Thursday, June 11, 2009

The most judicious examination of Judge Sotomayor I've seen anywhere...

... and I'm pretty proud that it was penned by a Libertarian.

Everyone will have to get by Gene Healy's first paragraph, because frankly it sounds like it came out of a conservative talking points memo, so I will give it here, just to get it out of the way:

Most sane Americans are sick of identity politics. More's the pity, then, that race and gender will likely take center stage in the coming Supreme Court fight. If so, Sonia Sotomayor can hardly cry victim: She's fed the fire by repeatedly suggesting that women and minorities read the Constitution differently than white males.

[For the record, just as Biblical scholars have acknowledged within the last century that women and minorities read the Bible differently than European males, and feminist historians and sociologists have proven that female researchers will ask different questions of the same evidence, there is intellectual merit to the idea that people of different backgrounds read all documents differently. That said, Judge Sotomayor has strayed into the exploitive realm of ID politics from time to time. Big shit.]

But it's what follows that makes the Healy piece worth reading, a fairly comprehensive examination of where Sotomayor has come down on different issues.

Here's a taste:

The Second Circuit, Sotomayor's home for the last 11 years, gets few national security cases. But what we can glean from three key cases she's participated in suggests she agrees with former Justice Sandra O'Connor that the War on Terror "is not a blank check for the president."

A Justice Sotomayor is unlikely to move in lockstep with the ACLU in this area. In Cassidy v. Chertoff (2006), she rejected a Fourth Amendment challenge to post-9/11 security searches conducted by a ferry operator acting at the behest of the Bush administration.

But in 2008's Doe v. Mukasey, she joined two colleagues to strike down provisions of the Patriot Act related to National Security Letters (NSL). NSLs allow the FBI to seize private customer information from ISPs and other businesses, and place the recipient under a "gag order," preventing disclosure of the demand.

Still before the Second Circuit is the case of Maher Arar, a Canadian citizen sent to Syria under the U.S. government's extraordinary rendition program and tortured there. At oral argument last December, Sotomayor questioned the administration's lawyer sharply: "So the minute the executive raises the specter of foreign policy, it is the government's position that that is a license to torture?"

Sotomayor is unlikely to participate in the final decision, but her line of questioning suggested skepticism toward broad claims of executive power. That record isn't much to go on, but it hints that Sotomayor won't be as pro-executive as recent GOP nominees.

In the end, Healy reaches the following conclusion:

For all her faults, it's unlikely that Sonia Sotomayor will be a pushover for any wartime president. Constitutionalists and civil libertarians should take comfort in the fact that it could have been worse.

Perhaps only a lukewarm endorsement, but the nice part of the article is that it actually gives you sufficient information to make up your own mind on many issues.

1 comment:

ChrisNC said...

Gene isn't a Libertarian. He's an officer of the Constitution Party of New York. That doesn't make what he said bad, of course. I just mention it for the sake of accuracy.