By Ruth Marcus
Wednesday, June 3, 2009
If Sonia Sotomayor is a radical activist eager to push the law leftward or to rule according to personal whims rather than constitutional commands, she's done an impressive job of hiding it all these years.
The amazing thing about the case against Sotomayor is how thin it is. The now-famous 32 words about a wise Latina judge. Her vote -- part of a unanimous three-judge panel -- against white firefighters denied promotions. The YouTube comment about judges making policy. And not much else.
This is a woman with more years on the bench than any Supreme Court nominee in the past 100 years. During that time, you'd think even the most middle-of-the-road judge would have provided some unintentional ammunition for critics -- maybe freeing an especially unsavory criminal on a supposed technicality. If Sotomayor is the judicial radical of conservative imaginings, certainly there ought to be something more in her paper trail.
Except there isn't -- at least from what's known so far. An examination of Sotomayor's decisions shows a careful judge who tends to rule for the government over criminal defendants; who has been skeptical of most civil rights claims that have come before her; and who, to the extent that she has ruled on cases that touch on abortion, has come down against the abortion-rights side. She's not apt to be David Souter in reverse -- a Democratic pick who turns out to be a closet conservative. But there's no evidence that she will be outside the liberal mainstream on the current court.
Take one of the few cases deployed against Sotomayor: her vote, again as part of a unanimous panel, that the Second Amendment does not extend to state and local weapons regulations. The court said it was bound by the Supreme Court's 1886 ruling that the Second Amendment is "a limitation only upon the power of Congress and the national government, and not upon that of the state." This is the kind of restraint conservatives claim to like, at least until the outcome doesn't suit them.
Indeed, a panel of three Republican appointees on the federal appeals court in Chicago -- including conservative icons Frank Easterbrook and Richard Posner -- yesterday backed the Sotomayor approach.
And for all the uproar over Sotomayor's ruling in the firefighters case, the larger record hardly supports Rush Limbaugh's depiction of Sotomayor as a "reverse racist." Tom Goldstein of ScotusBlog analyzed 96 other race-related cases on which Sotomayor ruled. He found that she rejected discrimination claims 78 times and ruled in favor of those claiming discrimination 10 times. (The eight others were disposed of differently.) Sotomayor dissented from her colleagues in just four race-related cases -- only once to back the party claiming discrimination. If Sotomayor is practicing identity politics, she's not doing it very well.
In one case, Sotomayor rejected a claim by two African American airline passengers that they were bumped because of their race. She held that the lawsuit was preempted by an international air travel treaty, even though the pact provides no redress for discrimination claims.
In another, Sotomayor dissented from a ruling that the New York Police Department could fire a white officer for mailing, anonymously and from his home, racist material to a charitable organization that had solicited him for contributions. Although the material was "patently offensive, hateful, and insulting," Sotomayor wrote, the court was wrong to "gloss over three decades of jurisprudence and the centrality of First Amendment freedoms in our lives because it is confronted with speech it does not like."
She has ruled in favor of abortion protesters who claimed police used excessive force in removing them from outside a clinic. She refused to overturn the federal policy barring international family planning funds to organizations that perform or promote abortion.
McClatchy Newspapers reviewed Sotomayor's 90 criminal law decisions since 2002 and found that she sided with the government in 65 cases and with prisoners or defendants 25 times. She dissented on a defendant's behalf just once. Sotomayor upheld a New York man's conviction for possessing child pornography; although the search warrant for his home failed to demonstrate probable cause, she allowed the seized evidence to be used because police officers were acting in good faith. Imagine if that one had gone the other way.
Perhaps Sotomayor the radical has been biding her time, awaiting the day when the freedom of a Supreme Court seat would liberate her from precedent and moderation. Perhaps she'll stand on the court steps on the first Monday in October and sing "The Internationale." But the record suggests that the first outcome is just as unlikely as the second.