Sotomayor Nomination Sparks Discussion on Political Status of the Enchanted Island

Its not often that the national media takes a look at the political status issues facing America's overseas territories, but President Obama's recent nomination of Second Circuit Justice Sonia Sotomayor has sparked a closer examination of America's relationship with Puerto Rico.

Timothy Noah at Slate.com has an interesting piece examining the "imperial" history of Puerto Rico, in which he points out that a Justice Sotomayor may have a role in examining some of the unresolved constitutional questions in Puerto Rico's political status debate, particularly with regard to the "new commonwealth" option.

Under the Presidents Bush and President Clinton, the feds scrutinized with growing urgency the question of what the hell it was that Puerto Ricans wanted. Justice Department reports are now issued every two years. During the past decade, a major snag has been a growing movement within Puerto Rico for what has come to be called "new commonwealth" status. (Failure to include this option in the 1998 plebescite caused the "none of the above" debacle.) In effect, elevating Puerto Rico to a "new commonwealth" would give the island the benefits of sovereignty without sacrificing the benefits of U.S. governance. It would protect the status quo (possibly adding some elements more favorable to Puerto Rico) by stipulating that no further changes could be made without mutual agreement between Puerto Rico and the federal government. As things stand now, Congress is free to alter Puerto Rico's status unilaterally.

Under both Clinton and Bush fils, the Justice Department argued (somewhat persuasively) that any attempt to restrict future legislative alterations to Puerto Rico's status would be unconstitutional. An alternative mentioned in the Justice Department's 2007 report would follow the "compact of free association" created for Micronesia when the United States granted it independence in 1986. Under the compact, Micronesia continues to receive military protection and financial assistance, and its citizens may freely "enter the United States as non-immigrants" to reside and work here. But this option hasn't attracted much of a following in Puerto Rico because, like the island's present arrangement, it would be susceptible to unilateral termination by Congress.

Damien Cave at the New York Times takes a closer look at Judge Sotomayor's Puerto Rican roots, pointing out that she would become the highest ranking Puerto Rican in U.S. history, which one anthropologist quoted in the article described this way:

“Puerto Ricans always feel under-represented,” said Jorge Duany, an anthropologist at the University of Puerto Rico, Rio Piedras. “It’s not just a feeling. It’s a fact.”

Peter Nicholas and James Oliphant at the LA Times examine how Judge Sotomayor's Puerto Rican identity and advocacy for minority rights has not been as evident in her judicial decisions as it has been in her earlier professional and academic life.

Thomas Goldstein, a lawyer with a Supreme Court specialty in Washington, said last week that he had reviewed 50 appeals involving race in which Sotomayor participated. In 45 of those cases, a three-judge panel rejected the discrimination claim and Sotomayor never once dissented, he said.

"This is a judge who does not see it as her job to fix all the social ills in the world," said Kevin Russell, a Washington appellate lawyer who has analyzed Sotomayor's opinions.

Finally, Amy Goldstein and Alec MacGillis at the Washington Post have an in-depth article looking at how Judge Sotomayor's Puerto Rican identity was reflected in her academic and early professional life. Of note, it looks at her role on the Board of the Puerto Rican Legal Defense Fund, a civil rights organization directed at issues facing the latino community.

Law degree in hand, Sotomayor went to work for the Manhattan district attorney but soon found a new outlet for engagement: the Puerto Rican defense fund. Sotomayor had been encouraged to join the board by federal judge José A. Cabranes, a mentor, who "said, 'She's a going-places kind of person,' " recalled Cesar Perales, the organization's co-founder and its executive director at the time. "That she very much believed in civil rights and is . . . wise beyond her years."

Founded in 1972, and backed by the Ford Foundation, among others, the Puerto Rican defense fund already had achieved victories in promoting bilingual education in the New York schools. Around the time Sotomayor joined, it was on the verge of its biggest coup, a challenge of City Council district lines that it argued were racially gerrymandered. The organization won an injunction forcing a last-minute postponement of the 1981 municipal elections, then a redrawing of the lines.

The organization went on to file successful discrimination challenges against the New York police, fire and sanitation departments; public housing and co-op complexes; and school districts that overused special-education designations for Hispanic pupils.

The organization's board had a limited role -- at bimonthly meetings, it set general priorities, oversaw personnel matters and discussed raising money, but it generally left the legal tactics to the dozen or so staff lawyers. "I wouldn't describe [the board] as a bunch of firebrands," Perales said, "but . . . they were people who very much believed in social justice and the use of the law to achieve social justice. We were very inspired by Brown v. Board of Education and how African Americans using the NAACP Legal Defense Fund were able to change America, and thought, could we not use that same tool to advance the Hispanic coalition?"

Sotomayor fit in. Showing a particular interest in the area of promoting younger Puerto Rican lawyers and law students, she stayed on the board for a dozen years, throughout her time in private practice, up until her nomination to the bench. "She could have easily hung up her hat, gone to a firm and said, 'I did that for two years,' but she said no," Cartagena said.

U.S. District Judge Victor Marrero, another co-founder of the organization, noted that many of the issues the fund battled persist today. "They're issues of social justice that haven't gone away," he said.