Left or Right: the Case of Sonia Sotomayor

Please note that I am simply a layman Supreme Court enthusiast, trying to dissect these issues using the Internet and the books at my disposal. I am not an expert. Read everything with a grain of salt.
Today President Obama announced his nomination of Sonia Sotomayor, and already both sides have begun taking potshots at each other. The Democrats and liberal special interest groups are hailing her as a progressive wonder, sensitive to a woman's right to choose and the rights of homosexuals; the Republicans are claiming (in oddly identical phrasing) that she is guided by her "personal politics, feelings, and preferences," which means that, since she is the daughter of (legal) immigrants, a member of a minority, and a woman, she'll be too empathetic and therefore have bad judgment. (The sexism, racism, and hypocrisy on display here is pretty disgusting, but I'll have to leave that for another day.)
We'll leave sexism and racism for another day. Both sides are guilty of making this up as they go along, retreating to "Left v. Right" dogmas which feed the undying (but perhaps not undue) characterization of the Supreme Court as a political, and therefore either conservative or liberal, institution. In order to be analyzed by the press and Congress, Sotomayor must fit into the box created for her, despite any nuances that may exist in her career. And yet, despite 400 opinions on the Court of Appeals, Sotomayor's judicial philosophy is not completely formed in the minds of the public or the press, and if history has told us anything, it's possible that her philosophy isn't entirely formed in her own mind. Furthermore, Supreme Court appointments rarely behave exactly as expected, as is demonstrated by James F. Simon in his book, The Antagonists.
The subtitle of Simon's book is Hugo Black, Felix Frankfurter, and Civil Liberties in America. The book is billed as a tale of a historical feud between two powerful men, in this case Supreme Court Justices, and how their feud determined the course of American life. It doesn't really succeed on that point, but it is nonetheless a fine book for those looking for biographical information on either of the two Justices in the title, both pre- and post-appointment to the court. [1] It is in this area, biography, where we find some revealing details about the judicial system in America, and perhaps can apply some of this to Sonia Sotomayor.
Simon's best explicated thesis is the aforementioned truth, that judicial appointments rarely perform as expected: Hugo Black beat the more qualified Frankfurter to the bench, and though both were appointed by FDR, neither lived up to their pedigree. Frankfurter helped found the ACLU and stood publicly in support of Sacco and Vanzetti when doing so was very unpopular. (It is especially moving when Simon describes Frankfurter's emotional reaction upon hearing that the two immigrants were executed.) [2] Lawyer Frankfurter's liberal pedigree seemed to some impeccable, but Justice Frankfurter went on to promote "judicial restraint" on the bench, which put him in league with the conservative and moderate voices on the court who did not want the Judicial branch of the government to be in charge of regulating the relationship between civil rights, states rights, and federal law.
Hugo Black, on the other hand, was a member of the Ku Klux Klan. Though it is documented that his membership was a political expedient and shrewd business decision, everyone thought it was a political problem for FDR, who just shrugged it off and told Black to go get 'em. (Simon points out as an interesting side note that the Klan, while advocating prohibition and racial purity, also "exalted the role of the common laborer too often victimized by manipulative corporate powers." Black's single speech to the KKK was forthrightly populist, interspersed with subtle racist messages). Despite or maybe because of this taint, Black went on to be one of the most ferocious liberal voices on the bench, advocating for the incorporation of the Bill of Rights, and for the rights of American Communists in the midst of the Red Scare. [3]
This apparent flip-flopping has become a sort of joke for the Court: Earl Warren as Republican Governor of California allowed the internment of thousands of Japanese-Americans, but as Chief Justice during the 50s and 60s led the liberal wing to decisive victories in school desegregation (Brown v. Board of Education), the rights of prisoners (Miranda v. Arizona), and the right to receive counsel (Gideon v. Wainwright). The effect of each of these decisions was felt immediately in the nation, and Richard Nixon implicitly and explicitly ran against each one in 1968. He then appointed Warren Burger as Chief Justice in an attempt to reverse the court's direction, and though Burger had some success in stemming the tide, he also oversaw and concurred with the result in many liberal landmarks, with Roe v. Wade being just one.
Other examples include Sandra Day O'Connor, a Goldwater Republican who says she saw her party "move to the right" without her and became the court's key swing-vote; Anthony Kennedy, currently a swing-vote who often sides with the conservative bloc on issues like gun control, but has also been the important fifth vote on issues like the death penalty for minors, gay rights, abortion rights, and the trio of habeus corpus/Gitmo cases during the Bush years; Nixon appointees Lewis Powell, a moderate for his tenure, and Harry Blackmun, the author of Roe but also a moderate; and John Paul Stevens, appointed by Gerald Ford, an idiosyncratic judge whose opinions always defy categorization but have caused him to be classified a liberal. [4]
Most significant to the Sotomayer nomination is the case of David Souter. With only five months experience on the Federal bench, Souter was a Washington outsider. President George H. W. Bush considered this fact to be a positive attribute in his favor, as he had few written opinions that could be held against him (Sotomayor in contrast has many). Souter had been recommended to the position by some prominent Republicans that had the President's ear; he was involved in conservative politics in New Hampshire, registered as a Republican, and was subsequently demonized by a reactionary left-wing of the country. Jeffrey Toobin reports in his book The Nine that the National Organization for Women created a pamphlet titled STOP SOUTER OR WOMEN WILL DIE. Senators Ted Kennedy, John Kerry, and seven others voted against his appointment.
During Souter's first year as a justice, he behaved about as everyone expected, siding with Scalia and Rhenquist on most cases. However, during his first Summer off (the Supreme Court takes a yearly Summer break), Souter devoted himself to study, trying to join his judicial philosophy with the realities of the heightened Supreme Court atmosphere. By the next year, the court was faced with re-affirming or completely rejecting Roe v. Wade, and it was Souter who spearheaded the secret insurgency that retained the essence of Roe while drastically redefining it. Souter, according to Toobin, "was appointed to overturn Roe v. Wade." Instead, he ended up saving it. Many women's groups contend that the opinion that resulted, Casey v. Planned Parenthood, greatly neutered women's rights, even if it was nonetheless a preferable outcome to the total abolition of abortion. In just one year, Souter became a villain to the right-wing, while suddenly becoming a feeble, unexpected, imperfect hero to a wary left-wing.
I'm not saying that liberals have to worry about Sotomayor, but rather that there's a serious problem with characterizing a justice as either liberal or conservative, especially during the nomination process. First and foremost, the words don't mean quite what we think when applied to the realm of law. People still use these words partly because many of the court's decisions can be immediately interpreted as favoring one side of the political divide or the other; further, these decisions cannot be reversed by elections, as judges have lifetime appointment and "precedent" is a guiding principle of common-law interpretation. As such, those in power whose political beliefs are contradicted by the court often attack the court as "activist" or "politically motivated," and far be it from me to deny that this has been true in the past. What is important, however, is not to judge the court's decisions as "conservative" or "liberal" but instead to judge the principles on which the court is making those decisions.
The two sides mainly disagree as to whether the Constitution is a vehicle for expanding civil rights; in fact, that was the very argument justices Frankfurter and Black had for several decades in the past. For instance, the conservative Federalist Society contends that the original meaning of the Constitution is the only way to interpret it (I give a quick overview of this view here). This view has been used to justify judicious capital punishment, legislation of sex acts, expanded Executive power in wartime, diminished Federal power over domestic issues (aka States Rights), second amendment rights, etc., all considered conservative issues. The opposing view seeks to apply the Constitution's principles to our time, in ways the framers could not have envisioned but would likely approve of, for instance gay rights (equal protection under laws) or the abolition of the death penalty (cruel and unusual punishment).
The New York Times has supplied us with an overview of many of Sotomayer's mountain of opinions for the Court of Appeals, and it is possible that some or many of her judicial philosophies could be discovered within that pile. Yet she has never had to contend with the issue of gay marriage or gay rights, nor has she dealt in depth with the issue of abortion (her one opinion on that topic sided with the anti-abortion side; see the New York Times link for details). Based on my limited exploration, she doesn't seem like the radical the right is painting her as, or the progressive the left contends she is. The White House is maintaining that she's a moderate (I expect her to vote with the court's liberal bloc). Their talking points say this: "In cases where Sotomayor and at least one judge appointed by a Republican president were on the three-judge panel, Sotomayor and the Republican appointee(s) agreed on the outcome 95% of the time." But I don't think anyone is listening.
Sean Hannity and Barack Obama may agree on one thing: they both probably believe that Sonia Sotomayor has been made in Obama's image. However, as evidenced by history, that may not mean much, especially to her. She, and she alone, is the person who will shape her judicial future, and she doesn't have to start thinking like a Supreme Court Justice until she puts on the robe.
Notes
[2] Lest I mischaracterize Felix Frankfurter's reputation, here's one example of his liberal gusto while on the bench. He was trying to compel his brethren to hear argument on the case of Julius and Ethel Rosenberg, saying: "I am...concerned about men and women as high-minded as any of us, though with less understanding of law and its workings, who feel as I do that it is a concession to Communism, not a safeguard against it, to retreat from reason and to compromise those cherished traditions which one likes to think of as the peculiar characteristics of an Anglo-American justice."
[3] One major example was when Hugo Black dissented the ruling in Dennis v. U.S. "Public opinion being what it is now, few will protest the conviction of these Communist petitioners. There is hope, however, that in calmer times, when present pressures, passions and fears subside, this or some later Court will restore the First Amendment liberties to the high preferred place where they belong in a free society."
[4] It gets even thicker when the President himself is involved in the case before the court. The Nixon appointees all voted against his Presidential claim to Executive Privilege in United States v. Nixon (though the path that opinion took was a winding road; see Bob Woodward's The Brethren); both Clinton nominees voted against him when he claimed the President could not be sued in a civil court while holding office (Clinton v. Jones); and President Obama's waffling on Abu Ghraib photos could wind its way up to the Supreme Court where some expect that his decision to keep the photos classified will be overturned.
On the other hand, both George W. Bush nominees sided with his justice department's claims in two key Gitmo cases. This is likely the result of the Bush White House's paranoia about flip-flopping justices: O'Connor was a closet-liberal, Kennedy was too moderate, and Souter was practically a socialist. The level of suspicion White House aides showed to Roberts, Harriet Miers, and Alito is amusingly documented in Jeffrey Toobin's The Nine. So far, their suspicions seem unwarranted.









