Initial look at Sotomayor’s First Amendment record

Wednesday, May 27, 2009

WASHINGTON — In more than 16 years as a federal judge, Sonia Sotomayor has often sided with people claiming discrimination in education and employment. She's backed police and prosecutors over defendants. She's upheld assertions of free speech and religion.

Not easily pigeonholed, Sotomayor has also been part of rulings that go the other way. In general, her rulings as a trial judge for six years and then as a 2nd U.S. Circuit Court of Appeals court judge since 1998 are in line with the liberal-leaning views of Justice David Souter, the man President Barack Obama has nominated her to replace.

An initial look at Sotomayor’s record on First Amendment cases gives free-expression and religious-liberty advocates reason for both concern and support.

Judge Sotomayor’s track record on issues involving the establishment and free-exercise clauses is very limited. Advocates of separation of church and state might be heartened by her dissenting opinion in Hankins v. Lyght (2006), a case involving an age-discrimination claim brought by a minister against his church. In her dissent, Sotomayor argued that government may not get entangled in disputes between religious institutions and their spiritual leaders. She wrote: “Federal court entanglement in matters as fundamental as a religious institution’s selection or dismissal of its spiritual leaders risks an unconstitutional ‘trespass on the most spiritually intimate grounds of a religious community’s existence.’”

In some opinions, Judge Sotomayor has demonstrated an interest in providing strong protection for the free exercise of religion. Writing for a panel of the 2nd Circuit, Sotomayor ruled in favor of a Muslim inmate who was not allowed by prison officials to participate in an Islamic religious feast (Ford v. McGinnis, 2003). As a U.S. District judge, Sotomayer upheld the right of a rabbi to display a menorah in a city park (Flamer v. City of White Plains, 1993) and the right of Santeria inmates to wear multiple strands of multicolored beads under their clothes (Campos v. Coughlin, 1994). In the Santeria case, Sotomayor criticized as intolerable “distinctions which favor 'traditional' over 'nontraditional' religions.”

Sotomayor was criticized by some student-speech advocates after a decision in May 2008, in which she joined two 2nd Circuit colleagues in deferring to Connecticut high school administrators who had punished a student for an off-campus blog entry about a canceled student event.

School officials prohibited the student from running for class office because of the entry, which referred to school officials in vulgar terms. The judges said school officials have “the difficult task of teaching ‘the shared values of a civilized social order’ — values that include our veneration of free expression and civility, the importance we place on the right of dissent and on proper respect for authority.”

George Washington University Law professor Jonathan Turley wrote at the time that “the continual expansion of the authority of school officials over student speech teaches a foul lesson to these future citizens. I would prefer some obnoxious speech than teaching students that they must please government officials if they want special benefits or opportunities — a key for college applications.”

Other blog critics said the decision supported an unwarranted extension of school authority to regulate student speech off-campus, or that it further weakened the landmark 1969 U.S. Supreme Court decision in Tinker v. Des Moines Independent School Dist. that held students don't “shed their constitutional rights to freedom of speech or expression at the schoolhouse gates.”

New York Times Supreme Court correspondent Adam Liptak noted yesterday in a column that “in a 2002 dissent, Judge Sotomayor said she would have ruled that the First Amendment has a role to play in protecting anonymous racist communications made by a police officer. Saying she found the communications ‘patently offensive, hateful and insulting,’ Sotomayor nonetheless would have allowed the officer’s case against the police department that fired him to proceed to trial. She said the majority should not ‘gloss over three decades of jurisprudence and the centrality of First Amendment freedoms in our lives because it is confronted with speech it does not like’.”

In a freedom-of-information case decided while she was a federal judge, Sotomayor in 1995 sided with The Wall Street Journal and released the suicide note of former White House aide Vincent Foster.

Sotomayor's record indicates that her confirmation would not seriously alter the balance of power on a Court that often splits along conservative and liberal lines on social issues.

Her opinions are clearly written and thorough, although she does not write with much flair. Sotomayor has been criticized by some conservatives for saying in a talk at Duke University that appeals court judges make policy, but her writings typically do not stray from the law.

Among the most contentious social issues is abortion, but Sotomayor has not been part of any major rulings on abortion rights. In 2002, she wrote an opinion ruling against an abortion-rights group that had challenged a government policy prohibiting foreign organizations receiving U.S. funds from performing or supporting abortions.

In her opinion on the so-called gag rule, Sotomayor wrote that the government was free to favor the anti-abortion position when public funds were involved. President Barack Obama lifted the rule soon after he took office in January.

Abortion opponents reacted strongly against Sotomayor's nomination yesterday. Charmaine Yoest, president of Americans United for Life, called Sotomayor “a radical pick that divides America.”

The most controversial civil rights lawsuit of her time as a judge concerns the race-discrimination claims of white firefighters in New Haven, Conn., a case the Supreme Court will decide in the next month.

In a one-paragraph opinion, she and two other judges on the 2nd Circuit in New York upheld a lower court ruling dismissing the firefighters' claims. The case turns on promotion exams that the city threw out on the grounds that too few minorities scored high enough to be promoted.The high court accepted the firefighters' appeals and, at argument in late April, appeared divided along ideological lines. The court is expected to rule by late June.

In many other discrimination cases, Sotomayor has sided with plaintiffs, including a black elementary school student who claimed his demotion from first grade to kindergarten was racial discrimination. Sotomayor, in a 1999 dissent, said that white children in similar situations received help, while the black child was not given an “equal chance.”

She has favored claims brought by disabled people, those alleging age discrimination and women who said they were in hostile work environments. Yet she also said an international treaty governing air travel ruled out discrimination claims made by two African-American passengers.

A former prosecutor, Sotomayor has frequently ruled against criminal defendants, including a sex offender who violated his parole by having in his apartment a book containing pictures and descriptions of sex between men and boys.

The Supreme Court in January essentially endorsed a 10-year-old pro-police position Sotomayor took in a case involving the search of a criminal suspect. In the high court case, the four liberal justices dissented.

But Sotomayor was reversed in an environmental case the Supreme Court decided in April. She supported environmentalists in ruling that the Clean Water Act does not allow cost to be used when deciding what technology would best minimize environmental impacts. Souter's view paralleled that of Sotomayor when the case reached the Supreme Court. There, the justices overturned Sotomayor's ruling, with Souter in the minority in a 6-3 decision.

The justices are considering whether to hear a case in which Sotomayor and two other judges upheld a New York state law banning the possession of “chuka sticks.” At issue is whether the Second Amendment's guarantee of a personal right to have a gun restricts the power of state and local governments to regulate personal weapons.

The appellate judges said they were bound by an 1886 Supreme Court ruling, but acknowledged the high court could take a different view, particularly in light of last year's ruling that the Second Amendment protects an individual's right to keep guns at home for self-defense. Sotomayor would have to step aside from the case if she is confirmed and it comes before the Court.

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