Almost eleven years ago, the GOP saw Judge Sonia Sotomayor as a potential Supreme Court nominee and tried a pre-emption strategy to derail her from that path. Bill Clinton nominated her to the Court of Appeals in 1998, and Trent Lott — then Senate Majority Leader — delayed her confirmation as a way to set a marker of opposition to Sotomayor if Clinton had any thoughts of promoting her. The New York Times reported on the effort at the time (via Yid with Lid):
But Republican senators have been blocking Judge Sotomayor’s elevation to the appeals court for a highly unusual reason: to make her less likely to be picked by Mr. Clinton for the Supreme Court, senior Republican Congressional aides said in interviews.
The delay of a confirmation vote on Judge Sotomayor to the United States Court of Appeals for the Second Circuit, based in New York, is an example of the intense and often byzantine political maneuverings that take place behind the scenes in many judicial nominations. Several elements of the Sotomayor case are odd, White House officials and Democrats in Congress say, but the chief one is the fact that there is no vacancy on the Supreme Court, and no firm indication that there will be one soon. Nor is there any evidence of a campaign to put Judge Sotomayor under consideration for a seat if there were a vacancy.
Judge Sotomayor’s nomination was approved overwhelmingly by the Senate Judiciary Committee in March. Of the judicial nominees who have cleared the committee in this Congress, she is among those who have waited the longest for a final vote on the floor.
Senate Republican staff aides said Trent Lott of Mississippi, the majority leader, has agreed to hold up a vote on the nomination as part of an elaborate political calculus; if she were easily confirmed to the appeals court, they said, that would put her in a position to be named to the Supreme Court. And Senate Republicans think that they would then have a difficult time opposing a Hispanic woman who had just been confirmed by the full Senate.
And, in fact, Clinton never got that chance. He appointed Stephen Breyer and Ruth Bader Ginsburg before his first midterms, and another opening didn’t occur for 11 years. The Republican effort went to naught, at least at that time.
Interestingly, though, all of the objectionable statements coming to light now from Sotomayor date significantly later than 1998. They objected to a case in which she found against businesses who gave work experience to the homeless without paying minimum wage, but that seems like a rather narrow basis for the opposition at that point. Neil Lewis reported that the Hispanic National Bar Association had lobbied the Clinton administration with a list of six jurists for a Supreme Court appointment, but that Sotomayor was not one of them.
She is now, and she has a track record on which Republicans can base their opposition. I’ve already posted about her most controversial statements, and The Right Scoop sends this list of reversals noted at Judgepedia:
- In Knight v. C.I.R., (128 S.Ct. 782, 2008.), the Court found that, based on an erroneous interpretation of the tax code, Judge Sotomayor applied an incorrect standard.
- In Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Dabit, (547 U.S. 71, 2006), the Court found that Judge Sotomayor failed to apply precedent correctly in interpreting a scope of preemption provision of the Securities Litigation Uniform Standards Act.
- In New York Times, Inc. v. Tasini, (533 U.S. 483, 2001), the Supreme Court affirmed the Second Circuit’s reversal of Judge Sotomayor’s district court ruling that the Copyright Act permitted electronic publishers to reproduce all articles in a periodical under a “collective works” privilege, concluding that Sotomayor erred in her interpretation of “revision of [that] collective works” privilege in the Act.
- In Correctional Servs. Corp. v. Malesko, (534 U.S. 61, 2001), the Court reversed Sotomayor for allowing an inmate to sue a halfway house operator for negligence based on a Bivens claim. After the trial court dismissed the case, Judge Sotomayor reversed and reinstated the litigation. The Supreme Court reversed Judge Sotomayor’s decision, holding that the former inmate did not lack effective remedies and that he had full access to remedial mechanisms established by the Bureau of Prisons. The Court also held that the former inmate’s suit would not have advanced Bivens’ core purpose of deterring individual officers from engaging in unconstitutional wrongdoing.
If that’s all of her reversals, it hardly amounts to the “high rate” Wendy Long noted at Bench Memos earlier, but I imagine more will come to light after eleven years on the appellate court. The above examples seem pretty technical, although at first blush it does appear that they resulted from an “empathetic” view rather than a correct application of the law.
Will this be enough to derail her now? Reversals never look good, and Republicans can use them to paint her as something less than brilliant. However, they’ll need more than four in eleven years to make that argument stick. How many reversals did Roberts and Alito have?
Update: As long as we’re talking about her reversals, a couple of her notable rulings should be highlighted, too:
- U.S. v. Giordano, 442 F.3d 30. At issue was whether the conviction of a former mayor of Waterbury, Connecticut should be overturned. The conviction stemmed from the mayor’s repeated sexual abuse of the minor daughter and niece of a prostitute. The defendant’s prosecution on the charges that led to this appeal grew out of an unrelated investigation by the FBI and IRS into political corruption in the city of Waterbury. In the course of this surveillance, the government intercepted 151 calls on the defendant’s cell phones to or from a prostitute with whom the defendant had a long-term sex-for-money relationship. These calls showed that the prostitute was bringing a nine-year-old girl for sex upon the request of the Defendant. Sotomayor, writing for the majority of the court, held that the Defendant’s conviction should not be overruled because all of the Defendant’s appeals lacked merit. Specifically, the Court ruled: (1) defendant’s mere use of a telephone satisfied the jurisdictional element of the statute prohibiting the knowing transmission of minors’ names by use of facilities and means of interstate commerce with intent to entice, encourage, and solicit them to engage in sexual activity (2) statute prohibiting the knowing transmission of minors’ names by use of facilities and means of interstate commerce with intent to entice, encourage, and solicit them to engage in sexual activity did not exceed Congress’ authority under Commerce Clause.
- Ricci v. DeStefano. In this 2008 case, Sotomayor participated in a one-page decision that allowed the City of New Haven, Connecticut to scrap the results of a promotion test for the city’s firefighters because no African-Americans passed the test. In April 2009, the Supreme Court said that it would review the Second Circuit’s decision.
The first one shows, I think, a proper application of the law in pursuit of a real scumbag. The second will get a lot of attention, especially if the current court overturns Sotomayor in the next few weeks. Keep an eye on that, especially in how the vote goes.