The Sotomayor Nomination in a Business Context

A round-up of commentary and reporting on President Obama’s nomination of Judge Sonia Sotomayor to the U.S. Supreme Court, focusing on the implications for business and business law…

Walter Olson of the Manhattan Institute has a dispassionate, analytical piece at, “Obama’s ‘Wise Latina’“:

Issues of business law don’t come across as Sotomayor’s great passion one way or the other, so it’s hard to know what all this portends for the high court’s direction on business issues should she be confirmed. As Home Depot‘s Bernard Marcus and others have pointed out, for all of David Souter’s predictable role on the court’s liberal side in most high-profile cases, he in fact steered to middle-of-the-road, hard-to-characterize views on many issues of litigation, liability and procedure, either as a swing vote or as the author of opinions. (Two key issues to watch: what sort of constitutional restraints, if any, there are on punitive damages, and how much scrutiny judges should give to initial pleadings to determine whether a federal lawsuit ought to go forward.)

Some of her backers say they expect that Sotomayor will emerge as a liberal in the less than fiery, relatively “legalistic” Ginsburg/Breyer mold. Even assuming that happens, some outcomes will soon change in a direction most businesses will find adverse. And in coming weeks, both friends and foes will be going over her published opinions–some with hope, others with dread–for clues to whether she might form the nucleus of some future new and more seriously left-wing faction on the court.

Also reporting on Sotomayor and business was Nathan Koppel at the Wall Street Journal’s Law Blog, “Sotomayor and Business: ‘No Reason . . . to be Concerned’“:

The judge, for example, has sided with defendants in cases involving the standards that govern when cases can be brought as a class actions and the extent to which plaintiffs’ claims can be preempted by more defense-friendly federal or international laws.

“There is no reason for the business community to be concerned,” says Lauren Rosenblum Goldman, a partner at Mayer Brown LLP. The judge has “ruled in favor of preemption about half of the times” that the issue has been presented to her, she says.

Two cases that went before the Second Circuit of Appeals on which Judge Sotomayor sits were certainly high-profile ones that concerned business; the National Association of Manufacturers was involved through filing of amicus briefs.

From Platts, “Obama Supreme Court pick discussed climate-change stance

Sonia Sotomayor…was the lead jurist in a 2006 case in which Connecticut and other states tried to force five large US electric utilities to reduce their carbon dioxide emissions.

Sotomayor and her appellate-court colleagues never ruled on the case. It was overtaken by another climate-change lawsuit that went all the way to the Supreme Court. But during oral arguments in June 2006, Sotomayor said she believed that government had a role to play in regulating industrial greenhouse gas emissions.

“I have absolutely no idea about the science of global warming,” she said at the time. “But if the science is right, we have relegated ourselves to killing the world in the foreseeable future — not in centuries to come, but in the very near future. And at some point, someone is going to have to say ‘stop.'”

That case was Connecticut v. American Electric Power. The NAM and nine other major business and energy groups submitted an amicus brief in support of the utilities against the public nuisance suit brought by the Connecticut’s activist attorney general, Richard Blumenthal. The brief is here as a .pdf and a description of the case is at the NAM’s Legal Beagle.

The other case involved the environmental group, Riverkeeper, suing the EPA and the utility, Entergy, as summarized in The Wall Street Journal, “Sotomayor: Obama’s Supreme Court Pick and the Cost of Environmental Protection“:

In 2007, Ms. Sotomayor sided with the fishes and against power companies and the Environmental Protection Agency. That is, in Riverkeeper vs. EPA, she argued that the EPA can’t weigh costs and benefits in deciding what the “best technology” is for protecting fish that get sucked into power plants.

In a nutshell, there’s no point in tallying up the marginal costs of extra environmental protections when Congress has already decided they’re worth it

Her decision is here. In April, the Supreme Court overturned that decision in a 6-3 ruling in Entergy Corp. v. Riverkeeper, Inc. (Opinion here as .pdf.)

The NAM supported Entergy in an amicus brief joined by the American Chemistry Council, the American Forest and Paper Association, the American Iron and Steel Institute, and the U.S. Chamber of Commerce. The NAM’s description of the case is available at Legal Beagle here, and the amicus brief is here.

As a statement of general blog philosophy, a President wins election and with it due deference to his nominations barring something extraordinary.

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