Supreme Court over­turned 60 per­cent of So­tomayor’s rul­ings

The Washington Times Weekly - - Politics - BY STEPHEN DINAN

With Judge So­nia So­tomayor al­ready fac­ing ques­tions over her 60 per­cent re­ver­sal rate, the Supreme Court could dump an­other prob­lem into her lap next month if, as many le­gal an­a­lysts pre­dict, the court over­turns one of her rul­ings up­hold­ing a race­based em­ploy­ment de­ci­sion.

Three of the five ma­jor­ity opin­ions writ­ten by Judge So­tomayor for the 2nd Cir­cuit Court of Ap­peals and re­viewed by the Supreme Court were re­versed, pro­vid­ing a po­tent line of at­tack raised by op­po­nents May 26 af­ter Pres­i­dent Obama an­nounced he will nom­i­nate the 54-year-old His­panic woman to the high court.

“Her high re­ver­sal rate alone should be enough for us to pause and take a good look at her record. Frankly, it is the Se­nate’s duty to do so,” said Wendy Wright, pres­i­dent of Con­cerned Women for Amer­ica.

But op­po­nents have an up­hill bat­tle.

Judge So­tomayor al­ready has been con­firmed for the fed­eral bench twice: unan­i­mously in 1992, when Pres­i­dent Ge­orge H.W. Bush nom­i­nated her to a district court, and by a vote of 6729 in 1998, af­ter Pres­i­dent Clin­ton nom­i­nated her to the ap­peals court. Seven Repub­li­cans who voted for her in 1997 are still in the Se­nate, and White House press sec­re­tary Robert Gibbs said “they’re cer­tainly well po­si­tioned to sup­port her again.”

Mr. Gibbs dis­missed ques­tions about Judge So­tomayor’s re­ver­sal rate, say­ing she wrote 380 ma­jor­ity opin­ions dur­ing her 11 years on the ap­peals court. Of those 380 opin­ions, the Supreme Court heard five of the cases and over­turned her on three.

“The to­tal­ity of the record is one that’s more im­por­tant to look at, rather than, like I said, some out-of-con­text or clipped way of looking at it,” Mr. Gibbs said.

While Demo­cratic se­na­tors were quick to back Judge So­tomayor, Repub­li­cans took a wait-and-see ap­proach, say­ing they will judge her by her an­swers at her con­fir­ma­tion hear­ing be­fore the Se­nate Ju­di­ciary Com­mit­tee.

Still, Repub­li­cans will be un­der pres­sure from con­ser­va­tive and liber tar­ian ac­tivist groups, who say the ques­tions are mount­ing. The ac­tivists are looking for­ward to the Supreme Court’s ex­pected rul­ing this month in the Ricci case on race­based em­ploy­ment pro­mo­tions.

Court watch­ers pre­dict a ma­jor­ity of jus­tices will rule in fa­vor of New Haven, Conn., fire­fight­ers who said the city dis­crim­i­nated against them af­ter it tested them for pro­mo­tions, then scrapped the re­sults af­ter it re­al­ized a dis­pro­por­tion­ate num­ber of whites would be pro­moted. Judge So­tomayor was part of a unan­i­mous three-judge panel that is­sued an un­signed opin­ion rul­ing against the fire­fight­ers and in fa­vor of the city.

“Given the way she re­cently all but dis­missed the Ricci case [. . . ] and the ex­pec­ta­tion, based on oral ar­gu­ment, that the Supreme Court will re­verse the 2nd Cir­cuit de­ci­sion, there will likely be an ex­tremely con­tentious con­fir­ma­tion bat­tle ahead,” said Roger Pilon, vice pres­i­dent for le­gal af­fairs at the Cato In­sti­tute. “If con­fir­ma­tion hear­ings are sched­uled for sum­mer, they will fol­low shortly upon the Court’s de­ci­sion in that ex­plo­sive case.”

The White House was cog­nizant of the dan­ger that case could present. An ad­min­is­tra­tion of­fi­cial, brief­ing re­porters af­ter the an­nounce­ment, said Judge So­tomayor was not specif­i­cally asked about the case since it may come back be­fore the Supreme Court with her as a mem­ber.

But the of­fi­cial said Judge So­tomayor’s read­ing of the law in the case was well founded and de­fend­able.

“It was a unan­i­mous de­ci­sion by the panel that she sat on, it ap­plied 2nd Cir­cuit law very faith­fully and did rely upon what was a very thought­ful, well-writ­ten district court opin­ion and adopted that opin­ion,” the ad­min­is­tra­tion of­fi­cial said. The White House re­fused to al­low the of­fi­cial to be quoted by name.

Maybe more so than her ju­di­cial rul­ings, Judge So­tomayor can ex­pect to be asked about her tem­per­a­ment as a judge and about her re­marks dur­ing speeches and con­fer­ences.

The Al­manac of the Fed­eral Ju­di­ciary lists a se­ries of quotes from lawyers prais­ing her le­gal abil­ity, but she also drew barbs from lawyers who said she is abu­sive in the court­room: “She re­ally lacks ju­di­cial tem­per­a­ment,” one lawyer told the pub­li­ca­tion.

In 2002, in a speech in Cal­i­for­nia, Judge So­tomayor said race or sex does af­fect a judge’s rul­ings, and said be­cause of that, a mi­nor­ity woman is a bet­ter de­cider than a white man: “I would hope that a wise Latina woman with the rich­ness of her ex­pe­ri­ence would more of­ten than not reach a bet­ter con­clu­sion than a white male who hasn’t lived that life.”

Three years later, at a panel dis­cus­sion at Duke Law School, she seemed to en­dorse ju­di­cial ac­tivism on the ap­peals courts, telling stu­dents con­sid­er­ing clerk­ships: “Court of Ap­peals is where pol­icy is made. And I know — I know this is on tape, and I should never say that be­cause we don’t make law. I know.”

A clip of the Duke com­ment on YouTube has been widely ac­cessed by con­ser­va­tive ac­tivists.

Mr. Gibbs said the YouTube clip does not do jus­tice to the con­text of Judge So­tomayor’s com­ments, and said her record on the courts will be her an­swer to crit­ics.

“The pres­i­dent is very con­vinced that peo­ple will look at the full con­text of this and not rely on, as I said, a small, short, outof-con­text YouTube clip, and more im­por­tantly look at the ba­sis of her en­tire record. I think you come to a broader un­der­stand­ing of who she is and what she meant,” Mr. Gibbs said.

Kara Row­land and Tom LoBianco con­trib­uted to this re­port.


Pres­i­dent Obama and his Supreme Court choice So­nia So­tomayor dur­ing his an­nounce­ment on May 26.

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