Editor's Notebook
Urban C. Lehner Vice President, Editorial

Friday 06/05/09

What Sotomayor Means for Ag

The significance for agriculture of Sonia Sotomayor isn't her ideology. Like retiring Justice David Souter, Obama's Supreme Court nominee is a liberal; as she's Souter's replacement, the court's balance won't change.

Where Sotomayor may differ is in her ability to influence the court's deliberations. Unlike the laconic Souter, Sotomayor is known as a tenacious advocate of her views -- but also as one who can sometimes rub colleagues the wrong way.

Barring some sensational revelation, Sotomayor will win Senate confirmation. She has the right qualifications -- summa cum laude graduate of Princeton, editor of the law review at Yale, experience as a prosecutor and corporate lawyer, six years as a federal district judge, 11 years as a federal appeals judge.

She performed well in previous confirmation hearings and is likely to again this time. President Obama's party controls the Senate. Republican senators will press her on a range of issues but won't haul out heavy artillery; like the Democratic president who nominated her, they covet the Hispanic vote in future elections.

In the end, following tradition, some conservative senators will defer to the president and vote for a nominee whose ideology they oppose. There's also a tradition of approving court nominees whose backgrounds reflect the country's diversity. It reconfirms our self-image as a meritocratic society when a Hispanic woman raised in a New York housing project rises to one of government's highest positions, just as it did when a black man from a poor Georgia family -- Clarence Thomas -- joined the court. Conservatives will console themselves that Sotomayor is one of the least liberal court candidates on Obama's list.

Whether her ascendance is good for agriculture is a matter for debate. As you might expect of a judge in New York, the 700-odd opinions she has written aren't exactly obsessed with agriculture. She did touch on property rights and commercial issues, but experts disagree on what those opinions reveal.

Some say her record is mixed. "In a 2006 property rights case, she upheld a town's effort to take private property for redevelopment," the New York Times reported. "But in 2002, she supported property rights in a case involving impounded cars. A 2006 case in which she allowed class-action lawsuits against Merrill Lynch suggested to some business lawyers that she was amenable to lawsuits against big corporations. But in a 2006 securities case against the same company, she voted with the majority in refusing to allow a class to be formed."

One of her former law clerks has been quoted as calling her "a rule-bound pragmatist -- very geared toward determining what the right answer is and what the law dictates, but her general approach is, unsurprisingly, influenced by her unique background."

Other experts, like Iowa State University ag-law professor Roger McEowen, say Sotomayor "has little regard for private property rights as a fundamental constitutional right. That's a huge issue for agriculture and rural property owners." These experts cite in particular a Sotomayor ruling that the Environmental Protection Agency shouldn't have used cost-benefit analysis in protecting fish from power plants' water-intake structures. (The Supreme Court overruled her six-to-three.)

Whichever view of her is correct, she's clearly to the left of center. She would be one of four justices deemed liberals, the others being Ruth Bader Ginsburg, John Paul Stevens and Stephen Breyer. Balancing them are four conservatives -- Clarence Thomas, Antonin Scalia, Samuel Alito and chief justice John Roberts. Justice Anthony Kennedy, votes sometimes with one bloc, sometimes the other.

Would Sotomayor be more persuasive with Kennedy -- and, perhaps, even the conservative justices -- than was Souter? Experts agree she'd be more outspoken; they differ on whether she'd be more effective.

In a Slate.com article, Emily Bazelon recounts a case in which Sotomayor was initially outvoted, two-to-one, but kept arguing and after many months convinced both other judges to switch sides. "I'm consistently hearing that Sotomayor is forceful and assertive and plays well with her colleagues," Bazelon wrote.

Jeffrey Rosen, a law professor at George Washington University, hears something different. In a Rosen article in the New Republic, a former clerk to another judge on Sotomayor's court says she is "domineering during oral arguments" to the point that "During one argument, an elderly judicial colleague is said to have leaned over and said, 'Will you please stop talking and let them [the lawyers] talk?'"

Who is right -- Bazelon or Rosen? Does Sonia Sotomayor have the ability to win friends and influence Supreme Court colleagues? On that hangs many a future court decision.

**

Posted at 6:17AM CDT 06/05/09 by Urban C Lehner
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