Does Sotomayor's Judicial Record Raise the Bar?

Does Sotomayor's Judicial Record Raise the Bar?

Sotomayor, Riverkeeper and the 'Wise Latina' Speech

Much of the coverage of Judge Sonia Sotomayor's nomination to the U.S. Supreme Court has centered, predictably, on her compelling personal story.
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While I am very much in favor of a judiciary that is diversified by ethnicity, creed, race and gender, I am even more enamored of the appointment of highly capable and evenhanded jurists, especially to the Supreme Court. By custom, confirmation to the Supreme Court has been decided on the basis of the nominee's professional credentials in conjunction with an examination of the nominee's judicial philosophy and conduct. If the nominee's judicial philosophy and conduct are within the mainstream, and if the nominee's credentials are deemed sufficient, confirmation is typically assured. As a practical matter, Supreme Court nominees in the modern era have typically been sufficiently credentialed to warrant Senate confirmation. The key test, then, is whether a nominee's judicial philosophy and conduct fall within prevailing norms.

So, how does Sotomayor measure up? First, her professional credentials:

• Graduate of Princeton, summa cum laude.
• J.D. from Yale Law School; law review member.
• Diverse legal practice, including stints in private practice and as a prosecutor in New York City.
• 17 years of experience on the federal bench at the time of Supreme Court nomination (a longer federal district and appellate court career than any sitting Supreme Court justice).
By any standard, Sotomayor's credentials are stellar.

The next test (and here I don't envy the task of the Senate Judiciary Committee and its staff) is to carefully review the thousands of pages that comprise Sotomayor's judicial record, in order to evaluate her fitness to serve on the court.

As a member of the U.S. Court of Appeals for the Second Circuit, Sotomayor has presided over two key environmental cases. One, Connecticut v. American Electric Power, a case that tests the ability of the state of Connecticut to regulate climate change emissions, was entered on the docket of the Second Circuit in September 2005. Oral arguments, before a three-judge panel including Sotomayor, were heard on June 7, 2006 and then … nothing. At this writing, the so-called "mystery case" remains pending, close to three years after oral arguments. (In fairness, other key climate change cases remain pending in the federal appeals courts.)

Sotomayor's second key environmental case, Riverkeeper, Inc. v. United States Environmental Protection Agency (PDF) was argued in June 2006 and decided, in an opinion authored by Sotomayor, in January 2007. The case centered on numerous challenges from state governments, environmental interests and industry, to the EPA regulations controlling the use of water cooling technologies used by power plants. The cooling technologies can cause the deaths of fish or other aquatic organisms by impingement (read "by being trapped in water treatment equipment") or entrainment (read "by being sucked into water treatment equipment.")

Sotomayor's decision, by my reading, hews toward the center of the proverbial road. Her decision required the EPA to reconsider regulations governing third-party suppliers of cooling water to power plants, upholding industry complaints that the EPA had issued final rules that were not a logical outgrowth of initial rulemaking proposals. This aspect of the decision bespeaks a centrist interpretation of federal regulatory authority that is not hostile to business concerns.

The heart of Sotomayor's opinion upheld arguments by environmental groups and state governments that the EPA could not use cost-benefit calculations to determine permissible cooling technologies; instead, the EPA was instructed to review its rules to ensure that it required the use of best available technologies to minimize adverse environmental impacts, unless the cost of so doing could not be reasonably borne by industry. This aspect of the decision was based on a close reading of the legislative and statutory histories.

Was Sotomayor's Riverkeeper decision on best available technologies in the judicial mainstream? While the Supreme Court overruled this portion of Sotomayor's opinion in April 2009 and permitted the EPA's use of a cost-benefit test to regulate power plant cooling technologies, the majority opinion by Justice Antonin Scalia of the court's conservative wing also found Sotomayor's decision "certainly a plausible interpretation of the statute."

If the Riverkeeper opinion is in keeping with Sotomayor's judicial record, it reveals a jurist well within the mainstream of U.S. jurisprudence. Another test passed.

Which brings us to Sotomayor's oft-cited "wise Latina" remark. In a speech given at the University of California at Berkeley in 1991, Sotomayor said, in part: "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life." Many have used that remark to challenge Sotomayor's fitness to sit on the Supreme Court. Were Sotomayor's remarks in the mainstream or might they render her unfit for the court?

The 1991 speech, titled "A Latina Judge's Voice," was delivered at a symposium on Hispanic roles in the U.S. judiciary. In the context of the occasion, the "wise Latina" remark might be excused as a bit of hyperbole. Sotomayor in fact noted in her address that judges might aspire to judge impartially, removed from considerations of their own race, religion, ethnic group or gender. She also reminded her audience that a Supreme Court composed entirely of white men had ruled for racial equality in the landmark Brown v. Board of Education decision.

But Sotomayor concluded: "Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage."

Sotomayor's words were no doubt heartfelt, but do not entirely reassure in the context of a possible Supreme Court appointment demanding a level of evenhandedness that transcends gender, ethnicity and personal experience. Echoing Barack Obama, I imagine that if Sotomayor could revise her 1991 speech, she'd express herself more artfully. She'll have another chance this summer before the Senate Judiciary Committee.

With any luck, Sotomayor's views on the influences of ethnicity and gender on judicial decision-making will have evolved in the years since her "wise Latina" speech. By my lights, members of the judiciary, whatever their race, ethnicity, gender or creed, may be shaped by their origins, but should not be circumscribed by them. A seat on the Supreme Court demands the ability to evaluate and decide a case from multiple perspectives, much as Sotomayor did in Riverkeeper. I'm hoping that Sotomayor, when queried by the Senate, will articulate a judicial philosophy that honors both diversity and evenhandedness.

Leanne Tobias is founder and managing principal of Malachite LLC, an advisory firm that specializes in the development, leasing, management, financing and certification of sustainable or green real estate on a global basis. Comment online, or write to Leanne at [email protected]. She'll share the best of reader feedback in future posts.

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