Posted by Jonathan Adler:
Rosen on Sotomayor IV The Liberal Dissenter:
http://volokh.com/archives/archive_2009_06_14-2009_06_20.shtml#1245172155
Jeff Rosen will have [1]another article on Judge Sonia Sotomayor in
the July 1 TNR. This article focuses on her dissenting opinions and
concludes that Sotomayor is, in fact, quite liberal, and could help
push the Court to the left in economic and criminal law cases. Here's
a taste of the article:
If Sotomayor's majority opinions are often hard to distinguish from
those of her fellow appellate judges, perhaps that's not surprising
in a genre so heavily constrained by legal precedents. It's often
in dissents that appellate judges can express their true
selves--their passions, judicial philosophies, and unique views of
the law. And Sotomayor's little-noticed dissents are clearly the
opinions in which she has the greatest personal investment. Unlike
her majority opinions, her dissents sometimes show flashes of
civil-libertarian passion or indignation, even as they remain
closely grounded in facts and precedents. Most important, they are
substantively bold, staking out unequivocal liberal positions--from
a broad reading of the Americans with Disabilities Act to sympathy
for the due-process rights of a mentally ill defendant.
Sotomayor, who published 226 majority opinions on the merits during
her more than ten years on the appellate court, published only 21
dissents--a rate slightly below average for appellate judges.
Although not always ideologically predictable, they are far more
liberal than her majority opinions: According to Stefanie A.
Lindquist of the University of Texas, Austin, 63 percent of her
dissents can be characterized as liberal, as opposed to 38 percent
of her majority opinions. (Only five of the 21 dissents are clearly
conservative.) It's in these dissents that a different view of
Sotomayor emerges: a judge who can be both crusading and
open-minded. . . .
Even if Sotomayor may not turn out to be a master of internal court
politics in the style of Obama's judicial hero, Earl Warren, her
dissenting opinions suggest that she could play a different but
still useful role: a strong voice for civil liberties, and economic
and social justice--sometimes in the majority, sometimes in
dissent. The fact that the Roberts Court currently has no liberal
justice who consistently plays this role is all the more reason to
welcome the addition of her voice. As Frank Cross puts it: "She may
not have been my first choice, but she's a good choice. Her
dissenting opinions look liberal but not knee-jerk, and she goes
against the grain sometimes; she issued a few significant
conservative decisions." And the politics of her appointment are so
overwhelming that they're difficult to resist. For these reasons,
conservatives will have a hard time attacking her as judicial
ideologue, and Democrats can vote for her with hope and
expectation.
References
1.
http://www.tnr.com/politics/story.html?id=0492d15c-69bc-4b2a-9d25-c6a641ee6485
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