03 Jun Sonia Sotomayor’s Affirmative Action Plan for Puerto Rico
Judge Sonia Sotomayor’s student note in the 1979 Yale Law Journal is a piece of work. It makes an extravagant case for Puerto Rican statehood based on terms of accession that are more favorable to Puerto Rico than any other state in the Union. Her proposal is a sort of affirmative action plan for what she describes as a “small, economically poor dependency” acquired as a result of the “American experience with colonialism.”
While her legal arguments are complex, her economic and political conclusions are simple: Puerto Rico should become a state and accede to the Union in a manner that grants her ownership rights over the offshore oil, gas and mineral deposits within a two-hundred mile radius of Puerto Rico. It should do so despite the fact that no other state enjoys similar rights and despite over two centuries of federal practice that provide for states to enter the Union “on an equal footing with the original States in all respects whatever.”
Sotomayor argues that “[t]he island’s dearth of land-based resources and its ongoing economic stagnation and poverty, coupled with the possibility of offshore oil and mineral wealth, will create political pressure for Puerto Rico to demand exclusive rights to exploit its surrounding seabed…. The inclusion of such a provision in Puerto Rico’s compact of admission could be politically necessary and practically essential.”
She recognizes that such terms for statehood would meet with opposition because it would mean Puerto Rico would not enter the Union on an equal footing with other states. She also recognizes that Supreme Court precedent poses a serious problem, particularly restrictions that prevent accession terms limiting the “paramount power of the United States in favor of a State.” But she interprets this precedent as a statutory rather than a constitutional limitation, and argues that “Congress … can alienate seabed rights in any way it chooses” including in an agreement of accession to the Union. “Therefore,” she argues, “Puerto Rico should seek a specific grant of seabed rights in a compact of admission” that would grant Puerto Rico rights to explore, exploit, conserve and manage the living and non-living natural resources within a two-hundred mile radius.
Finally, to prevent federal environmental regulations from harming the value of these seabed rights, she argues that Puerto Rico should negotiate terms that would require the United States to pay for the right to regulate Puerto Rican waters. Recognizing that environmental regulations are not compensable takings under the Fifth Amendment, she argues that Puerto Rico should negotiate a special formula for compensation that would compensate Puerto Rico as if such environmental regulations were an unlawful taking. “Puerto Rico and the United States could agree that compensation be provided for those losses that courts normally find noncompensable, and could provide a formula for calculating the compensation” based on the fair market value of the loss profits that would result from such environmental regulation.
In short, in proposing preferential treatment for Puerto Rican statehood, Sotomayor manages to provide justifiable grounds to (1) upset environmentalists; (2) upset those sensitive to the equality of states; (3) upset those opposed to affirmative action and preferential treatment; and (4) upset those who do not take kindly to assertions that the United States is a colonial power. I would think almost every United States Senator falls into at least one of those four categories.
And this is relevant to her become a Supreme Court Justice because…?
Roger–I think it would be fair game to ask Judge Sotomayor about this article, but a few things should be considered. First and most important, this article has nothing to do with affirmative action. Virtually the entire article is a studied analysis of Supreme Court decisions on the state “equal footing” doctrine as it relates to state seabed rights, along with consideration of principles of international law regarding economic zones of entities with coastal areas. Based on her analysis, Judge Sotomayor concluded that a political entity should be treated a certain way. This is certainly a position subject to legitimate opposition but I don’t think it’s fair to elide it into a philosophy on affirmative action, which I will add is certainly an appropriate subject for confirmation hearing inquiry. By way of analogy, some might argue that we owe reparations to Iraq. Regardless of how dubious this may be as a proposal about law or foreign policy, it’s not an argument about affirmative action for Iraqis, Muslims, Arabs or Kurds. It is simply not true that Judge Sotomayor made an affirmative action argument in her article. I hope that opponents of Judge Sotomayor will think carefully about introducing dubious affirmative action arguments against her. As to the environmental issues, they seem… Read more »
Charlie Martel, Excellent comments. I obviously do not think that a student note written thirty years ago by a twenty-four-year-old law student weighs in the balance like her record as an appellate judge, not even close. I care far more about her judicial record than anything else in determining her fitness to be a Supreme Court justice. But that does not mean that her written work as a law student is of no value. The article provides a window into her thinking outside the normal constraints of judicial decisionmaking. I know the article does not deal with affirmative action in the traditional sense. I was using that language as an apt metaphor for her position that Puerto Rico deserves preferential treatment because it is historically disadvantaged and/or oppressed. I think the metaphor works and I think most readers will know I’m not referring to affirmative action in the strict sense. I personally don’t think the reparations analogy works nearly as well. I don’t think her section on environmental regulation is cap and trade. She quite clearly is trying to extend the traditional notions of compensable taking and apply it to environmental regulation. She is arguing that the United States and… Read more »
Hi Roger–Thanks for a thoughtful response to my comment. I’m glad to hear that you hosted Judge Sotomayor and found her discussion of the role of appellate judges to be constructive.
When Chief Justice Roberts was being considered, I was troubled by the treatment of his early career that you describe. I do think that a nominee’s lifelong work should be reviewed, but for those with the credentials and achievements that Roberts and Sotomayor bring, the words and work they did in their twenties should be considered in the context of long and distinguished work.
I’m a bit of a deferentialist, and think that both John Roberts and Sonia Sotomayor are extraordinary legal talents with Supreme Court caliber qualifications whose judicial philosophies and records do not suggest an extremism that warrant opposition.
Since Sotomayor is Obama’s nominee, perhaps we should use the same standard in approving or disapproving of her nomination that President Obama did in evaluating John Robert’s fitness for the court. That would be the fairest thing to do, in my opinion.
Excellent debate/discussion between Alford and Martel, I thoroughly enjoyed reading this conversation. I hope that the two will continue the conversation as the confirmation process continues.
Thank You,
David
Whilst I share Charlie Martel’s views, both on the process and the nominees, I have a great deal of sympathy for adopting Obama’s ‘my way or the highway’ approach to judicial nominations, not least because I suspect that deference is largely a one-way street for Republicans.
Response…Did I miss something? Last time I looked, Puerto Ricans rejected statehood. 784,000 said “No” while 726,000 said “Yes”. That was in December. Given that the people don’t want it, why the fuss about Ms. Sotomayor’s article of decades ago?
A bit off topic, and by way of a (hopefully) humorous aside, as I return to the post I find myself anxiously checking the “nays” and “yays” on my post.
Who are the nays, and why are they nays? Is it my tone, substance, or worst of all worlds both? Are there disparities in nay/yay voter motivation, so that I can buck up assuming that there are lots of less motivated yays who liked my post but didn’t vote? What accounts for turnout variances-some posters get big numbers and bring lots of voters to the polls.
And the ultimate blog-existential question–will I get “nayed” off the page?
I am reminding myself of an old relief pitcher who became so transfixed watching the pitch-by-pitch radar speed tracking on his pitches that he either couldn’t concentrate enough to get the ball over the plate or tossed one right down the middle that was hit for a home run.
All kidding aside, it is interesting to see the psychological impact of having a scoreboard metric attached to one’s post. Having said that I think that the nay/yay is a good effort to allow the audience to have a role in the discourse.
And if I get nayed on this I’ll never get appointed to the Supreme Court.
Best,
Charlie
Most folks objection to statehood is that it would literally be a “welfare state”.
[…] statehood, but on radical terms. Sotomayor made her case in her law review note. According to Roger Alford: It makes an extravagant case for Puerto Rican statehood based on terms of accession that are more […]