Taking the middle ground

May 29, 2009

Elizabeth Schulte examines the record of Barack Obama's Supreme Court nominee.

THE LEADING lights of the Republican right are furious about Barack Obama's nomination of Sonia Sotomayor as a justice for the Supreme Court.

Former Arkansas Gov. Mike Huckabee hurriedly got the message out on his Web site: "Sotomayor comes from the far left and will likely leave us with something akin to the 'Extreme Court'...If she is confirmed, then we need to take the blindfold off Lady Justice."

Arch-conservative radio host Rush Limbaugh added: "Here you have a racist--you might want to soften that, and you might want to say a reverse racist."

Only a Neanderthal like Huckabee or Limbaugh could spin the nomination of the first Latina to be a justice of the Supreme Court--a woman who grew up in a Bronx housing project, raised by her widowed Puerto Rican mother--into a threat to the American way of life.

The ravings of the right aside, it's almost certain that Sotomayor will get Senate approval, and replace the liberal-leaning David Souter, who is retiring in October.

But the left shouldn't start celebrating. In the days after Obama announced the nomination, even the mainstream media had established that Sotomayor was far from the radical--or even liberal--that conservatives were complaining about.

President Obama announced his nomination of Sonia Sotomayor on May 26
President Obama announced his nomination of Sonia Sotomayor on May 26

As columnist E.J. Dionne Jr. wrote in the Washington Post:

Republicans would be foolish to fight the nomination of Judge Sonia Sotomayor to the U.S. Supreme Court because she is the most conservative choice that President Obama could have made.

And even though they should support her confirmation, liberals would be foolish to embrace Sotomayor as one of their own because her record is clearly that of a moderate. It is highly unlikely that she will push the court to the left. Indeed, on many issues of concern to business, she is likely to make the Chamber of Commerce perfectly happy.

In fact, the record of Sotomayor--appointed to the federal bench by George H.W. Bush in 1992, and to the Second U.S. Circuit Court of Appeals by Bill Clinton six years later--is rightfully giving liberals and liberal organizations reason to pause.

For example, Sotomayor upheld the Bush administration's global gag rule, which prohibited organizations receiving U.S. family planning funds from counseling women about abortion. While her decision was based on a narrow legal question, pro-choice forces are right to be skeptical.

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The considerable lack of information about Sotomayor's ideas about a woman's right to choose should be the most concerning question for abortion rights supporters--she has never directly ruled on the constitutionality of abortion rights. Dan Gilgoff, who writes U.S. News and World Report's God & Country blog, characterized her as "largely a blank slate" on the question of abortion.

When reporters asked White House spokesperson Robert Gibbs whether the president had asked Sotomayor about abortion or privacy rights, he answered that Obama "did not ask that specifically." If Democrats in the Congress take women's right to choose seriously, they shouldn't dodge the issue like the administration apparently has.

THE RULINGS that have earned Sotomayor the wrath of conservatives mostly center on questions of race and racial discrimination. For example, Sotomayor was on a three-judge panel at the Second Circuit Court that upheld a decision by the city of New Haven, Conn., to invalidate a promotional exam for firefighters after no Black applicants qualified. She ruled against a group of white firemen who charged "reverse discrimination."

In other words, she stood on the side that opposed racial discrimination--something that should be applauded, not condemned.

In 1995, Sotomayor came down on the side of the baseball players' union when, as a district judge, she ordered Major League Baseball owners to stop a lockout in a confrontation over free agency and arbitration.

But other past rulings--and Sotomayor is also a former corporate lawyer--illustrate a willingness to protect companies' profits, particularly when the lawsuits threaten to lead to class-action suits. For instance, in 2001, Sotomayor ruled against an African American couple who accused American Airlines of bumping them from a flight because of their race.

In 2006, she was part of a Second Circuit panel that ruled that investors couldn't proceed with a class-action suit accusing Wall Street banks of fraudulently pricing initial public offerings. "That ruling demonstrated that in securities litigation, she is in the judicial mainstream," Barry Ostrager, a partner at a high-powered financial law firm, told the Wall Street Journal.

In 2000, Sotomayor dissented when the appeals court ruled that families of the victims of the 1996 crash of TWA Flight 800 could sue TWA, Boeing Co. and a parts manufacturer for damages.

According to Evan Tager, who reviewed her decisions as a judge on the Second Circuit, her view was that "it's unfortunate for these victims, but the law's the law." Sotomayor also supported reducing damages awarded in a case involving the rail company CSX, and thinks that "damages should be kept under control," Tager said.

Lauren Rosenblum Goldman, a partner at another corporate law firm, told the Wall Street Journal: "There is no reason for the business community to be concerned."

Despite claims to the contrary--from right-wingers who say she'll put her "feelings" above the law, or supporters who think Obama's stated claim that he would make the "empathy" of the candidate a consideration in his choice--Sotomayor has a history of rulings based on solely narrow prescriptions of the law, no matter what its impact on actual people.

In a recent column for Salon.com, Glenn Greenwald described Sotomayor's role in the harrowing 1999 case of Wendy Norville, a 56-year-old nurse who was disabled on the job, and charged the hospital with age and racial discrimination. According to Greenwald, who represented Norville:

Without a trace of sympathy or even interest in the plight of the plaintiff, Sotomayor methodically recounted the evidence of discrimination and, in as cold and legalistic a manner as possible, concluded that Norville "produced insufficient evidence at trial to show that the hospital" discriminated against her.

As writer Daphne Eviatar commented, "So it's starting to sound like Obama nominated a highly capable technocrat. Setting aside her personal story of achievement against all odds, is her approach to the law the sort of change that Obama's more progressive supporters will believe in?"

BY NAMING Sotomayor for Souter's vacancy on the Supreme Court, Obama turned his back on an opportunity to nominate a forthrightly liberal judge who would definitely counter the conservatives who sit there already. For all their complaints about liberal "activist" judges, that's what the Republicans would have done--and have done--in power.

With Sotomayor, the Obama administration at best affirmed the status quo. As Dionne points out:

Liberals should not take the bait of the right-wingers by allowing the debate over Sotomayor to be premised on the idea that she is a bold ideological choice. She's not. But if conservatives succeed in painting this moderate as a radical, they will skew future arguments over the court. In fact, liberals should press Sotomayor on her more conservative decisions on business issues, an area in which the current court already tilts too far right.

As Bernard Nussbaum, Bill Clinton's first White House counsel, said before the Obama administration announced its choice, "I don't think that he's worried about the left. I think he's doing the same thing we did."

Like Bill Clinton, who appointed moderates Ruth Bader Ginsburg and Stephen Breyer to the Supreme Court, Obama is going for the middle road. And he won't do anything other than that in the future unless he faces pressure from below.

Pressure organized from our side about the issues that are important to us will be what helps to shift the court in its decision to come. The actions of ordinary people play a key role in how the political climate changes in this country--and forcing the hand of justices, and the politicians who appoint them.

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