A LATINA IN THE MIDDLE
In nominating Sonia Sotomayor to the Supreme Court on Tuesday, President Obama tapped a veteran jurist whose humble upbringing and moderate-to-liberal record is unlikely to trigger an ideological battle in the Senate.
Sotomayor, 54, would be the first Latino on the court. Legal experts said that her narrowly written opinions resembled those of the justice she would replace, David H. Souter. She has not ruled squarely on controversial issues such as gay rights or abortion.
Standing with Sotomayor by his side in the East Room of the White House, Obama said, “I have decided to nominate an inspiring woman who I believe will make a great justice.”
The president said he had considered many factors in his selection: “First and foremost is a rigorous intellect. . . . Second is a recognition of the limits of the judicial role,” noting that “a judge’s job is to interpret, not make, law.” Obama also said he wanted a nominee with “a sense of compassion, an understanding of how the world works and how ordinary people live.”
Sotomayor, who was raised in a Bronx housing project, spoke of the inspiration that her family and the law had provided.
“For as long as I can remember,” she said, “I have been inspired by the achievement of our Founding Fathers. They set forth principles that have endured for more than two centuries. . . . It would be a profound privilege for me to play a role in applying those principles to the . . . controversies we face today.”
In a statement after the nomination was announced, the abortion rights group NARAL Pro-Choice America said: “We look forward to learning more about Judge Sotomayor’s views on the right to privacy and the landmark Roe vs. Wade decision as the Senate’s hearing process moves forward.”
One of Sotomayor’s colleagues on the U.S. 2nd Circuit Court of Appeals in New York said he was surprised that some conservative groups had called Sotomayor a liberal or an activist judge.
“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. . . . Activism has a meaning -- judges who reach out to decide things that aren’t before them. Sonia simply doesn’t do that.”
“She is a moderate liberal who often rules in favor of corporations and against civil rights plaintiffs,” said Kevin Russell, a Washington lawyer who has studied her writings in recent weeks.
Though Sotomayor has avoided strong rhetoric in her rulings, she has made several controversial statements.
In 2001, she said her Puerto Rican heritage could 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. . . .,” she said. “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.”
But she did not cite examples during the speech at UC Berkeley, and said at one point that she vigilantly checked her “assumptions, presumptions and perspectives” about other people.
She also spoke at a Duke University School of Law forum about how the appeals courts made policy. She quickly added that she did not mean the judges made law, but instead that they set the law for their regional circuits.
Her most controversial decision appears to be a two-paragraph, unsigned opinion last year in a racial bias case.
A three-judge panel that included Sotomayor upheld a lower court order that tossed out a lawsuit by white firefighters in New Haven, Conn., who had good scores on tests used for promotions. The firefighters sued the City Council after it dropped the test upon learning that it indicated that no blacks had qualified for promotions.
“We are not unsympathetic to the [white firefighters’] expression of frustration,” the appeals court said. But the city, “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 on the full appeals court accused Sotomayor and her colleagues of ignoring the real issue. They said the white firefighters were denied promotions because of their race, a clear violation of civil rights laws.
The Supreme Court agreed in January to hear the white firefighters’ appeal. If the justices overrule Sotomayor’s decision, it will be an embarrassment for her before her confirmation hearing. But White House lawyers said it would be hard for her critics to make a major controversy out of an unsigned two-paragraph opinion.
Sotomayor has been overturned by Supreme Court conservatives in several other cases, including an environmental decision handed down by the high court in April.
Disagreeing with the Bush administration, Sotomayor said the law did not permit officials to consider “cost-benefit analysis” when deciding how to protect river fish from power generators. The law itself spoke of using the “best technology” to protect the environment. But the high court disagreed with her in a 6-3 opinion by Justice Antonin Scalia.
In another case three years ago, Sotomayor won the favor of campaign funding reformers by upholding a Vermont law that would have strictly limited spending and contributions in state races. The Supreme Court disagreed by a 6-3 vote and said the strict limits violated candidates’ free-speech rights.
In both cases, Souter took the same view as Sotomayor.
At times, Sotomayor’s rulings have won approval from conservatives on the high court.
Ten years ago, she wrote an opinion holding that drug evidence could be used against a man who was stopped based on a warrant that should have been removed from a police computer. Earlier this year, the Supreme Court adopted the same view in a 5-4 decision written by Chief Justice John G. Roberts Jr.
And in a case that may have demonstrated to Obama some of the capacity for empathy he said he wanted in a judge, Sotomayor dissented Friday when the 2nd Circuit Court threw out a suit brought by county jail inmates who were strip-searched after being arrested on misdemeanor charges. She called the searches needlessly humiliating and unconstitutional.
White House spokesman Robert Gibbs said the president hoped that Sotomayor -- who if she follows a moderate-to-liberal course is not likely to shift the court’s ideological balance -- would be confirmed by the Senate by September.
Washington lawyer Thomas Goldstein, who appears regularly before the high court, predicted that Sotomayor would not be the outspoken liberal some on the left had hoped for.
“On the modern court, she’s on the center left, pretty much right in line with Justice Souter,” he said, based on an analysis of her opinions. “Back in the day of the Warren court, she certainly would have been regarded as a moderate.”
Peter Nicholas, James Oliphant and Mark Silva in the Washington bureau contributed to this report.