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News wrap on Sotomayor nomination

by Policy in Practice on May 27, 2009

There is a veritable treasure trove of information on Judge Sonia Sotomayor today. Policy in Practice has links to the best articles below:

> Sotomayor, a Trailblazer and a Dreamer

Personal experiences affect the facts that judges choose to see,” Judge Sotomayor (pronounced so-toe-my-OR) said in 2001, in a lecture titled “A Latina Judge’s Voice.” “My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.”

From her days going to the movies with cousins to see Cantinflas, a Mexican comedian whom she once called the “Abbott and Costello of my generation,” to her current life in the rarefied world of the United States Court of Appeals for the Second Circuit, Judge Sotomayor, 54, has traveled what Mr. Obama called “an extraordinary journey.”

In her 2001 address, she spoke longingly of the “sound of merengue at all our family parties” and the Puerto Rican delicacies — patitas de cerdo con garbanzos (pigs’ feet with beans) and la lengua y orejas de cuchifrito (pigs’ tongue and ears) — that appealed to the “particularly adventurous taste buds” that she called “a very special part of my being Latina.”

> Sotomayor’s rulings are exhaustive but often narrow

Judge Sotomayor, whom President Obama announced Tuesday as his choice for the Supreme Court, has issued no major decisions concerning abortion, the death penalty, gay rights or national security. In cases involving criminal defendants, employment discrimination and free speech, her rulings are more liberal than not.

But they reveal no larger vision, seldom appeal to history and consistently avoid quotable language. Judge Sotomayor’s decisions are, instead, almost always technical, incremental and exhaustive, considering all of the relevant precedents and supporting even completely uncontroversial propositions with elaborate footnotes.

> Republicans weigh risks of Supreme Court battle

The Republican Party has been embroiled in a public argument over whether to tend to the ideological interests of its conservative base or to expand its appeal to a wider variety of voters in order to regain its strength following the defeats of 2008. Many conservatives came out fiercely against Ms. Sotomayor as soon her name was announced, denouncing her as liberal and promising Mr. Obama a tough nomination fight.

“The G.O. P. has to make a stand,” said Scott Reed, manager of the 1996 presidential campaign of Bob Dole. “This is what the base and social conservatives really care about, and we need to brand her a liberal with some out-of-the-mainstream positions. Forget about cosmetics and ethnic heritage, and focus on her record.”

But some Republicans warned that the image of Republicans throwing a roadblock before an historic nomination could prove politically devastating. Republicans saw a dip in Hispanic support in 2008, after eight years in which former President George W. Bush and his political aides had made a concerted effort to increase the Republican appeal to Hispanics, the nation’s fastest-growing group of voters.

“If Republicans make a big deal of opposing Sotomayor, we will be hurling ourselves off a cliff,” said Mark McKinnon, a senior adviser to Mr. Bush and a long-time advocate of expanding the party’s appeal. “Death will not be assured. But major injury will be.”

> Linda Greenhouse op-ed: Sotomayor’s Sway

Beyond Sonia Sotomayor’s stirring life story and impressive résumé, what we really want to know is how she will fit into this mix of ideology, personality, principle and politics. Will she make a difference? According to common sense as well as Justice White’s maxim, the answer is “yes, inevitably.” Will it be a difference that is discernible in the outcomes of cases? That may not be clear immediately.

After Justice Thurgood Marshall retired in 1991, Justice O’Connor published a tribute describing him as the embodiment of “moral truth” and recounting the experience of listening to his stories during the decade that they served together, stories that “would, by and by, perhaps change the way I see the world.”

That was a striking statement from a justice who was on the opposite side from Thurgood Marshall in nearly every civil rights case and whose jurisprudence appeared unmarked by his influence. But it turned out to be Justice O’Connor who wrote the majority opinion in 2003 that upheld affirmative action in admission to the University of Michigan Law School. The way she saw the world in the interval had clearly changed, whatever the cause.

Although she is a pioneer in her own way, it takes nothing from Judge Sotomayor to observe that she is not Thurgood Marshall — just as Anthony Kennedy, for that matter, is not Sandra O’Connor.

Indeed, not even the most experienced justice can count on finding an argument that will persuade Justice Kennedy. But there is some evidence that he can be inspired by example and observation. His opinion for the court in Lawrence v. Texas, the 2003 gay-rights case, clearly rested on his conclusion that gays were entitled to the “dignity,” as he put it, that the court’s earlier ruling on gay rights in Bowers v. Hardwick had withheld. That opinion, among others, indicates Justice Kennedy’s willingness to look through the eyes of those whose experiences are different from his own.

In any event, Judge Sotomayor’s nomination comes at a special moment: the first projection of the remarkable 2008 election onto a Supreme Court that has so often in these last few years appeared headed in the opposite direction from the country. Whether her arrival proves to change the way the incumbent justices see the world, it will, at the least, change the way the world sees the Supreme Court.

> Sotomayor’s record within mainstream

Her record in more than 4,000 cases, including those from 11 years on the Second Circuit, shows her occasional siding with corporate defendants or diverting from a standard liberal position.

The judge has favored corporate defendants in suits that test when cases can be brought as class actions. Judges often must determine whether plaintiffs’ claims should be pre-empted by more defense-friendly federal and international laws.

> Political ramifications of Sotomayor pick

n picking Sotomayor then, Obama has almost certainly solidified his standing among Hispanics, the nation’s largest minority group and an increasingly influential part of any national candidate’s electoral calculus.

Republican strategists have fretted openly that if their party can’t find a way to make Hispanics a swing group electorally — as President George W. Bush did in 2004 when he won 44 percent of the Latino vote — they may find themselves in a permanent minority status. Bridging that gap between the GOP and the Hispanic community just got a lot more difficult.

The Sotomayor pick also reaffirms the idea in Americans’ mind that the Obama presidency is an historic one — filled with “firsts” that might have seemed unimaginable even a few years ago.

> Chemerinsky op-ed: Why Sotomayor is such a good pick

Sotomayor brings to the bench essential diversity. Every justice’s rulings are a product of his or her life experiences. As a woman, a Latina, a person who has faced a life-long serious illness (diabetes), and a person who grew up in modest circumstances, Sotomayor brings experiences that are unrepresented or largely absent from the current court. These certainly will influence her rulings and they also may help in the most important task for a Democratic appointee on the current court: persuading Justice Anthony Kennedy, the key swing justice on almost every closely divided issue. Sotomayor’s background, as well as her intellect and experience, make her ideally suited for this role.

> Jeffrey Rosen responds to the controversy following his initial piece on Sotomayor