Free: Sotomayor Is Pragmatic, Empathetic Lawyers Say

Lawyers who have appeared before Judge Sonia Sotomayor, who is on the short list of candidates being considered for an upcoming vacancy on the U.S. Supreme Court, described her as an aggressive questioner who comes to the bench prepared and, although she is regarded as a member of the more liberal wing of the U.S. Court of Appeals for the Second Circuit, a pragmatist who would bring a different perspective to the high court.

Veteran practitioner Max Gitter of Cleary Gottlieb Steen & Hamilton said Judge Sotomayor would be a "great choice" for President Barack Obama to fill the seat created by the retirement of U.S. Supreme Court Justice David Souter, because she has a keen awareness of the human consequences of a court's opinion.

"She has more than just legal smarts," Mr. Gitter said. "She really keeps her ear to the ground."

Elkin Abramowitz of Morvillo, Abramowitz, Grand, Iason, Anello & Bohrer sees Judge Sotomayor as a "natural" pick for the president.

"I think she's solid, as far as I can see there is no political bias one way or another," Mr. Abramowitz said. "I think that, like Obama, she's a pragmatist and a hard worker."

Judge Sotomayor, 54, was diagnosed with juvenile diabetes at 8, lost her father one year later and she and her younger brother were raised in the Bronx by their mother, a professional nurse.

Hard work led her to Princeton University, where she graduated summa cum laude in 1976, and then Yale School, where she graduated in 1979.

After spending the next five years as a prosecutor with the Manhattan District Attorney's Office, she moved to the commercial litigation firm Pavia & Harcourt until 1992, when her nomination to the bench in the Southern District by President George H.W. Bush, made on the recommendation of Senator Daniel Patrick Moynihan, was confirmed by the U.S. Senate. She became the first Hispanic woman named to the federal bench in New York.

While at the Southern District, Judge Sotomayor effectively ended the Major League Baseball players strike in 1995 when, after scolding the lawyers for baseball club owners, she granted an injunction sought by the National Labor Relations Board.

In 1997, she handed Manhattan lawyer William Duker (briefly a partner of the recently sentenced Marc Dreier) two years and nine months in prison for defrauding the federal government. Judge Sotomayor said she reached the sentence after balancing the harm Mr. Duker caused by inflating his bills by $1.4 million with the good he had performed by recovering millions of dollars from failed savings and loans.

In 1998, Judge Sotomayor ruled that two business improvement districts, the Grand Central Partnership and the 34th Street Partnership, violated the minimum wage laws by paying homeless people they hired only $1 to $1.50 an hour and denying them overtime.

She was nominated by President Bill Clinton to the Second Circuit in June 1997, but a political fight in the Senate held up her confirmation until Oct. 2, 1998.

With the Democrats holding a 59-seat, and possibly a 60-seat majority, the dynamics of the nomination process are sure to be different this time around should Judge Sotomayor be named to fill the Souter vacancy.

Potential Minefields

Still, there are minefields for any potential nominee, including both public statements and, in the case of a trial and appellate judge, a paper trail of decisions that will be dissected.

Critics of what she regard as Judge Sotomayor's liberal bias have picked up on video clip now circulating on YouTube in which she says that circuit courts of appeal are where "policy is made."

Answering a question about clerking for judges at a 2005 Duke University forum, she then laughingly noted that she knows she is not supposed to say such things before adding, "I know, we don't make the law," and, to more laughter from the audience, adding "I'm not promoting it. I'm not advocating it."

The paper trail is more interesting and complicated.

One case that is sure to come up in any confirmation hearing is one that deeply divided the circuit, Ricci v. DeStefano, 06-4996-cv, a reverse discrimination case that was argued last month in the U.S. Supreme Court.

Judge Sotomayor was on the panel that upheld the dismissal of a case brought by white firefighters and one Hispanic firefighter from New Haven, Conn. who challenged the city's decision not to certify the results of exams administered in 2003 because minority applicants performed less well on the tests. The city feared Title VII liability if more minorities were not promoted into the upper ranks of the department and the test results were not helpful.

Judge Sotomayor and her fellow panelists Robert D. Sack and Rosemary S. Pooler first issued a summary order affirming Judge Janet Arterton and then withdrew it, replacing it only with a terse, one-page opinion praising the judge's "thorough, thoughtful and well-reasoned opinion."

Judge Jose A. Cabranes, part of a 7-6 minority that lost a bid to have the case reheard en banc, criticized the panel for issuing only a brief per curiam opinion instead of a full written one tackling the "indisputably complex and far from well settled" questions in the case, including whether New Haven was applying "an unconstitutional racial or set-asides" (NYLJ, June 24, 2008).

Judge Sotomayor was on the panel in Doninger v. Niehoff, 06-0457, where the circuit in 2008 upheld the denial of a preliminary injunction sought by a high-school student who was disqualified from running for senior class secretary when she posted on an independently operated blog a vulgar and misleading message about the supposed cancellation of a school event. The panel cited the potential disruption at the high school from the blog post as justifying the suspension.

Judge Sotomayor wrote the opinion in United States v. Howard, 06-0457, finding as constitutional ruses employed by state troopers to lure suspects away from two vehicles so that other troopers could search the cars for cocaine. Judge Sotomayor said there was "ample probable cause" to support the searches and "within the context of the automobile exception a reasonable search does not become unreasonable because law enforcement officials lack a warrant" (NYLJ, June 6, 2007).

James E. Long of Albany represented one of the defendants on the Howard appeal.

"In that case it was a hot bench and she was the hottest. Her questions were intense," Mr. Long said. "I was relying on a 37-year-old Supreme Court case and saying it was still good law, but she said it had been distinguished repeatedly. So she knew all of the nuances of my argument."

Judge Sotomayor wrote for the majority in Farrell v. Burke, 449 F. 3d 470 (2d Cir. 2006), finding parole officers did not violate the First Amendment when they enforced a ban on the possession of pornography by a paroled sex offender. "Although a series of strongly-worded opinions by this court and others suggest that the term 'pornography' is unconstitutionally vague," Judge Sotomayor said, an illustrated book found in the possession of parolee Christopher J. Farrell fell within "any reasonable definition of pornography" and was not unreasonably vague as applied to Mr. Farrell.

Judge Sotomayor was in the minority and penned a dissent when a sharply divided court sitting en banc rejected a bid to challenge New York's §5-106 of the Voting Rights Act barring convicted felons from voting in Hayden v. Pataki, 04-3886 (NYLJ, May 5, 2006).

"I fear that the many pages of the majority opinion and concurrences - and the many pages of the dissent that are necessary to explain why they are wrong - may give the impression that this case is in some way complex. It is not," Judge Sotomayor wrote. "It is plain to anyone reading the Voting Rights Act that it applies to all 'voting qualification[s].' And it is equally plain that §5-106 disqualifies a group of people from voting. These two propositions should constitute the entirety of our analysis. Section 2 of the Act by its unambiguous terms subjects felony disenfranchisement and all other voting qualifications to its coverage. The duty of a judge is to follow the law, not to question its plain terms."

Judge Sotomayor wrote for the panel upholding the conviction of former Waterbury, Conn., Mayor Philip Giordano for enticing minors into sexual activity, United States v. Giordano, 03-1394 (NYLJ, March 10, 2006). She was also in a 2-1 majority in upholding civil rights convictions for the former mayor. One of the minor girls testified the mayor had led her to believe she "would get put in jail" if she told other people about the incidents because she "thought he had power." Judge Sotomayor wrote that the circuit in the past had found "officials acted under color of law when their misuse of official power made the commission of a constitutional wrong possible, even though the official committed abusive acts for personal reasons far removed from the scope of official duties."

Andrew Bowman of Westport, Conn., represented Mr. Giordano. Mr. Bowman could not talk about the case, because some issues are still unresolved, but he had some thoughts on the Supreme Court vacancy when asked about Judge Sotomayor.

"Smart people are a dime a dozen, but what you look for in a judge is somebody who has a sense of the human condition and a solid sense of what this democracy is supposed to be about," Mr. Bowman said. "I'm not saying you shouldn't get people with the best possible qualifications, but that's the beginning of the analysis, not the end."

Judge Sotomayor was on the panel that gave an asylum seeker a second chance in Twum v. Immigration and Naturalization Service, 411 F. 3d 54 (2d. Cir. 2005) (NYLJ, June 10, 2005). Alexander Twum was denied entrance to 26 Federal Plaza because his attorney was upstairs in possession of the document he needed to get into the building. The Board of Immigration Appeals had ruled that Mr. Twum's claim failed to meet the strict standard for ineffective assistance of counsel.

But Judge Sotomayor wrote that the case was really not about ineffective assistance, and the decision of the immigration appeals board to prevent a hearing on the merits of Mr. Twum's claim was inconsistent with the board's usual approach in cases where applicants fail to appear because of misunderstandings with their attorneys. While an immigration court can expect every responsible effort to comply with its orders, she said, "it cannot expect the impossible."

Well Prepared

Judge Sotomayor wrote the opinion in United States v. Martinez, 413 F. 3d 239 (2d Cir. 2005), 04-2075-cr, finding that recent U.S. Supreme Court decisions do not bar a judge from considering hearsay testimony at sentencing (NYLJ, June 28, 2005) and she also wrote for the majority in Benn v. Greiner, 402 F. 3d 100 (2d Cir. 2005) (NYLJ, March 10, 2005), overturning a grant of habeas corpus to a prisoner who had been convicted of first degree sodomy and attempted rape.

James Benn claimed his 1992 trial was unfair because the trial judge limited the cross-examination of the complaining witness on her past allegations of sexual abuse by others. The limitations were in error, Judge Sotomayor said, but they were harmless error, because, in light of the victim's testimony "key details of the assault were strongly corroborated," attacks on her credibility were allowed, and the evidence presented far more than a "he said, she said" scenario.

Barry Gene Rhodes represented James Benn on the appeal.

"Even though she destroyed my arguments I thought she was top notch," Mr. Rhodes said. "She was extremely aware of the facts and anticipated every argument."

In 2001, Judge Sotomayor took a brief trip back to the bench in the Southern District, where, sitting by designation in 2001, she presided for the second time in four years over the trial of a severely dyslexic woman who claimed she deserved extra time to take the state bar exam as an accommodation under the Americans with Disabilities Act, Bartlett v. New York States, 2001 WL 930792 (NYLJ, Aug. 16, 2001).

In a 99-page opinion, the judge found the effect of the plaintiff's impairments on her life was "profound."

"While the board's concern with protecting the integrity of the bar is laudable, the board cannot turn this legitimate concern into bias against learning disabled applicants," she said.

The judge was in the minority in another case that divided the circuit - Brown v. Oneonta, 221 F. 3d 329 (2d Cir. 2000) (NYLJ, Dec. 20, 2000), where the majority denied rehearing en banc the affirmation of the dismissal of an equal protection case brought by black residents and college students.

Following the report of an elderly woman who was attacked by a young, black male in her home who was wielding a knife and cut his hand during a struggle, Oneonta, N.Y., police stopped and questioned black people all over the town and inspected their hands.

Judge Sotomayor was among the judges disagreeing with the majority's view that, in acting on the description provided by the assault victim, the police "did not engage in a suspect racial classification that would draw strict scrutiny."

"Sometimes we forget the most important quality we are looking for in a judge is judgment, wisdom," Mr. Bowman said. "We don't want mechanics, we want people with a sense of what life is really like. We want judges who understand what it means to get 20 years in prison or what it means to be discriminated against. You have to have somebody who will bring that dimension to the consideration of legal and constitutional issues that come before the court."

Mark.Hamblett@incisivemedia.com