She’s ruled on cases involving three of the hottest hot-button issues during her 17 years as a judge — abortion, gun control and affirmative action — but resolved the cases in ways that complicate critics’ efforts to peg her as a liberal.
On affirmative action, she and two other judges threw out a case by white firefighters seeking promotions they earned by passing a promotion test — because no black firefighters passed the test.
On gun control, one Sotomayor ruling suggests she believes that state governments have broad rights to limit the possession of weapons.
In both of those cases, Sotomayor joined in short, unsigned rulings that don’t offer much of a toehold for conservatives who oppose her.
But in two cases touching on abortion, Sotomayor issued rulings that came down on the side of the anti-abortion activists. And in those cases, the judge was far more voluble, offering a total of 56 pages in signed opinions detailing her reasoning.
The Rev. Barry Lynn, executive director of Americans United for Separation of Church and State, says he’s been frustrated in trying to find clear-cut examples of Sotomayor’s opinions on the church and state issues he cares about.
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And he thinks Sotomayor’s elusiveness is deliberate. “You have to think about your public record and the public trail if you’re going to move up in the judiciary," he said. "And I think she’s savvy enough to have done so. It is a self-preservation pattern.”
He also said: “In this contentious era of every nomination becoming a political campaign I can understand why someone would choose to do that.”
It may have been exactly Sotomayor’s elusiveness that appealed to President Barack Obama — a man who has himself been described as ideologically elusive throughout his career. Obama knows that opponents can’t stop his nominee if they can’t pin her down.
Of course, the right does have Sotomayor’s own words to challenge her at her confirmation hearings — proof, they say, of a judicial activist who sees the law through the lens of race. Sotomayor said in 2005 that “the Court of Appeals is where policy is made” — a red flag to conservatives who say judges should only interpret the law, not make it.
Sotomayor also said in a 2001 speech that she believes a Latina woman would make better, more richly informed decisions than would a white man.
But when it comes to her legal paper trail, there are some touchstone rulings that both sides will pick over for weeks to come. This is what they tell us about Sotomayor:
This case, more than any other in Sotomayor’s career, makes the right see red. In it, Sotomayor and two other judges ruled that white firefighters who passed an exam to get promoted should have those promotions stripped — because no black firefighters passed the test.
It raised questions about Sotomayor’s views about whether anti-discrimination laws apply to all races and ethnic groups — or whether she was engaging in a sort of “reverse discrimination” against the white firefighters, as conservative critics say. Legal commentator Stuart Taylor calls Sotomayor “a devotee of identity politics” and cited the firefighters’ case.
And it also fed into another line of attack by conservatives against Sotomayor, that her judicial opinions are overturned at a higher-than-usual rate.
This case was this: A number of white firefighters had sued the City of New Haven, Conn., after the city chose to drop a promotion examination after blacks and Hispanics scored so poorly that none of them would have been promoted. A lower court threw out the firefighters’ lawsuit, and it came to the Court of Appeals in NewYork.
In February 2008, a three-judge panel that included Sotomayor used an unsigned “summary order” to uphold the lower court ruling throwing out the white firefighters’ suit. The order — all of nine lines on a single page — called the district court’s opinion “thorough, thoughtful and well-reasoned” and left it at that.
The terse order triggered a battle royale within the 2nd Circuit — where Sotomayor’s fellow judges were so upset at the order, they tried to have the case reviewed by all 13 judges on the court.
Joined by five other judges, Judge Jose Cabranes criticized the use of the summary opinion and said it’s normally used for cases that present straightforward questions, not one that are “indisputably complex and far from well-settled like these.” But the judges split 7 to 6, and the ruling signed by Sotomayor stood.
For a while, at least. In January, the Supreme Court agreed to hear the case Sotomayor’s panel initially resolved with a mere paragraph. A decision is expected next month, well in advance of Sotomayor’s confirmation hearings.
This is another key issue on the left, and one where activists are looking to an Obama Supreme Court to dial back some of the pro-gun decisions made in recent years. On this issue, Sotomayor showed a willingness to define what is covered by the Second Amendment’s right to bear arms very narrowly.
The weapon in question in this Second Amendment case wasn’t a gun at all. It was the martial arts weapon known as nunchuks: two wooden sticks connected by a chain.
In this case, Sotomayor joined in another curt opinion — dismissing an appeal arguing that the New York ban on the possession of nunchuks violated the Second Amendment’s guarantee of a right to bear arms.
And to do so, the New York appeals court had to do something that appellate courts rarely do: ignore a recent Supreme Court ruling.
In a six-page opinion issued in January, the three-judge 2nd Circuit panel deemed irrelevant the Supreme Court’s 5-4 ruling last year invalidating the District of Columbia’s handgun ban. Instead, the appeals judges reached back to a 1886 Supreme Court decision that held the Second Amendment inapplicable to the states.
As with the firefighters’ case, the court’s opinion in the nunchuk case was unsigned and asserted the decision was unambiguously controlled by prior precedent. So while critics can and will use the nunchuk ruling to tar Sotomayor as a proponent of gun control, they will lack the ability to quote her directly on the sensitive issue.
For all her support on the legal left, Sotomayor’s legal and personal views on abortion are largely unknown. Abortion rights activists issued supportive statements Tuesday about Sotomayor, but they were notably vague on the key issue of whether she can be counted on to uphold a woman’s legal right to end a pregnancy.
The president of NARAL Pro-Choice America, Nancy Keenan, praised Sotomayor’s “distinguished record” and “impressive personal biography” but stopped short of the full-throated endorsement the group might have accorded to other nominees.
“We look forward to learning more about Judge Sotomayor’s views on the right to privacy and the landmark Roe v. Wade decision as the Senate’s hearing process moves forward,” Keenan wrote.
The ambiguity was fueled by two rulings Sotomayor issued from the federal appeals court in New York.
In 2002, Sotomayor wrote a 23-page opinion siding with the Bush administration in its efforts to prevent international organizations that provide abortions or information about them from receiving U.S. foreign aid funds.
She ruled, in essence, that the U.S. government can decide how to spend its own money.
“The Supreme Court has made clear that the gvernment is free to favor the anti-abortion position over the pro-choice position and can do so with public funds,” she wrote.
In 2004, Sotomayor penned another 33 pages to reinstate a lawsuit brought by anti-abortion protesters who claimed they were brutalized while being arrested by police in West Hartford, Conn. She said the court should hear their claims that police went too far.