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The Attack on Sotomayor


At first glance, Sonia Sotomayor would seem to be the ideal Supreme Court candidate for President Barack Obama. A highly respected judge on the prestigious Second Circuit Court of Appeals, she was first appointed to the federal bench by a Republican, President George H.W. Bush. Raised in a housing project in the South Bronx to a family of Puerto Rican descent, she went on to graduate summa cum laude from Princeton University and become a law review editor at Yale Law School, mirroring Obama’s own unlikely yet quintessentially American success story. So Sotomayor would certainly seem to embody the bipartisanship, intellectual prowess and capacity for empathy that Obama has suggested are key traits for this first Supreme Court pick.


Illustration by: Matt Mahurin

But as TWI’s David Wiegel wrote yesterday, conservatives are eager to wield this first choice for the high court against Obama and the Democratic party. Obama’s statement last week that he wants a justice with “empathy” who “understands that justice isn’t about some abstract legal theory or footnote in a case book,” but also “about how our laws affect the daily realities of people’s lives” has become a rallying cry for conservatives, who see “empathetic” as code for “judicial activist” eager twist the law to further liberal sympathies at the expense of constitutional principle.

That Obama said he also wants “somebody who is dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role” has been largely ignored.

Perhaps because of her seemingly stellar credentials for the job – and the fact that as a woman of Puerto Rican descent Sotomayor would bolster Obama’s reputation with key constituency groups – Republicans have been particularly aggressive in attacking her.

Jay Sekulow, Chief Counsel for the right-wing American Center for Law and Justice, recently claimed on Fox News that Sotomayor is “to the left of Ginsburg and Souter,” without naming a single opinion she’s written. And former Bush advisor Karl Rove, also on Fox, said Sotomayor has a reputation as “very liberal and very expansive” in her reading of the constitution, suggesting that she “makes determinations based on [her] personal feelings towards the plaintiff” rather than based on the law. Again, he cited no examples.

Supreme Court experts are not surprised. “There’s probably a strong correlation between the amount of criticism she’s receiving and the likelihood that she’s going to be selected,” said Adam Winkler, a Constitutional law professor at University of California, Los Angeles.

The three major criticisms circulated by conservative advocates and bloggers are that Sotomayor has a “hard-left record on the Court of Appeals,” as one memo providing conservative talking points puts it; that her “personal views may cloud her jurisprudence,” based on a 2002 speech she gave at Berkeley in which she said judges can consider their “experiences as women and people of color” in making decisions; and anonymous claims from lawyers and former judicial law clerks, cited by Jeffrey Rosen in The New Republic, that Sotomayor can be an aggressive questioner and a “bully” to lawyers and, some claim, is “not that smart.” (Rosen doesn’t mention whether the former clerks might have worked for judges that regularly disagreed with Sotomayor on the court, which may have influenced their opinions.)

Those anonymous swipes have taken off throughout the blogosphere, landing in another conservative organization’s memo attacking Sotomayor, among other candidates.

Interestingly, the The Almanac of the Federal Judiciary, widely relied on by lawyers and potential clerks for its reviews of federal judges, quotes lawyers calling Sotomayor “bright”, “very smart” and “frighteningly smart.” Yet those quotes have been overlooked. Sotomayor has won praise in recent days, however, from lawyers such as Salon blogger Glenn Greenwald, law professor Darren Hutchinson, and former Second Circuit clerk Gerard Maglioca, who all defend both her intellect and temperament.

Conservatives cite one judicial opinion to make the case that Sotomayor is biased.

In Ricci v. DeStefano, 16 disgruntled white men and one Latino sued the New Haven fire department, claiming they were wrongly denied promotions when the city decided not to rely on two promotional exams on which they’d scored well. The Civil Service Board, after realizing that black applicants had had a much lower pass rate than white ones, decided not to certify the test results out of fear that using the results for promotions would leave them vulnerable to civil rights lawsuits.

In a lengthy, detailed opinion, the district court concluded that the city’s decision to avoid making promotions based on a test that had a racially disparate impact was not intentional discrimination against white candidates. “None of the defendants’ expressed motives could suggest to a reasonable juror that defendants acted ‘because of’ animus against non-minority firefighters who took the Lieutenant and Captain exams,” the court wrote.

The white firefighters appealed, and a three-judge panel of the Second Circuit Court of Appeals that included Sotomayor affirmed the lower court’s decision in a per curiam (unsigned) decision, adopting “the reasons stated in the thorough, thoughtful, and well-reasoned opinion of the court below.” The panel went on to explain that “the Civil Service Board . . . was simply trying to fulfill its obligations under Title VII when confronted with test results that had a disproportionate racial impact.”

Although courts frequently issue per curiam decisions if the judges want to affirm the lower court’s opinion and accept its reasoning, conservatives have used the brief opinion to attack Sotomayor’s participation in the case as an “irresponsible attempt to reject the firefighters’ important legal claims without even fairly analyzing them in her opinion approving racial discrimination.”

They have ignored, however, that when asked, the full Second Circuit Court of Appeals voted not to re-hear the case, suggesting that a majority of the judges on the court agreed with the three-judge panel’s opinion.

Still, conservatives rely on the dissenting opinion of Judge Jose Cabranes, one of six judges who voted in favor of re-hearing the case, saying that Cabranes “chastised” Sotomayor for “going to extraordinary lengths to dispense with claims of unfair treatment raised by firefighters.”

In fact, Judge Cabranes’ dissent never mentions Judge Sotomayor. It says simply that “the use of per curiam opinions…is normally reserved for cases that present straight-forward questions that do not require explanation or elaboration by the Court of Appeals,” and that the questions in this case, in his view, “are indisputably complex and far from well-settled.”

A majority of his colleagues on the court disagreed with him. The Supreme Court has since agreed to review the case.

While it’s not surprising that conservatives would look to Sotomayor’s role in a reverse-discrimination case to suggest that she’s biased, it’s notable that they have not seized on any opinions that she actually wrote in her 17 years on the bench to demonstrate either bias or weak intellect.

That doesn’t surprise Adam Winkler, the UCLA law professor, who notes that Supreme Court candidates are rarely rejected based on ideology. Appellate court judges, in particular, rarely have the opportunity to take a strong stand on matters of constitutional interpretation. “In the vast majority of decisions, a court of appeals judge is merely trying to interpret Supreme Court precedent,” he said. (It’s worth noting that Sotomayor has also been criticized for telling Duke Law students that appellate courts are “where policy is made” [video here] in urging them to consider a court of appeals clerkship. Although most cases don’t actually make policy, the Ricci case is an excellent example of where they could, and why that statement, while perhaps impolitic, is not inaccurate, as Jonathan Adler at The Volokh Conspiracy has also pointed out.)

Interestingly, one part of Rosen’s article in TNR that conservatives have not been repeating is that some former clerks were concerned that Sotomayor might not provide a “clear liberal alternative” to the conservative justices.

Another way of putting that might be that she’s independent.

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