Justice Sotomayor was nominated by President Barack Obama to the Supreme Court on May 26, 2009. A vacancy became open upon the retirement of Justice Souter. If her nomination and approval by the Senate is approved, she would become the 111th Justice of the Supreme Court of the United States. Her confirmation hearing by the Senate did not go without controversy. Justice Sotomayor gave a speech at the University of California, Berkeley and in her speech, she said, “I would hope that a wise Latina Woman with richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.” Some, including commentators such as Rush Limbaugh, view this statement as being racist. She acknowledged the phrase, “wise Latina woman” was a bad attempt to playing on words. In the end, Justice Sotomayer was confirmed by a vote of 68-31. Justice Sotomayor life is one that is full of achievement and disappointment. Her appointment has changed the landscape from of the court.
Sotomayor was born in The Bronx, New York City and is of Puerto Rican descent. Her father died when she was nine, and she was subsequently raised by her mother. As a child, she aspired to be like Nancy Drew, the detective in the popular children’s mystery series. But at the age of 8, she was diagnosed with diabetes and told she would not be able to pursue that line of work. Sotomayor said it was another fictional character that inspired her next choice. “I noticed that [defense attorney] Perry Mason was involved in a lot of the same kinds of investigative work that I had been fascinated with reading Nancy Drew, so I decided to become a lawyer,” Sotomayor told the American Bar Association publication in 2000. “Once I focused on becoming a lawyer, I never deviated from that goal.”
Her parents moved to New York during World War II – her mother served in the Women’s Auxiliary Corps during the war. Her father, a factory worker with a third-grade education, died when Sotomayor was nine years old. Her mother, a nurse, then raised Sotomayor and her younger brother, Juan, now a physician in Syracuse. After her father’s death, Sotomayor turned to books for solace, and it was her new found love of Nancy Drew that inspired a love of reading and learning, a path that ultimately led her to the law.
Most importantly, at an early age, her mother instilled in Sotomayor and her brother a belief in the power of education. Driven by an indefatigable work ethic, and rising to the challenge of managing a diagnosis of juvenile diabetes, Sotomayor excelled in school. Sotomayor graduated as valedictorian of her class at Blessed Sacrament and at Cardinal Spellman High School in New York. She first heard about the Ivy League from her high school debate coach, Ken Moy, who attended Princeton University, and she soon followed in his footsteps after winning a scholarship.
Judge Sotomayor’s Legal Realist Judicial Philosophy
Formalism is an appealing view because it purports to validate the rule of law, in contrast to the rule of the men and women who serve as judges. If the judge is simply a vehicle for expressing the law’s meaning, then when the judge interprets the law, the judge is not adding his or her own gloss, but rather simply applying the rules and standards previously chosen through democratic processes. For this reason, Justice Scalia, who has also espoused formalism, specifically associates it with the rule of law. Yet formalism has been under assault for over a century. “Legal realists” have long noted that the formalist’s view of the law is false, or at least radically incomplete.
Even a legal realist will likely admit that, yes, in some very simple cases–the sort that are either never brought or that settle quickly–the formal legal materials uniquely determine the answer. However, legal realists point out that in the sorts of cases that reach appellate courts, and especially a court of last resort like the United States Supreme Court, there is usually a substantial gap or ambiguity in the law. That is the very reason why we need such courts, legal realists say. As the term “legal realism” suggests, legal realists believe that formalists are not being honest (perhaps, not even with themselves) when they disclaim any influence from their own values upon their judicial decisionmaking. Nor, they say, could matters be otherwise in a complex and evolving society in which legislators and constitution writers cannot possibly have anticipated all of the circumstances in which the provisions they wrote would be applied.
The point was aptly made this way: The constant development of unprecedented problems requires a legal system capable of fluidity and pliancy. Our society would be strait-jacketed were not the courts, with the able assistance of the lawyers, constantly overhauling the law and adapting it to the realities of ever-changing social, industrial and political conditions; although changes cannot be made lightly, yet law must be more or less impermanent, experimental and therefore not nicely calculable. Much of the uncertainty of law is not an unfortunate accident: it is of immense social value. Who said that? None other than Judge Sonia Sotomayor, in a 1996 speech at Suffolk University Law School. Formalism, Legal Realism, and Judicial Empathy
Knowing that Judge Sotomayor is a legal realist does not tell us everything about her judicial philosophy, but it does paint a vivid contrast with the formalism expressed by Justice Thomas and Chief Justice Roberts at their confirmation hearings. That contrast, in turn, makes sense of the controversy over President Obama’s view that a Justice ought to have empathy. If one thinks–as many conservative commentators apparently do–that formalism correctly describes American law, then empathy is irrelevant to judging. The judge’s job is simply to apply the formal legal materials. Empathy is no more useful to the formalist judge than it is to someone writing a dictionary. In each case, one is simply looking for the meaning of words. However, if one thinks that the legal realists have it right, then a broad capacity for empathy is crucial to judging.
According to the legal realist view, in filling in the law’s gaps and ambiguities, a judge will necessarily be making value-laden decisions that derive in part from her background and experience. The broader the background, and the greater her ability to step outside her own circumstances to see the law’s effects on others, the greater will be the judge’s ability to, as Judge Sotomayor put it, adapt the law “to the realities of ever-changing social, industrial and political conditions.” Neither legal realism nor empathy alone constitutes the whole of Judge Sotomayor’s judicial philosophy.
To fully appreciate her approach, it would be necessary to read a substantial number of the hundreds of opinions she has authored as a federal judge. But at least with a professed legal realist judge like Sotomayor, one knows where to begin. In an era when we are all too familiar with 5-4 Supreme Court decisions splitting along conservative/liberal lines, it is refreshing to have a nominee who does not pretend that her background and values have nothing to do with her legal decisions.
The Case Against Sotomayor
Sotomayor’s former clerks sing her praises as a demanding but thoughtful boss whose personal experiences have given her a commitment to legal fairness. “She is a rule-bound pragmatist–very geared toward determining what the right answer is and what the law dictates, but her general approach is, unsurprisingly, influenced by her unique background,” says one former clerk. “She grew up in a situation of disadvantage, and was able, by virtue of the system operating in such a fair way, to accomplish what she did. I think she sees the law as an instrument that can accomplish the same thing for other people, a system that, if administered fairly, can give everyone the fair break they deserve, regardless of who they are.” Her former clerks report that because Sotomayor is divorced and has no children, her clerks become like her extended family–working late with her, visiting her apartment once a month for card games (where she remembers their favorite drinks), and taking a field trip together to the premier of a Harry Potter movie.
But despite the praise from some of her former clerks, and warm words from some of her Second Circuit colleagues, there are also many reservations about Sotomayor. Over the past few weeks, I’ve been talking to a range of people who have worked with her, nearly all of them former law clerks for other judges on the Second Circuit or former federal prosecutors in New York. Most are Democrats and all of them want President Obama to appoint a judicial star of the highest intellectual caliber who has the potential to change the direction of the court. Nearly all of them acknowledged that Sotomayor is a presumptive front-runner, but nearly none of them raved about her. They expressed questions about her temperament, her judicial craftsmanship, and most of all, her ability to provide an intellectual counterweight to the conservative justices, as well as a clear liberal alternative. The most consistent concern was that Sotomayor, although an able lawyer, was “not that smart and kind of a bully on the bench,” as one former Second Circuit clerk for another judge put it.
“She has an inflated opinion of herself, and is domineering during oral arguments, but her questions aren’t penetrating and don’t get to the heart of the issue.” (During one argument, an elderly judicial colleague is said to have leaned over and said, “Will you please stop talking and let them talk?”) Second Circuit judge Jose Cabranes, who would later become her colleague, put this point more charitably in a 1995 interview with The New York Times: “She is not intimidated or overwhelmed by the eminence or power or prestige of any party, or indeed of the media.” Her opinions, although competent, are viewed by former prosecutors as not especially clean or tight, and sometimes miss the forest for the trees. It’s customary, for example, for Second Circuit judges to circulate their draft opinions to invite a robust exchange of views. Sotomayor, several former clerks complained, rankled her colleagues by sending long memos that didn’t distinguish between substantive and trivial points, with petty editing suggestions–fixing typos and the like–rather than focusing on the core analytical issues.
Some former clerks and prosecutors expressed concerns about her command of technical legal details: In 2001, for example, a conservative colleague, Ralph Winter, included an unusual footnote in a case suggesting that an earlier opinion by Sotomayor might have inadvertently misstated the law in a way that misled litigants. The most controversial case in which Sotomayor participated is Ricci v. DeStefano, the explosive case involving affirmative action in the New Haven fire department, which is now being reviewed by the Supreme Court. A panel including Sotomayor ruled against the firefighters in a perfunctory unpublished opinion. This provoked Judge Cabranes, a fellow Clinton appointee, to object to the panel’s opinion that contained “no reference whatsoever to the constitutional issues at the core of this case.” (The extent of Sotomayor’s involvement in the opinion itself is not publicly known.) Not all the former clerks for other judges I talked to were skeptical about Sotomayor.
“I know the word on the street is that she’s not the brainiest of people, but I didn’t have that experience,” said one former clerk for another judge. “She’s an incredibly impressive person, she’s not shy or apologetic about who she is, and that’s great.” This supporter praised Sotomayor for not being a wilting violet. “She commands attention, she’s clearly in charge, she speaks her mind, she’s funny, she’s voluble, and she has ownership over the role in a very positive way,” she said. “She’s a fine Second Circuit judge–maybe not the smartest ever, but how often are Supreme Court nominees the smartest ever?”
I haven’t read enough of Sotomayor’s opinions to have a confident sense of them, nor have I talked to enough of Sotomayor’s detractors and supporters, to get a fully balanced picture of her strengths. It’s possible that the former clerks and former prosecutors I talked to have an incomplete picture of her abilities. But they’re not motivated by sour grapes or by ideological disagreement–they’d like the most intellectually powerful and politically effective liberal justice possible. And they think that Sotomayor, although personally and professionally impressive, may not meet that demanding standard. Given the stakes, the president should obviously satisfy himself that he has a complete picture before taking a gamble.
Judge Sotomayor’s most high-profile case, Ricci v. DeStefano, concerns white firefighters in New Haven who were denied promotions after an examination yielded no black firefighters eligible for advancement. Joining an unsigned opinion of a three-judge panel of the appeals court, Judge Sotomayor upheld the rejection of a lawsuit by white firefighters, one of them Hispanic, claiming race discrimination and, as part of the full appeals court, she declined to rehear the case. The Supreme Court overturned the lower court’s decision in a 5-to-4 vote. Judge Sotomayor dissented in part in an earlier case, Gant v. Wallingford Board of Education, finding that race discrimination had occurred when a school demoted a black child from first grade to kindergarten.
Lawsuits Against Federal Contractors
An opposition memo on Judge Sotomayor cites her ruling in a case about lawsuits against federal contractors to claim that she is “willing to expand constitutional rights beyond the text of the Constitution.” The case concerns an inmate who lived in a fifth-floor room while serving a federal prison sentence for securities fraud. He was allowed to use the elevator because of congestive heart failure, but when a guard had him climb the five flights, he had a heart attack, fell down the stairs and suffered an injury. He sued the company that ran the halfway house for the federal Bureau of Prisons. As part of the appeals court, Judge Sotomayor emphasized precedents that permitted suits against companies performing state government functions.
The Supreme Court reversed Judge Sotomayor, ruling 5 to 4 that only individual agents, not corporations, may be sued for such violations. Justice Stevens – joined by Justices Souter, Ginsburg, and Breyer – dissented. “Extending Bivens liability to reach private corporations furthers [its] overriding purpose: providing redress for violations of constitutional rights.” (Bivens was a 1971 Supreme Court case that allowed some people whose rights have been violated by federal agents to sue.) —Makesko v. Correctional Services Corporation, 2000
* Makesko v. Correctional Services Corporation
In a defeat for environmental groups, the Supreme Court ruled this term that the Environmental Protection Agency may use cost-benefit calculations to decide whether to require power plants to make changes that could preserve aquatic organisms. The case mostly concerned the meaning of a phrase in the Clean Water Act that requires the power plants’ cooling structures to “reflect the best technology available for minimizing adverse environmental impact.” Judge Sotomayor had previously ruled that weighing the costs of the changes against the value of the organisms in dollars was not permitted by the law. Instead, the EPA could consider only what cost “may reasonably be borne” by the power plants.
When her ruling was overturned by the Supreme Court, Justice John Paul Stevens, joined by Justices Ruth Bader Ginsburg and David H. Souter, dissented, saying that cost-benefit analysis was prohibited by the law and pernicious in practice. “Congress has already specified the relationship between cost and benefits in requiring that the technology designated by the EPA be the best available.”
—Riverkeeper v. Environmental Protection Agency
* Riverkeeper v. Environmental Protection Agency (2007)
Workplace Discrimination: Disabilities
Some of Judge Sotomayor’s more prominent opinions on discrimination concern people with disabilities. In one case, Judge Sotomayor ruled that a law school graduate with a reading and learning disability was entitled to extra time in taking the bar exams. After the Supreme Court decided that people are not protected under the Americans With Disabilities Act if they can function normally by wearing glasses, taking medication or otherwise compensating for their disabilities, it told the Second Court to reconsider its decision in this case. Judge Sotomayor again found that the woman was disabled, and must be given accommodations, writing that test scores alone were not enough to diagnose a disability.
Another case concerned a trucking company that rejected applicants who were taking some medications. Judge Sotomayor dissented from the majority, writing that Hunt, the company, had determined the applicants were “substantially limited in the major life activity of working,” and not, as the, majority found, merely “unsuited for long-distance driving of Hunt’s 40-ton trucks on irregular stressful schedules.” “By its very nature, diagnosing a learning disability requires clinical judgment.” —Bartlett v. New York State Board of Law Examiners
* Bartlett v. New York State Board of Law Examiners (1999) * E.E.O.C. v. J.B. Hunt Transport (2003)
Some of her Judge Sotomayor’s most notable decisions have come in child custody and complex business cases. One case concerned a child of divorced parents who lived in Hong Kong. The mother had sole custody of the child and the father had “reasonable access.” The mother took the child to New York, and the father filed a petition for return of the child to Hong Kong. A custody order said the child could not be removed from Hong Kong without the consent of the father or the Hong Kong court, and the case centered on whether this clause confers “rights of custody” under the Hague Convention on International Child Abduction. If it did, it would require the child’s return to Hong Kong.
On appeal, the court ruled the removal was not wrong because the father did not possess rights of custody. In her dissenting opinion, Judge Sotomayor argued that a broader interpretation of “custody” was more in line with the “object and purpose” of the Convention, and that this was how foreign courts had considered the issue. The question in this case, Croll v. Croll, is before the Supreme Court in Abbott v. Abbott. Another case concerned jurisdiction. Federal courts can hear cases between “citizens of a State and citizens or subjects of a foreign state.” According to British law, citizens of Bermuda are “nationals,” but not “subjects.” A panel found, therefore, that federal jurisdiction did not apply. Judge Sotomayor dissented, writing that the Constitution used “citizen” and “subject” to refer to a range of relationships.
[ 1 ]. http://www.time.com/time/politics/article/0,8599,1910403,00.html [ 2 ]. http://articles.cnn.com/2009-07-14/politics/sotomayor.hearing_1_sotomayor-hearings-wise-latina-woman-hispanic-supreme-court?_s=PM:POLITICS [ 3 ]. http://articles.cnn.com/2009-05-26/politics/sotomayor.bio_1_judge-sonia-sotomayor-supreme-court-nancy-drew?_s=PM:POLITICS [ 4 ]. http://www.whitehouse.gov/the_press_office/Background-on-Judge-Sonia-Sotomayor/ [ 5 ]. http://writ.news.findlaw.com/dorf/20090603.html
[ 6 ]. http://www.tnr.com/article/politics/the-case-against-sotomayor