In general, Judge Sotomayor’s judicial opinions reflect a detailed attention to the facts and a close regard for precedent. They are carefully reasoned but do not engage in broad discussions about constitutional philosophy or competing modes of constitutional interpretation. Because Judge Sotomayor's opinions are so fact-based and rarely stray far from well-established precedents, they are often difficult to characterize as either liberal or conservative. It is worth noting, however, that Judge Sotomayor has not written about many of the hot button topics that often dominate public discussions about the Supreme Court. Despite a lengthy judicial tenure, her opinions have not directly addressed a wide range of issues that frequently appear on the Supreme Court's docket, including abortion, gay rights, presidential power, and the death penalty.
-- ACLU Report on Sotomayor's Rulings
This is telling. It suggests that as a political matter, Judge Sotomayor is an ideal Obama judge. Obama, at least as a matter of message, thus far tends to try to avoid controversy, to take an approach that avoids both Scylla and Charybdis. Thus, a hard to pin down judge is right up his alley. So is one who has thus far avoided some hot button topics, in part because her circuit has few chances to decide some of these matters. And, with all the controversy over "judicial activism," Judge Sotomayor's apparent approach should have bipartisan appeal. Cf. Judge Diane Wood, who has a reputation (real or feigned) of being more of a "liberal Scalia."
As a resource for some who are worried about her alleged conservative leanings, I have already discussed some of her more liberal decisions. Some rather not have such a question mark, particularly one who on certain issues appears to be too much like her old prosecutorial self. You take the hand you are dealt. Anyway, the ACLU report provides a mixed picture on this front, suggesting a centrist who in various cases leans left. This is what one expected, more or less, even if you do not trust the source of this report. [The report is not a complete look at her record; it "summarizes the civil liberties and civil rights record" of the judge.]
For instance, the report notes that Judge Sotomayor has shown concern for the privacy of the person and the home, dissenting from opinions that did not adequately protect such things. OTOH, when dealing with searches and seizures outside the home, she was more friendly to the government ... in a few cases supporting a path that later was upheld by the conservatives on the Supreme Court. Thus, at times, when there was wiggle room, she took the conservative path.
She was sympathetic to right to counsel claims, but had a mixture record in granting them ... for instance, being sure in one case to underline how narrow the ruling was for the government, and being sure to underline the importance of the right as a whole. She was supportive of discrimination claims, but if she felt them weak, did not support them. She had an overall "sympathetic and expansive view of the right of religious exercise."
One of the few national security rulings she joined regarding "national security letters," which amount to an end around to the Fourth Amendment's judicial check. The summary warrants quoting in full:
Judge Sotomayor also joined an opinion written by Judge Newman in Doe v. Mukasey, 549 F.3d 861 (2d Cir. 2008). Plaintiff, represented by the ACLU National Security Project, brought a First Amendment challenge to the constitutionality of statutes governing the issuance and judicial review of National Security Letters. Id. After articulating narrowing constructions of key statutory terms, id. at 874-76, the court went on to find constitutional violations even after the narrowing interpretations. In particular, it found the statute unconstitutional insofar as it required recipients of National Security Letters to initiate litigation challenging gag orders and imposed an overly-deferential standard for judicial review. Interestingly, the opinion noted that the “panel is not in agreement as to” what standard of First Amendment review to apply. Id. at 878. It ultimately determined that it would reach the same outcome whether it applied strict scrutiny or a less stringent standard, and it provides no clues as to which analysis each judge believed was appropriate. Id.
The report also cites Judge Sotomayor's thoughts as to international law, the footnote providing a link to audio of a speech she gave on the subject (her remarks are prefaced with a greeting in Spanish -- the speech given in Puerto Rico -- but the main speech is in English). She provides a useful middle of the road approach:
Judge Sotomayor elaborated on her views about international law in a speech she delivered this spring in Puerto Rico.13 She began the speech by describing what she called a misunderstanding about the “use” of foreign and international law in U.S. courts.“We don’t use foreign or international law,” she said. “We consider the ideas that are suggested by international and foreign law.” She then added: “If the idea has validity . . . you will adopt its reasoning. If it doesn't fit, you won’t use it.”
She discussed how foreign law might be relevant when interpreting certain contracts or whatnot, but even then if it is against public policy, it would be ignored. She underlined that even treaties are not "self-executing," requiring enabling legislation to be more than morally binding. Still, she supported Justice Ginsburg's approach over Scalia/Thomas (citing each by name) that the judges should be open to foreign ideas, while not feeling bound by them. Likewise, she criticized those who do not explain why they support a particular idea, a path that only leads to public confusion on how "foreign law" is actually used.
As with her remarks about how her personal experiences influenced her judging, the speech suggested Sotomayor's reasonable, real world approach to judging. The report as a whole helps those who want to look past the public controversy and to judge on her record.