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2nd Circuit Judge Calabresi on Former Student and Current Colleague Sotomayor
The Connecticut Law Tribune
June 04, 2009
Fewer than 6 percent of the cases decided by the 2nd U.S. Circuit Court of Appeals come from Connecticut. Still, people and issues from Connecticut are likely to be highly important in the upcoming confirmation hearings of U.S. Supreme Court nominee Sonia Sotomayor, a 2nd Circuit judge for the past 12 years.
Former Yale Law School Dean Guido Calabresi is a colleague of Sotomayor's on the appellate court. He first met her at Yale, when he was a professor and she was a student, and was impressed with her legal talents and personal attributes.
Although Sotomayor is known for writing lengthy and layered opinions, she's likely to be questioned extensively about one of her more terse efforts. In Ricci v. New Haven, white firefighters were denied promotions when New Haven officials tossed out the results of a promotional exam on which black firefighters performed poorly. In a one-paragraph decision, Sotomayor, writing for the court, upheld the decision by New Haven officials without touching on affirmative action doctrines or other large legal issues presented by the lawsuit. The U.S. Supreme Court recently heard arguments in the case.
Senior Writer Thomas B. Scheffey spoke last week with Calabresi, who shared insights into Sotomayor's character and abilities and her approach to the Ricci decision.
LAW TRIBUNE: How long have you known Sonia Sotomayor?
GUIDO CALABRESI: I've known her ever since she was a first-year student in my torts class. She was terrific then. Yesterday, I went back and looked at my exams. My practice is to read the exams [without looking at the student's] name and then write on the exam a one-liner about what the exam was like. It was a wonderful exam, and I wrote, ‘Knows her stuff! Has originality!' That's a wonderful little aside that most people wouldn't know.
We've been on the court together for 12 years. I was there a few years before [she joined]. And she's a marvelous, powerful, profoundly decent person. Very popular on the court because she listens, convinces and can be convinced -- always by good legal argument. She's changed my mind, not an insignificant number of times. And as I've told some people, I'm a tough act.
LAW TRIBUNE: It's a mark of a lively intellect that you can have your mind changed.
CALABRESI: And it works both ways. She listens to people and people listen to her. Often when we've had court meetings, and disagreed on things, there can be some tension. She's the one who regularly arranges for us to go out together with spouses afterwards, and relax and be human beings with each other, and that has been a great help.
LAW TRIBUNE: What other qualities stand out?
CALABRESI: Extraordinary integrity. Often, when people have been mentioned for a promotion, they start to be a little careful. To [think], “Why offend people when it could get in the way of a promotion?” From the time Sonia came on the court, she was understandably a person who was mentioned as somebody, possibly, who could be considered for the Supreme Court. But she has never let that affect her decisions, her judgment. It has always been straight on the law as she read it, and that's it.
LAW TRIBUNE: You're saying she wasn't trying to express a more middle-of-the-road view to please more people, or be more palatable?
CALABRESI: She's never done that, she's just followed the law. And she is also a judge who does not reach out to decide more than what is before her. The word 'activist' is usually misused to attack somebody who disagrees with you. It actually has a meaning. An activist judge or a willful judge is one who decides more than is needed for that case, and tries to set her or his views in stone when there is a chance to do it. A good judge doesn't do that.
LAW TRIBUNE: People are predicting that the New Haven reverse discrimination case is likely to generate a lot of questions, even though Judge Sotomayor wrote very little in that decision. Do you have an insight about why she wrote so little?
CALABRESI: I cannot speak about a case that is sub judice, which that case is. But I can say this. First, she was not the presiding judge of that case. It's a panel, and the presider is significant in such things. The interesting thing that that panel did was try to decide the particular case before it, without resolving a very, very hard question of law. And that goes to what I just said before. That is the opposite of an activist judge. That issue is one of the hardest issues around.
[The judges on the panel] thought this particular case ... could be dealt with without trying to settle something that's extraordinarily hard. She – and that panel -- was trying to be in the best sense of the word, a minimalist judge. If people say that was activism, they've got it backwards.
LAW TRIBUNE: People have criticized Judge Sotomayor as being brusque.
CALABRESI: When she first came on, there were some lawyers who said that about her manner on the bench. I started keeping track of what she was saying and what my male colleagues were saying. [What they were saying] was identical. There are some lawyers who don't like to be questioned hard by a woman. It's just as simple as that. It's a sign that Sonia will just be herself.
LAW TRIBUNE: Do you think the scorching questioning faced by Judge Robert Bork and Clarence Thomas before the Senate Judiciary Committee is a thing of the past?
CALABRESI: That gets into politics and is outside my line. But if she is questioned and grilled by senators, she will answer them!
