President Barack Obama today made his first nomination of a U.S. Supreme Court justice, choosing Judge Sonia Sotomayor of New York to fill the seat being vacated by retiring Justice David Souter.

Sotomayor is a Hispanic judge, who has served on the U.S. Court of Appeals for the Second Circuit since 1998.

President Obama said today, "It's a measure of her qualities and her qualifications that Judge Sotomayor was nominated to the U.S. District Court by a Republican President, George H.W. Bush, and promoted to the Federal Court of Appeals by a Democrat, Bill Clinton. Walking in the door she would bring more experience on the bench, and more varied experience on the bench, than anyone currently serving on the United States Supreme Court had when they were appointed."

"Judge Sotomayor is a distinguished graduate of two of America's leading universities," the President said. "She's been a big-city prosecutor and a corporate litigator. She spent six years as a trial judge on the U.S. District Court, and would replace Justice Souter as the only justice with experience as a trial judge, a perspective that would enrich the judgments of the Court."

Before she can ascend to the nation's highest court, Judge Sotomayor must be confirmed by the U.S. Senate. Her confirmation is likely for two reasons - first, because she has been twice before been confirmed by the Senate in previous judicial posts, and also because the Senate now consists of 59 Democrats and 40 Republicans and so is likely to approve the Democratic President's nomination.

In accepting the nomination, Sotomayor said today at the White House, "I hope that as the Senate and the American people learn more about me they will see that I am an ordinary person who has been blessed with extraordinary opportunities and experiences. Today is one of those experiences."

Since joining the Second Circuit Court of Appeals, Sotomayor has authored more than 150 opinions in civil cases on a wide range of issues. Two of these decisions have been overturned by the Supreme Court, including her most notable environmental ruling in the case of Riverkeeper, Inc. v. EPA.

Argued in 2005 and decided in 2007, the case was a challenge to a rule by the U.S. Environmental Protection Agency regulating cooling-water intake structures at power plants. The challenge was brought by 17 environmental groups, six power utilities, and the states of Rhode Island, Connecticut, Delaware, Massachusetts, New Jersey, and New York.

The EPA rule is intended to protect aquatic organisms from being harmed or killed by cooling water intake structures at large, existing power plants. The cooling process requires power plants to extract billions of gallons of water a day from lakes or rivers, a process that can kill or injure billions of aquatic organisms in a year. v To minimize this adverse impact on aquatic life, the Clean Water Act requires the intake structures to use the "best technology available," without detailing exactly what the EPA should consider in determining the "best technology available."

Sotomayor held that the EPA was not permitted to engage in a cost-benefit analysis to determine the "best technology available."

She found that the EPA had exceeded its authority by rejecting closed-cycle cooling technology and instead allowing a "suite of technologies," such as attempts to restock fish into the damaged natural resources, as the best technology available.

She reasoned that "restoration measures are not part of the location, design, construction, or capacity of cooling water intake structures, and a rule permitting compliance with the statute through restoration measures allows facilities to avoid adopting any cooling water intake structure technology at all, in contravention of the Act’s clear language as well as its technology-forcing principle."

The industry plaintiffs filed petitions for judicial review, which the Supreme Court granted in April 2008 to review the cost-benefit issue. By a vote of 6-3, the Court reversed Sotomayor's decision.

In an opinion by Justice Antonin Scalia, the majority ruled that it was "eminently reasonable to conclude that" the silence of the Clean Water Act on determining the best technology available "is meant to convey nothing more than a refusal to tie the agency’s hands as to whether cost-benefit analysis should be used, and if so to what degree."

Justice Stevens wrote a dissenting opinion, which was joined by Justices Souter and Ginsburg. They wrote that because "Congress granted the EPA authority to use cost-benefit analysis in some contexts but not others" and intended "to control, not delegate, when cost-benefit analysis should be used," the silence of the Clean Water Act on this issue did not constitute "an invitation for the Agency to decide for itself which factors should govern its regulatory approach."

As a result of this decision, EPA has suspended the Cooling Water Intake Structure Regulations for existing large power plants, pending further rulemaking.

Some environmentalists immediately approved of the President's choice in part because of her decision in this case.

Sierra Club Executive Director Carl Pope praised President Obama for the nomination, saying, "As we learn more about her record, the Sierra Club is encouraged by Judge Sotomayor's opinion in Riverkeeper, Inc. vs. EPA in which she ruled in favor of environmental protection and against attempts by the government to ignore true environmental benefits when enforcing clean water laws."

"The Supreme Court plays an extremely vital role in directing the law surrounding issues like clean air, clean water, public lands and global warming," Pope said. "The decision two years ago in Massachusetts vs. EPA set the stage for the action finally being taken now by the federal government to begin curbing global warming pollution."

"In 2006," he said, "a sharply divided U.S. Supreme Court failed to uphold Clean Water Act protections that have been in place for the last 35 year - Rapanos v. United States and United States v. Carabell. This decision has left our clean water laws in turmoil."

Some of the conservative groups object that Judge Sotomayor is a liberal activist who wants to legislate from the bench.

White House spokesman Robert Gibbs responded today, saying, "My sense is that that is based on the fact that they yet have not had any time to read what she's written and the way she's acted as a judge for the previous 17 years. I don't think anybody could reasonably argue, based on looking at her cases, that she's somebody that legislates from the federal bench."

"I think a fair and honest hearing, which we believe that she'll get," said Gibbs, "will demonstrate somebody who understands and respects the law, somebody that honors and respects judicial precedent, and somebody that the President thinks is well qualified and will make a very strong Supreme Court justice."

Senate Majority Leader Harry Reid of Nevada said, "Both Democratic and Republican Presidents have nominated Judge Sotomayor to the federal bench, and the Senate has confirmed her with strong bipartisan support in the past. I look forward to working with both Democrats and Republicans on the Judiciary Committee to confirm Judge Sotomayor as the first Hispanic and the third woman to sit on the Court."

Senate Minority Leader Mitch McConnell of Kentucky said, "Senate Republicans will treat Judge Sotomayor fairly. But we will thoroughly examine her record to ensure she understands that the role of a jurist in our democracy is to apply the law even-handedly, despite their own feelings or personal or political preferences."

Reprinted with permission from Environment News Service