Forget Abortion and Gay Marriage--Where Is Sonia Sotomayor on Executive Power?

By Robert Schlesinger, Thomas Jefferson Street blog

One issue in Judge Sonia Sotomayor's candidacy for the high court that I'll follow with special interest is what if anything she says about executive power. It may not have the political sex appeal of abortion and gay marriage, but it's important. The imperial presidency ran out of control in the immediate aftermath of 9/11, with Bush administration officials more or less claiming that in the name of national security the president could do whatever he damn well pleased. My old colleague Charlie Savage wrote an important article in Sunday's New York Times laying out the question in the context of the short list, which of course included Sotomayor.

Savage wrote:

...the effect on presidential power could be pivotal. Important rulings on executive authority — striking down military commissions and upholding habeas corpus rights for Guantánamo detainees — have been decided by a five-vote majority, including Justice Souter, on the nine-member court.

"Given that the decisions have generally been 5-4 in this area, this could be terribly consequential," said David Golove, a New York University law professor. "We're losing one of the court's strongest leaders on the side of limiting executive power to reasonable bounds. If the person who replaces Souter is different than him, the balance of power may shift."

Judges Diane Wood and Elena Kagan had some track records (Wood for expressing doubts about sweeping executive powers, Kagan for being more sympathetic). But, according to the Times piece:

By contrast, one person near the top of Mr. Obama's short list — Judge Sonia Sotomayor of the United States Court of Appeals for the Second Circuit — has never worked in the federal executive branch and sits on a court that hears few executive power cases.

Obama has talked a decent (but not great) game regarding executive privilege, but once in office presidents rarely relinquish executive powers that their predecessors have acquired or imagined. (Robert's second rule of politics: A strict constructionist is someone who angrily rejects the inherent powers claimed by Congress or the courts because they might interfere with the inherent powers claimed by the president.) And as if to remind us all of the stakes here, today's Washington Post reports that a "showdown" is "looming" over presidential use of the "State Secrets" executive powers. Here's hoping she has reasonable views and will vote to impede the imperial presidency.

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