Walter Olson kindly asked me to guest-blog here all week, for which I am very grateful. I've gotten a slow start, but plan to make up for it. Anyway, it's worth noting that John McCain's somewhat surprising decision to vote against confirmation of Sonia Sotomayor to the Supreme Court showed not just a well-expressed sense of what the role of the court is, but an admirably thorough amount of research and analysis of Judge Sotomayor's record.
Most interesting, perhaps, is that McCain focused more on Sotomayor's District Court record than just about any other senator, rather than just analyzing her record on the Second Circuit Court of Appeals -- and that his analysis noted several rulings of particular interest to businesses and to property rights:
She was reversed due to her reliance on foreign law rather than U.S. law. She was reversed because the Second Circuit found she exceeded her jurisdiction in deciding a case involving a state law claim. She was reversed for trying to impose a settlement in a dispute between businesses. And she was reversed for unnecessarily limiting the intellectual property rights of freelance authors. These are but a few examples that led me to vote against her nomination to the Second Circuit in 1992 because of her troubling record of being an activist judge who strayed beyond the rule of law.
(NOTE: He obviously meant 1998, not 1992.)
In another forum, I have drafted pieces particularly critical of Sotomayor's decision in Merrill Lynch v. Dabit, summarized concisely by Ed Whelan: "In Merrill Lynch v. Dabit (2006), the Court, in an opinion by Justice Stevens, unanimously (8-0) reversed Sotomayor's ruling that certain state-law securities claims were not preempted by federal law. Stevens pointed out that the Court had rejected Sotomayor's interpretation in cases from 1971 forward."
I think honest businesses will rue the day Sotomayor gets on the high court. And I think McCain is right in his analysis overall.