Is Wal-Mart Happy With Obama’s Supreme Nominee?

In today’s Wall Street Journal, Home Depot co-founder Bernie Marcus acknowledges he sees in the retiring Justice David Souter a jurist with a “moderate or restrained record” – one which plaintiffs’ lawyers and unions would hope to avoid in a replacement. Earlier today President Obama announced his nominee to replace Justice Souter on the U.S. Supreme Court – Sonia Sotomayor, of the U.S. Court of Appeals for the Second Circuit – and the question now: Is this a good thing for businesses like Wal-Mart?

The primary reason for asking this question at this time is because there exists the very real possibility that at some point in the relatively near future, Wal-Mart’s lawyers will be defending their client before the very Court that Judge Sotomayor is being nominated to.

Just two months ago, the Ninth Circuit Court of Appeals re-heard en banc arguments in the well-traveled Dukes v. Wal-Mart sex discrimination case – plaintiffs are hoping the full court will affirm a previous Ninth Circuit decision that upheld the lawsuit’s ability to proceed as a class action. If that happens, Wal-Mart will have two options – accept the decision and proceed to trial, or appeal the decision to the U.S. Supreme Court.

Should Wal-Mart come out on the short end of the Ninth Circuit and find itself in front of the Supreme Court, Sotomayor could be the newest of the nine justices the company will have to convince in order to have Dukes’ class action status removed. Judge Sotomayor’s voting record is now being parsed, and certainly as the vetting process moves forward, we’ll learn more about what kind of effect she could have on a potential Dukes decision. Most view her record as decidedly moderate, though she has implied in the past that the gender and ethnicity of judges should and does influence their judicial decision-making.

As a woman and a minority, could this be a bad omen for Wal-Mart? We’ll see...until then, however, we’ll have to make do with some of her career highlights, which you can find after the jump…

All in all it appears that Obama’s selection, while not the first choice of Conservatives, has them taking a wait and see approach as Justin Quinn writes on his US Conservative Politics blog.

The New York Times has already taken a quick look at Judge Sotomayor’s most notable decisions.

CNN has too.

She has a history in a more than a couple areas Wal-Mart may be familiar with, notably racial and disability discrimination.

In two notable cases – Bartlett v. New York State Board of Law Examiners and EEOC v. J.B. Hunt Transport – she sided each time with a plaintiff alleging discrimination because of a disability.

Conservatives have also noted her stance on her position as a female Latina jurist, and the impact that has on her methods of judging. The following passage is from a 2001 lecture given at UC Berkeley, commemorating Judge Mario Olmos in which she implies that the gender and ethnicity of judges should and does influence their judicial decision-making:

No one person, judge or nominee will speak in a female or people of color voice. I need not remind you that Justice Clarence Thomas represents a part but not the whole of African-American thought on many subjects. Yet, because I accept the proposition that, as Judge Resnik describes it, “to judge is an exercise of power” and because as, another former law school classmate, Professor Martha Minnow of Harvard Law School, states “there is no objective stance but only a series of perspectives - no neutrality, no escape from choice in judging,” I further accept that our experiences as women and people of color affect our decisions. The aspiration to impartiality is just that--it’s an aspiration because it denies the fact that we are by our experiences making different choices than others. Not all women or people of color, in all or some circumstances or indeed in any particular case or circumstance but enough people of color in enough cases, will make a difference in the process of judging.

The Minnesota Supreme Court has given an example of this. As reported by Judge Patricia Wald formerly of the D.C. Circuit Court, three women on the Minnesota Court with two men dissenting agreed to grant a protective order against a father’s visitation rights when the father abused his child. The Judicature Journal has at least two excellent studies on how women on the courts of appeal and state supreme courts have tended to vote more often than their male counterpart to uphold women’s claims in sex discrimination cases and criminal defendants’ claims in search and seizure cases. As recognized by legal scholars, whatever the reason, not one woman or person of color in any one position but as a group we will have an effect on the development of the law and on judging.

Posted by Corey Himrod on Tuesday, May 26, 2009

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