Sotomayor's trail of opinions paints a picture of a fair-minded, incisive legal scholar who is unafraid to stake out unpopular but legally meritorious positions. Right-wingers are going to oppose her nomination with full force - we would be foolish to do it for them.

President Obama’s nomination of Sonia Sotomayor for the

Supreme Court should shock no one. What

is surprising is the relative lack of information about Sotomayor and one of

the most perennially controversial Constitutional issues: abortion rights.

In her time on the bench, Sotomayor’s only major

abortion-related case was Center for Reproductive Law and Policy v. Bush – and her conclusion isn’t

going to warm the hearts of reproductive rights activists. In that case, the

Center for Reproductive Law and Policy (now the Center for Reproductive Rights)

challenged the Global Gag Rule, a policy which barred U.S. money from funding

any organization abroad that so much as mentioned abortion as an option or

advocated for abortion rights. The

Center for Reproductive Law and Policy (CRLP) argued that the Gag Rule violated

their First Amendment, Equal Protection and Due Process rights. On the First Amendment claim, CRLP argued

that the Gag Rule prevented the organization from fully communicating with

international non-governmental organizations; if non-U.S.-based NGOs worked

with CRLP to advocate for abortion rights in their own countries, they would

lose U.S. funding. Thus, the Gag Rule’s

speech-chilling effect prevented CRLP, a domestic organization, from carrying

out their mission, thereby curtailing their freedoms of speech and

association. CRLP also argued that the

Gag Rule violated their Fifth Amendment Equal Protection rights by privileging

anti-abortion views and putting the CRLP on unequal footing when it comes to

domestic competition with anti-choice organizations, and violated CRLP’s Due

Process rights by, as Sotomayor summarized in her opinion, "failing to give clear notice of what speech and

activities they prohibit and by encouraging arbitrary and discriminatory

enforcement."

The Second Circuit ruled against CRLP, and Sotomayor was the

judge who penned the decision. She held

that that a previous case — Planned

Parenthood Federation of America,

Inc. v. Agency for International Development – "not only controls

this case conceptually; it presented the same issue." In that case:

This

Court rejected the challenge on the merits, finding "no constitutional

rights implicated" by the Policy and the Standard Clause. Planned

Parenthood, 915 F.2d at 66. The Court reasoned that the domestic NGOs

remained free to use their own funds to pursue abortion-related activities in

foreign countries and that "[t]he harm alleged in the complaint is the

result of choices made by foreign NGOs to take AID’s money rather than engage

in non-AID funded cooperative efforts with plaintiffs-appellants." Id. at 64.

"Such an incidental effect" on the activities of the domestic NGOs,

the Court held, did not rise to the level of a constitutional violation. Id. The Court

concluded that "the Standard Clause does not prohibit

plaintiffs-appellants from exercising their first amendment rights." Id. Moreover, the

Court explained that whatever one might think of the Mexico City Policy,

"the wisdom of, and motivation behind, this policy are not justiciable

issues," and the Court found the restrictions to be rationally related to

the "otherwise nonjusticiable decision limiting the class of beneficiaries

of foreign aid." Id.

at 64-65. Having rejected plaintiffs’ claims on the merits, this Court declined

to address the question of whether plaintiffs had standing under Article III. Id. at 66. Sex. Abortion. Parenthood. Power. The latest news, delivered straight to your inbox. SUBSCRIBE

The First

Amendment claim was dismissed because the issue had already been decided in the Planned Parenthood case. The Due Process claim was dismissed for lack

of prudential standing, because CRLP’s complaint did not fall within the "zone

of interests" protected by the Due Process Clause – it was a third party (the

foreign NGOs), not CRLP, whose rights are constitutionally unclear because of

the Gag Rule. The Equal Protection claim

was dismissed because the Gag Rule’s privileging of anti-abortion views did not

infringe upon a fundamental Constitutional right or target a suspect class

(legalese for a classification of groups which have historically been subject

to discrimination, and therefore receive increased scrutiny under the Equal

Protection Clause); further, Sotomayor pointed out that "the Supreme Court has

made clear that the government is free to favor the anti-abortion position over

the pro-choice position, and can do so with public funds."

The Center for

Reproductive Law and Policy lost the case, and the Global Gag Rule continued to

compromise women’s health around the globe until Barack Obama took office.

That outcome

disheartened feminists, liberals and reproductive justice advocates, and I wish

it had been decided differently. But the

decision wasn’t necessarily a bad one – and it absolutely should not stop

progressive women’s rights activists from supporting her nomination.

If anything, CRLP v. Bush highlights precisely why

Sotomayor should, in a sane world, be an easy confirmation: She sticks to the

rule of law, respects precedent and writes thoughtful and reasoned

opinions. She was nominated to the

federal district court by George H.W. Bush.

Her decisions are left-leaning insofar as she generally seeks to protect

Constitutional rights by supporting religious freedom and free speech, and she

often sides with the plaintiffs in discrimination cases – hardly "activist"

material. But she’s not a liberal dream

by any stretch. She has some bad First

Amendment cases to her name (Doninger

v. Niehoff, where she sided with a school that disqualified a student

from running for senior class secretary after the student posted a vulgar

school-related message on her blog), and some bad Fourth Amendment ones (United

States v. Howard, where she held it was constitutional for state

troopers to entice suspects away from their cars in order to allow other

troopers to search the vehicles for drugs).

Those cases, though, are the exceptions rather than the rule; generally,

Sotomayor follows a fairly consistent Constitutional philosophy, and errs on

the side of maintaining rather than limiting rights.

Given her

history, it’s hard to grasp why conservatives brand her "a liberal

activist of the first order who thinks her own personal political agenda is

more important than the law as written," as Wendy

E. Long, counsel to the right-wing Judicial Confirmation Network, put it. Sotomayor has clearly and consistently

deferred to "the law as written" — she’s considerably less activist and

dogmatic than Bush’s two Supreme Court appointees, John Roberts and Samual

Alito. Unfortunately for conservatives,

the law as written does affirm the rights to speak without governmental

intervention, to practice your religion freely, to be free from state-sponsored

religious exercises, to maintain your privacy, and to retain certain

protections even if you are a suspected criminal or a criminal defendant.

Sotomayor has embraced free speech rights even where the

speech was abhorrent (an NYPD officer mailing anonymous bigoted and racist materials

to charities requesting donations); stood up for victims of race, gender, age

and disability discrimination; and dissented

when the Second Circuit rejected a challenge to the New York law that

disenfranchises convicted felons. She is

by most accounts an intellectually gifted, hard-working and highly experienced

judge. So while there is unfortunately

little to go on with regard to her views on abortion rights, we know that

Sotomayor is a smart, capable left-leaning moderate. She’s not going to undo

years of a conservative court alone but she is highly qualified and undoubtedly

progressive.

Sotomayor would not have been my first choice, primarily

because my political leanings are far to the left of her legal theory. But I’ll be supporting her whole-heartedly. Her trail of opinions paints a picture of a

fair-minded, incisive legal scholar who is unafraid to stake out unpopular but

legally meritorious positions.

Right-wingers are going to oppose her nomination with full force – we

would be foolish to do it for them.