Ignore that post below. I just started reading the actual speech in question, and it appears I’m totally wrong. It looks like she’s defending/apologizing for the government’s position in the Padilla case. Even for March of ’03, that’s egregious.
Update: Or is she? I’m perplexed. Phrase in question is–in the context of Padilla–“one can certainly justify that type of detention under precedents and current law.” And it’s in the midst of a pretty noncommittal discussion of issues raised by the WoT that will be percolating through the courts. And later, she asks “how long will we hold people without any judicial review….” she follows up with the mealy-mouthed declaration that “when I ask this question, it is not intended to suggest that either the President, Congress, or the courts have done anything unconstitutional or bad.” One thing’s for sure: if you can be this confusing and noncommittal on core constitutional questions, you’re tailor-made to make it through the confirmation process.
Charlie Savage, your go-to source on this issue, has an article in the NYT on the subject today, paying particular attention to a speech Sotomayor gave in March 2003.
Judge Sonia Sotomayor expressed skepticism in March 2003 about the expanded government surveillance powers in the USA Patriot Act, citing what she referred to as its broader authority “to impose nationwide wiretaps with little judicial supervision” and to monitor Internet use in search of terrorists.
On the other hand,
Judge Sotomayor did seem to indicate that some policies were on firmer legal footing. For example, she said that “one can certainly justify” detaining enemy combatant suspects “in secret” and giving them different legal rights than criminals “under precedents and current law.”
All in all, recognizing that the speech was given in March ’03 (Iraq War month, a time when crazy hung heavy in the air) I still see some reasons for cautious optimism on this issue.
in April 2009, Judge Sotomayor delivered a speech on how federal judges look at foreign and international law that suggested she might take a more conservative position on that topic than Justice Souter.
She said that individuals had no right to file a lawsuit to enforce a treaty and that ratified treaties were not legally binding unless Congress separately passed a statute to do so. Treaties usually have effect, she said, only if the president and Congress choose to respect such obligations as a matter of politics, not law.
“Even though Article IV of the Constitution says that treaties are the ‘supreme law of the land,’ in most instances they’re not even law,” she said.
That principle, she said, explained the outcome of a high-profile 2008 Supreme Court ruling, Medellin v. Texas, which involved an International Court of Justice ruling that some Mexican inmates on death row in Texas should get new sentencing hearings because the authorities failed to help them get help from the Mexican Consulate, contrary to a treaty the United States had ratified.
But the Supreme Court ruled that the international court’s decision had no legal force and that the treaty was not binding, because Congress never passed a statute explicitly making it domestic law.
The ruling, Judge Sotomayor said, “surprised many human rights groups and civil liberties groups” but was “premised on very traditional American law principles.”
So she would have ruled against the Mexican inmates, disappointed the human rights groups and upheld a limited view of the treaty power. It’s almost like she’s not some kind of crazy left-wing radical.
…that’s my DC Examiner column for this week. Excerpt:
The Second Circuit, Sotomayor’s home for the last 11 years, gets few national security cases. But what we can glean from three key cases she’s participated in suggests she agrees with former Justice Sandra O’Connor that the War on Terror “is not a blank check for the president.”
A Justice Sotomayor is unlikely to move in lockstep with the ACLU in this area. In Cassidy v. Chertoff (2006), she rejected a Fourth Amendment challenge to post-9/11 security searches conducted by a ferry operator acting at the behest of the Bush administration.
But 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.
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?”
A thin record, but one more promising on these issues than Roberts’ or Alito’s. Incidentally, Clarence Thomas–who’s otherwise libertarians’ favorite Justice, and for pretty good reasons–is the worst of the worst on executive power issues. His dissent in Hamdi alone puts Scalia ahead of him as “least bad Supreme Court Justice.”