Obama just announced that he nominates Sonia Sotomayor to replace Souter on the Supreme Court later this year. I'm elated by his decision here on civil rights and civil liberties issues, but I'm not finding much in terms of LGBT-specific opinions from her. And, yes, personal homophobia is something we should be concerned with when it comes to a Supreme Court justice, since, for all that we hope for them to be objective in their reading of the law and to maintain a consistent judicial philosophy, sometimes even Supreme Court justices can be blinded by their personal antipathy towards LGBT people. For example, Antonin Scalia.
My first instinct is to cheer wildly at Obama picking someone who pisses off both the media establishment and the right-wing so much. But that would be premature since LGBT issues could dominate her confirmation hearings, and what follows in this post are some highlights from various related areas of the law, which can shed some light on what kind of Supreme Court justice she'll be.
Sotomayor, who's Puerto Rican, would be the first latina to serve on the Supreme Court. She went to Yale Law School, worked as a prosecutor for five years in Manhattan before going into private practice as a civil litigator, and was then nominated to the US Court of Appeals in the Second Circuit by George H.W. Bush, where she had an uneventful and easy confirmation process.
But that's when a Republican nominated her. I'd imagine a Democrat doing so, along with the fact that the right lost its collective mind over the last eight years, will mean that it'll be harder for her to get through. Considering that Republicans planned to block any nominee Obama named, it's not too hard to imagine them picking a fight on Sotomayor. In fact, Karl Rove already started a while ago:
She reads racial preferences and quotas into the Constitution, even to the point of dishonoring those who preserve our public safety. On September 11, America saw firsthand the vital role of America's firefighters in protecting our citizens. They put their lives on the line for her and the other citizens of New York and the nation. But Judge Sotomayor would sacrifice their claims to fair treatment in employment promotions to racial preferences and quotas. The Supreme Court is now reviewing that decision.
She has an extremely high rate of her decisions being reversed, indicating that she is far more of a liberal activist than even the current liberal activist Supreme Court.
Anyway, on to people who actually know something about her instead of Republicans who don't care who the nominee is as long as they have a reason to oppose her. I like this quotation since shows that she doesn't want to run and hide from civil rights issues (from Columbia Law professor Jamal Greene):
I was always impressed with her memos. I thought that they always said exactly what was on my mind. One particular opinion that stands out: Hayden v. Pataki. Not sure that's the opinion she'd want to talk about most, because what she wrote was quite short, but I thought it was also quite brilliant. The case was about whether felon disenfranchisement"--taking away the vote from prisoners--"fell under section 2 of the Voting Rights Act, as a form of vote dilution or vote denial. Her short dissent said: This is a really easy case, and only becomes difficult if you try to make it that way. There were all these long opinions flying back and forth--Judge Cabranes in the majority, and Judge Parker in dissent, and Guido too. She had a short one that got it right.
The second claim - and this one will be front and center - will be the classic resort to ideology: that Judge Sotomayor is a liberal ideologue and "judicial activist." (Put to the side the emptiness of the labels - i.e., that one person's principle (e.g., a decision invalidating state laws authorizing punitive damages) is another's "activism.") There is no question that Sonia Sotomayor would be on the left of this Supreme Court, just not the radical left. Our surveys of her opinions put her in essentially the same ideological position as Justice Souter. In the ideological cases where her rulings have been reviewed by the Supreme Court (for example, Malesko and the pending Ricci case), her views have aligned with the left of the current Court.
Civil Rights: During her years on the Second Circuit, Sotomayor has decided cases involving race, sex, age and disability discrimination. In these cases, she has often - but not always - sided with the plaintiffs.
Sotomayor's dissent in Gant v. Wallingford Board of Education, 195 F.3d 134 (2d Cir. 1999), is perhaps her most strongly worded opinion addressing discrimination. Plaintiff Ray Gant, who was transferred mid-year from first grade to kindergarten because of academic difficulties, alleged that the school was deliberately indifferent to racial hostility that he suffered and discriminated against him through the transfer. Sotomayor agreed with the majority's decision to dismiss the racial harassment claim, but she rejected their conclusion that the transfer was not race discrimination. In her view, the transfer was "unprecedented and contrary to the school's established policies": white students having academic difficulties, she noted, received compensatory help, whereas Gant - the "lone black child" in his class - was not given an "equal chance" but was instead demoted to kindergarten just nine days after arriving at the school.
However, in Norville v. Staten Island University Hospital, 196 F.3d 89 (2d Cir. 1999), Sotomayor wrote an opinion that dismissed claims brought by a disabled black woman, who alleged that her employer did not give her the same accommodations for her disabilities that it provided to white employees, on the ground that the plaintiff had failed to prove that she was similarly situated to the white employees. Similarly, in Williams v. R.H. Donnelly Co., 368 F.3d 123 (2004), she wrote an opinion holding that an employee alleging racial (as well as gender) discrimination had not proven she was the victim of discrimination when her employer declined to create a position for her when the employer had never created a position for any particular employee.
In two cases, Sotomayor has voted to sustain claims alleging a hostile work environment. In Cruz v. Coach Stores, 202 F.3d 560 (2d Cir. 2000), she wrote for the panel in a case brought by a Hispanic woman alleging, inter alia, claims arising from a hostile work environment, failure to promote, and retaliation. The Second Circuit affirmed the district court's dismissal of the failure-to-promote and retaliation claims but reversed the district court's decision granting summary judgment on the hostile work environment claim. Citing the allegations of racial slurs by the plaintiff's supervisor and sexual harassment, as well as the plaintiff's assertion that she was fired "under the pretext of fighting in the workplace after she was physically beaten and sexually assaulted," the panel acknowledged that "Cruz might have stated her claim of hostile work environment harassment more artfully," but emphasized that "the essential elements of the charge do appear in the complaint." And, the panel continued, the "physically threatening nature of [the supervisor's] behavior, which repeatedly ended with him backing Cruz into the wall . . . brings this case over the line separating merely offensive or boorish conduct from actionable sexual harassment." Moreover the opinion noted, "a jury could find that [the supervisor's] racial harassment exacerbated the effect of his sexually threatening behavior and vice versa."
Lawyer's Evaluation. Lawyer's raved about Sotomayor's legal skills. "She is a brilliant judge and has been mentioned as a potential justice on the Supreme Court." "She's of Supreme Court caliber. She's very smart." "She's very smart and well-educated, but she comes from very humble roots and I don't think she's forgotten that. She's still human. She's an outstanding judge." "I liked her when she was on the Southern District of New York, but I think she's doing an even better job now that she has been elevated to the Second Circuit." "She's brilliant," "She's very impressive. She has really done a good job and made a name for herself." "She's usually right on target." "She's very scholarly." "She's really able to tackle anything. She really is a quick learner." "Even though she's still relatively young, she has a very keen legal mind. She's outstanding." "She's very well-qualified for the job. She's really very impressive."[...]
Lawyers reported that Sotomayor is an active participant at oral argument. "She asks some very tough questions." "She really is a good questioner. You have got to be prepared with her." "She's incisive." "She's really [sic] get to the bottom line." "She's fairly active. She asks very good questions. She tends to ask a mix of fact-based and hypotheticals." "She's on the ball at oral argument. She really listens to responses."
Lawyers found Sotomayor to be moderate-to-liberal in outlook, but said that she is fair in the end. "She's very ethical." "She really has a lot of principles. I don't think she'd let any bias creep into her decision making." "I think she's absolutely neutral. I think people on both sides of a case view her as being impartial. I don't know of anyone who has ever had a problem with impartiality with her." "I think she's fairly liberal, but I wouldn't say that her philosophy inappropriately affects her decision-making." "She's really amazing. Even though she was originally appointed to the bench by President Bush, it was President Clinton who promoted her to the appeals court. I think she's a fine judge and absolutely impartial."
Update: I'm getting a few emails from people who are calling this pick politically smart because she's a latina woman, and Republicans won't want to piss off hispanics.
I disagree - I think it makes it much easier to derail her nomination because she's a latina woman. It's exactly that kind of thinking, that women and minorities are unfairly treated better than everyone else, that people are unwilling to piss them off so Obama bent over backwards and sacrificed "qualifications" for "diversity" to put her on the bench.
No, Republicans won't say that she's dumb because she's a woman, or because she's Puerto Rican, or because she's latina, or because she's from a project in the Bronx. They'll just link her name to affirmative action as many times as they can and try to make people make the connection themselves.
Christy Hardin Smith posted about Sotomayor, and says that it's already going to come down to affirmative action with Sotomayor's opinion in the Ricci case. I doubt the strategy is simply about the case, but more about putting her name in as many sentences that also contain the phrase "affirmative action" as possible.
And, no, that doesn't mean I think her nomination will be derailed. It'll be a sideshow and she'll get through. But we're going to think that we're in 1985 again with all the talk of affirmative action we're going to be hearing.
"This morning President Obama missed an important opportunity to select a Supreme Court nominee that could enjoy wide, bi-partisan support. Instead of selecting such a nominee, President Obama instead chose to play identity politics and select a highly controversial nominee in Judge Sotomayor.
"Judge Sotomayor's nomination to the 2nd Circuit Court of Appeals was held up in the Senate for more than a year and her nomination was eventually opposed by 29 Senators. It is clear that President Obama placed identity politics above all else in his nomination of Judge Sotomayor.
"Judge Sotomayor's record, both on and off the bench, is troubling. GOProud will closely scrutinize the entirety of Sotomayor's record before making a decision to endorse or oppose her candidacy.
"Let me be clear, however, GOProud will not support a nominee that fails to understand the proper and limited role of the federal judiciary, and will not support a nominee who fails to protect the rights enshrined in our Constitution."
I'll bet lots of angry white gay men send them big checks for that wonderful statement.