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June 4, 2009
Judge Sotomayor's not-so-liberal moments
[Originally published in the Washington, D.C. Examiner, 6-2-09.]
President Obama's nomination of 2nd Circuit Court of Appeals Judge Sonia Sotomayor to replace the retiring Justice David Souter on the Supreme Court is barely a week old.
Yet, partisans are already setting the terms of the coming confirmation debate. Obama argues that Sotomayor's background, as a Latina with a hardscrabble childhood, will enable her to bring diversity and "empathy" to her duties on the high court.
Republicans object that Sotomayor's embrace of identity politics - most clearly in her occasionally cringe-inducing remarks at the University of California, Berkley - reveals a judge who cannot separate her ethnic perspective or political views from the impartial demands of the law.
Neither camp is likely to dwell on Judge Sotomayor's opinions in the cases that follow because they don't advance either of these narratives. Obama lauds Sotomayor as a moderate jurist, but don't expect him to offer any specific examples that might annoy NOW or the ACLU.
By the same token, expect Republicans to focus heavily on her vote to affirm, without analysis, a trial court's dismissal of an eyebrow-raising reverse discrimination suit in Ricci v. DeStefano as proof of her blind commitment to advancing a liberal political agenda at the expense of the rule of law.
But Judge Sotomayor has published hundreds of judicial opinions, and the public deserves to hear about more of them. Here are three cases addressing public religious displays, the rights of criminal defendants, and protections for politically unpopular speech that won't gladden progressive hearts or sharpen conservative fears.
Mehdi v. United States Postal Service: Two Muslim plaintiffs challenged the constitutionality of holiday decorations at various post offices, which featured Christmas trees and menorahs, while omitting Muslim religious symbols.
As a trial court judge, Sotomayor dismissed the complaint based on a careful interpretation of the Supreme Court's deeply confusing precedents related to religious holiday displays.
She also held that the Postal Service "is essentially a commercial enterprise," and therefore post offices should not be considered public forums for religious expression.
United States v. Howard: Three criminal defendants argued that police officers tricked them into leaving their cars parked on public roads and then illegally searched the vehicles while they were unattended.
The trial judge in the case agreed with the defendants and barred the evidence obtained in the searches from court. Judge Sotomayor wrote the appeals court opinion that reversed the trial court's decision.
She upheld the searches as constitutional on an expansive reading of Supreme Court cases that create an "automobile exception" to the usual requirement that police obtain a search warrant.
Pappas v. Giuliani: A New York City police officer was fired for anonymously mailing white-supremacist propaganda to various charities that had solicited him for contributions.
A majority of the court held that the firing was justified. No issue is more salient to minority communities than racism among law enforcement officers, but Judge Sotomayor dissented, arguing that Officer Pappas had a constitutional right to express racist views in his off hours.
"To be sure, I find the speech in this case patently offensive, hateful, and insulting," she wrote, "The Court should not, however, 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."
Of course, these cases don't show that Judge Sotomayor is a closet conservative, but neither does her record support claims that she lawlessly embraces a radical agenda on the bench.
If confirmed, Judge Sotomayor will probably join the Supreme Court's liberal wing most of the time, but her jurisprudence should not be carelessly stereotyped. Every senator should examine her entire record before deciding whether she is fit to serve.
Marie Gryphon is a senior fellow with the Manhattan Institute's Center for Legal Policy. She holds a JD from the University of Washington School of Law and is a PhD candidate in public policy at Harvard University.
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