articulate the concerns. Live to fight another day.

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