- If confirmed, Sotomayor would be the first Latina to serve on the nation’s highest court
- How does the U.S. Supreme Court affect the rest of the world?
- What is the status of Sotomayor’s Puerto Rico and what should it be?
- If voted on favorably, how would Sotomayor impact future judgments issued by the Supreme Court?

As this week’s hearings to confirm Judge Sonia Sotomayor to serve as an associate justice on the U.S. Supreme Court wind down, there have been few surprises. Rather, the Senate has performed a predictably ritualistic act, with Democrats trying to protect the President’s nominee and Senate Republicans trying unsuccessfully to elicit embarrassing disclosures without damaging their own political prospects. While the next Puerto Rican nominee is unlikely destined to receive as much attention, Sotomayor’s candidacy has caused quite a fuss. As expected, Republicans questioned Sotomayor on statements she had made regarding her identity, but no one broached the subject of her relationship to the U.S. territory from which her parents emigrated: Puerto Rico. As the open hearings come to a close today, there is little doubt that President Barack Obama’s nominee will be confirmed. Yet, in spite of the routine nature of the hearings, there is no shortage of concepts to contemplate. They had, however, already been raised.

When President Obama announced his historic nomination for the next U.S. Supreme Court Justice – if confirmed, Sonia Sotomayor would become the 111th person, the third woman and the first Latina to serve on the nation’s highest bench – the public was presented with an opportunity for reflection on a number of fronts. Of course, a critical investigation began almost immediately upon President Obama’s announcement, examining her history as a judge to try to determine her judicial philosophy and the impact she would likely have on future decisions. It has also been important to question the fact that Sonia Sotomayor could be the first Latina Supreme Court Justice – not in terms of the accuracy of such a statement, but in terms of the validity of a system that has nominated and confirmed 110 Supreme Court Justices over the course of more than 200 years, with not a single one of them being Latino. The nomination of any Supreme Court Justice offers a chance to contemplate the impact that the Supreme Court has on the world; it sometimes considers cases involving international law, resulting in precedent-setting judgments that have had a real impact on the rest of the world. The nomination of Sotomayor, in particular, invites further rumination on the future status of the island of Puerto Rico, not just because Sotomayor’s parents were born there, but also because it presents an unresolved controversy to which Obama’s nominee dedicated a significant amount of her time and energy as a student.

A HISTORIC NOMINATION
While celebrating Sotomayor’s landmark nomination, it is important not to lose sight of just how long it has taken to reach this point. Segregation did not even begin to be expeditiously dismantled until the 1950s. But in 2009, why does the Supreme Court continue to reflect such a limited spectrum of the society over which it holds such an iron-fisted jurisdiction?

In 1967, President Lyndon B. Johnson appointed Thurgood Marshall, the first African American Supreme Court Justice. Fourteen years later, in 1981, President Ronald Reagan appointed Sandra Day O’Connor, the first female to sit on the Court. In 2009, President Barack Obama has nominated Sonia Sotomayor to become the first Latina to serve on the Court. However, in a country with a large and exponentially growing Latino population, it is astounding that Sotomayor could be the first Latina appointed to the Supreme Court, not because she is unqualified or undeserving, but – far from it – because there should have already been a first. Yet, there has never been a Latino, Asian or Native American Supreme Court Justice. This observation highlights the under-representation of these major population cohorts in the United States’ legal system.

Of course, nine White men have had the potential to render socially transformative decisions when the time came. For example, as Sonia Sotomayor has said, nine White men decided Brown v. Board of Education in 1954. In a speech on the Latino presence in the judiciary, Sotomayor declared that “we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group.” She continued to affirm the idea that “judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of integrity based on the reason of law.” But she questioned, and rightfully so, the extent to which it is actually possible to achieve such a lofty ideal. Because we live in a multicultural society, it is important that the law that governs our multicultural society be equally multicultural. It is imperative that our singular set of laws be able to respond to the distinct needs and values present in our society. And the transcendent abilities of some do not negate the need for a Supreme Court that is representative of the diversity of the America it adjudicates.

THE IMPACT OF THE COURT ON THE WORLD
Although the Supreme Court is tasked primarily with interpreting the Constitution of the United States, its decisions sometimes impact foreign nationals as well as this country’s international relations. In 1992, for example, it issued an extremely important judgment in the case of The United States v. Humberto Alvarez Machain, authorizing the trial of violators of human rights abuses in the United States regardless of the conditions under which the perpetrators had arrived in the country. Machain was abducted from Mexico to stand trial in the U.S. for complicity in the torture and death of DEA agent Enrique Camarena. He subsequently sued the United States for violating the terms of extradition between Mexico and the U.S., and lost. The Supreme Court ruled that the gravity of the criminal charges of torture against him outweighed the extra-legal nature of his arrival in the country.

This decision was in line with the groundbreaking 1979 Second Circuit judgment in Filártiga v. Peña-Irala, in which Paraguayan nationals living in the U.S. successfully sued the former Inspector General of Police in Asunción, Paraguay for the torture and death of Joel Filártiga, the son of a famed human rights advocate and a Paraguayan national. This case set a precedent for the protection of victims’ rights and the need for perpetrators’ accountability regardless of the setting of where human rights abuses had transpired. The United States v. Humberto Alvarez Machain followed and reaffirmed that precedent. The Court thus upheld one of the most forcefully-worded tenets of international human rights law – the absolute prohibition of torture – which reinforced the emerging principle of universal jurisdiction and sent a strong message to the world that perpetrators of such heinous acts as torture would not go unpunished. Such judgments are particularly relevant to Latin America, a region that has repeatedly suffered from endemic human rights abuses, especially during the repressive U.S.-aided and sustained dictatorships.

Clearly, the Supreme Court’s decision to hold Machain accountable for his actions did not prevent torture, disappearances, or any other human rights violation from occurring. Nevertheless, it was an important decision with significant political implications. It pointed to an unwillingness of the United States, as represented by its highest court, to sit idly by and tolerate gross human rights violations in Latin America, or anywhere else in the world, regardless of who committed them. It also demonstrated a commitment to bringing past perpetrators to justice, hopefully discouraging the future disregard of the principles of international human rights law. In these ways, Alvarez Machaín followed Filártiga in strengthening the foundation of international human rights law and building the precedent of upholding laws designed to protect people from government. While Filártiga represented a moral victory and rejection of state-sponsored violence against civilians, Alvarez Machaín expanded this mantle to include torture committed by anyone, anywhere.

The Supreme Court has also rendered judgments in cases involving businesses, with serious international implications. Just this past April, for instance, the Court ruled on Entergy Corp v. Riverkeeper, Inc, overturning a decision issued by Sotomayor in a lower court and validating the Environmental Protection Agency’s (EPA) use of cost-benefit analysis in determining which technology to install in order to protect the maximum amount of wildlife at minimum cost. The EPA partners with numerous domestic and foreign agencies on projects designed to minimize the human impact on nature. While in this particular case Sotomayor found that cost benefit analysis was contradictory to the Clean Water Act (1972), the more conservative Supreme Court ruled that a cost benefit analysis of the impact of different technologies on the environment was acceptable.

This decision could potentially have an impact far beyond the United States, as environmental issues are a global concern that are not and cannot be isolated to any one single country. Cheaper, less effective technology may now be utilized around the world, at the environment’s expense, for the short-sighted gain of cutting costs to businesses. For the global environment, which is already deteriorating primarily due to a deleterious human impact, this could be a dangerous judgment with potentially catastrophic future effects as businesses are not held accountable for the damage that their companies cause to the environment.

THE PAST, PRESENT AND FUTURE OF PUERTO RICO
Since the United States acquired Puerto Rico as a result of the Spanish-American War as an act of conquest more than a century ago, the island has existed amidst a state of intensely debated legal status. Imperialism is contrary to the spirit and intent of the Constitution of the United States, yet Puerto Rico is neither a state nor an independent nation. Instead, it is an example of pseudo-colonialism of the very nature that the founders of the United States found so obnoxious. The inability of Puerto Ricans to reach a consensus on an ideal system has allowed the current political form to continue, and even to appear to be is generally accepted, and even preferred, on the island today. However, Puerto Ricans have never been in control of their status. Rather, the status of Puerto Rico was initially determined by the U.S. Supreme Court in a series of decisions known as the Insular Cases.

Most of the Insular Cases involved tax law. Taking the decisions of De Lima v. Bidwell (1901) and Downes v. Bidwell (1901) together, the Court determined that Puerto Rico was not a foreign country for purposes of import taxes, and that it was not part of the U.S. per se, but was subject to the jurisdiction of the United States. In Balzac v. Porto Rico (1922), the Supreme Court defined the island as a territory merely “belonging” to the United States, as opposed to an “incorporated” territory. It is this definition of Puerto Rico’s relationship to the United States that has given rise to so much controversy and that has been so deeply troubling to those of conflicting points of view.

As early as the Downes decision, there has been disagreement regarding the relationship between Puerto Rico and the United States. In that case, Justice John Marshall Harlan II (best known for his dissent in Plessy v. Ferguson (1896)), dissented emphatically, arguing that “the idea that this country may acquire territories anywhere upon the earth, by conquest or treaty, and hold them as mere colonies or provinces, – the people inhabiting them to enjoy only such rights as Congress chooses to accord them, – is wholly inconsistent with the spirit and genious, as well as with the words, of the Constitution.”

However, since then, the economic benefits of being a territorial possession of the United States have led many Puerto Ricans into complacency. In 1967, a plebiscite showed that 60 percent of Puerto Rican voters favored a commonwealth status over either independence or statehood. This was in line with the position of the first democratically elected governor, Luis Muñoz Marin. However, it differed significantly from the present status and Congress never instituted the preferred change in status.

The last governor of Puerto Rico, Anibal Acevedo-Vila, was in favor of at least a temporary continuation of the territorial status because “statehood would go against that sense of uniqueness, culture, identity that we do have under commonwealth.” While not willing to give up the perceived economic benefits of the relationship with the United States, Acevedo-Vila also feared a loss of cultural identity as had happened in such places as Hawaii and Alaska. “We are U.S. citizens,” he has said, “but we are a nation sociologically. We call ourselves Puerto Ricans. We don’t call ourselves Puerto Rican-Americans.”

Nonetheless, there are also proponents of both full statehood and unqualified independence. Luis Fortuño, the incumbent Governor of Puerto Rico and the former non-voting member of the House of Representatives, is an advocate of full statehood for Puerto Rico. He argues that “as a U.S. citizen, if you live in Puerto Rico, you are stripped of your rights,” because you have no vote outside of the island. He would like to see Puerto Rico become a fully incorporated member of the United States with all the rights and responsibilities that this relationship entails.

Sonia Sotomayor, however, has argued that Puerto Rico’s continued status as a territory of the United States has done little more than “perpetuate […] the very conditions [that Muñoz Marin] hoped to change.” During her collegiate years, Sotomayor was a staunch advocate of independence for Puerto Rico. At Princeton, she wrote her senior thesis on Muñoz Marin and admitted her preference for independence. At Yale Law School she further argued that regardless of any changes to the island’s legal and political status, it should be allowed to maintain ownership rights of its seabed mineral resources.

There is supposed to be a renewed debate over the status of Puerto Rico this year, with the options being statehood, independence, the status quo, or free associated state (that is technically independent, but that enjoys a special relationship with the U.S., primarily in terms of economic advantages). So far, it appears that, unable to agree upon an ideal future, a plurality of Puerto Ricans will opt for the status quo. They are willing to forego full rights in order to maintain their cultural autonomy without choosing to sacrifice the economic support of the United States.

THE POSSIBLE IMPACT OF SOTOMAYOR ON THE COURT
As Justice David Souter retires, the nomination and confirmation of another liberal-leaning Justice like Sonia Sotomayor would not change the broad ideological composition of the Court as a whole. Sotomayor’s decisions have endured a string of Supreme Court reversals; meanwhile, Justice Souter has consistently dissented, agreeing with Sotomayor, most recently in the cases of Entergy Corp v. Riverkeeper, Inc (2009) and Ricci v. DeStefano (2009), the controversial case that has caused critics to label her as a reverse racist for upholding the New Haven Fire Department’s decision to throw out the results of a promotion test on which too few minorities scored well.

What Sotomayor’s decision in Ricci v. DeStefano (2009) shows is neither reverse racism nor insensitivity to the real effects on people, but an awareness of the bigger picture and an understanding of the underlying issue. If no minorities scored well on this promotional test, that demonstrates institutionalized racism. While race is not the only disadvantage in this country and one of the White fire fighters who scored well is dyslexic, this is one of those times where it has to be said that hard cases make bad law and that Sotomayor was right to not throw affirmative action out the window because a White man had a learning disability. Not surprisingly, Justice Souter agreed with Sotomayor.

Sotomayor has been both hailed and vilified as an activist who “has viewed the law as a tool for social empowerment.” Yet, after analyzing her judgments, lawyer Kevin Russell says she “is a judge who does not see it as her job to fix all the social ills in the world.” It could be that she has sent truly contradictory messages in her life on the bench. Or it may be that while she has personal beliefs and values to which she is dedicated, she recognizes the limits of her role as a judge. Perhaps it is this even-handed understanding that Obama was searching for in his Supreme Court nominee. Sonia Sotomayor, while committed to an ideal of transcending both ideology and personal experience, has said, “I am reminded each day that I render decisions that affect people concretely.” It is this complementary recognition of the impact of her decisions and the limitations of her position that will be at the service of the Supreme Court if Sotomayor is, indeed, confirmed.

If the clarity she has exhibited in the past continues on judgments regarding cases involving the hot button issues of today – gay marriage, the limits of national security, terrorism, physical interrogation methods, capital punishment and abortion – then Obama could not have made a more apt selection to fill the vacancy left by Justice Souter.

We would like to acknowledge the assistance of Jeffrey Farrow.