Situationist contributor Michael McCann has posted on SSRN a draft of his forthcoming law review essay, Judge Sonia Sotomayor and the Relationship between Leagues and Players: Insights and Implications, 42 Connecticut Law Review __ (forthcoming, 2009).
The essay examines two of Judge Sotomayor’s most notable sports law decisions, Silverman v. Major League Baseball Player Relations Committee and Clarett v. National Football. In doing so, the essay challenges prevailing criticisms of Judge Sotomayor–namely, that her “compassion” distorts her understanding and application of the law. An excerpt is below.
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Politicians and commentators are vigorously debating the judicial philosophy of federal appeals Judge Sonia Sotomayor, whom President Barack Obama has nominated to succeed retiring Justice David Souter on the United States Supreme Court. They are pouring through Judge Sotomayor’s opinions, speeches and other writings, examining and sometimes cherry-picking her words and expressions. Competing sets of beliefs, ideas, and attitudes will gradually be offered to explain Judge Sotomayor’s legal reasoning.
Critics of Judge Sotomayor have already championed an alleged weakness: she crafts her opinions to advance progressive agendas, with wavering adherence to actual law. Proponents of this viewpoint cite President Obama’s comment that he selected Judge Sotomayor partly because of her “compassion,” with the insinuation, in their view, that she bends fixed rules in order to aid disadvantaged litigants. Still others chastise the quality of her logic as overlooking or obscuring substantive legal issues. At their core, these criticisms attempt to impugn Judge Sotomayor as unfit for the Court.
As this Essay explores in Parts I and II, such criticisms are countered by Judge Sotomayor’s role in resolving two notable sports law disputes. In assessing whether Major League Baseball (“MLB”) owners could unilaterally impose new labor conditions on MLB players during the 1994 baseball strike and whether Ohio State University sophomore Maurice Clarett was obligated to wait three years from the completion of high school to become eligible for the National Football League (“NFL”) draft, Judge Sotomayor invoked traditional, arguably inflexible, applications of federal labor law. In fact, from the lens of each case’s least advantaged party, her opinions may have seemed bereft of “compassion” . . .
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To download a free copy of this essay from SSRN, click here. For related Situationist pieces, see “It’s Hard to Step into Someone Else’s Shoes,” “Stereotyping Sotomayor,” and “The Situation of Judicial Activism.” For a related op-ed on Maurice Clarett, see Jon Hanson and Michael McCann’s “The Psychopathology of Athlete Worship.”