05.26.09 11:19 AM ET
One Tough Judge
President Obama has nominated U.S. federal appeals court judge Sonia Sotomayor for the Supreme Court vacancy created by the departure of David Souter. The 54-year-old New York native hails from a Puerto Rican family and would be the first Latino to sit on the Supreme Court. She fulfills a prime test that Obama previously announced for his picks, namely that they be able to understand a case from the perspective of the weak and powerless. Sotomayor grew up in a public-housing project in the rough-and-tumble South Bronx, the daughter of a tool-and-die worker with an elementary-school education who died when she was nine. She was diagnosed with juvenile diabetes at the age of 8, and was raised by her mother, a nurse. She has sterling academic credentials—Princeton University on scholarship, receiving the Pyne Prize at graduation—an academic prize reserved for the best undergraduate. Her law degree is from Yale, where she was an editor of the Yale Law Journal.
She has a consistent reputation for putting lawyers through their paces in the courtroom; she insists that they respond to the court’s questions and not deliver prepared remarks.
Sotomayor emerged as an early favorite among candidates for the post, but was also the first to draw strong fire. Jeffrey Rosen, writing in The New Republic, presented the “ Case Against Sotomayor,” quoting a number of unnamed sources: “The most consistent concern was that Sotomayor, although an able lawyer was ‘not that smart and kind of a bully on the bench,’ as one former Second Circuit clerk for another judge put it. ‘She has an inflated opinion of herself, and is domineering during oral arguments, but her questions aren't penetrating and don't get to the heart of the issue.’”
Rosen’s article unleashed a firestorm of controversy critiquing his technique and arguing that his leanings and preferences reflected personal support of another candidate. He was forced to pull back from some of his criticisms in a later posting. In particular it seems that most of Rosen’s sources were prosecutors who felt that Sotomayor had been too tough on them. In fact, she has a consistent reputation for putting lawyers through their paces in the courtroom; she insists that they respond to the court’s questions and not deliver prepared remarks. For most analysts, these are the characteristics of a “hot bench,” namely a judge who comes into the courtroom fully briefed on the cases which are being heard and eager to test the weakest contentions of each side. Contra Rosen, this reflects a strong judge, not a weak one. Still, it’s clear that Rosen’s article identified potential weaknesses that will be explored in the confirmation process.
Sotomayor’s nomination will mark an important test on the issue of affirmative action. She played a role in the controversial Ricci v. DeStefano case, in which the city of New Haven, Connecticut, threw out an examination for firefighters based on its conclusion that the results would have resulted in the disproportionate selection of white as opposed to minority applicants. The case has now been briefed and argued in the Supreme Court and a decision is expected soon. Sotomayor’s role in the decision of the case is unknown, but she did side with the city, and her views on the issue are almost certain to be probed in the course of confirmation.
Sotomayor’s official biography makes no statement about her religion, although she attended a Catholic high school (Cardinal Spellman in the Bronx). She was divorced in 1983, and there is no sign of her having secured an annulment. If she is a Catholic, she would be the sixth Catholic justice on the Supreme Court. But a review of her opinions suggests that she would stand at a distance apart from the remaining five. A key question would be her views on abortion, about which little is known, although nothing in Sotomayor’s writings or speeches suggests that orthodox Catholic doctrine plays a significant role in her legal thinking as it does with others currently on the Supreme Court, including Antonin Scalia, Clarence Thomas, Samuel Alito, and John Roberts. As an appeals court judge, Sotomayor participated in two cases in which reproductive-rights issues were in contest—but both cases were decided on a procedural basis, so the underlying questions about abortion were not reached. Still, if Sotomayor is a Catholic, she can expect to have a doctrine litmus test applied. Kathleen Sebelius, now Obama’s Health and Human Services Secretary, faced acid charges that she was a “bad Catholic” because of her pro-choice views—and a Supreme Court nominee is likely to face still more bitter attacks on the issue.
Republican senators like John Cornyn and Jeff Sessions have signaled their willingness to go to the mat to oppose Obama’s Supreme Court nominee—even before a name had been floated. They can be expected to give Sotomayor a difficult reception in the Senate Judiciary Committee and to portray her as a “doctrinaire liberal.” If prior nominees provide a guide, the effort against Sotomayor will likely be led by groups close to the religious right raising their signature issues—abortion and gay marriage—as well as groups opposed to affirmative action. But as often as not, Supreme Court nominations stand or fall based on unexpected details from a candidate’s personal life—hiring and paying an undocumented alien as a nanny or caretaker, for instance, or some sordid incident from the past which remained unknown through the time of nomination. In any event, Sotomayor’s life will soon undergo a meticulous review in the quest for compromising information, and the results will appear at her confirmation hearing, if not in advance of them.
In response, as The Daily Beast’s Richard Wolffe reports, the White House is planning to mobilize its own base to support the nomination. Up to this point, the Obama team has taken a cautious and nonconfrontational position on its nominations, repeatedly scuttling those which were affected by even a hint of controversy, and timidly awaiting the accumulation of 60 votes even on second- and third-tier appointments. The current sign is that a new strategy will be put in place for Sotomayor—both to offset a Republican play and to put strong pressure on the Senate to act promptly and to confirm the nomination. The game is afoot.
Scott Horton is a law professor and writer on legal and national-security affairs for Harper's magazine and The American Lawyer, among other publications.