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.

Comments

[alan]

While it is not much to go on, it is certainly the best news I have heard about this nomination.

Careerist oriented jurist usually spend years differing to the executive branch before their names are considered. Perhaps it is because the policies in question were carried out for a Republican regime that the current administration has let this skide.

[mike]

What makes you believe she won't believe in executive power when it's her guy wielding the axe?

[Sot-Weed Factor]

"Perhaps it is because the policies in question were carried out for a Republican regime that the current administration has let this skide."

Perhaps it is because the policies in question were carried out for a Republican regime that she decided the case the way she did. Do we have any indication of her views on the exercise of executive power in domestic contexts, say, to place unsecured union creditors ahead of secured creditors?

[KD]

"...but it hints that Sotomayor won't be as pro-executive as recent GOP nominees."

Wait a minute... a judge nominated by GOP is seen to be "pro-executive" when the "executive" who nominated him/her is GOP...

I'm inclined to assume it likely that a judge nominated by a Dem "executive" is quite likely to be "pro-executive" as long as the "executive" who nominated them is a Dem???

From what appears to be her take on things, this, to me merely hints that she won't be pro-executive when/if the executive becomes GOP.

So posters above me have said it in different ways - so it goes - I wrote this before I hit preview and I'm gonna submit it anyway...

[PapayaSF]

She's a big-government leftie, so presidential power used to defend the country against foreign threats is one of the few types of presidential power she'll be against.

[PapayaSF]

Oops, make that last "one of the few types of government power."

[Sean W. Malone]

Context matters... It's all great to say "executive power" as if there's no difference to most people which thug is the executive.

[ChrisO]

Executive power springs almost entirely from legislative power. If she is truly skeptical of executive power, perhaps she ought to discover the Commerce Clause and also come out against Chevron deference. I'm not going to hold my breath.

[booya]

there are strange goings on afoot in this nomination process ... suddenly, Limbaugh has changed his tune and now some libertarians are taking a second look at her. Realistically, the best one can hope for is that she will be unpredictably centrist, ala justice Kennedy or O' Conner ... she has demonstrated a center-left jurisprudence, which is why some on the right seem more relaxed, as opposed to a hard leftist.

[ChrisO]

Well, there's only so much Republicans could do to oppose Sotomayor's confirmation anyway. A filibuster is unlikely, and the sex/race issues involved make hardline opposition a politically unstable proposition.

As a GOP strategist, you'd probably have to conclude there are better situations to use up your political ammunition down the road.

[booya]

ChrisO ... I agree. Politically speaking, Repubs would be wise to keep their powder dry on this one. They need to save their energy for the impending fight over government run health care. If there is to be a summer battle, I'd rather it be done there instead of on a nominee that will not really change the balance of power in SCOTUS.

[Paul]

Aren't we in an "exectutive power good" mode right now?

[capital L]

I don't doubt that a wise African American executive, with the richness of his expierience should be granted more leniancy in his actions.

[Norbert Sluzewski of Naked Lib]

In our system of government, a supreme court justice is selected for a life term. There are nine supreme court justices, each yielding great power over the manner in which laws are interpreted in our country. We typically spend over a year and a half choosing our president. We spend months selecting our senators and congressmen. Compared to a supreme court justice, each of these is appointed for a relatively short term.

Why then do we rush to confirm this candidate through the confirmation process? Senate Judiciary Committee Chairman Pat Leahy is forging ahead to complete the process by July 13, in total 2 months since her candidacy was announced as the president's pick.

Let's respect the gravity of the decision that is about to be made and give all the time to fully review judge Sotomayor's qualification, judicial demeanor and temperament. Once made it can not be un-made and there is no 30-day satisfaction guarantee if later events or discoveries make us question the decision.