The Environmental Argument Against Sotomayor–Sort of

As Dan points out, environmental issues do not figure to be large in the Sotomayor nomination, but there is one case where those interested in the environment (on either side) have a pretty large bone to pick with Judge Sotomayor:  Connecticut v. American Electric Power, a major climate change case.

In this litigation, several attorneys general sued a consortium of electric power producers, alleging that the carbon emissions from power generation constitute a “public nuisance.” For obvious reasons, it’s an extremely important case, and I’ve spilled some ink on it in the past.

So what does this have to do with Sotomayor? Well, she was on the panel, the court heard the case in June 2006, and has not issued an opinion nearly three years later. That’s actually not a record, but to my mind, it represents at best extremely bad judicial form and at worst a sort of dereliction of duty. It doesn’t speak well of the panel in general, but of course we don’t know what’s causing the holdup. Suffice it to say, though, that we shouldn’t expect a decision anytime soon. (They might even rehear the case. Grrrrr….).

But anyone inclined to fall for the right-wing meme that Sotomayor lacks the intellectual chops for the court should examine the oral argument closely, as I have. Sotomayor was clearly the smartest and best prepared judge on the panel: she asked the right questions, and steered the advocates back to the critical issues at hand. Sorry, Senator Inhofe: she’s a very good judge.

Reader Comments

4 Replies to “The Environmental Argument Against Sotomayor–Sort of”

  1. I didn’t know she was on that panel — very interesting. Not necessarily her fault that the process is stalled. But. ..
    What on earth is taking them so long??

  2. I’m not sure that the allegation that Judge Sotomayor lacks the chops for the job is a “right wing meme.” As I recall, that line of argument was stoked by liberal commentator Jeff Rosen in The New Republic, and he disclosed that he was hearing this argument from liberals who were hoping the President would nominate someone else (presumably Elena Kagan or Diane Wood).

    Just so there’s no confusion, I am not endorsing the meme, whether it’s “right wing” or otherwise.” I believe Sotomayor is unquestionably qualified for the job, and do not oppose her confirmation.


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Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic – Land Use, the Environment and Loc…

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