Sotomayor & Adoptive Couple

You need not be from the Bronx to read Joan Biskupic's latest on Sonia Sotomayor -- aimed to be about more than Sotomayor but also a cultural study for which she is a representative -- but it helps. For instance, one vignette involves the 5 train, which I took but the other day. She went to Cardinal Spellman HS, which was on my short list. The Puerto Rican / projects angle is not my experience, but you cannot have anything. Still, my sister-in-law has both, so there's that.  

Anyway, found her Scalia and O'Connor biographies serviceable if a bit bland at times, perhaps my familiarity with the subject matter raises my standards, but the book is pretty good at first glance. The conclusion, though not using the name, suggests Sotomayor will be a sort of "William O. Douglas" justice -- concerned more about being right than convincing others, willing to challenge others and (though he was more shy) having a large role off the Court (he had political inclinations and later was a world traveling author, she takes being an ambassador to the public very seriously, especially regarding children).  I think there is a place for that.

An example of her style was Adoptive Couple v. Baby Girl, a tragic case involving the adoption of a Native American child given federal policy that gives a special role to protect Native American culture.  The Wiki entry provides important background (with links -- a key value since the entry itself at times can be iffy).  As with many child custody matters that are subject to extended litigation, and many that are not, there was no easy answers here to ensure the best interests of the child.  She was strongly on the side of the birth father, who eventually challenged the adoption, and she made it know by strong questioning. To the degree that Roberts and Scalia each once told her to the advocates finish what they were saying.  Sotomayor seems to have toned down her questioning a tad lately.

Scalia (who joined her dissent along with Ginsburg and Kagan) at one point noted that we aren't always strictly concerned with that -- or we would arguably have a need to take away many parental rights. Still, even putting that aside, the case was messy.  Note how the case was decided 5-4 with one of the majority (Thomas) saying both interpretations of the statute were reasonable, but constitutional avoidance (he has a more limited view of the Indian Commerce Clause) put a thumb on the scales. Also, it might be useful to get a sense of the father's side of the story. 

Custody cases are tricky and the outsider should take each side with a grain of salt, but background does color my thinking here. The "sperm donor" hypo here or concern that the dissent's view would result in removal "at any point in a child's life without concern for that child's welfare" contrasts with the actual details of the case. This was no one night stand -- the biological parents knew each other off/on for years. This is a key matter -- the father had a reason to not take a break as permanent. As cited as well by the state court below (if child custody matters being largely state matters is a factor, should not state courts be respected too?) -- link found on the SCOTUSBlog case page -- the alleged "abandonment" of the birth parent here is complicated too.  

The birth mother, at least there is reason to think so, seems have made a concerted effort here to stack the deck there down to maybe even trying to complicate the tribal rights here. The adoption was started -- going by the state supreme court -- days after the birth (the adoptive parents at the birth) but the father (in the military and about to go overseas) was only notified months later.  He claims, and it is not clear this was disputed, to have not known an adoption was taking place until being served the papers. And, once he did, he immediately rejected the idea. The father thought he was giving custody to the mother, not giving up any right to see the child.  No "sperm donor," no "years" later.

The messy details suggests just the sort of thing often taking place in the real world, particularly in the lives of various minority groups.  Some justices were upset that Native peoples were getting special treatment. Duh. (The article was wrong to be optimistic regarding him obtaining custody.)  Their disrespect for biological parents is also troubling. One thing highlighted when the case was going on was the father's small amount of Native American blood.  Who else should we disqualify for rights arising from being members of tribes?  And, yes, states generally have discretion over domestic matters, but the federal government has special power over Native Americans. Federal supremacy here over states is well warranted given overall history though it was not always used wisely.

We are left with statutory analysis that might favor the majority -- especially without Thomas' caveat I am left a bit dubious -- but it does seem like a thumb was placed on the scales here in large part based on a few justices' personal biases.  Such things are always going to be part of human judging, but it still is useful to keep an eye on them.  Overall, I'm glad for people like Sotomayor and Kagan to keep an eye out. Thanks Obama.

If useful, will update my opinion of the book later this week.