Not the Supreme Court nominee we wanted…

The giant judicial news from yesterday, of course, was President Barack Obama’s nomination of Judge Sonia Sotomayor to be the next Associate Justice of the Supreme Court of the United States.

And, while Judge Sotomayor’s personal story — being raised by a single mother in the Bronx to graduating from Princeton University and Yale Law School so she could become a lawyer who has served as a New York prosecutor, a corporate litigator, a federal trial court judge, and a federal appeals court judge — is, as President Obama said, “inspiring,” providing inspiration is not the job of a justice who sits on the highest court in the land.  Rather, as one of nine justices who serve as the final arbiters of what federal law, including our Constitution, means, if Judge Sotomayor is confirmed to replace Justice David Souter on the Supreme Court, then her jurisprudential views will constitute one vote of nine as to how federal law applies and what constitutional rights cannot be infringed.

This is why the Center for Competitive Politics is concerned about Judge Sotomayor’s nomination — because in the past, as a judge interpreting the law, she has failed to protect the very foundation of every American’s Dream, namely, that each citizen will able to fully and freely participate in our political process.

Indeed, it’s ironic but troubling that, if we elected federal judges — including those on the Supreme Court — and Judge Sotomayor had her way (as indicated by her vote in a landmark campaign finance challenge), the consequence could be a lot less free and open political discussion about whether Judge Sotomayor should sit on the highest court in the land.

That’s because, in a case that was later reversed by the Supreme Court as Randall v. Sorrell, Judge Sotomayor voted to leave intact a ruling that not only upheld extremely low candidate contribution limits imposed by the State of Vermont, but also more than suggested that candidate expenditure limits might be constitutional, too, despite the First Amendment.

In other words, Judge Sotomayor voted to take the position that the government could restrict how much candidates could communicate with voters in two ways: (1) by allowing the government to strictly limit the amount of money each candidate could accept from supporters, and (2) by suggesting the government could even strictly limit the amount of money a candidate could spend regardless of whether that candidate could lawfully raise more money under the already low contribution limits.

Of course, the resulting limitation on political speech under either formula is obvious — lower contribution limits necessarily mean that candidates can receive less money to use to speak with voters, and any expenditure limits mean that candidates aren’t allowed to spend any more than a certain amount of money to speak with voters.

But what is even more troubling than Judge Sotomayor’s vote to leave such a speech-restrictive ruling intact, is that she apparently didn’t believe the case raised any constitutional question that was — in the words of the opinion she joined — “itself ‘exceptionally’ important.”

Instead, despite the fact that the decision deeply divided the entire U.S. Court of Appeals for the Second Circuit, and raised obviously important First Amendment issues about the extent to which the government could limit contributions to candidates and expenditures by candidates, Judge Sotomayor joined an opinion that said such serious political speech and association concerns could wait.

Specifically, in the opinion she joined denying rehearing, Judge Sotomayor thought it best to put on hold the First Amendment rights of Vermonters, which were already at stake, and simply leave “the doors to this Court … open to a [further] challenge” if and when “the Supreme Court does not grant certiorari … or otherwise resolve the questions raised.”  That’s not a recipe for protecting the fundamental political speech and association rights that have been, and must continue to be, the foundation of our competitive political system that ensures America is a country owned and operated by “We the People.”

As an additional note, when we here at CCP took a closer look at Judge Sotomayor’s legal experience after her nomination yesterday, the threat she poses to the First Amendment political speech and association rights of all Americans became a little clearer because of one of her early appointments.  In 1988, then in private practice, Judge Sotomayor was appointed by the Mayor of New York City to serve as a member of the New York City Campaign Finance Board (CFB).

According to the Board’s website, “The CFB has three primary mandates: administering the Campaign Finance Program, publishing the Voter Guide, and overseeing the Debate Program.”  In other words, from 1988-1992, Judge Sotomayor enforced New York City’s campaign finance laws, and generally was one of five government officials tasked with regulating New York City elections.

At CCP, we admit that we know very little about Judge Sotomayor’s actions while sitting on the Board, but we can only guess that such an experience either led to or only reinforced the view that the government can, and should, exercise a great deal of control over the electoral process, and more specifically over the speech permitted by candidates and citizens during campaigns.  Indeed, that Judge Sotomayor holds such a view that elections can be government controlled seems to be confirmed by the position she took with respect to Vermont’s strict contribution and expenditure limits later as a judge on the U.S. Court of Appeals for the Second Circuit.

We hold out hope that, if confirmed to a lifetime seat on the highest court in the land, then Justice Sotomayor will weigh the First Amendment rights of candidates, concerned citizens, and voters much more heavily in her judicial thinking.  But if past is prologue, then Americans can be rightfully worried that their free political speech and association might not have a judicial advocate in the person who appears right now to be the next Associate Justice of the Supreme Court.

The Center for Competitive Politics is now the Institute for Free Speech.