One of the most controversial rulings in Judge Sonia Sotomayor's tenure on the appellate court happens to be one of her most recent. Her decision -- along with two other judges -- to uphold the dismissal of a lawsuit filed by a group of white firefighters alleging racial discrimination to play a major role in her confirmation. With the Supreme Court itself set to consider the case, questions of judicial precedent and affirmative action policies will be even more prominent during the Senate hearings.
But Ricci v. DeStefano isn't the only forthcoming Supreme Court case likely to weigh heavily on Sotomayor's confirmation. The Court is set to consider at least three additional cases that all could have a practical impact on the types of questions poised to Barack Obama's Court nominee or alter the political perceptions about what type of justice is needed on the bench.
In NAMUDNO v. Holder, the Court could potentially overturn a provision of the Voting Rights Act requiring federal clearance for changes in election law at the state level; in Redding v. Stafford, members of the bench will be ruling on a school's right to strip search a student suspected of carrying illegal drugs; and in Caperton v. Massey, the Court will address the issue of due process and the constitutional right of a company to spend $3 million for a campaign of a judge who subsequently cast the key vote in overturning a $50 million fraud verdict against that company. All have far-reaching political and judicial ramifications that could affect the tone and tenure of Somotayor's confirmation proceedings.
"Certainly if the Supreme Court winds up ruling that it is okay for a middle school principal to order a 13-year-old girl to be forced to take her clothes off, that is something that is going to be deeply offensive to the American people and I think that will have a tremendous impact on how people view the nomination of Judge Sotomayor," said Ian Millhiser, a legal research analyst for the progressive organization Center for American Progress. "Similarly, the judge for sale case could end up showing how members of the Supreme Court think that there can be one set of laws for the powerful and everyone else. And this Voting Rights Act case has the potential to make John Roberts look like he lacks the humility he talked about [during his confirmation hearings]."
If history is a guide, at least one contemporary case should play a role in Sotomayor's confirmation proceedings. A month before John Roberts was nominated to replace the retiring Sandra Day O'Connor the Court issued its decision in Kelo v. City of New London, in which five justices held that a local government could seize homes and businesses for private economic development if it was a benefit to the broader community. Legal observers say that decision, which enforced the perception of an activist Court, helped "prime the pump" for George W. Bush to get Roberts smoothly confirmed.
In 1992, meanwhile, the Supreme Court narrowly saved the right for a woman to choose to have an abortion in its ruling in Casey v. Planned Parenthood. Shortly thereafter, Justice Byron White announced his resignation, thrusting abortion policies to the forefront of Justice Ruth Bader Ginsburg's nomination.
"You had the clear idea that abortion rights were going to be saved by the next nominee," said Jeffrey Toobin, a CNN legal analyst and author of an acclaimed book about the Court, The Nine. "Certainly one reason the [Robert] Bork and [Clarence] Thomas hearings were so contentious was that it really did look at that moment like the court would overrule Roe v. Wade based on intervening abortion cases."
Abortion may not take the leading role in Sotomayor's hearings. But race, congressional power, campaign finance law, and the ideological leanings of the current Supreme Court all have the potential to be front and center.
If the Supreme Court were to uphold a principal's right to strip search a 13-year-old student under suspicion that she was carrying Ibuprofen, the potential exists for a backlash against an unsympathetic judiciary. On a legal level, there could be greater political will for a justice that stressed the right to privacy under the Fourth Amendment. While not as provocative a case, the ruling in Caperton v. Massey could still be controversial enough to surface during the Sotomayor hearings.
The decision that seems likely to have the most impact on Sotomayor's confirmation process, however, is NAMUDNO v. Holder, in which the Court will consider whether Congress operated outside its constitutional powers by reauthorizing a Voting Rights Act provision requiring 16 states to be federally cleared before altering their voting laws.
"Of the three this the most likely to generate an interesting discussion at the confirmation hearings because it has to do with the power of Congress, an issue which we thought had been settled back in the days of the New Deal," said George Dargo, a professor at New England School of Law, Boston. "Congressional Committees held hundreds of hours of hearings on the question of the extension of the Voting Rights Act. For the Supreme Court to step in and, in oral argument, attempt to second guess those findings... is to undermine the very foundations of our constitutional order as it was addressed in the immediate aftermath of the American Civil War.... The confirmation hearing on the next appointee could very possibly focus on such an issue because it lends itself to philosophical discourse."
To be sure, not every legal historian buys the theory that the current Court could affect the confirmation proceedings of its newest appointed member. Calling the process "political warfare," Charles Cameron, a professor of politics and public affairs at Princeton University, argued that the nominee's job was to primarily avoid the tricky legal topics or questions.
"One could imagine deep constitutional colloquies on recent cases," he said. "But a better strategy for the nominee and her handlers will be to stick to bromides, race through the process, and hope for no stories about unpaid taxes, off-the-books nannies, illegal drug use, and the like. Sorry, but that's the way judicial politics goes when political elites are warring camps of ideologues!"
But even those who downplayed the significance of the recent Court decisions on Sotomayor's nomination acknowledged that revising the Voting Rights Act could create an effective public backlash.
"The public tends to think of Supreme Court opinions just recently handed down as over and decided, and thus not part of a continuing constitutional dialogue," said David Yalof, a political science professor at the University of Connecticut. "As a consequence, convincing the public that a new justice will have an impact on that issue may be a tough sell indeed." However, he emailed after the fact: "Any attempt by the Supreme Court to second guess the Congress of the United States on the need for an extension of the Voting Rights Act could only be described by one word: 'chutzpadik!'"