Will the real Sotomayor stand up?

The first days since the president announced Judge Sonia Sotomayor as his pick for the Supreme Court has clarified some things about the nominee, but left others still unclear. Hopefully the Senate will not succumb to President Obama’s pressure to confirm Sotomayor hastily. Failure to act deliberatively in a matter of such note would constitute a serious disservice to the constitutional responsibility of the Senate and to the American people who will, after all, reap the benefit or suffer the harm from decisions in which she will participate for many years to come.

What is clear is that Sotomayor is well-educated, hard-working and intelligent. These are all laudable —- indeed essential —- attributes of a prospective high court justice. It has also been made known that she is of Puerto Rican background, has diabetes, grew up in the Bronx, may be a Yankees fan and has “empathy” —- all factors completely irrelevant to consideration of a person to sit on the Supreme Court.

One can also infer that Sotomayor is unusually talkative for a judge, and that she may not think carefully about what she says publicly, at least before saying it. In 2001, she spoke about her own ethnic background as the proper basis on which to base her professional actions. Then, at a public forum in 2005 she opined that the federal appellate bench is where “policy is made.” These last remarks are even more troubling in the context of her accompanying comment that district court judges, by contrast, render decisions based on facts.

Such comments by a prospective Supreme Court justice legitimately demand careful probing and full explanation by the nominee herself. We are entitled to know whether such comments were isolated, off-hand remarks or perhaps merely a poorly considered attempt at humor. On the other hand, we are equally entitled to know whether they instead reflect a judicial viewpoint that would lead Sotomayor to set policy or to implement an agenda rather than interpret the law —- not an inconsequential distinction.

In Sotomayor’s legal opinions during her 18 years on the federal bench, the record is not one that lends itself to easy pigeon-holing; a fact neither unusual for a federal judge nor necessarily bad. If the mix of views reflects a judicial mentality premised on the need for careful consideration of the facts and context of each case, followed by a decision based on the law, this would indicate a positive judicial mind-set.

For example, Sotomayor’s 2002 conclusion that an abortion rights group could not challenge the so-called “Mexico City policy” prohibiting foreign organizations from performing abortions if they received U.S. funds, should sit well with conservatives. In that same year, the judge wrote a dissent in a New York case, in which she concluded that even if a municipal employee engaged in “patently offensive” speech, this fact alone would not allow the city to take adverse actions against them. In a mix of other civil rights cases, Sotomayor’s opinions seem to reflect a balancing of individual rights with government power.

She has shown herself willing to hold private corporations properly liable for violations of civil liberties when those entities are acting on behalf of the government. Distressingly, however, she seems disposed to give weight to foreign court views when considering rights of U.S. citizens domestically —- a judicial blind spot that already infects a number of American justices. She also seems to take a much more restrictive view of the Second Amendment than the current court majority.

Then we come to Sotomayor’s well-known 2008 dismissal of a suit by white firefighters in New Haven, Conn., who challenged a race-neutral test that was subsequently invalidated on racial grounds. Her ruling smacks of reverse discrimination.

In the next weeks, we must demand a thorough confirmation process that reveals which of these judicial philosophies truly reflect the core of Sotomayor’s beliefs. “Will the real Judge Sotomayor please stand up?”

Bob Barr, an Opinion columnist and Atlanta attorney, is a former member of Congress. His column appears Monday.