Sonia Sotomayor

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Sonia Sotomayor
Sonia Sotomayor 7 in robe, 2009.jpg
Associate Justice of the U.S. Supreme Court
From: August 6, 2009-present
NominatorBarack Obama
PredecessorDavid Souter
SuccessorIncumbent (no successor)
Information
Spouse(s) Kevin Edward Noonan (div.)
Religion Roman Catholic

Sonia Sotomayor (pronounced Soh-toh-MY-oar) (born in New York City, June 25, 1954) joined the U.S. Supreme Court in August 2009, the third woman in its history. She formerly was a judge on the Court of Appeals for the Second Circuit.[1] On May 26, 2009, President Barack Obama nominated her to the Supreme Court, to replace retiring Justice David Souter. Sotomayor, 60, is a Catholic and the first Hispanic nominated to the high court. Indeed, she is the first American of Puerto Rican descent ever nominated to high office.[2] Obama said she "is an inspiring woman who I believe will make a great justice." Lawyers and analysts studied her votes and opinions in over 4000 federal cases to try to determine her political and judicial philosophy. Her nomination was fully supported by the Democrat leadership, whose consistent theme they espouse Sotomayor as "a truly American story." Conservatives expressed fears she might favor minorities in her votes. After relatively mild hearings, she was confirmed by the Senate by a vote of 68-31; she officially became a Justice on August 8, 2009, and will be hearing an important First Amendment case in September on campaign financing.

Contents

Opinions

Doctrine of Standing

Decisions by Sotomayor, such as Taylor v. Vt. Dept of Ed. 313 F.3d 768 (2002), seem to show that she favors judicial restraint with respect to standing issues.

Terminology

An analysis of Sonia Sotomayor's decisions shows that she sometimes uses conservative terms, such as the following:

  • strict constructionist New York Hotel & Motel Trades Council v. Hotel Ass'n, 1993 U.S. Dist. LEXIS 16615 (1993)
  • judicial restraint "venerable ground of judicial restraint" in Michel v. INS, 206 F.3d 253, 267 (2000)
  • competition (in an economic context) Many cases.
  • efficiency Singh v. City of New York, 524 F.3d 361 (2d Cir. 2008)
  • free-market Silverman v. Major League Baseball Player Relations Comm., 880 F. Supp. 246, 256 (1995)
  • separation of powers European Cmty. v. RJR Nabisco, 424 F.3d 175 (2005)
  • transaction cost Calif. Pub. Emples.' Ret. Sys. v. N.Y. Stock Exch., Inc. (In re NYSE Specialists Sec. Litig.), 503 F.3d 89, 94 (2007)
  • illegal alien United States v. Acevedo, 229 F.3d 350 (2d Cir. N.Y. 2000). In fact, Judge Sotomayor has used the term "illegal alien" to describe defendants in five opinions, ruling against the defendants all five times. In one of those decisions, Judge Sotomayor held that the court should defer to legislative classifications of alienage under the most deferential "rational basis" level of review.[3]

However, Sotomayor uses liberal terminology far more frequently, and often instead of more accurate words with conservative connotations:

  • anti-abortion Sotomayor uses this term rather than "pro-life" in Amnesty Am. v. Town of W. Hartford, 361 F.3d 113 (2004) and Ctr. for Reprod. Law v. Bush, 304 F.3d 183 (2d Cir. N.Y. 2002)
  • pro-choice Ctr. for Reprod. Law v. Bush, 304 F.3d 183 (2d Cir. N.Y. 2002) and Flamer v. City of White Plains, 841 F. Supp. 1365 (S.D.N.Y. 1993)
  • environmental Heavily used in more than twenty of Sotomayor's decisions.
  • racism Washington v. County of Rockland, 373 F.3d 310 (2d Cir. N.Y. 2004) and McNeil v. Aguilos, 831 F. Supp. 1079 (S.D.N.Y. 1993)

Issues

Abortion

Sonia Sotomayor.jpg
All Sotomayor's formal decisions have favored the pro-life position. However some pro-abortion groups have been moderately supportive of Sotomayor's nomination along with members of the Senate who back abortion, having said they are comfortable with Sotomayor's abortion views. [4] The White House has stated that Obama did not ask her views on abortion or privacy.[5]
  • In a 2007 case, she strongly criticized colleagues on the court who said that only women, and not their husbands, could seek asylum based on China’s abortion policy. “The termination of a wanted pregnancy under a coercive population control program can only be devastating to any couple, akin, no doubt, to the killing of a child,” she wrote, also taking note of “the unique biological nature of pregnancy and special reverence every civilization has accorded to child-rearing and parenthood in marriage.”
  • In a 2004 case, she sided with pro-life protesters who sued police officers for violating their constitutional rights by using excessive force to break up demonstrations at an abortion clinic. Judge Sotomayor said the protesters deserved a day in court.
  • She wrote a decision against a pro-choice group in Center for Reproductive Law and Policy vs. Bush.[6] The decision dismissed the claim of a Mexico-based organization which challenged policies requiring that foreign organizations neither perform nor promote abortions as a condition for receiving US funding.

Sotomayor drew a distinction between "necessary" and "family planning" abortions: "For purposes of 22 U.S.C.S. � 2151b(f)(1), "abortion as a method of family planning" does not include abortions performed if the life of the mother would be endangered if the fetus were carried to term or abortions performed following rape or incest (since abortion under these circumstances is not a family planning act)."

Sotomayor concluded, "The Supreme Court has made clear that the government is free to favor the anti-abortion position over the pro-choice position, and can do so with public funds."

President Obama recently overturned that decision.

According to the ACLJ, "Though she once ruled in favor of upholding the Mexico City Policy, pro-life organizations say her comment trumps that decision because she appears to favor Roe and how the Supreme Court made abortion policy by allowing abortions throughout pregnancy for any reason."[7]

Three U.S. Senators insist that Sotomayor will uphold Roe V. Wade. [8]

Abortion Advocates Point to 1989 Supreme Court Brief Showing Sotomayor Backs Roe [9]

Abortion-rights Democratic Sens. Dianne Feinstein of California and Benjamin Cardin of Maryland, said they spoke with Sotomayor about Roe during private meetings, and both said they came away encouraged by her answers. [10]

Something few can recall ever happening, abortion advocate and 100% NARAL rated Supreme Court Justice Ruth Bader Ginsburg gives her complete endorsement and supports Sotomayor as a lifetime appointment to the Supreme Court.

Parental Rights

In Wilkinson v. Russell, 182 F.3d 89, 108 (2d Cir. Vt. 1999), Sotomayor quoted from Frazier v. Bailey, 957 F.2d 920. She described the case by stating, "In reaching its conclusion, the Frazier court emphasized the murky nature of parental rights". Quoting another case, she said, "Although recognizing that the Constitution extends "certain fundamental parental rights," the court held that plaintiff's allegations did not even "implicate the constitutional guarantees at issue."

Establishment Clause

Hankins v. Lyght, 441 F.3d 96 (2006) "In an age discrimination challenge by a Methodist clergyman, Judge Winter writing for the majority held that [the Religious Freedom and Restoration Act (RFRA)] is properly applied to an Age Discrimination in Employment Act claim. Judge Sotomayor dissented contending that RFRA does not apply to disputes between private parties and that the ADEA does not govern disputes between religious entities and their spiritual leaders." [11]

Sotomayor stated, "The majority's opinion thus violates a cardinal principle of judicial restraint by reaching unnecessarily the question of RFRA's constitutionality. For these reasons, I respectfully dissent." (emphasis added)

"I believe that a remand is a wasteful expenditure of judicial resources and an unnecessary and uninvited burden on the parties. The district court is in no better position than we are to decide either the statutory or constitutional questions presented in this case. In my view, the most appropriate disposition of this case would be to affirm the district court's dismissal of appellant's claims on the ground that the ADEA does not apply to employment suits brought against religious institutions by their spiritual leaders. Because the majority's contrary approach disregards a clear and voluntary waiver, conflicts with RFRA's text and with binding precedent, and unnecessarily resolves a contested constitutional question, I respectfully dissent."

Second Amendment

Judge Sotomayor has not written any opinions that directly address the Second Amendment. She has, however, joined panel opinions that have both:

  • declared that the right to bear arms is not a fundamental right
  • declared that the Second Amendment does not apply to the states, but only limits the federal government

Independence Institute Research Director Dave Kopel said that Sotomayor's opinions "demonstrate a profound hostility to Second Amendment rights." Maloney v. Cuomo ruled that the Second Amendment does not apply against state and local governments. Judge Sotomayor joined this opinion by a panel of the Second Circuit: "It is settled law that the Second Amendment applies only to limitations the federal government seeks to impose on this right." This contrasted with the Ninth Circuit decision on Nordyke v. King, which upheld the Second Amendment as a deeply held right embodied in the Constitution that limits state law. [12]

In U.S. v. Sanchez-Villar, Judge Sotomayor joined a three-judge panel of the Second Circuit which held that "the right to possess a gun is clearly not a fundamental right."

Free Speech

Judge Sotomayor appears to believe in a strong right to free speech.

Judge Sotomayor dissented in Pappas v. Giuliani, 290 F.3d 143, 155 (2d Cir. N.Y. 2002):

"The Court holds that the government does not violate the First Amendment when it fires a police department employee for racially inflammatory speech -- where the speech consists of mailings in which the employee did not identify himself, let alone connect himself to the police department; where the speech occurred away from the office and on the employee's own time; where the employee's position involved no policymaking authority or public contact; where there is virtually no evidence of workplace disruption resulting directly from the speech; and where it ultimately required the investigatory resources of two police departments to bring the speech to the attention of the community. Precedent requires us to consider these factors as we apply the Pickering balancing test, and each counsels against granting summary judgment in favor of the police department employer. To be sure, I find the speech in this case patently offensive, hateful, and insulting. 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 and because a government employer fears a potential public response that it alone precipitated."

Judge Sotomayor wrote a strong opinion in favor of free speech to the point of denying qualified immunity for police officers who interfered with a protest in Papineau v. Parmley, 465 F.3d 46 (2d Cir. 2006).

Title IX

In Pell v. Trustees of Columbia Univ., 1998 U.S. Dist. LEXIS 407 (1998), Sotomayor quoted Kracunas v. Iona College, 119 F.3d 80, 85 (2d Cir. 1997): "When a teacher sexually harasses a student, that teacher discriminates on the basis of sex in violation of Title IX."

Judicial Activism

"She is a rule-bound pragmatist--very geared toward determining what the right answer is and what the law dictates, but her general approach is, unsurprisingly, influenced by her unique background," says one former clerk.[13]

ACLJ warns of her record of judicial activism. "Will she embrace her past statement that the “court of appeals is where policy is made?” This nomination raises serious questions about the issue of legislating from the bench."[14]

Transnationalism

Judge Sotomayor has had several opportunities to adopt some of the "transnationalist" doctrines espoused by Yale Law School Dean Harold Koh. She declined to do so at every opportunity.[15]

Koh's most extreme position is that "customary international law" (which includes UN treaties not ratified by the U.S. Senate) is binding on U.S. courts, but Judge Sotomayor rejected such claims in two cases.

Race-based decision

In the high-profile, controversial case Ricci v. DeStefano, white firefighters in New Haven, Conn., argued they were discriminated against. The controversy started when New Haven voided its entire 2003 promotional exam after the results made 18 whites - but no blacks - eligible to become officers. Sotomayor ruled on behalf of the city of New Haven. The lawsuit ended up in the Supreme Court. On June 29, 2009 the Supreme Court overturned that decision saying "race-based rejection of the test results" could not be justified. [16] Four of the six majority opinions Judge Sotomayor wrote for the 2nd Circuit Court of Appeals and the Supreme Court reviewed were reversed.

Business issues

When it comes to business, Sotomayor exhibits no liberal or conservative bias. Instead, she adheres closely to precedent, according to researchers at the University of Michigan Ross School of Business. The scholars examined her opinions regarding business in five areas: antitrust law; securities law; employment law; ERISA (Employee Retirement Income Security Act of 1974) law; and intellectual property decisions in the areas of copyright and patent law. In deciding cases that affect business, Sotomayor proceeds in a methodical way, carefully utilizing established and structured approaches to statutory analysis. "Her tenacious commitment to anchoring her decisions in existing bodies of law should comfort those in the business community who are concerned that Justice Sotomayor's appointment will increase judicial activism, and disappoint those who hope that Justice Sotomayor will tilt the court in a particular ideological direction," Dana Muir and colleagues reported in the fall 2009 issue of the Virginia Law & Business Review.[17]

Background

Sotomayor's parents were born in Puerto Rico and moved to the Bronx during the great migration of the 1940s. Her mother was a WAC in the US Army during World War II, and the daughter credits her hard work and inspiration for her success. The family lived in low-cost public housing in the Bronx. Her father was a factory worker and died in 1963, so her mother took two nursing jobs to send the daughter and a son to Catholic schools. She graduated as valedictorian from Cardinal Spellman High School in 1972, a Catholic parochial school. Her brother is now a physician.

She graduated summa cum laude from Princeton University as a history major in 1976, winning the Pyne Prize, Princeton's highest award for academic achievement. She graduated from Yale Law School in 1979, serving as an editor of the prestigious Yale Law Journal. After service as an assistant district attorney in Manhattan, where she prosecuted street crimes, she worked for a New York law firm. Sotomayor was appointed a federal district court judge in 1992 by President George H.W. Bush and then elevated to the 2nd Circuit Court of Appeals by President Bill Clinton. In 2007, she was elected to a four-year term on the Princeton University Board of Trustees.

In 1976, Sonia Sotomayor married Kevin Edward Noonan. However, they divorced in 1983 with no children.[18]

"Some sources, including Pete Williams, reported that the Judge is a Catholic. However, there has not yet been any indication of whether that report is accurate and, if so, if she actually practices her faith."[19]

"Sotomayor attended Catholic schools, but we haven't yet confirmed that she is, in fact, Catholic. If she is, she would become the sixth Catholic justice on the current Supreme Court."[20]

According to the ABA Journal,
"... the Bronx-born Sotomayor has been regarded as a potential high court nominee by several presidents, both Republican and Democrat. Reared by her widowed mother after the death of her father, a tool-and-die worker, she has an attractive life narrative and an even more attractive resumé. She was an editor of the Yale Law Review, did heavy lifting as a prosecutor under legendary New York County District Attorney Robert Morgenthau, and worked in private practice as an intellectual property litigator. She was first appointed to the federal bench by President George H.W. Bush, then to the appeals court by President Clinton." [21]

Concerns

"Wise Latinas"

In a speech in 2001, Sotomayor said "she believes it is appropriate for a judge to consider their “experiences as women and people of color” in their decision making, which she believes should “affect our decisions.”"[22]

Sotomayor agrees with the goal of abstract justice, but also agrees with strongly held conservative views that there are real differences between men and women. Referring to a law article by Judge Cedarbaum, she notes that Cedarbaum, "believes that judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law." Sotomayor in response said, "I agree with and attempt to work toward Judge Cedarbaum's aspiration." But she went on:

"I wonder whether achieving that goal is possible in all or even in most cases. And I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society. ...I accept the thesis ...that in any group of human beings there is a diversity of opinion because there is both a diversity of experiences and of thought.
Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure... that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.[23]

Other concerns

Sotomayor has a reputation among lawyers who practice in the Second Circuit as a formidably intelligent judge with a prodigious memory who meticulously prepares for oral arguments and is not shy about grilling the lawyers who appear before her to ensure that she fully understands their arguments. But to detractors, her sharp-tongued and occasionally combative manner — some lawyers have described her as “difficult” and “nasty” — raises questions about her judicial temperament and willingness to listen.

"The most consistent concern was that Sotomayor, although an able lawyer, was "not that smart and kind of a bully on the bench," as one former Second Circuit clerk for another judge put it."[24]

"Former Arkansas Gov. Mike Huckabee called Sotomayor’s appointment “the clearest indication yet that President Obama’s campaign promises to be a centrist and think in a bipartisan way were mere rhetoric.”[25]


Sotomayor is a member of National Council of La Raza, a group that's promoted driver's licenses for illegal aliens and amnesty programs.[26]

Sotomayor spent 12 years on the board of LatinoJustice PRLDEF. The PRLDEF opposed the confirmation of Robert Bork as a Supreme Court Justice.

The liberal, pro-choice National Organization of Women is calling for swift confirmation of Judge Sotmayor claiming she has "a lifelong commitment to equality, unassailable integrity, respect of her peers, and a keen intellect." [27]

Further reading

References

  1. It is the federal court just below the Supreme Court and covers the states of New York, Connecticut and Vermont.
  2. Puerto Rico has been part of the U.S. since 1898, and residents gained full citizenship in 1917.
  3. See United States v. Ni Fa Yi, 951 F. Supp. 42 (S.D.N.Y. 1997).
  4. Legal Brief Points to Sonia Sotomayor's Pro-Abortion Views Lifenews.com,June 9, 2009
  5. See Charles Savage, "On Sotomayor, Some Abortion Rights Backers Show Unease," New York Times May 27, 2009
  6. http://blogs.cbn.com/thebrodyfile/archive/2009/05/26/sotomayors-abortion-ruling.aspx
  7. http://www.aclj.org/News/Read.aspx?ID=3322
  8. Three Senators Now Say Sotomayor Will Uphold Roe v. Wade Life Site News, June 5, 2009
  9. Abortion Advocates Point to Supreme Court Brief Showing Sotomayor Backs Roe Lifesnews.com, May 29, 2009
  10. Sotomayor Avoids Firm Answers on Key Issues CNSNews, June 18, 2009
  11. http://religionclause.blogspot.com/2009/05/sotomayor-is-high-court-pick-here-are.html
  12. Sotomayor Hostile to Gun Rights, Scholar Says Newsmax, May 27, 2009
  13. http://www.tnr.com/politics/story.html?id=45d56e6f-f497-4b19-9c63-04e10199a085
  14. http://www.aclj.org/TrialNotebook/Read.aspx?id=782
  15. http://opiniojuris.org/2009/05/26/not-a-transnationalist-some-really-early-thoughts-on-judge-sotomayor/
  16. Court Rules for White Firefighters in Discrimination Case Fox news, June 29, 2009
  17. See "Justice Sotomayor: A Boon for Business?" press release U. of Michigan Ross School of Business Dec 10, 2009.
  18. http://abclocal.go.com/wabc/story?section=news/politics&id=6831739
  19. http://www.catholic.org/international/international_story.php?id=33654
  20. http://abclocal.go.com/wabc/story?section=news/politics&id=6831739
  21. http://abajournal.com/news/who_will_replace_justice_souter
  22. http://www.verumserum.com/?p=5306&cpage=1
  23. Sotomayor, "A Latina Judge’s Voice," (2002), online edition
  24. http://www.tnr.com/politics/story.html?id=45d56e6f-f497-4b19-9c63-04e10199a085
  25. http://www.politico.com/news/stories/0509/22965.html
  26. Sonia Sotomayor 'La Raza member' WND, May 27, 2009
  27. NOW July 13, 2009

See also

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