Why One Strike Against the First Amendment Should Rule Sotomayor Out of the Supreme Court

As many of you know, I was disappointed by President Obama's nomination today of Appellate Judge Sonia Sotomayor to replace David Souter on the U.S. Supreme Court. As a lifelong advocate of the First Amendment and its protections of freedom of speech and press, and a critic therefore, of judges who do anything to dilute and undermine its protections, I wrote back at the beginning of this month that Sotomayor's Anti-First Amendment Decision Should Disqualify Her for Supreme Court. The decision in question was the one that Sotomayor's 3-judge Federal Second Court of Appeals made in New York last May, when it failed to uphold Avery Doninger's claim that her First Amendment rights had been violated when her high school prohibited her from running for Senior Secretary, after she had posted on her off-campus Live Journal blog that school officials were "douchebags" for canceling an event.

I recognize that there are some who think Avery was justly punished, and/or the school did not violate her First Amendment rights when it punished her.

But I'd like to now address a different objection to the problem I have with Sotomayor - one which in fact has been the most frequently raised on my blogs and status reports on Facebook, etc.

The objection is as follows: Should we let just one mistake count against a Supreme Court appointment and confirmation of a judge who has otherwise been excellent in all of her opinions? This certainly seems like a reasonable point, given that we require three strikes to be out when at bat in baseball, and we give people all kinds of second chances in life.

But I think that one strike against the First Amendment should indeed disqualify Judge Sotomayor's appointment to the Supreme Court.

First, before I explain why, let me just stipulate, for the purpose of this explanation, that Sotomayor's decision in Doninger was wrong, and all of her other decisions right. I understand that people may disagree with both parts of that stipulation, but let's proceed here as if they were right.

I maintain that Sotomayor would still be a dangerous appointment to the Supreme Court.

She made a decision on the Appellate Court that did not strongly support the First Amendment. The Appellate is itself a higher court, just one level below the U.S. Supreme Court. Why appoint someone who made even one mistake there, in a position that in this situation is in effect an audition, a farm league, for the big time? Isn't performance on the Appellate Court the best possible gauge of performance on the Supreme Court? Are not the stakes on the Supreme Court just too high, too lasting, to take a chance on an Appellate judge with even just one bad decision?

If that is the case, then the only reason we could excuse a bad decision on the First Amendment would be if we don't hold the First Amendment to be what it is - not the Tenth, the Fourth, or even the Second Amendment, but the First or most primary amendment for protection of our freedoms. An amendment, moreover, whose protections for us are eroding daily, with the FCC levying millions of dollars of fines, and Congress calling out for FCC regulation of cable, etc. All of that can hang in the balance with this appointment.

I have used baseball metaphors several times here, and let me say that it grieves me not to support Sotomayor, given that she is such as fervent Yankee fan. (Hey, I was born in the Bronx, too, proudly teach there at Fordham University, and am a lifelong Yankees fan.) Just as it grieves me not to support a woman and Latina for the Supreme Court.

But that's just not enough.

This does not make Sotomayor a bad person, or, even a bad judge across the board. But it does make her not the best person to appoint for the rest of her life to one of nine positions on a Supreme Court already dominated by Justices who don't care much about the First Amendment and the rights of kids.