Conservatively Liberal

Monday, July 6, 2009

AS AN APPEALS judge, Supreme Court nominee Sonia Sotomayor sided with "a lone black child" against his school in a racial discrimination case; voted against two men who claimed their property was illegally seized by the government to benefit a private developer; would have voided a New York law that denied felons a right to vote; and essentially sided with environmentalists against power plants and other business interests.

The results in all four of these rulings are solidly liberal, yet in each case Judge Sotomayor, whose confirmation hearing is scheduled to begin July 13, was well within the bounds of the law. She came to some of these liberal conclusions using legal approaches most commonly associated with conservatives, and -- as the Supreme Court has recently done in some of its more potentially explosive cases -- declined to venture into constitutional territory if a case could be decided on narrower grounds.

For example, Judge Sotomayor concluded that a literal reading of congressional statutes bound her to nullify the New York law that prohibits felons from voting. She read the Clean Water Act in much the same way to conclude that power plants had to use the "best" technology available -- not just the most cost-effective -- to prevent harm to aquatic life. (The Supreme Court, by 6 to 3, disagreed with Judge Sotomayor in Entergy Corp. v. Riverkeeper. Justice David H. Souter agreed with her.)

In the property rights matter, she joined a unanimous panel decision that affirmed a lower court judge's decision to throw out the men's complaint in large part because they missed a filing deadline; the panel also concluded that a 2005 Supreme Court decision also compelled that result. (The justices declined to hear the men's appeal in Didden v. Village of Port Chester.) She exercises more discretion -- as do most jurists -- in cases where neither previous rulings nor congressional dictates are clear. In Ray Gant Jr. v. Wallingford Board of Education, Judge Sotomayor dissented from a panel decision that dismissed an African American schoolboy's claims of racial discrimination after his school demoted him to kindergarten after only nine days in the first grade; one judge in the majority called the matter "a very close case."

While agreeing with the majority that the boy's claims against most school officials should be dismissed, Judge Sotomayor would have kept intact claims against the officials directly responsible for the demotion after concluding that the boy had made a plausible discrimination charge. Judge Sotomayor noted that white students with similar learning difficulties had been given remedial help or placed in transition classes and their teachers and parents were consulted, something that did not occur in Ray's case. "In my opinion," Judge Sotomayor wrote, "Ray was entitled to an equal opportunity to learn, and failing that a full hearing in court."

Judge Sotomayor stirred controversy by suggesting in speeches that at times it may be proper -- if not inevitable -- for a judge to take into account personal experience and identity when deciding cases. It is clear, however, that in her work thus far she has consistently and appropriately let the law dictate the results.

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