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by C. William Chattin
So, here is what we know about PBHO’s pick of Sonia Sotomayor to replace departing Justice David Souter on the Supreme Court:
- Her curriculum vitae is first rate, and her qualifications stellar: valedictorian from Cardinal Spellman High School in the Bronx; graduated summa cum laude with an A.B. from Princeton University; earned a J.D. from Yale Law School, where she was an editor of the Yale Law Journal; worked as Assistant District Attorney in New York Country; nominated by George H. W. Bush, and served, as Judge on U.S. District Court for the Southern District of New York (August 12, 1992 – October 7, 1998); and was elevated Circuit Judge of the United States Court of Appeals for the 2nd Circuit by Bill Clinton on October 7, 1998.
- Her personal story is extremely compelling: she and her family grew up poor in the South and East Bronx — in the Bronxdale Houses housing project and then Co-op City — and she was diagnosed with Type 1 diabetes at age 8.
- Her judicial reputation, according to most legal scholars, is solid, if unremarkable.
- She wrote the majority opinion of the Second Circuit in the Maurice Clarett v. the NFL case, 369 F.3d 124 (2004), which upheld the NFL’s 3-year post-high-school age rule.
Not surprisingly, Judge Sotomayor, largely perceived as a liberal/progressive, is drawing fire from the Right. But, the Right should be wary not to overplay the “empathy card,” or otherwise seek to dwell on her racially dubious statements, what appears to be a high reversal rate, or her dismissive treatment of Frank Ricci, the dyslexic firefighter, in what appeared to be a textbook case of reverse discrimination.
Of far more importance to me, and what skeptics of this nomination should focus on, are a series of her rulings on property rights. In an era where four of the remaining eight Supreme Court Justices signed onto the highly dubious Kelo v. City of New London decision, 545 U.S. 469 (2005), which permitted a city to use the extraordinary power of eminent domain to deprive a lawful owner of his property in order to build a strip mall (which was never, in fact, built), and where the sitting President of the United States is attempting to force bondholders to write-off the majority of their interest in General Motors and Chrysler, and has otherwise taken control on the financial industry with sights on the heath care industry, it’s hard to argue that property rights are not under assault. Here is a look at a few select opinions:
Didden v. Village of Port Chester – Bart Didden wanted to build a pharmacy on land he owned in a redevelopment district in Port Chester; the town of Port Chester, by side agreement, had given Greg Wasser control of the redevelopment district. Wasser told Didden that he would approve the project only if Didden paid him $800,000 or gave him a partnership interest; failing Didden’s bribe, Wasser threatened to promptly condemn the land and erect a pharmacy himself. Indeed, exactly that came to pass.
On review, a panel of the Second Circuit, on which Sotomayor sat, apparently relying on Kelo, non-chalantly, and conclusorily, brushed aside the naked extortion: “We agree with the district court that [Wasser's] voluntary attempt to resolve appellants’ demands was neither an unconstitutional exaction in the form of extortion nor an equal protection violation.” The Court’s decision has been strongly criticized.
New York Times v. Tasini – freelance contributions to the Times sued over the paper’s subsequent licensing of their writing to electronic databases that then re-sold the pieces to customers for a substantial profit, flouting the more basic I.P principle that rights not specifically assigned remain with the owner. In her opinion for the Second Circuit, Judge Sotomayor sided with the Times. On appeal before the U.S. Supreme Court, Judge Sotomayor’s decision was overturned 7-2 by the Court.
Krimstock v. Kelly – in a more positive case on property rights, Sotomayor invalidated New York City’s policy of seizing and holding vehicles owned by suspects accused of DUI and other offenses, and then retaining them for years at a time without allowing the defendants to challenge the seizures in any kind of legal proceeding.
Merrill Lynch v. Dabit – Judge Sotomayor issued the opinon of the Court, wherein she held that state courts could entertain certain securities lawsuits notwithstanding the preemptive effect of federal law. (For years, Congress has been attempted to curtail “forum shopping” of class action lawsuits in friendly state courts by forcing plaintiffs into federal court.) The Supreme Court reversed her decision 8-0.
Knight v. Commissioner – Judge Sotomayor issued an opinion on the tax deductibility of certain trust fees. On review, the Supreme Court upheld her result but unanimously rejected her approach as one that (per Roberts) “flies in the face of the statutory language.”
Malesko v. Correctional Services Corp. - Judge Sotomayor’s opinion extended the implied private action against federal officers alleged to have violated a citizen’s constititutional rights to create an implied damages action against a private corporation operating a halfway house under contract with the Bureau of Prisons. On review, the Court reversed Sotomayor by a 5-4 vote.
