Based on record, Obama’s pick wouldn’t alter high court’s balance
WASHINGTON – President Barack Obama decided Tuesday to send to the Supreme Court a veteran federal judge from New York whose humble upbringing and moderate-to-liberal record on the bench is not likely to trigger a “culture wars” battle in the Senate.
Judge Sonia Sotomayor, 54, who would be the first Hispanic justice on the high court, has not ruled squarely on issues such as abortion or gay rights, and legal experts say her narrowly written opinions resemble those of the justice she would replace, David Souter.
While some conservative groups labeled her as a liberal activist, her nomination provoked a low-key reaction from some abortion-rights advocates and a muted response by Senate Republicans.
One of her fellow judges on the U.S. Court of Appeals in New York said they were surprised to see Sotomayor called a liberal or an activist.
“We have some judges on the left end of the spectrum. Sonia’s well in the middle,” said Judge Guido Calabresi, a former Yale Law School dean. “That’s one of the things I have been pointing out to people. She is not an activist in the true meaning of the word. Activism has a meaning – judges who reach out to decide things that aren’t before them. Sonia simply doesn’t do that.”
Latino leaders hailed Sotomayor’s nomination as historic and overdue. “The president deserves praise for working to make a Hispanic voice heard in the exclusive chambers of our nation’s highest court,” said Hispanics for a Fair Judiciary.
The White House hopes Sotomayor will be confirmed by the Senate by September. She is not likely to shift the court’s ideological balance if she follows a moderate-to-liberal course like Souter.
“She is a moderate liberal who often rules in favor of corporations and against civil rights plaintiffs,” said Kevin Russell, a Washington lawyer who studied her writings in recent weeks.
While Sotomayor has avoided strong rhetoric in her legal rulings, she had made several controversial statements that are likely to be repeated often.
In 2002, she said her Puerto Rican heritage would cause her to see cases differently: “Whether born from experience or inherent physiological or cultural differences, our gender and national origins may and will make a difference in our judging. … I would hope that a wise Latina 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.”
But she did not cite examples in this speech at the University of California, Berkeley, and said at one point she was vigilant “in checking my assumptions, presumptions and perspectives” about other people.
She also spoke at a Duke Law forum of how the appeals courts make “policy.” She quickly added she did not mean the judges make law but instead set the law for their regional circuits.
Her most controversial court decision appears to be a two-paragraph, unsigned opinion issued last year in a racial bias case by a three-judge panel that included Sotomayor. The decision upheld a judge’s order that tossed out a suit by white firefighters in New Haven, Conn., who had good scores on promotional tests.
The firefighters sued the City Council after it dropped the test upon learning that no blacks were due to be promoted.
“We are not unsympathetic to the (white firefighters’) expression of frustration,” the appeals court said. But the city, it added, “in refusing to validate the exams, was simply trying to fulfill its obligations under the (Civil Rights Act) when confronted with test results that had a disproportionate racial impact.”
Dissenting judges from the full appeals court accused Sotomayor and her colleagues of ignoring the real issue. They said the white firefighters were denied a promotion because of their race, a clear violation of civil rights laws, they said.
The Supreme Court agreed in January to hear the white firefighters’ appeal. If the justices overrule Sotomayor’s decision in June, it will be an embarrassment for her prior to her confirmation hearing. But White House lawyers insist it would be hard for her critics to make a major controversy out of an unsigned two-paragraph opinion.
Last Friday, in a case that may have demonstrated to Obama some of the capacity for empathy he said he wanted in a judge, Sotomayor dissented when the U.S. appeals court in New York threw out a suit brought by county jail inmates who were strip-searched after they were arrested for misdemeanors. She called these searches needlessly humiliating and unconstitutional.
Obama on Tuesday cited Sotomayor’s breadth of experience. She has been a big-city crime prosecutor, a corporate lawyer and federal trial judge and, for the past 11 years, a judge on the 2nd U.S. Circuit Court of Appeals.
The president even credited her with having “saved baseball.” In 1995, she handed down an order siding with the Major League Baseball players and ending the long strike.
Obama said she has a “rigorous intellect” to handle the court’s work. And, he said, she has “a common touch and sense of compassion, an understanding of how the world works and how ordinary people live.”
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