Five ways Obama's Supreme Court nominee could change U.S. foreign policy.
The issue: One of the fiercest debates among legal scholars today is the degree to which it is proper for U.S. judges to cite foreign case law in making decisions. Conservatives, notably Supreme Court Justice Antonin Scalia, tend to take the view that international agreements and laws should not apply, as they derive from different constitutional systems, while liberals, notably Justice Ruth Bader Ginsburg, tend to argue that a more "internationalist" legal philosophy is needed.
Sotomayor's record: The 2000 case Croll v. Croll involved the application of the 1980 Hague Convention on the Civil Aspects of International Child Abduction. Mrs. Croll had removed her child from Hong Kong to the United States in violation of a Hong Kong court's joint custody order and Mr. Croll filed a petition under the Hague Convention seeking the child's return. The Second Circuit Court of Appeals, where Sotomayor currently sits, sided with the mother, ruling that the convention did not give Mr. Croll the right to determine the child's place of residence.
Sotomayor dissented, not only arguing for a more expansive interpretation of the treaty, but also referring to foreign case law to make her argument. "Sotomayor went through the foreign cases quite extensively and found that the view she was taking was consistent with what had been found by foreign courts. She paid a lot more attention to them than the majority had," said attorney and SCOTUSBlog co-founder Amy Howe.
This suggests that Sotomayor sides with those who believe that foreign case law should at least be considered when applicable. Howe, whose firm is currently arguing a largely identical case before the Supreme Court, is thrilled. "We think she's brilliant," she said.
It is now asked whether Sonia Sotomayor has empathy for Frank Ricci.
It's a question larger than the first Latina nominated to the Supreme Court, larger than the first black president who selected her and larger than the case before the high court of a firefighter who did not get a promotion because he was white and male.
Three personal narratives interlocked as Obama nominated Judge Sotomayor on Tuesday. Sotomayor, if confirmed, would be the first Latina and only the third woman of the 111 justices to serve on the high court.
Sotomayor is a legal heavyweight. But she was also chosen, in part, because of her color and gender.
In an odd twist of fate, the first Latina nominee now finds herself cast not as the discriminated but the discriminator.
Sotomayor sits on the appellate court that decided against Frank Ricci, one of the more significant affirmative action cases before the Supreme Court in decades. The case evokes issues of discrimination. It highlights whether we can see white men as victims, a half-century after affirmative action was first implemented.
It was Obama who emphasized empathy as he discussed the makeup of his ideal Supreme Court nominee. And it was also Obama, in his acclaimed race speech during the presidential campaign, who noted that when whites hear "that an African-American is getting an advantage in landing a good job or a spot in a good college because of an injustice that they themselves never committed ... resentment builds over time."
That resentment is captured by the Ricci case. Ricci has brought affirmative action back into the political debate at a time of towering firsts. It's these same firsts that bring culturally uncomfortable questions forward of affirmative action's role in the era of Obama ....
In 2003, the New Haven fire department had several vacancies for new lieutenants and captains. Candidates for promotion had to take a written and oral test. Candidates had three months to prepare. Ricci gave up a second job to study. Because he is dyslexic, Ricci paid an acquaintance more than $1,000 to read textbooks onto audiotapes. He studied 8 to 13 hours a day. And he succeeded. Ricci's exam ranked sixth among the 77 candidates who took the test.
But New Haven's civil service board ruled that not enough minorities earned a qualifying score. The city is more than a third black. None of the 19 African-American firefighters who took the exam earned a sufficient score. The city tossed out the exam. No promotions were given. Ricci and 17 other white firefighters, including one Hispanic, sued New Haven for discrimination.
In 2006, a Federal District Court ruled that the city had not discriminated against the white firefighters. Judge Janet Bond Arterton argued that since "the result was the same for all because the test results were discarded and nobody was promoted," no harm was done.
But in reality, the decision meant that Ricci and other qualified candidates were denied promotions because of the color of their skin. This is the essence of discrimination. The exclusion of a person from earned advancement because of his or her race. The Ricci case exemplifies decades of faulty policy that mistook equal opportunity for equal outcome.
When the case came before the three-judge panel of the New York federal appeals court, Arterton's ruling was upheld in an unsigned and, as the New York Times described it, "unusually terse decision." One of the judges who upheld the ruling was Sotomayor.
Judge Jose Cabranes' dissenting opinion noted that the ruling "lacks a clear statement of either the claims raised by the plaintiffs or the issues on appeal" and "contains no reference whatsoever to the constitutional claims at the core of this case," concluding that the "perfunctory" actions of the majority in their decision "rests uneasily with the weighty issues presented by this appeal."
As Slate's Emily Bazelon wrote, "If Sotomayor and her colleagues were trying to shield the case from Supreme Court review, her punt had the opposite effect. It drew Cabranes' ire, and he hung a big red flag on the case, which the Supreme Court grabbed."
In April, the Supreme Court took up the case in oral argument. The ruling is expected in June. Most legal scholars expect Ricci to prevail. But the debate over affirmative action will continue.
