Since the Senate is going to be voting on Judge Sonia Sotomayor's nomination to the Supreme Court, I thought I might as well post my remaining thoughts on her. As I see it, there are three issues for senators to be considering in deciding how to vote in whether confirm her nomination. The first issue is to what extent they should consider ideology and to what extent they should defer to the president's choice. The second is the disconnect between some things she's said in the past and some things she's saying now and how we should think that will affect her decisions once she's on the Supreme Court. The one remaining kind of issue is simply what kinds of decisions she's made as a judge. [I should say that I left the race issue out of the last post, and I'm also not going to say much about it in this one, because I'm working on a separate post on that issue, covering both the speeches and decisions.]
One thing to keep in mind is what President Obama has repeatedly said in his discussions of judicial nominations. He estimates the percentage of cases where judges just apply the law to be 95% and then speaks of the other 5% as the ones to pay attention to. I think he's got his numbers way off about which cases are easy and would be unanimous, but he's right that it's the most difficult cases, particularly those involving constitutional issues, where we'll get a better idea of what's distinctive about a judge, and we need to look at those cases to get a good sense of how a judge will be on issues of tremendous importance. A lot of people have emphasized that the bulk of Judge Sotomayor's decisions are pretty moderate, but they don't acknowledge that the same was true of Chief Justice Roberts and Justice Alito when they were appellate judges, and senators in the Democratic Party didn't let that stop them from pointing to the few decisions they could find that they considered problematic. It's those controversial decisions that give some sense of how a judge might decide the controversial Supreme Court decisions that most people are most likely to care about.
I think her record does include some bothersome decisions about constitutional rights. For example, there's a worrisome opinion about free speech (see also the 1st update here). She ruled that a public school can punish a student for a blog post written off school grounds and not during school hours.
Her record also includes a number of cases where she has refused to consider constitutional objections against a law or government practice when a large number of people in looking at it have thought such an argument is at least worth discussing and many would argue is decisive. These involve (at least) the Second, Fifth, and Fourteenth Amendments with regard to gun rights (discussed below), property rights (i.e. search and seizure, also discussed below), and equal protection (which I'll discuss in more detail in a subsequent post). It's a serious worry that she thinks these issues are not worth an argument, as if there's no real issue to discuss, when a large majority of her critics, including several people on the Supreme Court in each case, would think there is indeed an issue. Her dissent in the voting rights case about felons (see below) is similarly brief and dismissive, but that's not a constitutional issue. I've heard people say that she's especially thorough in most of her opinions, so this does tell you something about her view on these issues. She doesn't think there's much room for debate on such straightforward issues that lots of people don't think are so straightforward or think are straightforward in the other direction.
On the gun issue, her view is that Second Circuit precedent did not incorporate Second Amendment rights to the states, which means that your right to bear arms just means the U.S. Congress can't prevent you from owning a weapon. It doesn't prevent states from doing so. She followed what she took to be precedent, even though the Supreme Court has declared the precedents she cited to be not decisive on the issue. She also claimed to be merely following precedent and not deciding the issue on the merits, which is appropriate at the initial level of review, but she's no longer bound by precedent when considering the issue at the level of the entire Second Circuit court. When a judge asks for a vote for the whole Second Circuit to hear a case instead of the initial three-judge panel, Second Circuit precedent no longer becomes binding, and she had a chance to consider the case without that. She still voted the same way, which means she must have thought there were decisive arguments in favor of her view. She refused to say what these were at her hearings and simply didn't answer senators' questions about this vote. That does bother me. I'm not a hardcore gun rights type. I think the Second Amendment does provide a right to own a firearm of some sort, but there are lots of ways to restrict gun ownership while not preventing people from owning guns of some sort. Still, her dodging on this question struck me as unwillingness to state a view she clearly holds.
There was also a series of exchanges in her hearings about fundamental rights. She explains her approach in the gun rights cases she's decided in terms of denying fundamental rights, which she tries to clarify as not being what they sound like. Legalese often means terms differently from the ordinary sense, and she said a fundamental right in legalese just means a right incorporated to the states. But as Randy Barnett points out, that's getting things backwards. The reason people bring in fundamental rights in incorporation discussions is that a right is viewed as being incorporated because it's viewed as fundamental. If the right is fundamental, then a state ought to recognize it too and not just the federal government. This is how due process rights have sometimes been applied to states, and there's a movement afoot to apply Second Amendment rights to the states by means of the 14th Amendment's privileges and immunity clause that would take such rights to be fundamental and therefore apply it to states. So claiming that a right is not fundamental is saying a lot more than what Judge Sotomayor says, and that means she's either ignorant of a significant issue in constitutional law or dishonestly softening her opinion for political reasons.
She expanded the Supreme Court's undermining of property rights to a ludicrous level, deciding that the government can take your property away if you refuse to pay extortion money to an influential private developer. She portrayed this as following the Kelo Supreme Court decision, but that opinion explicitly called this kind of taking unconstitutional, and thus her decision violates Supreme Court precedent (an unconstitutional precedent to begin with, but this decision is further in the direction of unconstitutionality). In her hearing and written responses to senators, she presented this case as merely an issue of whether the property owner had standing to sue, claiming a statute of limitations had expired, but her opinion did decide the issue on the merits, and there was no public use argument to begin with given that the two parties involved both wanted to build pharmacies there, just of different franchises. Also, there was no time for a suit during the period her ruling counted as valid before the statute of limitations expired, because the threat of condemnation didn't occur until just before the time her ruling said the statute of limitations expired. See here for more.
There are also at least two decisions I know of where she applies the law or Constitution in ways that I think go too far beyond what the text requires.
One case involves race, which I'll discuss in more detail in the next post, but it involved taking the Voting Rights Act to explain her vote to overturn New York State's law disenfranchising felons, on the ground that felon disenfranchisement disproportionately affects minorities, and thus such laws are racially discriminatory.
She also seems to think abortion restrictions require very little to no proof of unconstitutionality to overturn them. At least she's resistant to the idea that those who challenge them should have to provide any evidence for their case. I have a hard time imagining any other motivation for refusing to make the challenger have to prove the case that the law is unconstitutional. That's the usual standard, and it makes me worry that she's just resistant to any laws restricting abortion.
Overall, these cases are in the minority. I'm worried about these enough that I'm worried about how she'll be as a Supreme Court Justice. It's not clear to me how I'd vote as a senator. That would depend most importantly on the first issue of how senators should vote in general, and I'm on the fence on that right now. There are worries. I'm not sure I'd like anyone else President Obama would nominate any more, though. Any of his nominees will have some decisions I have worries about, at least any with a judicial record. Those who would come from politics instead of the judiciary would have clear policy preferences that I'd resist, and I wouldn't trust them to make decisions apart from those policy preferences given the president's criteria for selecting judges based on empathy rather than by what the law requires. So I'm not supporting a vote for her or against her at this point. But I do think it's good that a sizable number of senators are raising concerns about some of these things, because I think there are legitimate worries.