Flags of caution over Sotomayor

At first blush, it appears that President Obama has honored his campaign pledge to nominate judges based on their ability to empathize with the downtrodden. The question now, for the Senate, is to determine whether the empathic skills of his first nominee to the high Court, Judge Sonia Sotomayor, would enhance the court's ability to faithfully apply the law or would instead amount to an impermissible thumb on the scales of justice.

Senators should reserve judgment on that all-important question until they have had a chance to review Judge Sotomayor's jurisprudential record with care. Her experience as a former prosecutor and trial court judge may bring a familiarity with how justice actually operates "on the ground" to a court where, for some time now, that particular experience has been lacking. That would be a good kind of empathy. But there are some red, or at least yellow, flags in Sotomayor's record that suggest something significantly more than that may be in play.

One flag rises over a speech Sotomayor gave at Berkeley which was reprinted in the La Raza Law Journal in 2002. In it, Sotomayor cited a couple of propositions that she accepts, both of which are deeply troubling. One is the claim made by Professor Martha Minow of Harvard that "there is no objective stance but only a series of perspectives – no neutrality, no escape from choice in judging." The other, made by Professor Judith Resnik of Yale, is that "to judge is an exercise of power."

There is perhaps no more succinct statement of the modern judicial philosophy of legal realism than these propositions. They stand in stark contrast to the view of the proper role of judges espoused by Chief Justice John Roberts during his confirmation hearings in 2005 – that of the judge as neutral umpire just calling the law's balls and strikes as he sees them. They also stand in stark contrast to the portrayal of Sotomayor's judicial philosophy given by both herself and Mr. Obama at her announcement conference Tuesday.

Another red-tinted flag swirls around her role in Ricci v. DeStefano. This case involved a serious constitutional challenge to a decision by the New Haven fire department to decertify a promotion exam after its results, which had been properly validated and carefully vetted by civil rights groups, did not yield an adequate racial mix of candidates.

The Supreme Court took the rare step of granting review despite the fact that the Second Circuit's decision was unpublished. Under the Second Circuit's rules, unpublished summary orders are supposed to be issued only "in those cases in which decision is unanimous and each judge of the panel believes that no jurisprudential purpose would be served by an opinion (i.e. a ruling having precedential effect)."

The brief, two-paragraph order Sotomayor joined (and perhaps wrote) makes no mention whatsoever of the constitutional challenge. The firefighters – and anyone who's been discriminated against on the basis of race – deserved better.

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