College of William & Mary Law School William & Mary Law School Scholarship Repository

Supreme Court Preview Conferences, Events, and Lectures

2009 Section 2: Justice Sotomayor The uprS eme Court Institute of Bill of Rights Law at the William & Mary Law School

Repository Citation Institute of Bill of Rights Law at the William & Mary Law School, "Section 2: Justice Sotomayor The uS preme Court" (2009). Supreme Court Preview. 205. https://scholarship.law.wm.edu/preview/205

Copyright c 2009 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/preview II. JUSTICE SOTOMAYOR THE SUPREME COURT

In this Section:

"Obama Chooses Sotomayor for Supreme Court Nominee" p. 39 Jeff Zeleny

"From Humble Orgins, a Court Nominee in Obama's Image" p. 41 Joan Biskupic and Martha T. Moore

*Sotomayor's Record Sets off Few Ideological Alarm Bells" p. 45 David G. Savage and Christie Parsons

"Uncommon Detail Marks Rulings by Sotomayor" p. 48 Jerry Markon

"Queries on Abortion and Guns Fail to Break Judge's Stride" p. 52 Sheryl Gay Stolberg and Neil A. Lewis

"Diversity a Touchy Subject at Sotomayor Hearings" p. 55 James Oliphant and David G. Savage

"She's Come Redone" p. 58 Dahlia Lithwick

"A Judge's View of Judging Is on the Record" p. 61 Charles Savage

"Identity Politics and Sotomayor" p. 63 Stuart Taylor

"Her Justice Is Blind" p. 66 Thomas Goldstein

"The Sotomayor Nomination" p. 68 Richard Epstein

"Opposing View: A Confirmation Conversation" p. 70 Jeff Sessions

"Vote No on Sotomayor" p. 71 David McIntosh

"Why Sotomayor Is Such a Good Pick" p. 73 Erwin Chemerinsky

37 "The Judge Sotomayor I've Faced" p. 74 Floyd Abrams

"Every Justice Creates a New Court" p. 76 Linda Greenhouse

38 "Obama Chooses Sotomayor for Supreme Court Nominee"

The New York Times May 26, 2009 Jeff Zelenv

President Obama will nominate Judge Sonia Supreme Court vacancy. Later Monday Sotomayor of the United States Court of night, Mr. Obama called the three other Appeals for the Second Circuit as his first finalists-Judge Diane P Wood of Chicago, appointment to the court, officials said Homeland Security Secretary Janet Tuesday, and has scheduled an Napolitano and Solicitor General Elena announcement for 10:15 a.m. at the White Kagan-to inform them that he had selected House. Judge Sotomayor.

If confirmed by the Democratic-controlled White House officials worked into the night Senate, Judge Sotomayor, 54, would replace to prepare for the announcement, without Justice David H. Souter to become the knowing who it would be. second woman on the court and only the third female justice in the history of the Judge Sotomayor has sat for the last 11 Supreme Court. She also would be the first years on the federal appeals bench in Hispanic justice to serve on the Supreme Manhattan. As the top federal appeals court Court. in the nation's commercial center, the court is known in particular for its expertise in Conservative groups reacted with sharp corporate and securities law. For six years criticism on Tuesday morning. before that, she was a federal district judge in New York. "Judge Sotomayor is a liberal judicial activist of the first order who thinks her own In what may be her best-known ruling, personal political agenda is more important Judge Sotomayor issued an injunction than the law as written," said Wendy E. against major league baseball owners in Long, counsel to the Judicial Confirmation April 1995, effectively ending a baseball Network. "She thinks that judges should strike of nearly eight months, the longest dictate policy, and that one's sex, race, and work stoppage in professional sports history, ethnicity ought to affect the decisions one which had led to the cancellation of the renders from the bench." World Series for the first time in 90 years.

The president reached his decision over the Born in the Bronx on June 23, 1954, she was long Memorial Day weekend, aides said, but diagnosed with diabetes at the age of 8. Her it was not disclosed until Tuesday morning father, a factory worker, died a year later. when he informed his advisers of his choice Her mother, a nurse at a methadone clinic, less than three hours before the raised her daughter and a younger son on a announcement was scheduled to take place. modest salary.

Mr. Obama telephoned Judge Sotomayor at Judge Sotomayor graduated from Princeton 9 p.m. on Monday, officials said, advising University summa cum laude in 1976 and her that she was his choice to fill the attended Yale Law School, where she was

39 an editor of the Yale Law Journal. She spent child custody and complex business cases. five years as a prosecutor with the Her most high-profile case involved New Manhattan district attornev's office before Haven's decision to toss out tests used to entering private practice. evaluate candidates for promotion in the fire department because there were no minority But she longed to return to public service, candidates at the top of the list. she said, inspired by the "Perry Mason" series she watched as a child. In 1992, She was part of a panel that rejected the Senator Daniel Patrick Moynihan challenge brought by white firefighters who recommended the politically centrist lawyer scored high but were denied promotion. to President George H. W. Bush, making Frank Ricci, the lead plaintiff, argued that it good on a longstanding promise to appoint a was unfair he was denied promotion after he Hispanic judge in New York. had studied intensively for the exam and even paid for special coaching to overcome On the Circuit Court, she has been involved his dyslexia. The case produced a heated in few controversial issues like abortion. split in the Circuit Court and is now before Some of her most notable decisions came in the Supreme Court.

40 "From Humble Origins, a Court Nominee in Obama's Image"

USA Today May 25, 2009 Joan Biskupic and Martha T Moore

As Supreme Court nominee Sonia education who didn't speak English. He died Sotomayor stood next to President Obama when she was 9. on Tuesday, she admitted to being a bit nervous and "deeply moved." If approved by the Senate, Sotomayor would be the third woman ever to join the high And then the Puerto Rican child of the court and the second on the current bench, housing projects in the Bronx, N.Y., made it joining Ruth Bader Ginsburg. In announcing clear who she believed was mostly his choice as a successor to retiring Justice responsible for her being in position to David Souter and the first high-court become the first Hispanic on the Supreme nomination of his tenure, Obama called Court: her mother. Sotomayor an "inspiring woman who I believe will make a great justice." "I have often said that I am all I am because of her, and I am only half the woman she As a successor to the liberal Souter on the is," Sotomayor said of Celina Sotomayor, divided, nine-member court, Sotomayor is who worked as a nurse six days a week to not likely to tip the ideological balance of support her family. the bench. Yet she would bring diversity to the court-whose members include eight Obama's selection of Sonia Sotomayor, 54, whites and one African American drew an emotional wave of praise from (conservative Clarence Thomas)-not only Hispanic groups. Sotomayor's story-a in her ethnicity, but in how she arrived at the minority rising from humble beginnings to, high court. potentially, the top rungs of American government-rivals that of Obama himself, Sotomayor won a scholarship to Princeton, and suggests a steeliness that could be then attended Yale Law School. She became helpful in a Senate confirmation process that a prosecutor in New York, then a corporate can be intimidating. litigator, before being seated to a federal trial court by the first President Bush. Six In nominating Sotomayor, Obama talked as years later, President Clinton elevated her to much about her success story-from New a New York-based appeals court. York's projects to Princeton, Yale Law School and appointments to federal On Tuesday, Sotomayor presented herself judgeships-as he did about Sotomayor's much in the vein of the president, as views on the law. someone who beat the odds of economics, race and ethnicity in childhood. "She's faced down barriers, overcome the odds, lived out the American dream that "My heart today is bursting with gratitude," brought her parents here so long ago," she said. Obama said, noting that Sotomayor's father was a factory worker with a third-grade Lisa Zornberg, a former law clerk to

41 Sotomayor, said "the way she presented the least about Sotomayor and had never herself is entirely true to how she is as a met with her before Thursday, when she person. She is 100% authentic. She is a spent seven hours at the White House, dynamo. She is incredibly charming and including one with the president. very much about real-world pragmatism." 'Really an inspiration' Democrats, including Senate Judiciary Chairman Patrick Leahy, D-Vt., praised her The news of Sotomayor's nomination was ''exemplary record" and said he would work announced over the public-address system at closely with Republicans to win her old school, Cardinal Spellman High confirmation. School in the Bronx.

Republican senators, including Minority And it echoed around the brick buildings of Leader Mitch McConnell of Kentucky, said the Bronxdale Houses, the public housing they would need time to review Sotomayor's complex where Sotomayor grew up. 17-year record as a judge. "It's really an inspiration for me," says "We will thoroughly examine her record to Ivellisse Velasquez, 18, who has always ensure she understands that the role of a lived in Bronxdale Houses. "I can really be jurist in our democracy is to apply the law whatever I want to be. She made it out of the evenhandedly, despite their own feelings or projects and hardly anyone makes it out." personal or political preferences," McConnell said. Sotomayor's parents came to New York from Puerto Rico during World War II. Conservative interest groups, including the After her husband died, Sotomayor's mother American Center for Law and Justice worked two jobs, including one as a nurse at (ACLJ), called her an "activist" judge. a methadone clinic, to support Sonia and her Among her more controversial votes as a brother, Juan, who is now a doctor. judge was one endorsing a Connecticut city's decision to discard the results of a At age 8, Sotomayor was diagnosed with firefighter promotion test because blacks Type 1 diabetes, for which she continues to and Hispanics scored disproportionately take insulin daily. She has said she initially lower than whites. The case is now before wanted to become the next Nancy Drew (a the Supreme Court. fictional detective), but turned to another role model: the judge on the TV courtroom Sotomayor was typically direct Tuesday in drama "Perry Mason." signaling that she would not be shy about countering such criticism. She said she Her mother bought a set of encyclopedias on decides cases based on the law, without an an installment plan. The encyclopedias agenda in mind. helped Sotomayor get first to Cardinal Spellman, where she participated in student "I firmly believe in the rule of law," she government and on the debate team, and said. then, after her graduation in 1972, to Princeton. The president said that of four finalists he interviewed for the appointment, he knew There, she was not only one of a few

42 Hispanic students but also in one of the first for Sotomayor's critics. classes of women to enter the Ivy League school. She felt so out of her element, she The city threw out the test results because has said in interviews, that she didn't raise blacks and Hispanics scored her hand once in class during her freshman disproportionately lower than whites. year. The Supreme Court is weighing whether the By the time she graduated in 1976, she had "reverse discrimination" move violated the received the school's highest prize for rights of white firefighters who say they scholarship, character and leadership. In were denied promotions. 2001, the university awarded her an honorary doctorate, and in 2007 she became The tone of oral arguments last month a trustee. suggested the justices were ready to reverse the appeals court. "She was a big name on campus, she won the Pyne Prize, which is sort of like the Noting that Sotomayor had voted to throw MVP of the student body," says Randall out the firefighters' test, Roger Pilon, vice Kennedy, a Harvard Law School professor president of legal affairs of the libertarian who was a year behind Sotomayor at Cato Institute, said Obama had chosen "the Princeton. "She really distinguished herself most radical of all the frequently mentioned ... and was headed for big things." candidates before him."

Not since the 1991 nomination of Clarence Yet, much of Sotomayor's work as a trial Thomas, who was born in poverty near judge and then appellate jurist has involved Savannah, Ga., and reared by grandparents, routine business and other civil matters, has a Supreme Court nominee overcome rather than incendiary social topics such as such personal odds. abortion and the death penalty.

If confirmed, Sotomayor likely would be the As a trial judge, she also issued an order that least wealthy justice, judges' financial helped end the Major League Baseball strike disclosures show. While most Supreme of 1994-95. Court justices are millionaires, the only assets Sotomayor reported on her 2007 "Some say that Judge Sotomayor saved disclosure form were a savings account baseball," Obama said Tuesday. containing $50,000 to $100,000 and a checking account with less than $15,000. She was an assistant district attorney in New She earned $179,500 in 2008 as a judge on York 1979-84, then worked at the law firm the 2nd U.S. Circuit Court of Appeals in of Pavia and Harcourt 1984-1992. New York. As a justice, she would make $208,100. Manhattan district attorney Robert Morgenthau described Sotomayor as A 'radical' choice? someone who would decide cases "down the middle." The appeals court decision allowing the city of New Haven to toss the results of a "She's highly intelligent, (a) very hard firefighter promotion test provided material worker and she'll do what she thinks is right

43 based on the law and not on any ideology," "The Supreme Court has made clear that the Morgenthau said. government is free to favor the anti-abortion position over the pro-choice position, and Sotomayor's remarks at a 2005 legal can do so with public funds," she wrote in conference at Duke University's law school the decision against abortion-rights groups. are likely to draw scrutiny during the confirmation process, especially among Yet she has authored opinions that could be conservatives who question whether she deemed liberal and that have been reversed would interpret the Constitution strictly or by the conservative majority at the Supreme try to change policies through rulings. Court.

"The court of appeals is where policy is Among those was her 2000 opinion allowing made," Sotomayor said during the a prisoner who suffered a heart attack while conference. in a halfway house to bring a constitutional claim against a private corporation that ran She then quickly added, "I know this is on the house on behalf of the Bureau of tape and I should never say that, because we Prisons. don't make law, I know. Urn, OK. I know. I'm not promoting it, I'm not advocating it." Thomas Goldstein, a Washington appellate lawyer who has worked closely with White House spokesman Robert Gibbs said Democrats yet independently reviewed her Sotomayor's career proves "this is not opinions, said, "Our surveys of her opinions somebody that you could reasonably argue put her in essentially the same ideological advocates for or is engaged in legislating position as Justice Souter." from the bench." Jay Sekulow, chief counsel for the In 2002, Sotomayor wrote the 2nd Circuit's conservative ACLJ, however, said opinion rejecting a challenge to Bush Sotomayor represents "an aggressive administration policy barring federal decision the president has made that's going funding for foreign nongovernmental to trigger a national debate on the issue of organizations that perform abortions, the so- judicial activism and the role of the called "Mexico City Policy." judiciary."

44 "Sotomayor's Record Sets off Few Ideological Alarm Bells"

The Los Angeles Times May 27, 2009 David G. Savage and Christie Parsons

In nominating Sonia Sotomayor to the face today." Supreme Court on Tuesday, President Obama tapped a veteran jurist whose In a statement after the nomination was humble upbringing and moderate-to-liberal announced, the abortion-rights group record is unlikely to trigger an ideological NARAL Pro-Choice America said: "We battle in the Senate. Sotomayor, 54, would look forward to learning more about Judge be the first Latino on the court. Legal Sotomayor's views on the right to privacy experts said that her narrowly written and the landmark Roe vs. Wade decision as opinions resembled those of the justice she the Senate's hearing process moves would replace, David H. Souter. She has not forward." ruled squarely on controversial issues such as gay rights or abortion. One of Sotomayor's colleagues on the U.S. 2nd Circuit Court of Appeals in New York Standing with Sotomayor by his side in the said he was surprised that some conservative East Room of the White House, Obama said, groups had called Sotomayor a liberal or an "I have decided to nominate an inspiring activist judge. woman who I believe will make a great justice." "We have some judges on the left end of the spectrum. Sonia's well in the middle," said The president said he had considered many Judge Guido Calabresi, a former Yale Law factors in his selection: "First and foremost School dean. "That's one of the things I is a rigorous intellect. . . Second is a have been pointing out to people. . . recognition of the limits of the judicial role," Activism has a meaning-judges who reach noting that "a judge's job is to interpret, not out to decide things that aren't before them. make, law." Obama also said he wanted a Sonia simply doesn't do that." nominee with "a sense of compassion, an understanding of how the world works and "She is a moderate liberal who often rules in how ordinary people live." favor of corporations and against civil rights plaintiffs," said Kevin Russell, a Sotomayor, who was raised in a Bronx Washington lawyer who has studied her housing project, spoke of the inspiration that writings in recent weeks. her family and the law had provided. Though Sotomayor has avoided strong "For as long as I can remember," she said, "I rhetoric in her rulings, she has made several have been inspired by the achievement of controversial statements. In 2001, she said our Founding Fathers. They set forth her Puerto Rican heritage could cause her to principles that have endured for more than see cases differently. "Whether born from two centuries. . . . It would be a profound experience or inherent physiological or privilege for me to play a role in applying cultural differences . . . our gender and those principles to the . . controversies we national origins may and will make a

45 difference in our judging. . .," she said. "I The Supreme Court agreed in January to would hope that a wise Latina woman with hear the white firefighters' appeal. If the the richness of her experiences would more justices overrule Sotomayor's decision. it often than not reach a better conclusion than will be an embarrassment for her before her a white male who hasn't lived that life." confirmation hearing. But White House lawyers said it would be hard for her critics But she did not cite examples during the to make a major controversy out of an speech at UC Berkeley and said at one point unsigned two-paragraph opinion. that she vigilantly checked her "assumptions, presumptions and Sotomayor has been overturned by Supreme perspectives" about other people. Court conservatives in several other cases, including an environmental decision handed She also spoke at a Duke University School do-wn by the high court in April. of Law forum about how the appeals courts made policy. She quickly added that she did Disagreeing with the Bush administration, not mean the judges made law, but instead Sotomayor said the law did not permit that they set the law for their regional officials to consider "cost-benefit analysis" circuits. when deciding how to protect river fish from power generators. The law itself spoke of Her most controversial decision appears to using the "best technology" to protect the be a two-paragraph, unsigned opinion last environment. But the high court disagreed year in a racial-bias case. with her in a 6-3 opinion by Justice Antonin Scalia. In another case three years ago, A three-judge panel that included Sotomayor won the favor of campaign Sotomayor upheld a lower-court order that funding reformers by upholding a Vermont tossed out a lawsuit by white firefighters in law\ that would have strictly limited New Haven, Conn., who had good scores on spending and contributions in state races. tests used for promotions. The firefighters The Supreme Court disagreed by a 6-3 vote sued the City Council after it dropped the and said the strict limits violated candidates' test upon learning that it indicated that no free-speech rights. blacks had qualified for promotions. In both cases, Souter took the same view as "We are not unsympathetic to the [white Sotomayor. firefighters'] expression of frustration," the appeals court said. But the city. "in refusing At times, Sotomayor's rulings have won to validate the exams, was simply trying to approval from conservatives on the high fulfill its obligations under the [Civil Rights court. Act] when confronted with test results that had a disproportionate racial impact." Ten years ago, she wrote an opinion holding that drug evidence could be used against a Dissenting judges on the full appeals court man who was stopped based on a warrant accused Sotomayor and her colleagues of that should have been removed from a ignoring the real issue. They said the white police computer. Earlier this year. the firefighters were denied promotions because Supreme Court adopted the same view in a of their race, a clear violation of civil rights 5-4 decision written by Chief Justice John laws. G. Roberts Jr.

46 And in a case that may have demonstrated to balance-would be confirmed by the Senate Obama some of the capacity for empathy he by September. said he wanted in a judge, Sotomayor dissented Friday when the 2nd Circuit Court Washington lawyer Thomas Goldstein, who threw out a suit brought by county jail appears regularly before the high court, inmates who were strip-searched after being predicted that Sotomayor would not be the arrested on misdemeanor charges. outspoken liberal some on the left had hoped for. She called the searches needlessly humiliating and unconstitutional. "On the modern court, she's on the center left, pretty much right in line with Justice White House spokesman Robert Gibbs said Souter," he said, based on an analysis of her the president hoped that Sotomayor-wvho if opinions. "Back in the day of the Warren she follows a moderate-to-liberal course is court, she certainly would have been not likely to shift the court's ideological regarded as a moderate."

47 "Uncommon Detail Marks Rulings by Sotomayor"

W1ashington Post July 9, 2009 Jerry Markon

Supreme Court nominee Sonia Sotomayor's judges "are not in the role of reweighing the opinions show support for the rights of credibility of a witness. Someone's criminal defendants and suspects, skepticism demeanor is not reflected on a transcript." of corporations, and sympathy for plaintiffs alleging discrimination, an analysis of her But Wisenberg said she admires record by The Washington Post found. And Sotomayor's "tenacious trial lawyer's she has delivered those rulings with a level personality," and Dan Himmelfarb, a of detail considered unusual for an appellate Washington lawyer and former clerk to judge. conservative Supreme Court Justice Clarence Thomas, said Sotomayor is During nearly 11 years on the federal "extraordinarily thorough, and a judge appeals court in New York, Sotomayor has would ordinarily be praised for writing made herself an expert on subjects ranging thorough opinions." from the intricacies of automobile mechanisms to the homicide risks posed by To examine the record of Sotomayor, whose the city's population density. Her writings Senate confirmation hearings begin have often offered a granular analysis of Monday, The Post reviewed all 46 of her every piece of evidence in criminal trials, cases in which the 2nd Circuit issued a and sometimes read as if she were retrying divided ruling, nearly 900 pages of opinions. cases from her chambers. Although Sotomayor has heard about 3,000 cases, judicial scholars say split decisions Legal experts said Sotomayor's rulings fall provide the most revealing window into within the mainstream of those by ideology because in such cases the law and Democratic-appointed judges. But some precedent are often unclear, making them were critical of her style, saying it comes similar to cases heard by the Supreme Court. close to overstepping the traditional role of President Obama, who nominated appellate judges, who give considerable Sotomayor to replace retiring Justice David deference to the judges and juries that H. Souter, has said Supreme Court justices observe testimony and are considered the will be in agreement 95 percent of the time. primary finders of fact. Sotomayor's votes in split cases were "It seems an odd use of judicial time, given compared with those of other judges through the very heavy caseload in the 2nd Circuit, a database that tracks federal appellate to spend endless hours delving into the decisions nationwide, a random sampling of minutiae of the record," said Arthur 5,400 cases. The database codes decisions as Hellman, a University of Pittsburgh law "liberal" or "conservative" based on what its professor and an authority on federal courts. creator, University of South Carolina political scientist Donald Songer, says are Adrienne Urrutia Wisenberg, a Washington common definitions. Votes in favor of a criminal appellate lawyer, said appellate defendant, for example, are classified as

48 liberal, while those supporting prosecutors convicted murderer who did not contest his are called conservative. guilt but had been tried on what the court called the wrong murder charge. In another, Sotomayor's votes came out liberal 59 she joined an opinion that cited flawed jury percent of the time, compared with 52 instructions in throwing out a man's percent for other judges who, like her, were conviction for enticing someone he believed appointed by Democratic presidents. was a 13-year-old girl into sex. Democratic appointees overall were 13 percent more liberal than Republican And when she threw out a life prison term appointees, according to the database for a convicted heroin dealer, ordering that analysis. he be resentenced. Sotomayor wrote that judges should not show "slavish adherence" Experts said the results show that to the "literal terms" of then-mandatory Sotomayor's ascension would probably not sentencing guidelines when their language is alter the balance of a high court closely flawed. The view echoed her criticism of the divided between conservatives and liberals guidelines from the bench that became an such as Souter. But they also provide a more issue in her 1997 confirmation hearings. nuanced picture of the 17-year federal judge than those offered by her supporters and her At those hearings, Republicans criticized critics. Sotomayor for apologizing to a defendant for a mandatory minimum sentence she The White House has portrayed Sotomayor imposed and for calling the sentence an as a tough-on-crime moderate who favors "abomination." She told senators that the the "judicial restraint" often sought by apology expressed her frustration over a Republicans, while conservatives call her a feature in the sentencing rules that Congress liberal activist whose decisions are later changed, conceded she should not have influenced by ideology and her Latina used the word "abomination" and expressed heritage. general support for the guidelines.

"She looks like a classic Democrat," Songer Other cases displayed Sotomayor's support said. "I don't think it's fair to classify her as for First Amendment protections, campaign tough on crime. I would use the term finance reforms challenged by conservatives 'moderately liberal,' not 'moderate.' But she and privacy rights. She ruled against certainly seems to be in the mainstream of corporations in six of eight business cases. Democratic judges." Although her decisions are filled with The split decisions, which are heavy on the citations of the law and precedent, criminal and business cases that tend to Sotomayor once pointed to "powerful policy dominate the Supreme Court's docket, show considerations" in allowing a lawsuit against Sotomayor voting to overturn convictions or Visa and MasterCard to go forward, and she sentences eight times, at a rate comparable worried about damage to U.S.-British to that of other Democratic-appointed relations in arguing that British subjects judges. Six times, she affirmed them. should have access to U.S. courts. Conservatives have criticized Sotomayor for In one case, Sotomayor and seven mostly saying in 2005 that "the Court of Appeals is Democratic colleagues voted to set free a where policy is made. I know this is on tape,

49 and I should never say that." The White the district court. Nor is it to identify House has defended her, saying the remark competing studies or news articles pointing was taken out of context. in other directions."

Sotomayor, appointed to the appeals court In 2004, Sotomayor appeared to go beyond by President Bill Clinton, is a former the facts established at trial in arguing that assistant district attorney in Manhattan and a two teenage girls were illegally strip- trial judge, and acquaintances say that searched at Connecticut juvenile detention background has helped shape her judicial facilities. Their lawsuit against the state was style. She overturns lower courts at roughly dismissed by a federal judge but reinstated the same rate as other Democratic in an opinion written by a Democratic 2nd appointees. Her writings are full of details Circuit appointee, who said four of the strip from the trial record, especially in criminal searches at issue were unlawful but four matters, where she often meticulously others were legal. analyzes witness testimony. Sotomayor dissented, arguing that all were When she reinstated a verdict against Ford illegal and blasting any strip search as Motor Co. in 2002 in the lawsuit of a "severely intrusive." Citing documents from woman who said her van suddenly pretrial discovery, she broke down all 34 accelerated without her touching the gas strip searches at the facilities in which pedal, Sotomayor wrote that one witness's contraband was found on a prisoner from testimony "requires two simultaneous 1995 to 2000-searches that were not part malfunctions in the cruise control circuitry. of the lawsuit. She concluded that there was The first is an open ground connection to the "absolutely no evidence that suspicionless speed amplifier, resulting from a loose or strip searches were necessary." broken wire." (The Supreme Court last month voiced Last year, in voting to overturn a firearms skepticism of strip-searching teenage girls, defendant's sentence, Sotomayor joined a ruling 8 to I that Arizona school officials Democratic appointee and a Republican in violated the constitutional rights of a 13- analyzing whether New York City's dense year-old girl when they strip-searched her on population puts bystanders at greater risk suspicion that she might be hiding ibuprofen from gunfire than those elsewhere. She in her underwear.) wrote a separate dissent, acknowledging that the trial judge's opinion on the subject was Hellman, the law professor, called "detailed" but citing government reports and Sotomayor's approach "a kind of carpet- newspaper articles to argue it was bombing, a relentless mustering of facts. She "insufficient" to support a sentence above goes well beyond what is necessary for the the range recommended by federal case and is determined not to just defeat the guidelines. other side, but to annihilate it."

A Republican appointee who disagreed Sotomayor's style is consistent even when wrote that "appellate courts are not she finds against defendants, such as when factfinders. ... I do not understand it to be she affirmed the conviction of a child our role . . . to engage in this kind of pornography defendant in 2004. A U.S. dissection of the empirical evidence cited by district court judge had concluded after an

50 evidentiary hearing that the man was opinion, she wrote, was based on innocent but denied his petition because it "speculations and conjectures" and was filed too late. disregarded the judge's "role as the finder- of-facts." Even though she had decided the core issue-the conviction-Sotomayor broke "It is inappropriate in all but the most down the witnesses and testimony at the extraordinary cases for this Court to second- judge's hearing. She concluded his finding guess a district court's credibility findings," of innocence was "clearly erroneous," even Pooler concluded. "The majority's as she said that district courts "are generally dissection of the district court's decision best placed to evaluate testimony in light of departs from our precedents and wrongly the witnesses' demeanor." supplants the lower court's assessment of the evidence with its own factual inferences, A fellow Democratic appointee, Judge never having seen or heard any of the Rosemary S. Pooler, dissented. Sotomayor's testimony that it now seeks to discredit."

51 "Queries on Abortion and Guns Fail to Break Judge's Stride"

The Nei' York Tines July 16, 2009 Sheryl Gay Stolberg and Neil A. Lewis

Republicans turned to the politically fraught morning. The Democratic leadership is issues of abortion and gun rights on planning on a full Senate vote in early Wednesday in an effort to knock Judge August, in keeping with President Obama's Sonia Sotomayor off stride, but as she request to have Judge Sotomayor seated well neared the end of her testimony, her before the court's new term begins. composure remained intact and her confirmation to the Supreme Court seemed After spending Tuesday either retreating on track. from or trying to explain away some of her speeches, notably the one in which she said Publicly, Republicans on the Senate a "wise Latina woman" might reach a better Judiciary Committee said they had not yet conclusion than a white male who had not made up their minds about how to vote; had the same experiences, the judge spent several used the word "muddled" to describe Wednesday fending off Republicans' efforts Judge Sotomayor's answers. But the to pin down her views on abortion and gun Republicans also seemed to be conceding ownership. In pursuing this line of that they had not built the momentum questioning, Republicans were addressing necessary to derail the nomination. issues of particular concern to their party's conservative base. One of the committee's most senior members, Senator Orrin G. Hatch, Judge Sotomayor said Mr. Obama had never Republican of Utah, said in an interview that asked for her views on abortion. She said he would be surprised if some in his party she had "no idea" why one of her colleagues did not vote to confirm. had told a reporter that she would be predisposed to supporting abortion rights, Though Mr. Hatch said he had not made up especially since she once ruled to uphold the his mind, he could be a barometer for other "Mexico City policy," which barred Republicans. He has voted in the past to taxpayer dollars from going to overseas confirm Democratic nominees to the clinics that provide abortion services. Supreme Court and said even before Judge Sotomayor was nominated that she would be Some of her sharpest exchanges came with difficult to oppose. Senator Tom Coburn, Republican of Oklahoma, a family practice doctor who is "Has she handled all the questions well? one of the Senate's staunchest abortion foes. No," he said. "But she's handled a lot of the questions probably well enough." Mr. Coburn pressed her on whether it would be legal for a woman 38 weeks pregnant to Democrats said they were confident that the abort a fetus found to have the nominee would survive the committee developmental birth defect spina bifida. process without any major gaffes, and hoped she would wrap up her testimony Thursday "I can't answer that in the abstract," Judge

52 Sotomayor said. The N.R.A. has not yet decided whether to publish a scorecard of how senators vote on But the mood in the hearing room was the nomination, but if it does, a vote in favor generally lighter than on Tuesday, perhaps could have political implications for reflecting Judge Sotomayor's own sense that Republicans and moderate Democrats the pressure was off. Perry Mason, the seeking re-election. television lawycr who inspired her as a child, was a recurring topic of discussion. Many Republicans still have bitter memories of Mr. Obama's decision, as senator, to vote And in one comical if awkward exchange against confirmation of Judge John G. with Mr. Coburn, on whether Americans had Roberts Jr. for chief justice. While Mr. a right to self-defense, Judge Sotomayor Obama agreed that Judge Roberts was broke with her resistance to hypotheticals to qualified, he said at the time that the invoke one, imagining an instance in which, "critical ingredient is supplied by what is in threatened with imminent harm, she went the judge's heart." home, got a gun and came back to shoot him. One question is whether Republicans will "You'd have lots of 'splaining to do," Mr. apply that same standard to Judge Coburn replied, borrowing Desi Arnaz's Sotomayor. On Wednesday, at least one, frequent line in his portrayal of Ricky Senator Lindsey Graham of South Carolina, Ricardo, the Cuban-American bandleader on seemed to suggest that he would not. the old "I Love Lucy" television show. "The president has earned the right to pick The gun-rights issue that Republicans raised somebody different than I would pick, and is straightforward on its face but involves the balance of power in the court is not complex and esoteric legal arguments: Does going to change dramatically if she gets on the Supreme Court's ruling that the Second the court," Mr. Graham told reporters, Amendment provides an individual right to although he said he remained possess firearms apply to the states as it does "uncomfortable" with Judge Sotomayor's to the federal government? views and had not decided how to vote.

In a New York case involving a martial-arts For a second day on Wednesday, weapon, Judge Sotomayor joined in an Republicans sought to draw a contrast opinion that found it did not, a conclusion between Judge Sotomayor's impassioned that has been criticized by gun-rights speeches-Mr. Graham called them advocates. The Supreme Court will soon "edgy"-and her legal rulings, which have address the question, and Judge Sotomayor hewed closely to precedent. Senator John steered clear of it on Wednesday. Comyn, Republican of Texas, urged the nominee to "try to help us reconcile the two Politically, the issue is a consequential one pictures" of her, adding, "You will be free as for Republicans, as well as for some a United States Supreme Court justice to moderate Democrats. Gun owners are a core basically do what you want." constituency for some senators, and the National Rifle Association has expressed Senator Arlen Specter of Pennsylvania, who great reservations about Judge Sotomayor. became a Democrat this spring after decades

53 as a Republican and who has questioned the New Haven firefighter on the winning Supreme Court nominees since 1981, side of a Supreme Court race-discrimination remained dogged in interrogation. Mr. ruling that overturned an appellate court Specter used the hearing as a vehicle to decision in which Judge Sotomayor speak directly to the Supreme Court about participated. his view that the justices should allow their sessions to be televised, and that they should Mr. Ricci and 11 other New Haven agree to hear more cases. firefighters, all in crisp blue uniforms, were present for Wednesday's proceedings as Once Judge Sotomayor wraps up her guests of Senator Jeff Sessions of Alabama, testimony, the committee will move on to the committee's senior Republican. other witnesses. They include Frank Ricci,

54 "Diversity a Touchy Topic at Sotomayor Hearings"

Los Angeles Times July 19, 2009 James Oliphant and David G. Savage

Two months ago, Sonia Sotomayor's Latino She also denied being involved in abortion- heritage was viewed as an overwhelming rights lawsuits filed by the Puerto Rican asset. And though history will be made if advocacy group whose board she served on she becomes the Supreme Court's newest for 12 years. justice, there wasn't much talk about that during three days of grueling testimony last Even though Sotomayor is almost certain to week. For some, her confirmation hearings be confirmed, some Republicans considered left a bitter taste. their bid to root out what they saw as potential prejudices as a kind of victory. "This is a great first, but we are not being allowed to celebrate it in the way we are "We had a more honest discussion of some allowed to celebrate Thurgood Marshall as of the complexities and sensitivities of the the first African American on the court," race question in this hearing than in the 12 said Laura Gomez, a University of New years I have been in the Senate," said Sen. Mexico law professor. Jeff Sessions of Alabama, the ranking Republican on the committee, whose own That's because Republicans on the Senate bid for a federal judgeship was blocked Judiciary Committee attempted to shine a because of racially insensitive remarks he negative light on Sotomayor's earlier had made in the past. statements about what she as a Latina could bring to judging and on her connections with Sotomayor's supporters, however, viewed a Latino advocacy group. In wave after the questioning another way. wave of questions, they suggested that statements by the New York federal "It was extremely disappointing and a walk appellate judge indicated an inability to backward from the point of diversity," said remain impartial on the bench. Sherrilyn Ifill, a law professor at the University of Maryland. "This was not a Sotomayor had given them ammunition: productive conversation. It was unfortunate speeches in which she said she hoped that "a posturing by the Republicans. wise Latina woman with the richness of her experiences would more often than not reach "This was an all-white judiciary committee a better conclusion than a white male." asking condescending questions. And it was an unequal power situation. She was not in a By the end of the week, however, she had position to honestly engage with them, forcefully rejected that notion-along with because she needed their votes." the idea that her diverse background meant she would judge with "empathy," a quality What last week's public exercise illustrated President Obama had said was important for was the nature of questions of race and a high-court justice. identity in America: Ethnic pride to some is

55 identity politics to others. "More significantly, she ended up publicly rejecting the president's vie\ that empathy At the heart of the Republican questioning should often guide judicial decision- was a sense of mistrust that they said was making," he said. based on a notable difference between the probity of Sotomayor's decisions as a judge Democrats on the judiciary committee and the more liberal tone of her speeches. seemed to go out of their way to avoid the Some senators were convinced she was issue of Sotomayor's heritage, focusing masking her true nature-and that it would instead on her 17-year judicial record, one be revealed once she was given a lifetime that even some Republicans conceded post on the Supreme Court. contained little to fight about.

To put a human face on their concerns, they And Sotomayor herself was forced to step invited a white firefighter and a Latino lightly around the subject, disavowing her firefighter from Connecticut to testify on "wise Latina" comment as a "rhetorical riff' Sotomayor's ruling in their discrimination that had the opposite meaning than she had case, Ricci vs. DeStefano. intended.

"I think we all want a justice who is neutral "Her selection by the nation's first black and impartial," said Jenny Rivera, a law president is a testament to the advances in professor at the City University of New diversity and tolerance that we have made as York, who once clerked for Sotomayor. But a nation," said Rachel Moran, a law Republicans, she said, maintained that professor at UC Irvine. "when you put on the robes, you put on the shelf your sense of history and identity and But, Moran noted, Sotomayor "made no heritage." explicit reference to her personal story as the daughter of Puerto Rican parents who Conservatives, however, said that the GOP moved to New York. Instead, she described senators had succeeded in forcing her life as 'uniquely American."' Sotomayor to distance herself from her earlier statements about ethnicity and gender Several GOP senators cast their line of swaying her decisions. questioning in terms of achieving a goal laid out by Chief Justice John G. Roberts Jr., "It seems conservatives are winning the who has said: "The best way to stop larger war over the judiciary, even if losing discriminating based on race is to stop the battle over this nomination," Jonathan discriminating based on race." Adler, a law professor at Case Western Reserve University in Cleveland, wrote in Their actions had an effect. the Washington Post. "I think, before the hearings, we were seeing Sotomayor -ended up disavowing many of a discussion that diversity can enrich any her previous statements or trying to institution," said Victoria DeFrancesco Soto, reinterpret them," said Ilya Somin of George a political science professor at Northwestern Mason University School of Law. University. But that talk "became too

56 radioactive," she said. Rican heritage and Bronx upbringing will have an effect inside the Supreme Court, The GOP senators -wcre playing to the legal experts said. angry white male voter. Some of the remarks were clearly about saying that 'you' "Thurgood Marshall's presence changed the can say things that 'we' can't," said Julian Supreme Court in profound ways, and I do Zelizer, a professor of history and public not doubt that Judge Sotomayor will also affairs at Princeton University. have a significant impact on the court," said John Payton, president of the NAACP Legal "These kinds of comments attacking ethnic Defense Fund. pride and the benefits of diversity in any institution-which is really what her remark "She is a powerful personality. She is was about-combined with the Ricci case extremely thoughtful and self-reflective. . .. looked like backlash politics, pure and She will be the second woman, the second simple." nonwhite member and the first Latina. All of these will certainly matter." Despite the hearings, Sotomayor's Puerto

57 "She's Come Redone"

Slale July 13, 2009 Dahlia Lithwick

To hear the senators talking, their biases and prejudices." Sen. Chuck overwhelming impression of Sonia Grassley, R-lowa, quotes a speech in which Sotomayor on this first day of her she argued that "it's a disservice both to the confirmation hearings is that she is Just. law and society for judges to disregard Too. Much. personal views shaped by one's differences as women or men of color." Sotomayor herself feeds that impression off the bat by confessing to the committee that If the whole theme of the John Roberts and she has brought along too much family-or Samuel Alito hearings was that Democrats what she describes as "familylike" people. If worried these men were seriously lacking she were to introduce the whole pack of something (heart, soul, humanity), the whole them by name, she says, "We'd be here all Republican attack on Sotomayor turns on morning." Sen. Patrick Leahy, D-Vt., then the opposite kind of accusation. They make tries to turn the judge's Too Muchness into her froth, teem, and bubble over with excess an asset by trussing up Sotomayor in gender and race identification, such that superlatives. "She has more federal judicial prejudice and bias will inevitably follow. experience than any nominee to the Supreme Court in 100 years." "She is the first Sen. Lindsey Graham goes out of his way to nominee in well over a century to be frame his critique in terms of Sotomayor nominated to three different federal straying even beyond the bounds of her judgeships by three different presidents." temperate judicial record. "It bothers me when someone wearing the robe takes the We hear over and over that to be the first robe off and says experience makes them requires being "the best." Sen. Kirsten better than anyone else," he says, referring Gillibrand, D-N.Y., promises that to Sotomayor's much-invoked comments Sotomayor will go on to be "one of the about the virtues of being a wise Latina. If finest justices in American history." you think about it, the judiciary committee is playing out a meta version of the fight that Her Republican critics, for their part, also happens every day at the court. Republicans paint the Supreme Court nominee as typically say they want their judges humble, outsized, forever spilling out of her confines. restrained, and able to fit comfortably in the overhead bin. Democrats want their judges In their mouths, of course, this larger-than- to be the stuff of legends; hence all the life-ness is monstrous. Sen. Jeff Sessions, R- references today to Thurgood Marshall and Ala., points out that Sotomayor's Oliver Wendell Holmes. Sonia Sotomayor's "background, gender, prejudices, or task is to stake out a space for herself sympathies" could sway her decisions. Sen. somewhere in between. John Kyl, R-Ariz., warns that the judge's statements "suggest that she may allow, and The senators also use their time to show that even embrace, decision-making based on her they have a cold, mathematical formula for

58 why this nominee may not be cold and Woman might just have some thoughts mathematical enough to judge. They lay out about structuring the breaks in the daily their respective neutrality tests. Jeff Sessions confirmation schedule that don't always tells us that he will not vote up or down on occur to even the wisest men. Sen. Amy the nomination solely based on Sotomayor's Klobuchar, D-Minn., makes this point today record, because it does not tell us what will when she ticks off the backgrounds of her happen when "the judge's philosophy will colleagues on the committee, arguing that be allowed to reach full bloom." Orrin nobody is biased. They just have different Hatch, R-Utah, describes a test for judicial backgrounds. And when Ruth Bader fitness that's so scientific it was published in changed her colleagues' minds in a strip- the Harvard Journal of Law and Public search case, she wasn't infecting them with Policy. Sen. Grassley says he will be her bias. She was just explaining something "asking about your ability to wear that new. judicial blindfold." Here's my own test: Empathy-the judicial It would be far more honest, if politically attribute that the president has invoked and ruinous, for all the senators to do precisely his opponents have derided as bias-means what Judge Sotomayor has done and jettison knowing what you don't know and being the calculus to admit that it's very difficult willing to listen to things that never occurred to separate one's personal politics from to you. That's why the only really important ideology. She said, in her famous 2001 part of Judge Sotomayor's brief opening Berkeley speech: "1 simply do not know statement today is her explanation that when exactly what that difference will be in my she writes opinions, she lays out the law and judging. But I accept there will be some then explains why on behalf of the court she based on my gender and my Latina either accepts or rejects the contrary heritage." Sen. Russ Feingold, D-Wis., position. It's her way of saying she listens to commends this speech today as a both sides. Maybe all that extrajudicial ''remarkably thoughtful attempt to grapple empathizing makes her too large for the with a difficult issue not often discussed by overhead bins. But I think she's talking judges: How do a judge's personal about the same "open mind" Justice Alito background and experiences affect her touted at his hearings-and that's why that judging?" But nobody else wants to hear this statue of blind justice has two scales instead judge grapple with her preconceived ideas, of an electronic step-on scale that talks out even if she is pledging to rise above them. loud.

I am reminded today, as Sotomayor is I confess that despite the fact that it lacked serially assaulted for her alleged bias, that anything memorable, beyond the emotion, I the last time I covered a judicial wasn't disappointed by Judge Sotomayor's confirmation hearing, I was in a daily, terse, bare-bones opening statement today- miserable personal panic. I had a new baby a statement in which she did little more than and every 10-minute break became a frantic lay out her autobiography and pledge search for 12 ounces of fruit juice and a "fidelity to the law." Yes, it was place in the U.S. Senate to plug in a breast dispassionate. That's probably a good thing pump. I don't think I'm biased in favor of when your opponents believe you're too the average breastfeeding news excitable. Yes, it was spare. That's a good correspondent. It's just that a Wise Lactating thing when your critics celebrate

59 minimalism and humility above all things. life today, going tiny may have been Given how often Sotomayor xas accused of precisely the right way for her to play it. being hugely, inappropriately larger-than-

60 "A Judge's View of Judging Is on the Record"

The Nei' York Times May 15, 2009 Charlie Savage

WASHINGTON-In 2001, Sonia The video was of a panel discussion for law Sotomayor, an appeals court judge, gave a students interested in becoming clerks, and speech declaring that the ethnicity and sex she was explaining the different experiences of a judge "may and will make a difference gained when working at district courts and in our judging." appeals courts. Her remarks caught the eye of conservative bloggers who accused her of In her speech, Judge Sotomayor questioned being a "judicial activist," although Jonathan the famous notion-often invoked by Justice H. Adler, a professor at Case Western Ruth Bader Ginsburg and her retired Reserve University law school, argued that Supreme Court colleague, Sandra Day critics were reading far too much into those O'Connor-that a wise old man and a wise remarks. old woman would reach the same conclusion when deciding cases. Republicans have signaled that they intend to put the eventual nominee under a "I would hope that a wise Latina woman microscope, and they say they were put on with the richness of her experiences would guard by Mr. Obama's statement that judges more often than not reach a better should have "empathy," a word they suggest conclusion than a white male who hasn't could be code for injecting liberal ideology lived that life," said Judge Sotomayor, who into the law. is now considered to be near the top of President Obama's list of potential Supreme Judge Sotomayor has given several speeches Court nominees. about the importance of diversity. But her 2001 remarks at Berkeley, which were Her remarks, at the annual Judge Mario G. published by the Berkeley La Raza Law Olmos Law and Cultural Diversity Lecture Journal, went further, asserting that judges' at the University of California, Berkeley, identities will affect legal outcomes. were not the only instance in which she has publicly described her view of judging in "Whether born from experience or inherent terms that could provoke sharp questioning physiological or cultural differences," she in a confirmation hearing. said, for jurists who are women and nonwhite, "our gender and national origins This month, for example, a video surfaced may and will make a difference in our of Judge Sotomayor asserting in 2005 that a judging." "court of appeals is where policy is made." She then immediately adds: "And I know-I Her remarks came in the context of know this is on tape, and I should never say reflecting her own life experiences as a that because we don't make law. I know. Hispanic female judge and on how the OK. I know. I'm not promoting it. I'm not increasing diversity on the federal bench advocating it. I'm-you know." "will have an effect on the development of

61 the law and on judging." Still, Judge Sotomayor questioned whether achieving impartiality "is possible in all, or In making her argument, Judge Sotomayor even, in most, cases." She added, "And I sounded many cautionary notes. She said wonder whether by ignoring our differences there was no uniform perspective that all as women or men of color we do a women or members of a minority group disservice both to the law and society." have, and emphasized that she was not talking about any individual case. She also approvingly quoted several law professors who said that "to judge is an She also noted that the Supreme Court was exercise of power" and that "there is no uniformly white and male when it delivered objective stance but only a series of historic rulings against racial and sexual perspectives." discrimination. And she said she tried to question her own "opinions, sympathies and "Personal experiences affect the facts that prejudices," and aspired to impartiality. judges choose to see," she said.

62 "Identity Politics and Sotomayor"

National JournalMagazine May 23, 2009 Stuart Taylor

"I would hope that a wise Latina woman white males. iwith the richness of her experiences would more often than not reach a better Indeed, unless Sotomayor believes that conclusion fas a judge] than a white male Latina women also make better judges than who hasn 't lived that life. "-Judge Sonia Latino men, and also better than African- Sotomayor, in her Judge Mario G. Olmos American men and women, her basic Law and Cultural Diversity Lecture at the proposition seems to be that white males University of California (Berkeley) School (with some exceptions, she noted) are of Law in 2001 inferior to all other groups in the qualities that make for a good jurist. The above assertion and the rest of a remarkable speech to a Hispanic group by Any prominent white male would be Sotomayor-widely touted as a possible instantly and properly banished from polite Obama nominee to the Supreme Court-has society as a racist and a sexist for making an drawn very little attention in the mainstream analogous claim of ethnic and gender media since it was quoted deep inside The superiority or inferiority. New York Times on May 15. Imagine the reaction if someone had It deserves more scrutiny, because apart unearthed in 2005 a speech in which then- from Sotomayor's Supreme Court prospects, Judge Samuel Alito had asserted, for her thinking is representative of the example: "I would hope that a white male Democratic Party's powerful identity- with the richness of his traditional American politics wing. values would reach a better conclusion than a Latina woman who hasn't lived that life"- Sotomayor also referred to the cardinal duty and had proceeded to speak of "inherent of judges to be impartial as a mere physiological or cultural differences.'" "aspiration because it denies the fact that we are by our experiences making different I have been hoping that despite our deep choices than others." And she suggested that divisions, President Obama would coax his "inherent physiological or cultural party, and the country, to think of differences" may help explain why "our Americans more as united by allegiance to gender and national origins may and will democratic ideals and the rule of law and make a difference in our judging." less as competing ethnic and racial groups driven by grievances that are rooted more in So accustomed have we become to identity our troubled history than in today's reality. politics that it barely causes a ripple when a highly touted Supreme Court candidate, who I also hope that Obama will use this sits on the federal Appeals Court in New Supreme Court appointment to reinforce the York, has seriously suggested that Latina message of his 2004 Democratic convention women like her make better judges than speech: "There's not a black America, and

63 white America, and Latino America, and "Our experiences as women and people of Asian America; there's the United States of color affect our decisions. The aspiration to America." impartiality is just that-it's an aspiration because it denies the fact that we are by our But in this regard, the president's emphasis experiences making different choices than on selective "empathy" for preferred racial others.... and other groups as "the criteria by which I'll be selecting my judges" is not "Whether born from experience or inherent encouraging, as I explained in a May 15 post physiological or cultural differences, a on National Journal's The Ninth Justice possibility I abhor less or discount less than blog. my colleague Judge Cedarbaum, our gender and national origins may and will make a As for Sotomayor's speech, fragmentary difference in our judging. Justice [Sandra quotations admittedly cannot capture every Day] O'Connor has often been cited as qualification and nuance. She also stressed saying that a wise old man and wise old that although -men lawyers .. . need to work woman will reach the same conclusion in on" their "attitudes," many have already deciding cases. . . . I am . . . not so sure that reached "great moments of enlightenment." I agree with the statement. First . . . there She noted that she tries to be impartial. And can never be a universal definition of wise. she did not overtly suggest that judges Second, I would hope that a wise Latina should play identity politics. woman with the richness of her experiences would more often than not reach a better I place the earlier quotations in more- conclusion than a white male who hasn't detailed context here so that readers can lived that life." assess Sotomayor's meaning for themselves. The full text of the speech, as published in "Judge [Miriam] Cedarbaum [of the federal the Berkeley La Raza Law Journal in 2002, District Court in New York] . . . believes is available on The New York Times website. that judges must transcend their personal (It says that the speech was in 2002; I've sympathies and prejudices and aspire to read elsewhere that it was October 2001.) achieve a greater degree of fairness and integrity based on the reason of law. To some extent, Sotomayor's point was an Although I agree with and attempt to work unexceptionable description of the fact that toward Judge Cedarbaum's aspiration, I no matter how judges try to be impartial, wonder whether achieving that goal is their decisions are shaped in part by their possible in all or even in most cases. And I personal backgrounds and values, especially wonder whether by ignoring our differences when the law is unclear. As she detailed, for as women or men of color we do a example, some studies suggest that female disservice both to the law and society. judges tend to have different voting patterns Whatever the reasons . . . we may have than males on issues including sex different perspectives, either as some discrimination. theorists suggest because of our cultural experiences or as others postulate because I also share Sotomayor's view that we have basic differences in logic and presidents should seek more ethnic and reasoning.... gender diversity on the bench, so that

64 members of historically excluded groups can conflicting factors of his problem without see people like themselves in important always finding himself in one scale or the positions and because collegial bodies tend other." to act more wisely \wen informed by a diversity of experiences. Some see such talk as tiresome dead-white- male stuff from a time when almost all It follows that the Supreme Court might well judges were white males-although, in be a wiser body-other things being equal- Cardozo's case, descended from Portuguese if the next justice is a Hispanic woman of Jews. I see it as the essence of what judges outstanding judgment and capability. But do should strive to be. we want a new justice who comes close to stereotyping white males as (on average) I do not claim that the very different inferior beings? And who seems to speak worldview displayed in Sotomayor's speech with more passion about her ethnicity and infuses her hundreds of judicial opinions and gender than about the ideal of impartiality? votes rendered over more than a decade on the Appeals Court. But only a few of her Compare Sotomayor's celebration of "how cases have involved the kind of politically wonderful and magical it is to have a Latina incendiary issues that make the Supreme soul" and reflections "on being a Latina Court a storm center. voice on the bench" with Judge Learned Hand's eulogy for Justice Benjamin In one of her few explosive cases, Cardozo in 1938. Sotomayor voted (without writing an opinion) to join two colleagues in upholding "The wise man is the detached man," Hand what I see as raw racial discrimination by wrote. "Our convictions, our outlook, the New Haven, Conn. The city denied whole makeup of our thinking, which we promotions to the firefighters who did best cannot help bringing to the decision of every on a test of job-related skills because none question, is the creature of our past; and into was black.... our past have been woven all sorts of frustrated ambitions with their envies, and of The Supreme Court is widely expected to hopes of preferment with their corruptions, reverse that decision in June. And even if a which, long since forgotten, determine our devotee of identity politics fills retiring conclusions. A wise man is one exempt from Justice David Souter's seat, she will not the handicap of such a past; he is a runner have enough votes to encourage greater use stripped for the race; he can weigh the of such racial preferences. Not yet.

65 "Her Justice Is Blind"

The New York Times June 16, 2009 Thomas Goldstein

Long past the Civil War, and a generation rulings and seven involved at least one after the formative civil rights struggle, Republican-appointed judge. In the single many of us remain incapable of having a time a judge dissented from a ruling in conversation about ethnicity that does not which Judge Sotomayor participated, the devolve into charges of racism. dissent was over a technical question, not race discrimination. One recent example of this is the public discussion about the nomination of Judge In total, Judge Sotomayor has disagreed Sonia Sotomayor to the Supreme Court, and with her colleagues in race-related the widespread accusations that she has been decisions-a fair measure of whether she is unable to dispassionately decide cases an outlier-only five times in 11 years. In involving questions of race. In the rush to that entire time, Judge Sotomayor has only find Judge Sotomayor's "biases," critics twice dissented from a ruling on a have latched onto her decision in Ricci v. substantive question of race discrimination. DeStefano, where she ruled in favor of New Haven's decision to discard the results of a In her opinions regarding civil rights laws, promotion exam for firefighters because too Judge Sotomayor has written about few minorities scored high enough. Some principles of restraint. She has stressed that infer from this that Judge Sotomayor must "the duty of a judge is to follow the law," so be biased against whites. that judges have no power "to disregard the plain language of any statute or to invent Overlooked in the hysteria over this one exceptions to the statutes" created by decision is that Judge Sotomayor considered Congress. issues of race almost 100 times as an appellate judge. Having now reviewed every That principle seems to run consistently single race-related case on which she sat in through her rulings on race-related cases. more than a decade on the United States Dissenting from a decision to permit the Court of Appeals for the Second Circuit, New York Police Department to fire an I've concluded that Judge Sotomayor does employee for sending hate mail, she wrote, not allow bias to infect her decision-making. "To be sure, I find the speech in this case patently offensive, hateful and insulting." In addition to Ricci v. DeStefano, Judge But, she added, "While we are more Sotomayor has participated in 97 race- comfortable when the speech we are related cases. Of these, the court of appeals protecting involves protestations against rejected the claim of discrimination roughly racial discrimination, it is not our role to 80 times and agreed with it 10 times. (The approve or disapprove of the viewpoint remaining cases involved other kinds of advanced." claims or dispositions.) In the 10 cases in which the court of appeals favored claims of In rejecting the discrimination claims of discrimination, nine resulted in unanimous black passengers against an airline based on

66 an international treaty limiting suits against Her decisions in these cases would hardly carriers, she rejected the plaintiffs' assertion make her an extremist. that "we should nonetheless carve out an exception for civil rights actions as a matter The now notorious Ricci i'. DeStefano was a of policy" in light of "the specter that our genuinely tough call. Yes, the firefighter decision will open the doors to blatant plaintiffs had a serious claim that they discrimination aboard international flights." suffered discrimination when the city refused to apply a promotion test they That is not to say that Judge Sotomayor is passed. But the city argued that it feared a inattentive to questions of racial lawsuit by minority firefighters alleging that discrimination. In Gant i. Wallingford the city's promotion tests unintentionally Board of Education, for example, she discriminated against blacks and Hispanics. dissented from the majority's ruling that a A ruling in the city's favor was not school's favorable treatment of white necessarily ideological. students could not prove that a young black student who was demoted to a lower grade The public debate ought to be about what was the victim of discrimination. In Hayden the law should command in these kinds of v. Pataki, she concluded that felon difficult cases. Unsubstantiated charges of disenfranchisement laws are discriminatory racism distract us from these questions and and violate the Voting Rights Act. demean our justice system.

67 "The Sotomayor Nomination"

Forbes May 26, 2009 Richard A. Epstein

In a previous Forbes column, I decried of key AIG executives (which eventually led President Barack Obama's insistence that to the indecorous resignation of Edward empathy would weigh heavily in the scales Liddy) and the massive insinuation of the when it came to his next Supreme Court executive branch into the (current) Chrysler nominee. And reading the arguments that and (looming) General Motors bankruptcies were put forth to justify the nomination of are sure to generate many a spirited struggle Sonia Sotomayor of the Second Circuit to over two issues that are likely to define our the Supreme Court, it appears that all the future Supreme Court's jurisprudence: the bad chickens have come home to roost. level of property-rights protection against government intervention on the one hand, Evidently, the characteristics that matter and the permissible scope of unilateral most for a potential nominee to the Supreme action by the president in a system that is (or Court have little to do with judicial ability or at least should be) characterized by a system temperament, or even so ephemeral a of separation of powers and checks and consideration as a knowledge of the law. balances on the other. Instead, the tag line for this appointment says it all. The president wants to choose "a Here is one straw in the wind that does not daughter of Puerto Rican parents raised in bode well for a Sotomayor appointment. Bronx public housing projects to become the Justice Stevens of the current court came in nation's first Hispanic justice." for a fair share of criticism (all justified in my view) for his expansive reading in Kelo Obviously, none of these factors disqualifies v. City of New London (2005) of the "public anyone for the Supreme Court. But use language." Of course, the takings clause affirmative-action standards are a bad way of the Fifth Amendment is as complex as it to pick one of the nine most influential is short: "Nor shall private property be taken jurists in the U.S., whose vast powers can for public use, without just compensation." shape virtually every aspect of our current But he was surely done one better in the lives. In these hard economic times, one Summary Order in Didden v. Village of Port worrisome feature about the Sotomayor Chester, issued by the Second Circuit in nomination is that the justices of the 2006. Judge Sotomayor was on the panel Supreme Court are likely to have to pass on that issued the unsigned opinion-one that some of the high-handed Obama makes Justice Stevens look like a administration tactics on a wide range of paradigmatic defender of strong property issues that concern the fortunes of American rights. business. I have written about Didden in Forbes. The We have already seen a president whose case involved about as naked an abuse of professed devotion to the law takes a government power as could be imagined. backseat to all sorts of other considerations. Bart Didden came up with an idea to build a The treatment of the compensation packages pharmacy on land he owned in a

68 redevelopment district in Port Chester over to the Supreme Court. Justice Stevens wrote which the town of Port Chester had given that the public deliberations over a Greg Wasser control. Wasser told Didden comprehensive land use plan is what saved that he would approve the project only if the condemnation of Ms. Kelo's home from Didden paid him $800,000 or gave him a constitutional attack. Just that element was partnership interest. The "or else" was that missing in the Village of Port Chester fiasco. the land would be promptly condemned by Indeed, the threats that Wasser made look all the village, and Wasser would put up a too much like the "or else" diplomacy of the pharmacy himself. Just that came to pass. Obama administration in business matters. But the Second Circuit panel on which Sotomayor sat did not raise an eyebrow. Its Jurisprudentially, moreover, the sorry entire analysis reads as follows: "We agree Didden episode reveals an important lesson with the district court that [Wasser's] about constitutional law. It is always voluntary attempt to resolve appellants' possible to top one bad decision (Kelo) with demands was neither an unconstitutional another (Didden). This does not augur well exaction in the form of extortion nor an for a Sotomayor appointment to the equal protection violation." Supreme Court. The president should have done better, and the Senate, Democrats and Maybe I am missing something, but Republicans alike, should subject this American business should shudder in its dubious nomination to the intense scrutiny boots if Judge Sotomayor takes this attitude that it deserves.

69 "Opposing View: A Confirmation Conversation"

USA Today July 27, 2009 Jeff Sessions

Elections have consequences: President impartially apply the lawv to the facts. Obama's first nominee to the Supreme Court, Judge Sonia Sotomayor, will likely In the end, her testimony served as a be confirmed. repudiation of judicial activism.

But supporters of liberal judicial philosophy But pledging "fidelity to the law" and might find it a Pyrrhic victory. During three practicing judicial restraint are different days of careful questioning, Judge things. Which Sotomayor will we get? Sotomayor renounced the pillars of activist thinking. At the hearings, which were praised for their substance and respectful tone, we looked She rejected the president's "empathy closely at the record: standard," abandoned her statements that a judge's "opinions, sympathies and -Her 2006 private property decision prejudices" may guide decision-making, permitted the government to take property dismissed remarks that personal experiences from one developer and give it to another. should "affect the facts that judges choose to see," brushed aside her repeated "wise -Her 2008 Ricci decision allowed a city to Latina" comment as "a rhetorical flourish," discriminate against one group of and championed judicial restraint. firefighters because of their race. That ruling was recently reversed by the Supreme Court. Judge Sotomayor's attempt to rebrand her previously stated judicial approach was, as -Her 2009 Second Amendment decision one editorial page opined, "uncomfortably would give states the power to ban firearms. close to disingenuous." These rulings have three things in common. Each was contrary to the Constitution. Each Why not defend the philosophy she had was decided in a brief opinion, short on articulated so carefully over the years? analysis. And each was consistent with liberal political thought. Because the American people overwhelmingly reject the notion that I don't believe that Judge Sotomayor has the unelected judges should set policy or allow deep-rooted convictions necessary to resist their social, moral, or political views to the siren call of judicial activism. She has influence the outcome of cases. Rather, the evoked its mantra too often. As someone public wants and expects restrained courts, who cares deeply about our great heritage of tethered to the Constitution, and judges who law, I must withhold my consent.

70 "Vote No on Sotomayor"

The ifall Street .Journal July 22, 2009 David Mcintosh

As Judge Sonia Sotomayor's confirmation Indiana or California. hearing began last week, many commentators predicted that she would In response to Mr. Feingold's inquiry, Judge portray herself as a moderate judge Sotomayor defended the Second Circuit's committed to judicial restraint. True to these decision in Maloney. She refused to expectations, Judge Sotomayor described acknowledge that her court could have her judicial philosophy as quite simple: enforced the right to bear arms against the "fidelity to the law." Yet the judge's history states. Judge Sotomayor's involvement in on the Second Circuit-not to mention her this decision does not bode well for a ruling earlier speeches-suggest that she believes in favor of Second Amendment rights if she judges can go beyond the law to make is confirmed to the Court. policy decisions. For this reason, a vote to confirm Judge Sotomayor is almost certainly Judge Sotomayor also revealed a troubling a vote in favor of restricting Second approach to property rights in Didden v. Amendment protections and property rights, Village of Port Chester (2006). Sitting on upholding racial preferences, and providing another Second Circuit panel, Judge unlimited abortion on demand. Sotomayor voted to uphold the condemnation of the plaintiffs' private During last week's hearing, several senators property despite the obvious corruption sought to determine whether Judge surrounding the case. The plaintiffs only Sotomayor supports the Second faced condemnation because they refused to Amendment's right to keep and bear arms. pay off a politically connected developer. In particular, they asked whether this right When they refused to pay, the city then should be enforced against state condemned the land, declaring it for "public governments. Sen. Russ Feingold (D., Wis.) use." praised the Supreme Court's ruling in District of Columbia v. Heller (2008), in The court's decision in Didden weakened which it held that the Second Amendment protections for property owners even further guarantees an individual's right to keep and than the Supreme Court's decision in Kelo v. bear arms. Mr. Feingold pressed Judge City of Neii London (2005) and indicates Sotomayor about her Second Circuit panel that Judge Sotomayor would likely exercise decision in Maloney v. Cuomo (2009), a similar approach on the Supreme Court. where she and her colleagues rejected the argument that the right to keep and bear Senators should also be concerned by Judge arms should be enforced against the states, Sotomayor's support of racial hiring stating that "the Second Amendment applies preferences. In the now famous Ricci v. only to limitations the federal government DeStefano (2009) firefighter case, a Second seeks to impose on this right." That's like Circuit panel of judges, including Judge saying you have the right to free speech in Sotomayor, upheld the city's decision to Washington, D.C., but not in Arkansas, disregard the results of a promotion

71 examination because too few racial opposition to any limits on the Supreme minorities passed. On June 29, the Supreme Court's ruling in Roe v. It'ade (1973). Judge Court overturned the Second Circuit's Sotomayor's willingness to play an active ruling, a vote of no-confidence in Judge role in the fund's activities is telling. Sotomayor's reasoning in Ricci. When you look at Judge Sotomayor's long. In addition, from 1980-92 Judge Sotomayor activist legal career, it is hard to square with served on the board of the Puerto Rican her new, modest claim of "fidelity to the Legal Defense and Education Fund, a law." She herself has said the Supreme prominent legal defense and education Court sets policy. On that standard, group organized in part to support unlimited Republican and moderate Democratic abortion rights. During this period, the fund senators-particularly those in red and filed briefs in several prominent abortion purple states-should vote against cases that expressed unqualified support for confirming Judge Sotomayor to the Supreme a woman's right to obtain an abortion and Court.

72 "Why Sotomayor Is Such a Good Pick"

The Plank May 26, 2009 Erwin Chemerinsky

President Obama's choice of Judge Sonia absent from the current court. These Sotomayor is brilliant politically, but even certainly will influence her rulings and they more importantly, terrific for the Supreme also may help in the most important task for Court and the future of constitutional law. a Democratic appointee on the current court: Everything that is known about her indicates persuading Justice Anthony Kennedy, the that she will be an easy confirmation and an key swing justice on almost every closely outstanding justice. divided issue. Sotomayor's background, as well as her intellect and experience, make From a political perspective, a Supreme her ideally suited for this role. Court nomination can be treacherous, as presidents need to please their political base President Obama repeatedly has said that he without risking undue political capital over a wants a justice who will show empathy. This confirmation fight. Sotomayor's record means a justice who will look at law as it shows her to be a moderate liberal who is affects people's lives and not just as an unlikely to provide fodder for her abstract set of rules. Sotomayor is likely to opponents. Her having been first nominated be this justice. to the federal bench by a Republican president, George H.W. Bush, will make it Several decades ago, Justice Thurgood harder for Republicans to paint her as an Marshall in a dissenting opinion admonished ideologue. Moreover, it is highly unlikely his colleagues that it is one thing for them to that many Republicans are going to want to make judgments about the law, but another strongly oppose the first Latina selected for to make judgments about how poor people the high court. live. The court needs people of color and people from disadvantaged backgrounds to The political reality is that with 59 (and offer the chance for empathy that only such likely soon to be 60) Democratic senators, experiences can provide. Sotomayor will surely be confirmed. It doesn't make political sense for Republicans But most of all, Sotomayor is an excellent to fight a losing battle that risks alienating a choice because she is an outstanding judge. key and growing political constituency, Her opinions are clearly written and Hispanic voters. invariably well-reasoned. My former students who have clerked for her rave about Sotomayor brings to the bench essential her as a judge and as a person. She has diversity. Every justice's rulings are a enormous experience as a lawyer and as a product of his or her life experiences. As a judge, both in the federal district court and woman, a Latina, a person who has faced a the federal court of appeals. The bottom line lifelong serious illness (diabetes), and a is that the court will now have its third person who grew up in modest woman justice in history, its first Latina, and circumstances, Sotomayor brings an individual who likely will be an excellent experiences that are unrepresented or largely justice for decades to come.

73 "The Judge Sotomayor I've Faced"

The Wall Street Journal July 20, 2009 Floyd Abrams

Having argued cases before Judge Sonia New York to strike down the lower court's Sotomayor on a number of occasions, I have ruling. Many cases had held that what been struck by the assertion by some occurs in a public court is public property, lawyers that her questioning has been too and that the press may not be punished for harsh, even abrasive. True, Judge Sotomayor publishing it. once described herself in a speech as a "bear on the bench." And her questions can lead I pressed the latter point in my oral some lawyers to wish they had been quizzed argument on behalf of a number of press in a far more cuddly manner. organizations. This was, I said, one of the rare legal rules that were truly absolute. But in my experience her questions are tough and fair, demanding and acute. One Judge Sotomayor quickly responded with a could say worse things about a judge. series of questions about whether I really meant that the rule was absolute. Yes, I said, Consider two of the cases I have argued I meant it. before her. One arose after a jury had been chosen in federal court to hear accusations What if, she asked, there was some that a prominent Wall Street investment emergency that required a brief halt on banker, Frank Quattrone, had obstructed publication and to do otherwise would cause justice. Days before Mr. Quattrone's trial grave harm? If the information was already commenced in April 2004, a state court revealed in open court, I said, neither the judge in another widely publicized case press nor anyone else could be prevented ordered a mistrial after two New York from revealing it. newspapers published the name of (and much critical and personal commentary Suppose, she said, a hired mob assassin about) a juror who'd behaved in a manner stood up in open court and announced that that led many to think she favored the 20 minutes later a particular person would defendant. Concerned that the same might be killed if the information were made occur in his court, the federal judge in the public. Did I really mean that even in that Quattrone case entered an order barring the circumstance the courts were without power press from publishing the name of any juror. to act?

Well-intentioned as the judge was, his action Good question. Too good. I paused, ran directly into a First Amendment wall. concerned that I was wearing out my The order was not only a prior restraint on welcome by taking what increasingly the press, and thus very likely seemed (because of Judge Sotomayor's unconstitutional, it also barred publication of questions) a far too extreme position. juror names already referred to in open court. If anything, this was an even clearer I made a last try. If that occurred, I said, you basis for the Second Circuit of Appeals in could lock the doors of the courtroom to

74 keep the press and everyone else from discrimination can't be upheld." leaving, but you could not enter an order barring them from publishing what they had And then: heard in court. -Give me an example of what is She looked at me in a bemused way. I impermissible viewpoint discrimination." looked away and started talking about something else. Judge Sotomayor was no easier on me. She pressed me hard on my contention that the We won the case a few weeks later. Judge museum needed an injunction to protect it Sotomayor's opinion concluded that the against the mayor. She pointed out that if we order barring publication of the juror names won the case the museum would get back all was unconstitutional because it was a prior the money Mr. Giuliani had withheld. She restraint on speech and because the required me to concede that the museum information had been revealed in open court. would suffer no immediate financial hardship if there was no injunction. She Then she added two elegant lines. "We need asked a series of increasingly difficult not address what exceptional circumstances, questions testing my contention that the case if any, could justify a departure from the could be in federal court in the first place. doctrine barring restrictions on the publication of information revealed in open We never had a ruling in the Brooklyn court. It suffices to hold that the record is Museum case, since Mr. Giuliani threw in devoid of facts that could justify creating the towel before the court could rule and such an exception in this case." abandoned his efforts to pressure the museum to remove the painting. But Another encounter was in the 1999 hardball questioning of both sides was Brooklyn Museum Case, arising out of then- precisely what good judges do. Mayor Rudolph Giuliani's efforts to strip the museum of all city funding and evict it from Long before Judge Sotomayor was its home because it refused to remove a appointed a federal appellate judge, the painting the mayor found offensive. single most honored and esteemed member of the U.S. Court of Appeals was Learned The questions Judge Sotomayor asked the Hand. Routinely described as the single city's lawyer were the judicial equivalent of greatest American jurist never appointed to hard left jabs in a boxing match. The U.S. the Supreme Court, Hand could terrorize Constitution generally bars sanctions against counsel who appeared before him. speakers based on their viewpoint. So she asked the lawyer: When counsel made an argument Hand thought was inadequate, he was notorious "I'm still having difficulty understanding for turning his chair around so his back how this is not viewpoint discrimination. faced the hapless lawyer who was arguing. Please explain to me what the difference Hand's questioning, his biographer wrote, between this is and viewpoint discrimination led lawyers "to blanch and shake." by a state actor. There's a legion of Supreme Court cases holding that viewpoint That's how a bear in a courtroom behaves.

75 "Every Justice Creates a New Court"

The New York Times May 26, 2009 Linda Greenhouse

Every time a new justice comes to the bloc and once with the more liberal bloc; a Supreme Court, "it's a different court," third decision was unanimous.) Justice Byron R. White liked to say-and he was in a position to know, having witnessed But even when it seems most static, the the arrival of 13 new justices during his own Supreme Court is a dynamic institution 31-year tenure. whose component parts are always, although not always visibly, in motion. John G. He meant that in a group of nine people Roberts Jr. didn't figure to be a game bound together by daily ritual and by the changer either when President George W. need to round up a sufficient number of like- Bush nominated him in 2005 to be chief minded colleagues to get anything done, the justice. After all, Chief Justice William H. substitution of one personality for another Rehnquist, who had just died, was his matters in real life more than it might seem former boss and longtime mentor, and no to matter on paper. matter how conservative he might prove to be, it was hard to imagine him or anyone It's an obvious point, but one that is often else finding much running room to overlooked in discussions of Supreme Court Rehnquist's right. nominations when, as now, the departing justice's successor is one who figures to And yet there is a different tone now at the occupy the same side of the ideological court, and not only because Justice Samuel divide. A. Alito Jr., President Bush's subsequent nominee, is more conservative than the President Obama's nominee to succeed justice he replaced, Sandra Day O'Connor. Justice David Souter, Judge Sonia John Roberts is a justice in a hurry; he Sotomayor, may not vote much differently pushes hard, like the young Associate from Justice Souter, who established a Justice Rehnquist for whom he clerked, and moderately liberal record during his 19 years in contrast to Chief Justice Rehnquist, who on the court. in his later years was capable of voting in surprising ways-to reaffirm the Miranda Even before President Obama made his decision and reject a constitutional challenge selection, it was commonly said that this to the Family and Medical Leave Act, for particular nomination would not be a "game example. changer" on today's sharply polarized court, where two blocs of four justices seem to It wasn't that Chief Justice Rehnquist spend much of their energy competing for changed his mind on issues that mattered to the affections of the one in the middle, him-there is no evidence of that. Rather, he Anthony M. Kennedy. (In two 5-to-4 seemed to have developed a sense for when decisions issued on Tuesday, Justice it was best for the court, or perhaps even for Kennedy voted once with the conservative the country, not to carry every favored

76 proposition over a cliff to its logical That was a striking statement from a justice conclusion. who was on the opposite side from Thurgood Marshall in nearly every civ il That is a sense that Chief Justice Roberts did rights case and whose jurisprudence not appear to gain during his first years on appeared unmarked by his influence. But it the court; his 2007 opinion striking down turned out to be Justice O'Connor who voluntary school integration plans in wrote the majority opinion in 2003 that Louisville, Ky., and Seattle was so hard- upheld affirmative action in admission to the edged that Justice Kennedy refused to sign it, University of Michigan Law School. The providing a fifth vote for the result but not way she saw the world in the interval had for the chief justice's reasoning. clearly changed, whatever the cause.

Whether Chief Justice Roberts has Although she is a pioneer in her own way, it developed a Rehnquist-style sense of when takes nothing from Judge Sotomayor to to hold back will be evident next month, observe that she is not Thurgood Marshall- when the court is expected to decide just as Anthony Kennedy, for that matter, is whether a central provision of the Voting not Sandra O'Connor. Rights Act, renewed almost unanimously by Congress three years ago, is constitutional. Indeed, not even the most experienced Based on the deep skepticism he expressed justice can count on finding an argument when the case was argued last month, the that will persuade Justice Kennedy. But answer is no. there is some evidence that he can be inspired by example and observation. His Beyond Sonia Sotomayor's stirring life story opinion for the court in Lawrence v. Texas, and impressive r6sum6, what we really want the 2003 gay-rights case, clearly rested on to know is how she will fit into this mix of his conclusion that gays were entitled to the ideology, personality, principle and politics. "dignity," as he put it, that the court's earlier ruling on gay rights in Bowers v. Hardwick Will she make a difference? According to had withheld. That opinion, among others, common sense as well as Justice White's indicates Justice Kennedy's willingness to maxim, the answer is "yes, inevitably." Will look through the eyes of those whose it be a difference that is discernible in the experiences are different from his own. outcomes of cases? That may not be clear immediately. In any event, Judge Sotomayor's nomination comes at a special moment: the first After Justice Thurgood Marshall retired in projection of the remarkable 2008 election 1991, Justice O'Connor published a tribute onto a Supreme Court that has so often in describing him as the embodiment of "moral these last few years appeared headed in the truth" and recounting the experience of opposite direction from the country. listening to his stories during the decade that Whether her arrival proves to change the they served together, stories that "would, by way the incumbent justices see the world, it and by, perhaps change the way I see the will, at the least, change the way the world world." sees the Supreme Court.

77