May 26, 2009 -- As President Obama's pick to fill the vacancy on the Supreme Court, federal appeals judge Sonia Sotomayor seems, in many ways, tailor-made for President Obama as a Supreme Court nominee. She's a highly educated, vastly experienced, liberal-leaning Hispanic woman with a compelling personal story, a pragmatic view of the law and a keen sense of how her decisions affect people's lives.
But she has her detractors, on the political left, as well as the right. Hoping for an intellectual heavyweight who can go toe-to-toe with the likes of conservative Justice Antonin Scalia, some liberal scholars say Sotomayor, although obviously smart, lacks a dazzling legal mind. Conservatives, on the other hand, read her court decisions as liberal and soft on crime. And some lawyers who have argued before her say she can be a bully on the bench.
Sotomayor's personal story is striking. She was born June 25, 1954, in the Bronx, N.Y., and raised in the Bronxdale housing project by parents from Puerto Rico. She graduated from Cardinal Spellman High School in 1972, from Princeton University summa cum laude in 1976 and from Yale Law School in 1979 after serving as a law journal editor.
She worked as an assistant district attorney in Manhattan from 1979 to 1984 and as an associate and then partner in the New York law firm of Pavia & Harcourt until 1992. That year, she was appointed a judge on the U.S. District Court in Manhattan and, in 1998, she was elevated to the U.S. Court of Appeals, also in Manhattan.
Obama has said that he values judges who are acutely aware of their decisions' real-life impact, and Sotomayor seems to pride herself on that quality. In a November 1998 interview with The Associated Press, she said, "That emotion will never leave me, humility, a deep, deep sense of humility," referring to how she felt signing her first judgment of conviction, an order that sent a drug offender to prison for five years.
"And a deep, deep sense of, there but for the grace of God could I have gone and many that I have loved."
She has also spoken often of how her early poverty and Hispanic heritage have shaped her views. "I have spent my years ... in my various professional jobs not feeling completely a part of any of the worlds I inhabit," she said in a November 2002 interview with The Hispanic Outlook in Higher Education. "We educated, privileged lawyers have a professional and moral duty to represent the underrepresented in our society, to ensure that justice exists for all, both legal and economic justice."
Still, Sotomayor, who's divorced with no children, seems pragmatic in her approach to judging. She called herself "a down-to-earth litigator" in a September 1992 interview with the Los Angeles Daily Journal, adding that, "that's what I expect I'll be like as a judge."
In 2006, having served 14 years on the federal bench, she told The Federal lawyer that, "Once you have been a judge, you understand that whatever your personal views are upon an issue ... few of us can make a decision in the abstract, because that is not the nature of judging."
Activist Judge or 'Bound by the Law?'
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.
Sonia Sotomayor's Record
"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."
Sotomayor has also been called "kind of a bully on the bench," according to Rosen. The criticism is not far off the mark, say many lawyers, although some questioned whether that's a bad thing. "Her attitude is likely the best thing that she could bring to the [Supreme] Court," said the lawyer and former clerk. "The Supreme Court, especially its left wing, could use someone who is a little less pretentious and a little more feisty and incautious than the existing cast."
Conservative critics have said that some of her rulings show a lack of support for the police, a charge given little credence by her supporters in law enforcement, including Manhattan District Attorney Robert Morgenthau. Sotomayor spent five years as an assistant district attorney in Morgenthau's office, prosecuting robberies, assaults, murders, police brutality and child pornography cases.
Indeed, Sotomayor's record of appealing to Republicans as well as Democrats may be one of her biggest strengths as a nominee. She was named to the district court by a Republican, President George H.W. Bush, and to the appeals court by President Bill Clinton, a Democrat.
It is her impressive rise from poverty, though, that many consider her greatest asset. Her father was a tool-and-die maker, and her mother, Celina, was a nurse in a methadone clinic. She was diagnosed with diabetes at age 8 and her father died a year later, leaving her mother to raise a daughter and younger brother, Juan, alone in a public housing project. (Her brother is now a doctor near Syracuse, N.Y.) Her inspiration to become a lawyer: Perry Mason episodes, in which the attorneys were heroes and the judges always called the shots.
Although Sotomayor has written hundreds of opinions in a 17-year judicial career, her record is remarkable for its lack of controversy. One decision that received early attention was a 1993 ruling in a drug case, in which she threw out evidence obtained in a search because a police detective had lied to obtain the search warrant. Prosecutors agreed to a plea bargain but, at sentencing, Sotomayor criticized the severity of the five-year sentence that the federal guidelines required her to impose.
"The only statement I can make is, this is one more example of an abomination being committed before our sights," she told the defendant. "You do not deserve this, sir."
At Sotomayor's confirmation hearing in 1997, Sen. Jeff Sessions R-Ala., grilled her about that statement, suggesting it showed disrespect for the law. Sotomayor conceded that she should not have said, "Abomination."
More of Sotomayor's Case Opinions
In 1994, the judge struck down a state prison rule that prohibited members of a religious sect from wearing colored beads beneath their clothes to ward off evil spirits. A year later, she ruled that the Freedom of Information Act required the government to release the suicide note of former White House lawyer Vincent Foster. Also, in 1995, she ordered Major League Baseball owners to restore free-agent bidding, salary arbitration and other terms of the expired collective-bargaining agreement with players, thereby prompting an end to the 232-day baseball strike.
"You can't grow up in the South Bronx without knowing about baseball," she said during a hearing in the case, according to the New York Times.
As an appeals court judge, Sotomayor wrote the 2005 opinion striking down a court order preventing the news media from publishing jurors' names that had been read aloud in open court during the trial of former investment banker Frank Quattrone. Quattrone faced charges of interfering with a federal investigation into securities fraud, but the charges were eventually dropped. In 2006, again writing for the court, Sotomayor upheld warrantless searches of ferry riders who crossed Lake Champlain. She ruled that the federal government had an important interest in protecting the ferry from terrorism.
Among Sotomayor's civic activities has been service as a member of the board of directors of the New York City Campaign Finance Board, the State of New York Mortgage Agency, the Puerto Rican Legal Defense and Education Fund and the Maternity Center Association. Her awards have included honorary degrees from Princeton University and Brooklyn Law School in 2001 and from Herbert L. Lehman College in 1999.