CNSNews.com - Sotomayor Has Sparse Record on Social Issues

By Marie Magleby, CNSNews.com

(CNSNews.com) - Since President Obama announced his nomination of Sonia Sotomayor as the newest Supreme Court Justice, her 2005 comment that the court of appeals is where policy is made has already raised eyebrows.
 
Our concern is judicial philosophy and this idea that courts set--court of appeals is where policy is made, that is fundamentally incorrect, Jay Sekulow, chief counsel of the American Center for Law and Justice, told CNSNews.com. Thats not the way our Constitution works.
 
Sotomayor shares the same judicial view of another frontrunner for the Supreme Court seat, Diane Wood, who wrote in the New York University Law Review in 2005 that a judges interpretation of the Constitution must grow with the times.
 
Since President Clinton appointed her to the U.S. Court of Appeals for the 2nd Circuit in 1998, Sotomayor has dealt only sporadically with issues such as abortion, privacy rights, racial discrimination and religious freedom.
 
Shes been reversed by the Supreme Court in a number of opinions, and shes also (issued) some opinions that are correct, Sekulow told CNSNews.com.
 
Although a poll conducted under the direction of Americans United for Life revealed that Americans thought abortion was a significant consideration in Obamas nomination for Supreme Court Justice, and despite Obamas pro-abortion stance, Sotomayor has not delivered a strong opinion on the matter from the bench.
 
In her only abortion-related court decision during her 11 years on the federal court of appeals, Center for Reproductive Law and Policy v. Bush, Sotomayor wrote, 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.
 
Sotomayor has also upheld the Mexico City Policy, which has since been overturned by the president. This policy prohibits federally funded non-governmental organizations from promoting abortion as a family planning measure in other countries.
 
In August 2008, Sotomayor affirmed the district court opinion in Maloney v. Cuomo, which ruled that the Constitution does not prohibit state governments from restricting the right to bear arms.

The district courts decision stated that the Second Amendment applies only to limitations the federal government seeks to impose on this right [to bear arms]. The decision specifically legitimized a New York ban on possessing a nunchaku, a martial arts tool consisting of two sticks linked by a rope or chain.
 
Sotomayor has also ruled in favor of religious freedom on several occasions. In Amandola v. Town of Babylon, she ruled that a faith-based group should be permitted to worship in public facilities. Prohibiting such activities, the courts decision stated, violated the churchs First Amendment rights.
 
During her tenure in a district court in 1994, Sotomayor also said that distinguishing between traditional and non-traditional religions was intolerable, thus allowing two prisoners to practice Santeria, a Caribbean religion that involves animal sacrifice and voodoo.
 
Sotomayor has dealt with privacy issues in a number of cases, two of them involving the Freedom of Information Act (FOIA).

In Tigue v. DOJ, she decided against ordering the Department of Justice to honor a FOIA request because it would unreasonably hamper agencies in their decision-making. In Wood v. FBI, she said the FOIA request in question was an unwarranted invasion of privacy of an FBI agent.

In another case, Leventhal v. Knapek, Sotomayor ruled that an employer may have authority, under certain conditions, to tap into the privacy of an employee.
 
Without a reasonable expectation of privacy, a workplace search by a public employer will not violate the Fourth Amendment, regardless of the searchs nature and scope, the decision said. The workplace conditions can be such that an employees expectation of privacy in a certain area is diminished.
 
Sotomayors voting record may not stir up as much controversy as some of the other candidates who were on President Obamas short list, but her nomination has raised some concern.
 
But as a lower federal court judge, we would expect her to follow Supreme Court precedent, Bruce Hauskenecht, judicial analyst for the Colorado Springs-based Focus on the Family, told CNSNews.com.
 
The question is--the $64,000 question is, Will she continue to do that as Supreme Court justice, where she actually has the authority to overturn some of those past precendents?
 
Others, including Sekulow, have raised similar concerns.
 
This nomination raises serious questions about the issue of legislating from the bench, Sekulow said in a written statement.
 
Were hopeful that the members of the Senate will ask the tough questions about her judicial philosophy and temperament when the confirmation hearings get underway this summer.  The American people deserve to fully understand what kind of Justice is being nominated to serve on the nations highest court for decades to come, he said.
 
But if you take the view that the Constitution is whatever a judge says it is, and that courts set policy, you can imagine when you go through her literally thousands of opinions, theres going to be some very troubling aspects, Sekulow told CNSNews.com.