Sonia Sotomayor … strict constructionist?

posted at 10:55 am on June 1, 2009 by Ed Morrissey
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Lanny Davis explains in the Washington Times that we have Sonia Sotomayor all wrong.  Sure, she endorses identity politics and even the White House had to distance themselves from it, but all of that is just on the surface.  Dig a little deeper, Davis promises, and conservatives will find a strict constructionist:

Suppose a black female nurse is seriously injured during her work at a hospital and is forced to take a medical leave of absence. When she returns almost a year later, she reapplies for new jobs but doesn’t get any offers of comparable salary and seniority. For one of the jobs for which she was turned down, two white women with disabilities are chosen. For another job for which she was rejected, a younger white male is hired.

So how did Judge Sonia Sotomayor rule? The ultra-right talk-show hosts who spent all last week attacking the judge as a “liberal activist” or even a “racist” would surely predict that she would have ruled in favor of this sympathetic black female with a severe disability.

They would have been wrong. …

Sure, it will be argued, this is just one case. But the Norville case is emblematic – not atypical. Read the more than 3,000 decisions in which Judge Sotomayor participated and the more than 400 opinions that she signed during her 12 years on the appeals court. I am betting you will find that in case after case, she has voted based on applying the law to the facts – even where the result is contrary to the expected “liberal” ideological position, such as her vote to protect a racist cop from dismissal on free-speech grounds (Pappas v. Giuliani, 2002), or to uphold the Mexico City policy barring foreign groups receiving U.S. funds from performing or supporting abortions (Center for Reproductive Law and Policy v. Bush, 2002).

Davis admits the “wise Latina” remark was a big mistake, although he calls it a “gaffe”, which is only true if she doesn’t really believe it.  Sotomayor will handle the question better, Davis says, during her confirmation process.  Well, of course she will, now that she is on a big stage and even Robert Gibbs stopped trying to defend it.  Sotomayor is not stupid, after all.  Davis is right that a one-strike rule on gaffes would empty most of the Beltway; Joe BIden would have been forced to retire years ago, and look how much fun we would have missed!

One case does not a strict constructionist make, but Davis offers us three or four.  Some analysts had already pointed out that Sotomayor had agreed with Republican appointees 95% of the time on appellate decisions, and these certainly fall within that group.  But Barack Obama himself noted that 95% of the cases the courts see don’t need anything more than an application of the law, and that he needed jurists with “empathy” on the rest to get the outcomes he desires.  Ricci looks more like Sotomayor donning the empathy hat in place of the law hat, on which the current Supreme Court will rule soon.

Davis could be right about Sotomayor being a strict constructionist, but then again, strict constructionists don’t need personal experiences to help them reach legal decisions, or claim that appellate courts “make policy”, or give judges the role in “overhauling” laws.  Those are the words of a judicial activist, not a strict constructionist.

Update: Tom Goldstein at the invaluable SCOTUSBlog makes a better case, using 96 cases rather than four or one (via Jake Tapper):

Other than Ricci, Judge Sotomayor has decided 96 race-related cases while on the court of appeals.

Of the 96 cases, Judge Sotomayor and the panel rejected the claim of discrimination roughly 78 times and agreed with the claim of discrimination 10 times; the remaining 8 involved other kinds of claims or dispositions.  Of the 10 cases favoring claims of discrimination, 9 were unanimous.  (Many, by the way, were procedural victories rather than judgments that discrimination had occurred.)  Of those 9, in 7, the unanimous panel included at least one Republican-appointed judge.  In the one divided panel opinion, the dissent’s point dealt only with the technical question of whether the criminal defendant in that case had forfeited his challenge to the jury selection in his case.  So Judge Sotomayor rejected discrimination-related claims by a margin of roughly 8 to 1.

Of the roughly 75 panel opinions rejecting claims of discrimination, Judge Sotomayor dissented 2 times.  In Neilson v. Colgate-Palmolive Co., 199 F.3d 642 (1999), she dissented from the affirmance of the district court’s order appointing a guardian for the plaintiff, an issue unrelated to race.  In Gant v. Wallingford Bd. of Educ., 195 F.3d 134 (1999), she would have allowed a black kindergartner to proceed with the claim that he was discriminated against in a school transfer.  A third dissent did not relate to race discrimination:  In Pappas v. Giuliani, 290 F.3d 143 (2002), she dissented from the majority’s holding that the NYPD could fire a white employee for distributing racist materials.

Two thoughts on this.  First, given this, it seems that Sotomayor may be the most moderate choice we could have gotten from the Obama administration, and that pushing back too hard would be counterproductive.  If Sotomayor gets torpedoed, would we see another nominee with this kind of track record?  Doubtful.

Second, though, is this thought: As an appellate jurist, Sotomayor was bound by precedent and the threat of having decisions overturned by the Supreme Court.  Will she “grow” in office as a SC justice?  Given her public remarks, I’d bet yes.

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