Is Sotomayor a judicial activist?

How will conservatives make the case against Sonia Sotomayor? Confirmation hearings likely won’t begin until July, so the crucial question for both sides is how Sotomayor will be defined in the intervening weeks.

The common refrain against liberal judges is that they are “judicial activists” who want to make law from the bench.

That’s likely to be at least part of the case against Sotomayor. Here’s how I see the conservative case unfolding.

As Jeremy mentioned, Sotomayor’s most controversial decision is Ricci v. DeStefano, an affirmative action case in which white firefighters sued the city of New Haven for promoting minority firefighters who had scored lower than the white plaintiffs on a qualifying test.

Sotomayor, as part of a three judge panel, upheld a lower court decision in favor of the defendents. She then went on to join a 7-6 decision opposing an “en banc rehearing” of the case–a maneuver used to bring a case before the entire court.

Conservatives have a problem not just with Sotomayor’s position in the case but also with the scant attention the court paid to the weighty constitutional issues raised by the plaintiffs.

In upholding the lower court ruling, Sotomayor and her colleagues on the three judge panel dispensed with the substantive dispute in just a single paragraph.

When the 13-judge panel decided against an “en banc rehearing,” Justice Jose Cabranes, a Clinton appointee, dissented vociferously, criticizing Sotomayor’s three-judge panel for not “grappling with significant constitutional and statutory claims of first impression[.]” He added that the

opinion…lacks a clear statement of either the claims raised by the plaintiffs or the issues on appeal. Indeed, the opinion contains no reference whatsoever to the constitutional claims at he core of this case, and a casual reader of the opinion could be excused for wondering whether a learning disability played at least as much a role in this case as the alleged racial discrimination.

To conservatives (see here, for example), this signifies that Sotomayor put her preferred outcome ahead of the law–ahead, even, of a willingness to publicly air the issue.

Two public comments Sotomayor has made will give fuel to conservatives’ charge regarding Ricci. On a panel in 2005, Sotomayor acknowledged/argued that the appeals court is “where policy is made.” She quickly backtracked: “And I know, I know this is on tape and I should never say that because we don’t make law.” To conservatives, this looks like Sotomayor is eager to legislate from the bench.

Sotomayor’s defenders would likely argue she’s just acknowledging a fact: appeals court decisions often define the boundaries of what policies are constitutional, and there’s no way to avoid that.

Finally, last week the New York Times dug up a speech Sotomayor delivered in 2002 in which she acknowledged, referring to judges, that “our gender and national origins may and will make a difference in our judging.”

In the speech, Sotomayor acknowledged but disagreed with former Justice Sandra Day O’Connor’s statement that “a wise old man and wise old woman will reach the same conclusion in deciding cases.”

“I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life,” Sotomayor argued.

Conservatives see in these statements a judge who will consider more than just the letter of the law. Again, liberals would reply that Sotomayor is simply acknowledging the obvious: no judge, they argue, can truly separate their personal experiences from their decision making process.

Without judging the merits of the judicial activism charge, you can see in the facts above the seeds of a conservative case against Sotomayor. How effectively the White House can bat down these charges will determine how swiftly Sotomayor will be confirmed.