Judge Sotomayor's experience trumps all

by Douglas W. Kmiec

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Sotomayor and Obama (CNS photo)

Sooner or later the Catholic faith of Judge Sonia Sotomayor will be raised as an objection to her nomination and appointment to the Supreme Court of the United States.

Judge Sotomayor is a moderate. As a consequence, she is just as likely to be attacked from left as from right. That's probably not what President Obama means by common ground, but one can admire him for finding a woman seemingly so capable of adhering to the law rather than her personal opinion, and for on occasion, even resolving cases contrary to the president's own policy perspectives.

One possible objection to Judge Sotomayor from the left will be her Catholic faith. There are already five Catholics on the court, it will be said. When the court upheld Congress’ limits on the partial-birth abortion ban, there were more than a few grumbles that it's just those Catholics having their way. Completely unfair. Anyone who actually read the opinion knows different.

There is an implicit understanding that the church's admonition to its faithful to change the law permitting the choice of abortion is best understood and applied in light of the scope of office. Catholic legislators make policy and could be so instructed, but as Justice Scalia posited, "a judge has no moral responsibility for the laws his nation has failed to enact." So let's put this canard to rest.

But it wouldn't be a confirmation proceeding unless someone on the right also attempted to make an issue of abortion as well. That's more than unfortunate given how 99.9 percent of the court's work has nothing to do with the subject, and given the present stasis of you jurisprudence, even .01 no doubt overstates the likelihood of the Court moving either way on that topic.
Nevertheless already this morning a pro-life blog has this entry:

“Sotomayor will likely draw opposition from pro-life groups, although her limited record on abortion may not be enough for strong opposition from Republican lawmakers or to earn her a filibuster in the Senate.”

In the old days of the Reagan administration, it was thought embarrassing to have a single issue litmus test. It still should be, but it borders on the absurd to oppose a nominee because she has not had occasion to rule upon a particular subject. It's even more absurd, since what she has said illustrates her integrity as a judge.

It is well known to the readers of this publication that President Obama has reversed the Mexico City policy. This Bush administration policy limited family planning money to overseas nonprofit groups. Contrary to far too much misreporting, the reversal does not result in federal taxpayer support for abortion, but it does allow federal money to float to organizations that use their own resources for that purpose.

If you applied for a federal job and were told that you could have it so long as you voted the straight Republican ticket, you might think that an unconstitutional condition -- in essence, an improper leveraging of federal resource to have you sacrifice your free-speech rights. Frankly, that's a tough issue in knowing where the government is wrongfully using its funds to penalize you for your point of view differentiates from where the government is expressing its own opinion is often treacherous territory. It's also territory where the distinctions are so thin that it would be easy for an activist judge to insert her own personal policy perspective.

So when the Mexico City policy was challenged in front of Judge Sotomayor some years ago as a violation of free speech by pro-choice advocates, it would not have been surprising to see an outcome striking down the policy.

That's not, however, what Judge Sotomayor did. Judge Sotomayor’s approach to the case was entirely objective. Relying upon the previous precedent of her circuit, which had rejected a similar claim, Judge Sotomayor faithfully turned away the claimed free-speech violation on the merits and rejected others on the basis of federal court jurisdiction that the parties lacked standing (a fussy, usually conservative favorite for keeping judges from encroaching legislative turf) in so far as the only harm alleged was to foreign organizations and not to the plaintiffs.

On the main issue, Judge Sotomayor noted what could not be denied from Supreme Court precedent: namely, that “the government,” in her words, "is free to favor's antiabortion position over the pro-choice position with public funds."

President Obama did not select Judge Sotomayor for her judicial outcomes, but for her experience. Referencing Oliver Wendell Holmes and his famous aphorism that the life of the law is not logic but experience, President Obama not surprisingly is admiring of a life that has gone from a single-parent family in a South Bronx housing project to the top of her Cardinal Spellman high school class, Princeton University and Yale Law School.

In terms of legal training, the opposition will find it difficult to find any omission in preparation -- the prosecution of dozens of criminal cases as an assistant DA in Manhattan; a partner in a major New York firm dealing with highly detailed and complex intellectual property and commercial litigation; a trial judge for six years showing a meticulous attention – and yes empathy – for the factual record as it affects real human lives, and an appellate judge for 11 years where she participated in over 3000 decisions and authored roughly 400.

It's doubtful that anyone has totally catalogued all of these cases and no doubt they will be flyspecked. Yet, my preliminary review is that this is a woman who cares deeply about justice, both when the facts cry out for it – as in her favorable view of asylum cases of Chinese women who experienced or were threatened with forced birth control, and when the facts do merit special consideration, as when churches and religious associations are trying to maintain their own internal procedures without state interference.

Of course, this woman is from New York, and at the risk of enormous stereotype of the Empire State, those of us on the West Coast have always noticed a certain -- well, curt efficiency -- in the New York personality. This is not likely to play as well as the bon vivant boyish charm of John Roberts, but hey, we can’t all smile pretty. And as we say in Malibu, Have a Nice Day!

Kmiec is chair and professor of constitutional law at Pepperdine University and author of Can A Catholic Support Him? Asking the big question about Barack Obama (Overlook Press/Penguin).

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