Sotomayor emerging

In these days leading up to her confirmation hearings in the Senate, Judge Sonia Sotomayor is being researched, analyzed, scrutinized, and read every which way.

Here’s a reading that tells us some interesting things. The lede alone is captivating, a police bust case that landed in her court. She ruled in the minority in that case, but expressed herself in the dissent.

Many reviews of Sotomayor’s appellate opinions have found them dry and technocratic. “[T]hey reveal no larger vision, seldom appeal to history and consistently avoid quotable language. Judge Sotomayor’s decisions are, instead, almost always technical, incremental, and exhaustive,” wrote Adam Liptak in The New York Times. After an initial reading of her majority opinions, I came to a similar conclusion.

But it’s her dissent that reveals more passion, as it did in that police bust case.

It is filled with blistering language. She called the majority’s holding “unprecedented” and “extraordinary.” Ridiculing the majority’s characterization of the officers’ behavior as a polite request to step outside for the purpose of a “limited investigation,” she chastised her colleagues for failing to recognize the “obvious element of coercion” that reasonable people would feel in being confronted in their homes by officers pointing guns at them through an open door.

(Remember Elian Gonzalez?)

And Sotomayor was persuasive on the substance as well. In 2004, in an opinion written by Judge Richard Posner and joined by one of Obama’s Supreme Court runners-up, Diane Wood, the U.S. Court of Appeals for the Seventh Circuit agreed with Sotomayor’s dissenting position that allowing the cops to seize anything they see through a door that opens in response to their knock would undermine the constitutional protections for the home.

(How did that work out for the relatives of Elian Gonzalez?)

Apparently, her dissenting opinions show some flexibility, and that worries both liberals and conservatives (though mostly conservatives).

It’s in these dissents that a different view of Sotomayor emerges: a judge who can be both crusading and open-minded.

In a speech in Puerto Rico in 1994, the same one in which she first said she hoped that a “wise woman” would reach a “better conclusion” than a male judge, Sotomayor also said, “I have struggled with defining my judicial philosophy.” No single school of thought, she said, fit comfortably. “I do not believe that I have failed in my endeavor because I do not have opinions or approaches but only because I am not sure whether those opinions and approaches merit my continuing them.” Fifteen years later, Sotomayor still hasn’t settled into a consistent judicial philosophy, which can either be viewed as a lack of constitutional vision or a sign of pragmatism. It certainly can make her majority opinions hard to predict.

It says she is “methodologically as well as ideologically eclectic”…

She samples from different judicial philosophies in different cases. Sometimes Sotomayor sounds like a textualist in the Scalia style, and sometimes she sounds as enthusiastic as Justices Ginsburg and Breyer in her devotion to international law and the living constitution. And what makes her dissents so interesting is that sometimes, she’ll use Scalia-like methods to achieve results that Scalia would embrace, but that in other instances would cause his head to explode.

If she is confirmed, those closed door deliberations on the Court will be very interesting, especially between those two.