Originally published at care2.com/causes/politics/blog
Justice Sonia Sotomayor of the 2nd Circuit Court of Appeals has been nominated by President Barack Obama for the U.S. Supreme Court.
Consistent with Obama’s other cabinet and ambassadorial nominations, Sotomayor is a highly respected mainstream candidate. She has distinguished herself through her academic ability and professional skills, but not her ideology.
Justice Sotomayor was nominated by President George H.W. Bush to the federal bench in 1991 and later promoted by President Clinton to the federal court of appeals. She received bi-partisan support in both Senate confirmation votes, however, her nomination for the appellate position was stalled in the Senate committee by Republican Senators. She was criticized at that time as too liberal by the objecting Senators, who rightly saw the nomination to the 2nd Circuit as laying the foundation for a Supreme Court appointment.
Justice Sotomayor is a centrist although her opponents will likely paint her as a liberal in any attempt to derail her nomination. She is fifty-four years old and was born in New York to Puerto Rican immigrant parents. She would be the first Latina Supreme Court Justice if confirmed and would join Justice Ruth Bader Ginsberg as the second woman currently on the high court.
Justice Sotomayor graduated summa cum laude from Princeton and at Yale’s law school was editor of the Yale Law Journal. With those stellar academic credentials she could have taken nearly any position in the legal field upon graduation. She chose to work for the New York District Attorney’s office, illustrating a belief in law and order and a commitment to public service. It also means she has learned something about the realities of human behavior and law enforcement.
It is her comments about being a Latina woman judge that have aroused philosophical controversy. In a 2002 lecture she said, “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.” Critics have taken this to mean that she would take up the cause of advancing women’s rights, minority rights and a liberal agenda through her judicial office. It could just as easily be read to suggest that knowledge and wisdom come from experience, as well as books. Her legal positions during her 16 years as a judge do not demonstrate disregard for legislative or executive authority.
Another comment of hers that has been attacked in the same vein is the statement “the Court of Appeals is where policy is made.” This may get some political traction because it plays into conservative concerns about judicial activism. Judges in the ideal conservative mold should interpret the constitution and laws and not “make” law. Be that as it may, in reality,judges must interpret laws in light of the facts presented, and they inevitably create legal policy through their decisions. This goes for decisions made by Justices Scalia and Thomas as much as it would for Justice Stevens or Justice Souter, whose retirement led to Justice Sotomayor’s nomination. In addition, since the Supreme Court only hears a small number of cases each year, the much larger Circuit Courts of Appeal are, in fact, where are great deal of federal law is decided.
The real test is whether her judicial philosophy allows her to freely infringe on the authority of the legislative and executive functions of government, or whether she believes that the judiciary, as the unelected branch, must tread cautiously. Justice Sotomayor’s time on the bench does not show her to be an ideological justice, but a judge focused on the facts of each case.
In a controversial case, Justice Sotomayor rejected claims by white and Hispanic firefighters who believed they were unfairly held back from promotion by government action to advance black firefighters. The case turned on whether the government had the authority to doubt the validity of the testing, which the government did, when none of the black firefighters achieved promotable results. At first, Justice Sotomayor was part of a three-judge panel that decided to accept the government’s decision and later on reconsideration she was part of a larger panel of 2nd Circuit judges reaching the same outcome. The U.S. Supreme Court will decide this term whether the government’s considerations of race violated the Constitution. In either case, Justice Sotomayor’s decision is well within mainstream thinking that, in rare instances and for limited purposes, the government may consider race in employment and educational arenas.
There may be some conservative opposition to the nomination, but absent a scandal, Sotomayor’s nomination should not be difficult. Senators from both sides of the isle will want to line up to praise the first Hispanic Supreme Court justice. Her record is hardly extreme. And in the end, Democratic numerical superiority is too great to be overcome.
