White House Officials Dismiss Criticisms of Sotomayor, Say She Was Likely Pick from the Beginning

By Caitlin Taylor

May 26, 2009 1:01pm

As a Latina from humble beginnings, with experience as a prosecutor and a corporate attorney and more time on the federal judiciary than any Supreme Court nominee in a century, Appeals Court Judge Sonia Sotomayor always seemed President Obama’s likely pick for the Supreme Court, senior administration officials said Tuesday.

“He’s been very interested in her from the start,” a senior administration official said, as another official dismissed criticisms from conservatives and other critics of her temperament and her eagerness to legislate from the bench as issues that “aren’t going to pan out” as the confirmation battle heats up.

From the beginning of the process to make a list of likely Supreme Court nominees, which began shortly after his election, President Obama was most intrigued by Sotomayor, they said.

That remained the case as the list was culled down to nine and then down to the final four finalists – including Homeland Security Secretary Janet Napolitano, US Circuit Court Judge Diane Wood, and Solicitor General Elena Kagan. Wood and Kagan were former colleagues of the President’s at the University of Chicago Law School; Napolitano endorsed him in the presidential primaries and is in his cabinet.

Sotomayor remained the one he knew the least; he met her for the first time on Thursday.

But “at the end of an exhaustive process,” a senior administration official said, “there was no question where the arrow pointed.” 

President Obama felt that her experience, intellect and life experience made her uniquely qualified for the position, and the interview process “reinforced that view.”

Of criticisms that Sotomayor can be brusque, White House officials said they spoke to Sotomayor’s colleagues on the Court of Appeals, where she has served since 1998, and the District Court, where she served for the six years before that, and the “overwhelming consensus” was that while she was an “active questioner” of lawyers and ran a “hot court,” there was nothing inappropriate about her manner.

She’s “tough on lawyers who come to her courtroom unprepared,” a senior administration official said. “She’s unapologetic about that, as she should be.”

Another senior administration official suggested she would fit right in since the Supreme Court is not a place of “shrinking violets,” nor a place that operates “at a languid pace.”

As for how she is with colleagues, “the reviews from her colleagues on the court are extremely strong,” an official said, adding that when she sat with a Republican appointee they agreed in 95% of cases.

Officials said that Sotomayor is not a judicial activist, as conservative critics charge, but rather one who follows precedent. Of almost 380 opinions she’s written on the Court of Appeals, three have been reversed by the Supreme Court, which the White House argues is a stellar rate. The Supreme Court has reversed eight decisions of which she has been a part.

In Sotomayor’s most famous case, Ricci v. DeStefano, she joined a three-judge panel upholding the rejection of a lawsuit from white and Hispanic firefighters from New Haven, Conn.,  who were denied promotions even though no African-American firefighters passed the examination. The firefighters are claiming racial discrimination; Sotomayor and her colleagues refused to re-hear the case. The US Supreme Court is currently considering the case.

“She applied 2nd Circuit precedent,” a senior administration official said, arguing that Sotomayor’s action “shows restraint.”

Conservatives point to remarks Sotomayor made at Duke University Law School in 2005, where she said “the Court of Appeals is where policy is made.”

Catching herself, she said, “I know, and I know, that this is on tape, and I should never say that. Because we don’t ‘make law,’ I know.”

As the audience laughed at her comment, Sotomayor said, “I’m not promoting it, and I’m not advocating it…Having said that, the Court of Appeals is where, before the Supreme Court makes the final decision, the law is percolating. It’s interpretation, it’s application."

An administration official acknowledged Sotomayor’s “poor choice of words” – indeed, the official noted that she seemed to acknowledge as much immediately – but insisted the bulk of her comments and her record advocate judicial restraint.

Any rumblings that Sotomayor doesn’t have the intellect for the job are completely off base, officials also said, pointing to her graduating summa cum laude near the top of her class from Princeton, her editorship of the Yale Law Review, her time as a “stellar prosecutor” in New York District Attorney Robert Morgenthau’s highly competitive office, and her being a partner in the law firm Pavia & Harcourt.

As seems to be President Obama’s general decision-making process, he was leaning towards Sotomayor for months, but he let the process play itself out, delving equally into the records and possibilities of other candidates and even having aides play devil’s advocate against Sotomayor’s nomination.

President Obama met with Kagan and Wood last Tuesday. He met with Sotomayor oand Napolitano on Thursday.

Sotomayor traveled by car for her meeting with the president, and she stayed in the White House for seven hours, meeting with White House counsel Greg Craig, deputy counsel Cassandra Butts, Vice President Biden’s chief counsel Cynthia Hogan, and Vice President Biden’s chief of staff Ron Klain. She met with President Obama in the Oval Office for approximately an hour on Thursday.

An official said they largely discussed the law and the president felt that they had a “compatibility” in how they view the role of judges and the law.

On Sunday she also spoke on the phone with Vice President Biden, who as former chair of the Senate Judiciary Committee supervised six Supreme Court nomination confirmation hearings.

President Obama took the weekend to make his decision.

Shortly before 9 pm ET Monday night he made up his mind officially, and he phoned the judge to tell her the news.

-jpt

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