As I’m sure many of you are now aware, President Obama has picked a judge from the Second Circuit Court of Appeals as the replacement for Supreme Court Justice David Souter.

Image Credit: Stacy Ilys

Judge Sotomayor spent her undergraduate years at Princeton University, went to Yale Law School, and her last legal job was as a judge on a Federal Circuit Court of Appeals.  Strangely enough, there is another justice on the Supreme Court with those exact same credentials: Samuel Alito.  So any notion that she’s not qualified from a technical perspective is just wrong.

As for substantive qualifications, Judge Sotomayor’s record is remarkably uncontroversial from a traditional political perspective.  This isn’t really all that surprising, considering that the Second Circuit covers the states of New York, Vermont, and Connecticut.  The political powers that be in these states aren’t the kind to push the envelope conservative-ward, especially in the realm of social policy.  Without a state actor pushing social policy backwards, there’s little need for the sorts of lawsuits in the traditional “hot button” areas, like abortion or church/state issues.

This isn’t to say that Judge Sotomayor’s judicial record is beyond criticism.  Free speech advocates are raising concerns over a decision where Judge Sotomayor joined in an opinion stripping a student of her right to be on her school’s student council for refering to the faculty collectively as “douchebags” on a social networking site called LiveJournal.  While there is a long line of cases stating that minors in a public school have fewer constitutional rights than an adult, there is a large minority of people who claim this idea is either wrong entirely or at least overapplied.

Some questions have been raised about Judge Sotomayor’s view of gun rights.  In a recent decision, she joined other judges in refusing to extend the limitations on gun prohibition set out in DC v. Heller to the states.  However, appellate court judges and conservative darlings Richard Posner and Frank Easterbrook ruled similarly in an identical case in the Seventh Circuit, so she’s not exactly an outlier on this issue. Indeed, both cases reached the identical result that the Supreme Court had explicitly limited the ruling in Heller to federal law, so it could not be extended to the states.

Some people have expressed concern that Judge Sotomayor’s comments on her own approach to judicial decision-making reflected a racial in-group bias.  While there is a kernel of material worthy of concern, the leap from what was said to the allegations of racism is provably wrong.

SCOTUSBlog has done an excellent job of examining Judge Sotomayor’s decisions in discrimination cases.  In 96 cases in which discrimination was an issue, Judge Sotomayor found evidence of discrimination in 10 cases and found lack of evidence in 78 cases.  The remaining cases were decided on grounds not requiring an analysis of the discrimination claims.  Even in the 10 cases where Judge Sotomayor found discrimination, she was part of a unanimous decision 9 of those times.  For those of you who have trouble with numbers, Judge Sotomayor found evidence of discrimination where at least one colleague disagreed in 1% of her cases.  She either did not see evidence of discrimination or sided with a unanimous court 99% of the time.  Clearly the charges of Judge Sotomayor being a racist are weak at best.

So far, two statements of Judge Sotomayor’s outside of court have been brought to the forefront to engender the usual media firestorm against her.  The first was a statement that the Circuit Courts of Appeals is “where policy is made.”  As a strict statement of fact, she’s almost right.  Often times, the appellate courts will be presented with novel questions of law, particularly with new laws are either poorly written or conflict with other laws and priority is unclear.  Sometimes when you’re in a situation like this, reasonable people can reach different conclusions on the same question.  When this happens at different appellate courts, it’s called a “Circuit split” and the Supreme Court becomes much more likely to resolve the dispute as to how to approach the question.  It’s not unreasonable to view this as “policy”, since it’s often choosing between multiple justifiable alternatives.

The second statement of Ms. Sotomayor’s is the following passage from a speech Judge Sotomayor gave on the subject of Latinos and the judiciary at a symposium entitled “Raising the Bar: Latino and Latina Presence in the Judiciary and the Struggle for Representation.” This symposium was at the UC Berkeley School of Law.  Here is the paragraph most people have quoted from.

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 Justice O’Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also 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.

Many people have reacted to the content of Judge Sotomayor’s speech as being reminiscent of Critical Legal Studies and Identity Politics, schools of thought that also go by the term “radical realism”.  These schools of thought have proven somewhat controversial because of their philosophical claims as the the nature of reality and objectivity.  While more traditional schools of thought generally accept the idea that objectivity is, if not achievable, certainly the most desired state of mind.  It doesn’t take a particularly keen insight to see the influence of these schools of thought in her speech.  The line “there can never be a universal definition of wise” is a fundamental claim coming from these schools of thought.  It demonstrates the idea that judgments by judges and legislatures alike are all inherently suspect because they are, at their core, personal judgments.

While I do not presume to understand the whole of Judge Sotomayor’s judicial philosophy from a single paragraph, there is enough concern there to justify an examination of her philosophy to see if her own approach to novel questions is as nihilistic as others in the Crit movement can seem.  If these concerns can be cleared up, I do not foresee any major disqualifications to her being put on the court.