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Sotomayor's life evokes American Dream; her record is hard to classify

This article first appeared in the St. Louis Beacon, May 26, 2009 - Judge Sonia Sotomayor's life -- like that of the president who nominated her to the U.S. Supreme Court -- is a new chapter in the unfinished story of the American dream of equal opportunity. Born in Puerto Rico and rising from a childhood of poverty in a Bronx housing project, Sotomayor is a good bet to become the first Hispanic and third woman to serve on the U.S. Supreme Court.

Like other first justices, the poignancy of Sotomayor's background overwhelms the weight of hundreds of opinions she has written over the past 17 years, first as a district court judge and for the past decade as a judge on the 2nd U.S. Circuit Court of Appeals. Raised by her mother, a nurse who worked two jobs, Sotomayor went to Princeton and Yale Law School before serving as a prosecutor, corporate litigator and then federal judge.

"Judge Sotomayor's biography resonates the American Dream," Joel K. Goldstein of Saint Louis University law school wrote in an email. "By selecting her, President (Barack) Obama reinforces a narrative which was central to his candidacy."

Washington University Law Professor Laura Rosenbury met Sotomayor when she clerked for another judge on the 2nd Circuit, Dennis G. Jacobs. Rosenbury found Sotomayor "very fair, hard-working, extremely analytical and precise." Rosenbury said that she remembered one occasion when Sotomayor persuaded Jacobs, a conservative, to join a finely nuanced opinion that took a more liberal or moderate view in an employment discrimination case. 

"I think this is evidence of Judge Sotomayor's ability to bring along traditionally more conservative judges in at least some circumstances," she said.

"If you compare Sotomayor to other judges, she certainly is a more liberal or progressive judge," Rosenbury added. "But within that category, I see her as very middle of the road. I don't see her as a judge who will come out of left field. She has a commitment to precedent and careful analysis."

Supreme Court nominations take on a life of their own. Nominees who seem likely to be confirmed when first named can fail in the Senate. But the initial assessment of many lawyers and politicians is that the controversial portions of Sotomayor's record are not likely to provide enough ammunition to block her confirmation. (Click here to read a story from the New York Times that summarizes her opinions.)

In addition there is a political calculation that should help Sotomayor in the confirmation process. As much as some Republican senators may want to satisfy their conservative base and mount strong opposition, the GOP faces the political peril of further alienating Hispanic voters. Hispanics were important to the election of both George W. Bush and Barack Obama.

Firefighers promotion case

Sotomayor's long judicial record is not without controversy. The case that has attracted the most criticism so far is a New Haven controversy concerning the use of race in making firefighters' promotions -- a case involving issues similar to those in the St. Louis Fire Department. (Read an earlier Beacon story about the similarities of the two cases.)

Sotomayor was part of a three-judge panel in Ricci vs. Stefano that upheld a lower court decision in favor of New Haven's decision to cancel a promotion list on which minority firefighters ranked low. The city maintained that the disproportionately poor performance by minority firefighters on a promotions exam showed that the test was racially discriminatory. To promote from the test would open the city to a lawsuit by minority firefighters, the city maintained.

But white firefighters sued, maintaining that the city's refusal to promote violated Title VII of the Civil Rights Act because it was discriminatory treatment based on race. A district court judge disagreed. An appeals court panel, including Sotomayor, wrote that it was "not unsympathetic" to the white firefighters' "expression of frustration," but concluded they did not have a Title VII claim. The appeals court adopted the lower court's "thorough, thoughtful, and well-reasoned opinion."

Judge Jose A. Cabranes, often a Sotomayor ally, sharply criticized the "perfunctory" opinion of the panel that included Sotomayor, stating that it "contains no reference whatsoever to the constitutional claims at the core of this case."

The New Haven case now is before the U.S. Supreme Court. Based on the oral argument earlier this spring, the court is widely believed to be on the verge of ruling in favor of the white firefighters and reversing the decision in which Sotomayor had concurred.

Many of the same issues came up in the long dispute between Mayor Francis Slay and former St. Louis Fire Chief Sherman George. George had refused to promote based on a test on which minority firefighters had performed poorly and eventually left his job.

Gun rights, other controversies

Another of Sotomayor's decisions likely to provoke opposition is a ruling in which the appeals court ruled that the Second Amendment does not apply to the states. If the U.S. Supreme Court were to agree, it would greatly diminish the importance of its decision last year recognizing a person's Second Amendment right to a gun to protect the home.

The opinion in which Sotomayor concurred was based on adherence to a 19th-century Supreme Court ruling that the Second Amendment applied only to the federal government. The Sotomayor court agreed that the recent U.S. Supreme Court decision on gun rights "might be reason to question the continuing validity" of the 19th-century precedent, but it concluded it would leave "to the Supreme Court the prerogative of overruling its own decisions."

Two other possible lines of attack by critics are that Sotomayor is an intellectual lightweight and that she will make law rather than interpret it.

The first of these criticisms grows out of a three-week-old article in the New Republic by a prominent Supreme Court observer, Jeffrey Rosen. The article reported that Sotomayor's own clerks were intensely loyal and had become almost an extended family for the divorced judge who has no children. Clerks would play in monthly card games at her apartment, Rosen wrote, and even went with her to a Harry Potter movie. But Rosen went on to quote anonymous clerks for other judges who considered Sotomayor a talkative lightweight who, according to one clerk, was "kind of a bully on the bench."

The Rosen article provoked a backlash in that it was based on anonymous sources and was seen by some as a sexist critique. (Tuesday, Rosen posted a new blog calling for Sotomayor's confirmation .)

Washington University's Rosenbury said she was "very surprised" by Rosen's article because she never had heard clerks criticize Sotomayor and "just didn't believe" the claims.  "Judges are tough," she said.  "That is their job.  They sometimes cut people off.  Sometimes people react differently to a tough woman than to a tough man and that might explain some of the things (in the article)."

Rosenbury recalled that Sotomayor and her judge, Jacobs, had hosted a joint lunch for their clerks at which Sotomayor was smart and personable. Rosenbury noticed that Sotomayor checked her blood sugar during the lunch because she has diabetes. Sotomayor talked easily about her life with the disease.

"She said, 'They told me it would shorten my life. But they were wrong,'" Rosenbury recalled.

Doreen Dodson, a partner at the Stolar Partnership, was unhappy with the clerks' criticism. "As far as criticism, she was raised in the Bronx and does not appear to suffer fools lightly," Dodson wrote in an email. "She talks like a lot of folks I knew growing up in Pennsylvania." Dodson said that she felt gratified that a second woman now will sit on the Supreme Court.

Sotomayor opened the door to the law-making criticism when she said at a conference that a "court of appeals is where policy is made."

But many judges and lawyers say that Sotomajor was guilty only of speaking the truth.

Goldstein put it this way: "One can caricature a statement like hers that courts make policy but it's hard for me to imagine that many jurists, from all spots on the judicial spectrum, would disagree. When the court held that separate but equal public schools were unconstitutional in Brown vs. Board of Education, it made policy as it did in a range of civil rights cases following Brown; when Chief Justice (John) Roberts, joined by Justices (Antonin) Scalia, (Clarence) Thomas and (Samuel) Alito, declared in the recent Seattle and Louisville school desegregation case that the way to end discrimination is to stop discriminating, they were stating a policy preference. To be sure, courts make policy differently than do elected officials and they are bound by certain modes of constitutional or statutory analysis and argument, but it is disingenuous to say that they don't make policy in a sense."

Dodson agreed: "The quote about policy in the courts or in the circuits can be twisted several ways. Conservatives regard it as activist. Most judges, especially federal judges, do the very best they can to apply the law to the facts before them in a fair and impartial way and she is no different."

Sotomayor has not ruled directly on abortion rights, but two rulings touched tangentially on abortion. In a 2002 decision, she ruled against abortion-rights groups that had challenged the so-called "Mexico City" rules withdrawing government support for international family-planning organizations that support abortion. Sotomayor ruled that the policy did not violate the groups' First Amendment rights. She also ruled that the policy did not discriminate unfairly against the groups, concluding the government "is free to favor the anti-abortion position over the pro-choice position" when it comes to public funds.

In the other case, Sotomayor ruled in 2004 that anti-abortion protesters could keep alive a claim that police in West Hartford, Conn. had overreacted and acted unreasonably in breaking up their protest.

In general, Sotomayor appears generally sympathetic to civil rights claims. In one case, Sotomayor dissented from a court decision to allow a school to demote a young, African-American boy from first grade to kindergarten, because she thought white children were not treated the same way.

Sex discrimination

Sotomayor also was involved in two cases where the 2nd Circuit found evidence of hostile work environments not found by lower courts. In one, an Hispanic woman was repeatedly berated and backed against a wall by another worker who used racial and sexual language. That is the case where she persuaded her conservative colleague, Judge Jacobs, to join her opinion.

Yvette Cruz, a Hispanic woman, had sued her employer, Coach Stores, for failing to promote her and for firing her in retaliation for her complaints about discrimination.  Cruz had been fired for slapping a male co-worker who remarked that her nipples were erect; the male worker also was fired.

Judge Sotomayor wrote that an employee cannot slap a person who engages in sexual harassment and then claim that she was fired in retaliation for complaining about harassment.

Sotomayor went on, however, to rule that Cruz might be able to prove a hostile work environment based on both racial and sexual harassment.  She pointed to repeated racist remarks about Hispanics and blacks as well as the unwanted sexual touching and comments faced by Cruz and other women.

Washington University's Rosenbury points to this part of the opinion as an example of the way Sotomayor used a careful, nuanced argument to bring together conservative and liberal judges.

In the other sex discrimination case, Sotomayor sided with a woman who faced "sex-based comments" and physical threats in a male-dominated police department. She rejected the lower court's claim that this was all part of the "camaraderie of a precinct house."

But, in a 1999 case, Sotomayor disagreed with her colleagues who rejected the appeal of a New York city police officer fired for sending anonymous racial slurs in reaction to a department fundraising campaign. Sotomayor thought the officer's comments might be protected by the First Amendment, particularly because he was a desk officer and his slurs were anonymous.

In two prison cases with religious overtones, Sotomayor ruled that a prison could not deny a Muslim the right to observe an important feast day, but she found it reasonable for another prison to monitor the mail of an inmate who received a book that included "Blood in the Streets" as part of the title.

Interestingly, Sotomayor would be the sixth Catholic on a court that once was a bastion of WASPs.  The only Protestant left on the court is its oldest member, Justice John Paul Stevens.

In the end, however, the nuances of Judge Sotomayor's opinions matter less than her personal experiences.  President Obama, who emphasized Sotomayor's biography during his announcement, quoted a famous line by a famous Supreme Court justice in making the point.  Obama quoted Justice Oliver Wendell Holmes who once said, “The life of the law has not been logic, it has been experience.”

William H. Freivogel is director of the School of Journalism at Southern Illinois University Carbondale and a professor at the Paul Simon Public Policy Institute.