Sotomayor is a Sporting Judge

June 1, 2009
By: Dave Zirin

Reporters, pundits and conservative think tanks are picking through every last detail of Supreme Court nominee Sonia Sotomayor's professional life. But let the other journalists, bloggers and assorted trolls attempt to divine her views on abortion, the death penalty or campaign finance. We can learn all we need about Sotomayor's politics and perspective by examining her decisions in sports.

Reporters, pundits and conservative think tanks are picking through every last detail of Supreme Court nominee Sonia Sotomayor's professional life. But let the other journalists, bloggers and assorted trolls attempt to divine her views on abortion, the death penalty or campaign finance. We can learn all we need about Sotomayor's politics and perspective by examining her decisions in sports.

It was Sotomayor who in 1995 briskly and gruffly ruled against the owners of Major League Baseball, quashing the lockout that infamously canceled the last one-third of the 1994 baseball season, including the World Series. Depression and two world wars couldn't cancel the series, but a particularly seething group of billionaires were ready to do just that, all for the almighty purpose of snapping the spine of a baseball players' union that had cleaned their clock for a generation. The bosses were ready to destroy the game in order to save it, fielding replacement players and doing everything short of lacing hot dogs with rat poison. But Sotomayor stepped in, put the owners on ice and the game back on the field.

At the time, baseball writers went canine in full-throated praise. Philadelphia Inquirer columnist Claude Lewis opined that Sotomayor would be mentioned in baseball lore, in the same breath as Joe DiMaggio, Willie Mays, Jackie Robinson and Ted Williams. Barack Obama even mentioned this fact in his press conference announcing her nomination, saying she had " saved baseball." Her decision was pitched as a pro-union response to the owners, saying that they had "placed the entire concept of collective bargaining on trial."

Obama's casual reference to Sotomayor's judicial fastball was enough to set off tweedy baseball weenie George Will. Will, who from appearances probably never got to play as a child, huffed, "in fact, what she did was take sides, took union's side against the management, and in so-doing, wasted 262 days of negotiations. That, far from saving baseball, consigned baseball to seven more years of an unreformed economic system, which happened to be the seven worst years in terms of competitive balance." This is a reference to the Yankees' winning four titles from 1996-2000, which clearly had more to do with a court ruling than anything done by Derek Jeter.

Sotomayor, Will says, "delayed the restructuring of baseball. So I would say that far from her saving baseball, as the president says, that in fact, baseball thrives now because we got over the damage that her judicial activism did in that strike."

This is idiotic. To say that there were "262 days of negotiations" is like calling the Civil War a verbal snit. The owners wanted to crush the union and had gone off the beam. If anything, Sotomayor wasn't a labor-friendly judicial activist as much as a safety net for the baseball bosses as they spiraled further from reality.

ESPN's Peter Gammons had a smarter take:

“She didn't necessarily save baseball; she saved the owners from themselves. The people who tried to rig the system with collusion, pay-for-performance and the artificial attempt to implement their own labor system were, as usual, ill-advised and leaderless. When Sotomayor forced the game to resume and charged that they bargain in real faith, baseball under Selig went from a $1.3 billion to $7.5 billion business.”

So whether Sotomayor's decision was good for baseball depends on what side you're on. But this wasn't the only time the judge made a controversial mark on sports. She also "saved" the National Football League from having to pay players before their time. In 2004, Sotomayor was part of a three-judge panel that ruled against Ohio State running back Maurice Clarett in his effort to overturn the NFL's draft-eligibility rules. The NFL's bylaws state that prospective players have to wait three years after high school before trying out for the NFL.

Clarett's attorney, Alan Milstein, said that the NFL was unreasonably restricting Clarett's right to make a living. And in an earlier decision US District Judge Shira Scheindlin had struck down the NFL's rules and said that Clarett could apply for the draft.

On appeal, it was Sotomayor ruling with the majority that sided with business as usual in the NFL. Once again she was brisk and ostensibly pro-union, saying that the NFL Players Association, which was standing arm in arm with the owners in the suit, had every right to restrict who could play.

"Those 1,500 players want to protect themselves," she ruled. "That's what unions do; they protect people in the union from people not in the union." Why is this case different?

But it is different. The NFL's draft rules are paternalistic regulations designed to keep players in college so they can build brand-name recognition and, to a lesser degree, their skills. This way, the league doesn't have to fund any kind of a minor-league system. Sotomayor ruled that this provision had been collectively bargained and was therefore above reproach. As Tommy Craggs wrote on Deadspin, "In recent weeks, conservatives have gone bark-at-the-moon loony over Obama's stated desire for a Supreme Court justice who rules with 'empathy.' The Clarett decision, at least, was anything but empathic--it was a cold-eyed and literal-minded ruling from a judge who is nevertheless destined to spend the next hundred news cycles being branded a fire-breathing anarcho-syndicalist by the idiot right."

Note the very instructive common thread in the 1995 baseball case and the Clarett case. In both, Sotomayor makes strong statements for union rights--that the baseball owners are challenging collective bargaining and that the NFL players' union has the right to restrict who plays. In both cases she is faithfully serving the interests of money and power. Sotomayor is a Yankees fan, which should just be a dead giveaway. Left-wing in theory, right-wing in practice--no wonder she clicked so smoothly with the current administration.