Posted by Jonathan Adler:
Rosen on Sotomayor, Part Tres:
http://volokh.com/archives/archive_2009_06_07-2009_06_13.shtml#1244934301
Jeff Rosen may have [1]quit blogging, but he's still writing articles
about Judge Sonia Sotomayor. [2]His latest appears in Time magazine.
Here's a taste:
An examination of Sotomayor's career supports the idea that on the
bench, she has been a racial moderate, not a radical. At the same
time, her opinions and speeches suggest that her views about race,
multiculturalism and identity politics are more nuanced, complex
and provocative than either her critics or her supporters have
allowed. And for that reason, if confirmed, she could influence the
racially charged issues the Supreme Court will confront over the
next few decades in unexpected ways. . . .
Sotomayor does not appear to be a crusader for radical change. She
has always sought change from within the system rather than
fundamentally challenging its premises. As a student at Princeton,
she co-chaired a Puerto Rican student organization and filed a
complaint with the Equal Employment Opportunity Commission about
Princeton's affirmative-action failures, leading to the hiring of
the first Hispanic dean of students. But she acted in such a
constructive way that William Bowen, then university president,
helped select her for the Pyne Prize, the highest honor Princeton
bestows on undergraduates. Sotomayor's experiences as an outsider
in an Ivy League world seem to have made her pragmatic rather than
rigid, leading her to thrive within the Establishment even as she
sought to improve it. . . .
Sotomayor's unique background and views about race and gender are
likely to become more important over time. In coming years, there
may well be challenges to the death penalty, for example, on the
grounds that it is imposed in a racially discriminatory way. The
court rejected that claim in 1987, but Sotomayor might be
sympathetic to it. In 1981, as a member of the board of directors
of the Puerto Rican Legal Defense and Education Fund, she was part
of a committee that recommended that the fund oppose the
reinstatement of the death penalty in New York State on the grounds
that "capital punishment is associated with evident racism in our
society."
Sotomayor's more liberal inclinations in immigration cases may also
make a difference on a court that will increasingly have to wrestle
with legal distinctions in the U.S. between citizens and aliens. As
Obama disappoints civil libertarians by reaffirming aspects of
President Bush's antiterrorism policies � including the claim that
terrorism detainees held by U.S. forces in Afghanistan have no
legal right to challenge their detention in U.S. courts � some of
these policies may reach the Supreme Court. Sotomayor could prove
skeptical of the claim often made by the government that the rights
of aliens differ sharply from the rights of citizens in the war on
terrorism and in other cases.
If Sotomayor is confirmed, as expected, the only thing one can
confidently predict is that the cases involving race and diversity
that she will confront are very different from the ones we are
thinking about today. In that sense, the evolution of Sotomayor's
thinking in the years ahead may be more consequential than what she
has said in her past.
References
1. http://volokh.com/archives/archive_2009_05_31-2009_06_06.shtml#1243824576
2. http://www.time.com/time/printout/0,8816,1903981,00.html
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