Flags of caution over Sotomayor

At first blush, it appears that President Obama has honored his campaign pledge to nominate judges based on their ability to empathize with the downtrodden. The question now, for the Senate, is to determine whether the empathic skills of his first nominee to the high Court, Judge Sonia Sotomayor, would enhance the court's ability to faithfully apply the law or would instead amount to an impermissible thumb on the scales of justice.

Senators should reserve judgment on that all-important question until they have had a chance to review Judge Sotomayor's jurisprudential record with care. Her experience as a former prosecutor and trial court judge may bring a familiarity with how justice actually operates "on the ground" to a court where, for some time now, that particular experience has been lacking. That would be a good kind of empathy. But there are some red, or at least yellow, flags in Sotomayor's record that suggest something significantly more than that may be in play.

One flag rises over a speech Sotomayor gave at Berkeley which was reprinted in the La Raza Law Journal in 2002. In it, Sotomayor cited a couple of propositions that she accepts, both of which are deeply troubling. One is the claim made by Professor Martha Minow of Harvard that "there is no objective stance but only a series of perspectives – no neutrality, no escape from choice in judging." The other, made by Professor Judith Resnik of Yale, is that "to judge is an exercise of power."

There is perhaps no more succinct statement of the modern judicial philosophy of legal realism than these propositions. They stand in stark contrast to the view of the proper role of judges espoused by Chief Justice John Roberts during his confirmation hearings in 2005 – that of the judge as neutral umpire just calling the law's balls and strikes as he sees them. They also stand in stark contrast to the portrayal of Sotomayor's judicial philosophy given by both herself and Mr. Obama at her announcement conference Tuesday.

Another red-tinted flag swirls around her role in Ricci v. DeStefano. This case involved a serious constitutional challenge to a decision by the New Haven fire department to decertify a promotion exam after its results, which had been properly validated and carefully vetted by civil rights groups, did not yield an adequate racial mix of candidates.

The Supreme Court took the rare step of granting review despite the fact that the Second Circuit's decision was unpublished. Under the Second Circuit's rules, unpublished summary orders are supposed to be issued only "in those cases in which decision is unanimous and each judge of the panel believes that no jurisprudential purpose would be served by an opinion (i.e. a ruling having precedential effect)."

The brief, two-paragraph order Sotomayor joined (and perhaps wrote) makes no mention whatsoever of the constitutional challenge. The firefighters – and anyone who's been discriminated against on the basis of race – deserved better.

Ricci is not the first case in which Sotomayor and her fellow panelists used the unpublished opinion to give short shrift to significant constitutional issues that merited full consideration by the Court of Appeals. She was also on the panel that decided the 2006 case of Didden v. The Village of Port Chester by unpublished summary order.

The case involved what can fairly be described as an extortionate use of the state's power of eminent domain. Bart Didden wanted to build a CVS pharmacy on land he owned. A politically powerful developer wanted to build a Walgreens on the same spot, so he "asked" for $800,000 cash or a 50 percent stake – or else he'd have the town seize Mr. Didden's property. Didden refused and Port Chester took his land the very next day.

Instead of exploring the obvious differences between that case and the Supreme Court's controversial decision in Kelo v. City of New London, Sotomayor and her colleagues issued an unpublished decision, devoting but a single paragraph to conclude that there was "no basis upon which relief can be granted." Moreover, the panel made a wholly inappropriate factual finding that the $800,000 cash "offer" was not extortion but merely "voluntary attempts" to resolve the case. Didden – and property owners everywhere – deserved a better airing of his constitutional challenge.

Again, these cases are just a small window into what is a fairly extensive judicial record; Sotomayor has been on the bench since she was first appointed to the district court 18 years ago by President George H. W. Bush. Whether the cases are representative of Sotomayor's judicial philosophy, or merely an unfortunate attempt to go along with a fellow panelist's quick resolution of cases in order to stay on top of a burgeoning docket, remains to be seen. They do raise cautionary flags, though, which warrant a sustained consideration by the Senate Judiciary Committee, particularly when viewed through the lens of legal realism that is manifested in the La Raza article.

At the end of the day, there must be an "objective stance" to the law if the law is to have any meaning beyond the idiosyncratic "perspectives" of those who wear the judicial robe. For those who would occupy a seat on the highest court in the land, a pledge to give an objective read to the law in every case, to every party – rich or poor; union or management; black, brown, or white – should be a prerequisite to the Senate's vote of confirmation.

John C. Eastman is the dean at Chapman University School of Law in Orange, Calif., and holds the Donald P. Kennedy chair in law. He is also the founding director of The Claremont Institute's Center for Constitutional Jurisprudence. His views are his own.