Obama Chooses Sotomayor for High Court

Mr. Obama introduced Judge Sotomayor to the nation as someone who “will bring to the Court . . . not only the knowledge and experience acquired over a course of a brilliant legal career, but the wisdom accumulated from an inspiring life’s journey.”

Judge Sotomayor, 54, said her own “experiences, personal and professional, have helped me appreciate the variety of perspectives that present themselves in every case that I hear.”

Conservatives have attacked the empathetic approach to judging as activist and not rooted in the Constitution or statutes. But while Judge Sotomayor has been criticized by some conservative activists, lawyers who have appeared before her have told the New York Law Journal that although she is regarded as a member of the more liberal wing of the Second Circuit, she is a pragmatist who would bring a different perspective to the high court (NYLJ, May 15).

Judge Sotomayor also has been characterized in the Almanac of the Federal Judiciary by anonymous lawyers who appeared before her as a combative jurist.

Judge Robert Katzmann, a colleague of Judge Sotomayor’s on the Second Circuit, said yesterday “there is no basis” for such criticisms, describing Judge Sotomayor as a collegial and tireless judge who is “a really wonderful person.”

Judge Katzmann added, “She will be a distinguished Supreme Court justice. Even when she disagrees, she does so very respectfully and constructively. She wants to get it right.”

Lauren Goldman, a New York partner at Mayer Brown who has argued before Judge Sotomayor, said, “She is an even-tempered, collegial person who deals with lawyers before her in an even-handed and respectful way.”

And Pepperdine University School of Law professor Douglas Kmiec, a conservative who endorsed Mr. Obama in the 2008 election, said, “I think she is going to have an impact by virtue of the experience she brings to the bench.”

Mr. Obama observed that, if confirmed, Judge Sotomayor, who has been a judge since 1992 – first in the Southern District and then at the circuit – would bring more varied judicial experience than anyone currently serving on the Supreme Court had when they were appointed.

‘Common Touch’

Judge Sotomayor had been on Mr. Obama’s short list since before he became president, but last week it appeared her chances were slipping, with Seventh Circuit Judge Diane Wood seeming to pull ahead. But Judge Sotomayor apparently hit it off with Mr. Obama when they met in recent days, and Mr. Obama’s desire for a nominee with “a common touch” prevailed.

Judge Sotomayor grew up in a housing project in the South Bronx, a few blocks from Yankee Stadium, and overcame adversity that included juvenile diabetes and the death of her father to graduate at the top of her class at Princeton University and to serve on the law review at Yale Law School.

Judge Sotomayor’s nomination has special meaning for Hispanic groups, especially lawyers who have seen potential Latino nominees to the high court passed over for years.

“She will bring to the table experiences and perspectives and wisdom that has never been there before,” said Carlos Ortiz of the Hispanic National Bar Association, who until yesterday waged a frustrating 20-year campaign for a Hispanic Supreme Court justice. “I was beginning to think it would not happen in my lifetime. Today is the greatest day in American history.”

Kevin Johnson, dean of University of California, Davis School of Law, who has written about Hispanics and the Supreme Court, said, “Her unique perspective – with a racial, class and gender background different from any other Justice ever on the Supreme Court – will likely affect the Court’s deliberations and the other justices’ views of the cases before the Court. It is difficult to believe, for example, that . . . [her] views on immigration and criminal justice will not have an influence on the Court.”

As unique as Judge Sotomayor is, though, she has common bonds with several justices that should help her fit in with the Court, which prizes collegiality. Like Justice Souter, the justice she would replace, Judge Sotomayor has been a trial judge. Like Justice Samuel Alito Jr., she has been a prosecutor. Like Justice Clarence Thomas, she grew up in poverty and mostly without a father. Like Chief Justice John Roberts Jr., she was a litigator in private practice. And like Justices Antonin Scalia and Ruth Bader Ginsburg, she grew up in New York City.

Judicial Record

As a trial judge, Judge Sotomayor gained moderate fame as the “savior of baseball,” issuing an order in 1995 that effectively ended the longest work stoppage in baseball history.

On the Second Circuit for the past 11 years, she has issued few well-known rulings, but several could cause questions at her confirmation hearing.

Last year she joined a panel that upheld New Haven, Conn.’s decision to withdraw a promotion exam for city firefighters because not enough minorities passed it. White firefighters (and one Hispanic) claimed they were discriminated against on the basis of race because they were not promoted. The firefighters’ appeal is now before the Supreme Court.

In January, another decision she joined found that the Second Amendment right to bear arms did not apply to the states – a view that is likely to generate opposition from advocates of gun rights.

But Judge Sotomayor has written little on some hot-button issues that reach the Court, most prominently abortion.

Critics of what they regard as Judge Sotomayor’s liberal bias have picked up on a video clip now circulating on YouTube of a 2005 Duke University forum in which she observed that courts of appeal are where “policy is made.” She added to laughter from the audience, “I know, we don’t make the law. I’m not promoting it. I’m not advocating it.”

A potentially controversial statement she made during a 2001 commencement address also recently surfaced: “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”

Mr. Obama yesterday expressed hope that confirmation hearings for Judge Sotomayor would take place in July, with a Senate vote before its August recess, so she can be seated in September before the Court convenes for the fall term on the first Monday in October.

Senator Jeff Sessions, R-Alabama, the ranking minority party member on the Senate Judiciary Committee, promised a “fair hearing,” but said he would insist that all senators be given adequate time to study her record and obtain answers to their questions about her.

“We must remember that a Supreme Court justice sits for a lifetime appointment, and the Senate hearing is the only opportunity for the American people to engage in the nomination process,” said Mr. Sessions.

Tony Mauro covers the Supreme Court for Incisive Media, the parent company of the New York Law Journal. He can be reached at [email protected]. Chief Washington Correspondent Marcia Coyle contributed to this report.