Although conservative critics may have their doubts, there's little evidence that Sotomayor is an activist judge or anything more than slightly left of center on a politically centrist appeals court. In 1998, the Wall Street Journal criticized her for ruling that a Manhattan business coalition had broken the law by paying less than the minimum wage to homeless people it was trying to give work experience. But Gerald Walpin, a former federal prosecutor whom many lawyers considered a staunch conservative, defended her: "If they [the Journal] had read the case, they would see that she said she personally approved of the homeless program, but that, as a judge, she was required to apply the law as it exists. ... That's exactly what conservatives want: a non-activist judge who does not apply her own views but is bound by the law."
A lawyer who recently clerked for another judge on Sotomayor's court said, "While she is liberal, she isn't nearly as dogmatic as some of her colleagues on the appellate bench, especially on criminal matters, which may be a reflection of her prosecutorial and district court background."
And there's that potentially troublesome video on YouTube. Speaking on a panel at Duke University School of Law four years ago, she was recorded saying, "All of the legal defense funds out there, they're looking for people with court of appeals experience, because it is, court of appeals is where policy is made," a statement sure to provoke critics of judges who allegedly legislate from the bench. "And I know, and I know this is on tape, and I should never say that, because we don't make law, I know," she continued as the audience laughed. "OK. I know. I know. I'm not promoting it, and I'm not advocating it, I'm, you know."
Since her name gained prominence among potential nominees several weeks ago, a controversy has arisen, mostly in the blogosphere, about whether Sotomayor is in the top tier of legal thinkers whom Obama seems to favor, lawyers like Solicitor General Elena Kagan and Cass Sunstein, the nominee to be administrator of the Office of Information and Regulatory Affairs. The most visible skeptic so far has been George Washington Law School professor Jeffrey Rosen. "Her opinions, although competent, are viewed by former prosecutors as not especially clean or tight, and sometimes miss the forest for the trees," he wrote in the May 4 issue of The New Republic. "Some former clerks and prosecutors expressed concerns about her command of technical legal details."
But the Rosen piece has been widely criticized, mostly by her former law clerks, and the evidence against her is thin. Rosen cited, for example, a judge's "unusual footnote" suggesting that Sotomayor may have misstated the law in another case. But the footnote does no such thing: It merely explains how that case was different from the one at hand.
"There are a few underwhelming judges on the Second Circuit [court of appeals], and she certainly isn't one of them," explained a lawyer who clerked for one of Sotomayor's colleagues on the bench. "She gets her opinions out on time, gets them right, and is always very prepared for argument."