Sonia Sotomayor and Executive Power


Writing in the Washington Examiner, Gene Healy looks at Supreme Court nominee Sonia Sotomayor's record on presidential power:

in 2008's Doe v. Mukasey, she joined two colleagues to strike down provisions of the Patriot Act related to National Security Letters (NSL). NSLs allow the FBI to seize private customer information from ISPs and other businesses, and place the recipient under a "gag order," preventing disclosure of the demand.

Sotomayor signed onto an opinion holding that the gag order provisions violated the First Amendment, and that the government had the burden of proving that nondisclosure was necessary. "Under no circumstances," the panel wrote, "should the Judiciary become the handmaiden of the Executive."

Still before the Second Circuit is the case of Maher Arar, a Canadian citizen sent to Syria under the U.S. government's extraordinary rendition program and tortured there. At oral argument last December, Sotomayor questioned the administration's lawyer sharply: "So the minute the executive raises the specter of foreign policy, it is the government's position that that is a license to torture?"

Sotomayor is unlikely to participate in the final decision, but her line of questioning suggested skepticism toward broad claims of executive power. That record isn't much to go on, but it hints that Sotomayor won't be as pro-executive as recent GOP nominees.

Rest here. Healy on "The Cult of the Presidency" and the radical expansion of executive power here.