Supreme Court pick gets mixed reactions from lawyers

McClatchy NewspapersMay 26, 2009 

WASHINGTON — Judge Sonia Sotomayor has an up-by-the-bootstraps background, an elite education and a mixed reputation among the lawyers who appear before her.

The 54-year-old New York native, a graduate of Princeton and of Yale Law School, is considered brilliant by some and combative by others. Her decisions over nearly 17 years as a federal judge generally define her as an unabashed liberal, more pronouncedly so than the Supreme Court justice she now hopes to replace.

"President Obama said he wanted a justice with 'towering intellect' and a 'common touch' and he found both in Judge Sotomayor," declared Kim Gandy, the president of the National Organization for Women.

Raised largely by her mother in a Bronx housing project after her father died when she was 9, Sotomayor went on to earn her undergraduate degree summa cum laude. Her life story is a compelling one of upward achievement, even as her legal rulings and occasional rhetoric will subject her to strict scrutiny from conservatives.

In particular, conservatives question whether Sotomayor's assertion at Duke University School of Law in 2005 that the court of appeals "is where policy is made" could be the confession of a judicial activist.

Avid baseball fans may recall Sotomayor from 1995, when she blocked team owners from using replacement players and thereby helped end a 232-day strike.

The Supreme Court itself is reviewing a controversial ruling by Sotomayor and her 2nd U.S. Circuit Court of Appeals colleagues, who upheld the decision by New Haven, Conn., not to promote white firefighters because African-American candidates hadn't qualified. The high court's conservative majority previously overturned two appellate decisions that Sotomayor authored.

Sotomayor has cleared Senate hurdles twice before, as a district court nominee in 1992 and as a nominee to the 2nd Circuit Court of Appeals in 1998. A former New York prosecutor, she secured her first judicial nomination through a Republican president, George H.W. Bush.

By the time President Bill Clinton promoted Sotomayor to the appeals court, however, she was drawing fire from the right. Her 67-29 confirmation vote in 1998 came only after Republicans, who even then considered her a likely Supreme Court prospect, imposed a lengthy procedural delay.

"Judge Sotomayor was being held up on the Republican side of the aisle because of speculation that she might one day be considered . . . for nomination to the United States Supreme Court," Sen. Patrick Leahy, D-Vt., said on the Senate floor at the time. He's now the chairman of the Senate Judiciary Committee.

Since Sotomayor joined the New York-based 2nd Circuit, a study by Akin Gump lawyers found, she's authored more than 150 opinions on issues ranging from free speech to race, sex and age discrimination.

As with every other federal judge, the attorneys who appear before Sotomayor have evaluated her regularly. Compiled in the well-respected Almanac of the Federal Judiciary, Sotomayor's evaluations run a wide gamut. Many are positive.

"She is extremely hardworking and always prepared," one attorney wrote. Another called her "a very good writer," while a third said she was "frighteningly smart (and) intellectually tough."

Sotomayor also has her share of detractors, however.

"She is temperamental and excitable; she seems angry," one attorney complained. Another called her "overly aggressive, not very judicial" and a third said she was "nasty to lawyers."

Lauren Goldman, an appellate practice partner with the firm Mayer Brown, said Sotomayor had impressed her when Goldman argued a business case before the 2nd Circuit.

"She was very prepared, and she has researched the case," Goldman said in an interview Tuesday. "She is a very active questioner, and she wants to get to the bottom of things."

Sotomayor's work as a prosecutor from 1979 to 1984 typically involved what she called in one Senate questionnaire "street crimes" as well as "child pornography, police misconduct and fraud."

While Sotomayor was in private practice with the firm Pavia & Harcourt from 1984 to 1992, she represented foreign as well as domestic clients. For the Italian car company Ferrari, she challenged a former car dealer in the Sacramento, Calif., area. For another Italian firm, the fashion house Fendi, she pursued anti-counterfeiting cases against companies with names such as Dapper Dan's Boutique.

Like many, if not most, other appellate judges, Sotomayor has been second-guessed by the Supreme Court. In 2000, for instance, Sotomayor sided with former federal inmate John E. Malesko. Malesko was in his late 50s and serving a sentence for securities fraud when he suffered a heart attack after being ordered to climb five flights of stairs back to his cell quickly. Sotomayor agreed that Malesko should be permitted to sue the private corporation that ran the facility.

"An employer facing exposure to such liability would be motivated to prevent unlawful acts by its employees," Sotomayor reasoned.

By 5-4, the Supreme Court disagreed, with then-Chief Justice William Rehnquist declaring that Sotomayor's reasoning would lead to a "marked extension" of the ability to file lawsuits against government contractors.

Judging from oral arguments earlier this year, the Supreme Court appears poised to reverse another Sotomayor case. Sotomayor was among the 2nd U.S. Circuit Court judges who sided with New Haven in its decision not to promote Frank Ricci and 17 other white firefighters despite their high test scores.

The Ricci case will loom large in Sotomayor's coming confirmation hearings in part because of the internal court strife that's accompanied it. Another Clinton appointee to the 2nd Circuit, Jose Cabranes, criticized as sloppy, speedy and unclear the manner in which Sotomayor and other judges quickly dismissed the firefighters' arguments.

"This perfunctory disposition rests uneasily with the weighty issues presented by this appeal," Cabranes wrote.

Sotomayor has been single since a brief marriage ended in divorce in October 1983. She has diabetes, though otherwise she's described her health on confirmation questionnaires as "good."

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