INSIGHT: Business uncertain over Judge Sotomayor

28 May 2009 16:50  [Source: ICIS news]

US Supreme Court nominee Judge Sonia SotomayorBy Joe Kamalick

WASHINGTON (ICIS news)--Judge Sonia Sotomayor is virtually assured Senate confirmation as the next US Supreme Court justice, but her welcome in the business community and among chemical industry officials is more uncertain amid concerns over her environmental views.

Sotomayor, who has served as a judge at the US Court of Appeals for the Second Circuit since 1998, was nominated this week by President Barack Obama to fill the High Court seat that will be vacated later this year when Justice David Souter steps down.

In terms of the conservative/liberal balance among the nine Supreme Court justices, Sotomayor’s nomination and presumed confirmation will not constitute any major shift.

Although named to the High Court in 1990 by Republican President George H. W. Bush and widely thought to be a staunch conservative, in practice Justice Souter increasingly sided with the left-leaning judges on the court and now is widely regarded as a member of the court’s liberal side.

Consequently, Judge Sotomayor’s appointment as another liberal justice would not, on its face, mark a sea change in the High Court’s political balance.

However, while Souter is viewed as generally a liberal vote on the nation’s ultimate judicial bench, his decisions often have been middle-of-the-road and occasionally with the conservatives.

Sotomayor, on the other hand, is widely regarded as solidly liberal.  And, most worrisome for many business leaders and conservatives, she is suspected of “legislating from the bench” - meaning that she makes decisions based on her own political criteria rather than the cold reason of the law.

Most famously, Sotomayor was seen to have all but conceded her judicial activism in a speech at Duke University in 2005 when she said that “The Court of Appeals is where policy is made”.

She quickly tried to step back from that declaration, adding “I shouldn’t say that because we don’t make law ... I know ... [and] I’m not promoting it, I’m not advocating it.”

“It” being judicial activism or legislating from the bench.

Elsewhere in that Duke speech, she said that in her role as an appellate court judge, “you’re always thinking about the ramifications of this ruling on the next step of the development of the law”.

Among strict constructionists, a High Court judge is simply to decide whether the merits of a specific case meet the criteria of the Constitution - without regard for the consequences.

An activist judge on the Supreme Court could have profound impact on many aspects of the private lives of citizens and the conduct of business and commerce.

While the US Chamber of Commerce did not comment directly on Judge Sotomayor’s qualifications, the chamber’s litigation centre noted that “In recent years, the Supreme Court has played an increasingly important role in deciding issues that affect the business community and the health of the economy”.

“It is important that the confirmation process focus carefully on the nominee’s views and how they would impact economic growth and Main Street businesses,” the Chamber said in a statement, adding, rather dryly:  “It is equally important that the next associate justice applies the law without bias.”

The one appellate court ruling by Judge Sotomayor that raises most concern for business in general and especially those most directly affected by environmental laws was her 2007 decision in Riverkeeper vs. Environmental Protection Agency.

In that case, environmentalists had challenged the EPA’s use of cost-benefit analysis in deciding how far electric utilities should be required to go in designing water-intake channels along rivers and lakes to protect fish from being sucked into power plant cooling systems.

Judge Sotomayor ruled in favour of the environmentalists and against the utility companies and EPA, holding that “The Agency is therefore precluded from undertaking such cost-benefit analysis because the [best technology available] standard represents Congress’s conclusion that the costs imposed on industry in adopting the best cooling water intake structure technology available (i.e., the best-performing technology that can be reasonably borne by the industry) are worth the benefits in reducing adverse environmental impacts.”

Sotomayor’s decision in that case was recently reversed by the Supreme Court.

While other chemical trade groups declined to comment on the Sotomayor nomination, the Society of Chemical Manufacturers and Affiliates (SOCMA) expressed hope that “the Senate will explore how she would handle cases regarding cost-benefit analysis as a crucial component to regulatory policy”.

“We note in a recent decision, the Supreme Court overturned a ruling made by Judge Sotomayor that would have weakened the Environmental Protection Agency’s authority to use cost-benefit analysis as part of its rulemaking process,” SOCMA said.

Judge Sotomayor is virtually certain to be confirmed by the US Senate within a couple of months.  Democrats hold or control 58 seats in the Senate, and at least two Republican senators are likely to vote with the majority to provide the 60 votes needed to overcome any minority effort to block her confirmation with a filibuster.

To discuss issues facing the chemical industry go to ICIS connect


By: Joe Kamalick
+1 713 525 2653



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