What The Record Shows

Our View: As The U.s. Senate Examines Judge Sotomayor And Her Record, What's Likely To Emerge Is A Centrist, Qualified Jurist Who Merits Confirmation

July 13, 2009

Even before Judge Sonia Sotomayor was nominated for the Supreme Court, the rallying cry went out from the predictable social conservatives that Senate Republicans needed to sharply attack President Barack Obama's nominee, if only to prove their fealty to their politically influential evangelical allies.

Today, as the Senate Judiciary Committee begins confirmation hearings, those who are looking to draw blood are bound to be disappointed: Two months of analysis and research have led to the inescapable conclusion that the 55-year-old appeals court judge is not only knowledgeable and qualified for the post but that her rulings are well within the mainstream of the federal judiciary.

That last, and perhaps most critical, conclusion was reinforced last week by the release of an analysis of nearly 1,200 rulings of the U.S. Court of Appeals for the Second Circuit during Judge Sotomayor's years of service. The study shows that in the 217 constitutional cases in which she participated, she voted with the majority 98.2 percent of the time, dissenting in only four cases.

The findings by the nonpartisan Brennan Center for Justice at New York University School of Law demonstrates that Judge Sotomayor's rulings met with approval from her Republican-appointed colleagues within the circuit about 9 out of 10 times. She is no radical, no run-amok activist, no extremist trying to imprint her personal views onto the law - as some had initially tried to portray her.

Perhaps the most negative assessment in the Brennan Center report is that Judge Sotomayor was slightly more critical of the government's position than some of her colleagues. She voted to strike down government actions 21.2 percent of the time compared to the circuit's 17.5 percent record, but that is hardly a significant gap.

Curiously, the harshest criticism of the judge's tenure to arise in recent weeks has been that she asks tough questions of the lawyers who appear before her. Others claim she sifts through too much of the minutiae of the appeals court cases, making her seem more like a trial court judge. But if such detractors are trying to say she's thorough and skeptical, that's more endorsement for the job than disqualification.

No doubt we'll hear from the Ricci ruling defendants and their allies. The discrimination case brought by the New Haven firefighters has been a rallying cry for the same right-wing pundits who are so anxious to stir up fears of a woman of Puerto Rican dissent and humble Bronx origins.

But the Supreme Court decision reversing Ricci was narrowly constructed and offered no harsh criticism of the Second Circuit's findings. More importantly, the dissent in last month's 5-4 ruling included Justice David H. Souter, whom Judge Sotomayor was nominated to replace.

Senate hearings over Supreme Court nominees have become too much of a theatrical event to assume that Judge Sotomayor will emerge from this week unscathed. But critics also must understand that attacks on the nominee's character and alleged bias that lack substance - and any objective reading of the judge's past rulings can demonstrate they do - are going to appear more like hackneyed stereotyping than legitimate questioning.

When all of the speechifying and dramatics are concluded, a majority of senators are nearly certain to confirm Judge Sotomayor before the August recess. Absent some unknown (and unlikely) scandal or revelation, it's what the nominee and the public deserve.

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