Sotomayor Digs In Her Heels & Prepares For More Hot Seat Senate Grilling (Day 3)

MSNBC, Politico----

(U.S. Supreme Court nominee Sonia Sotomayor enters her third day of confirmation hearings. On the second day, she faced tough questions about her use of the term “wise Latina.” NBC’s Pete Williams reports. )

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(Senator Lindsey Graham puts the pressure on Sotomayor regarding her personal views.)

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WASHINGTON - Sonia Sotomayor is relying on her 17-year record as a federal judge to rebut criticism that she is concealing a liberal agenda that will show up if she is confirmed to the Supreme Court.

Sotomayor, the first Hispanic high court nominee, was set to return Wednesday to a cavernous Senate hearing room for another grueling day of questioning.

Republicans on the Senate Judiciary Committee are using Sotomayor's confirmation hearing to raise doubts about her fairness, while Democrats are portraying the 55-year-old New Yorker as a model jurist.

Under questioning Tuesday, Sotomayor tried to take away one line of Republican attack when she distanced herself from the man who nominated her, President Barack Obama.

Asked whether she shared Obama's view — stated when he was a senator — that in some cases, the key determinant is "what is in the judge's heart," Sotomayor said she does not.

"I wouldn't approach the issue of judging in the way the president does," she said. "Judges can't rely on what's in their heart. They don't determine the law. Congress makes the laws. The job of a judge is to apply the law."

Pushing back on bias claims:

Time and again, she put her record on display to answer charges of bias.

Sotomayor backed away from perhaps the most damaging words that had been brought up since Obama nominated her seven weeks ago — a comment she made on several occasions suggesting that a "wise Latina" judge would usually reach better conclusions than a white man. She called the remark "a rhetorical flourish that fell flat."

"It was bad because it left an impression that I believed that life experiences commanded a result in a case, but that's clearly not what I do as a judge," Sotomayor said.

Republicans were not satisfied with her answers.

Sen. Lindsey Graham, R-S.C., said he could end up voting for Sotomayor but wants to make sure she is the judge with what he called a moderately liberal record, not a liberal activist.

"That's what we're trying to figure out — who are we getting here?" he said.

Democrats clearly enjoyed being on the other side of the confirmation process, defending a Democratic nominee.

"When we asked questions of the white male nominees of a Republican president, we were basically trying to ... make sure that they would go far enough in understanding the plight of minorities, because clearly that was not in their DNA," Sen. Dick Durbin, D-Ill., said.

"The questions being asked of you from the other side primarily are along the lines of, will you go too far in siding with minorities?" Durbin said.

Republicans focused on one case to make that point, the appeals court ruling that she joined dismissing the claim of white firefighters in New Haven, Conn., who alleged racial discrimination over the city's decision to scrap a promotions exam after too few minorities did well.

The Supreme Court reversed the ruling late last month.

Sotomayor's response was simple and oft-repeated: "We were following precedent."

When the committee finishes its first round of questioning, it will go into the customary closed session to discuss the FBI report on Sotomayor and other personal matters.

The 19 senators can then take up to an additional 20 minutes each to question Sotomayor, although Sen. Patrick Leahy, D-Vt., the committee chairman, advised his colleagues Tuesday that they don't need to use their entire allotment.

Leahy has voiced confidence that Sotomayor will be confirmed, and with some Republican support.

Sources: MSNBC, Politico, LA Times, Media Matters

Sotomayor Promises Equal, Impartial Justice For All While Serving On Bench...Holds Her Own With G.O.P.

Politico, MSNBC----


(Supreme Court nominee Sonia Sotomayor tells senators, “My personal and professional experiences help me listen and understand, with the law always commanding the result in every case.")

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(During start of Judge Sotomayor's Confirmation Hearings Republican Senator Lindsey Graham (SC) tells her "I don't know what's in your heart.")

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Stoke the flames, but don’t burn down the house.

Heading into Tuesday’s session, that’s shaping up as the Republican strategy for Supreme Court nominee Sonia Sotomayor’s confirmation hearings: Offer enough criticism to satisfy conservative activists and GOP stalwarts, but avoid an all-out conflagration that could draw the attention of moderates, women and Latino voters.

For different reasons, the White House is taking a somewhat similar tack — reflecting a conclusion that a high-profile, racially charged battle over her nomination might be highly damaging to Republicans in the long run but also would be an unhelpful distraction in the near term from President Barack Obama’s weighty domestic agenda.

So Tuesday’s hearing is shaping up as more legal seminar than showdown. Nothing has emerged that’s likely to derail a future Madam Justice Sotomayor, and no one seriously expects anything to in this week’s hearings, either.

Still, Republicans made clear that Tuesday’s toughest lines of questioning will be over whether Sotomayor leans too heavily on her ethnic heritage in deciding from the bench — a notion Republicans believe would make many Americans uncomfortable.

Republicans previewed that they intend to grill Sotomayor about her views on gun control and property rights, as well as her ruling against white New Haven firefighters in a race discrimination case.

“It seems to me that ... Judge Sotomayor’s empathy for one group of firefighters turned out to be prejudice against another,” said Alabama Sen. Jeff Sessions, the ranking Republican on the Senate Judiciary Committee.

For their part, Democrats signaled their plans to stress Sotomayor’s varied experience, including her work as a prosecutor putting away violent criminals.

Democratic senators also made clear that any GOP accusations of judicial activism would be met by insistent claims that recent Republican nominees, like Chief Justice John Roberts and Justice Samuel Alito, have strayed from their promises to exhibit judicial restraint.

Sotomayor indicated that she has no intention of relitigating her entire judicial history Tuesday — but is more likely to offer a judicial version of rope-a-dope. Her nine-minute opening statement addressed some criticism of her in an extremely general way, without acknowledging the most strident attacks nor providing the kind of forceful defense of experience-based judging that some liberal activists might have liked to see.

Her defense Tuesday seems likely to boil down to this: suggesting in general terms that any references she’d made to the impact of her ethnicity on her judging did not make her biased, including her famous “wise Latina” speech, in which she suggested someone like herself with her life experience would be a better judge than a white man.

“My personal and professional experiences help me to listen and understand,” she said Monday, “with the law always commanding the result in every case.”

Judiciary Committee Chairman Pat Leahy (D-Vt.) kicked off the hearings with a stern warning to his colleagues not to impugn Sotomayor’s ethnic background or suggest that it should lead to special scrutiny of her views — “Let no one demean this extraordinary woman,” Leahy said. But Democrats seemed loath to pounce as Republicans edged up to the line in some of their questions, a sign they had no interest in turning up the temperature on the hearings.

But there was ample evidence that Republicans were pulling their punches, too. Sessions even dropped a reference in his prepared remarks to how he found Sotomayor’s comments on the role of ethnicity in judging to be “shocking and offensive to me.”

When he actually spoke Monday morning, Sessions simply omitted that phrase and said one of Sotomayor’s statements “bothers me.”

Part of the Republican strategy was reflected in statements that might be ignored by some viewers but seemed intended to resonate with Americans with a deep anxiety that the country is disintegrating.

“I think our nation’s at a critical point. I think we’re starting to see cracks,” Sen. Tom Coburn (R-Okla.) said ominously. “The thing that binds us together is an innate trust that you can have fair, impartial judgment in this country.”

Sessions also spoke of an America at a momentous tipping point.

“Our legal system is at a dangerous crossroads. Down one path is the traditional American system, so admired around the world, where judges impartially apply the law to the facts without regard to personal views,” Sessions said. “Down the other path lies a brave new world, where words have no true meaning, and judges are free to decide what facts they choose to see. ... I reject that view, and Americans reject that view.”

Sen. Jon Kyl (R-Ariz) also swung hard during Monday’s hearings — at someone not in the witness chair.

“Unfortunately, a very important person has decided it’s time for a change, time for a new kind of judge, one who will apply a different standard of judging, including employment of his or her empathy for one of the parties to the dispute. That person is President Obama,” Kyl said.

“President Obama is simply outside the mainstream in his statements about how judges should decide cases. I practiced law for almost 20 years. ... Never once did I hear a lawyer argue that he had no legal basis to sustain his client’s position so that he had to ask the judge to go with his gut or his heart.”

The GOP has also seized on another way to satisfy activists while stopping short of a knock-down battle with the nominee: Invite those activists to testify after the potential justice is safely out of the room. Several of Sotomayor’s sharpest critics, including anti-abortion activist Charmaine Yoest and libertarian David Kopel, are among those who received invites for an expert panel set for later in the week.

Still, a key facet of the GOP strategy seemed to be to keep up a cheery demeanor even when expressing the gravest doubts about the nominee, the president and the future of the judiciary.

After unleashing some of the morning’s most aggressive salvos, Sessions struck a decidedly compassionate, even lighthearted tone after Sotomayor spoke.

“That was a good statement,” Sessions said. “If that had been the theme of her speeches over the last 15 years, I would think we would have less difficulty with the nomination than we do.”

The Alabama Republican, who was turned down for a federal judgeship by the Judiciary Committee in 1986, expressed sympathy about any heartburn incurred during the senators’ soliloquies.

“I give Judge Sotomayor an A for listening to that,” he said. “We should have had a box of antacid for her by the time the day ended.”

Sources: Politico, MSNBC

Politico Alerts Citizens What To Watch For During Sotomayor Confirmation Hearings

Politico----

Judge Sonia Sotomayor still speaks with her elderly mom, who’s retired in Florida, “every day.”

She’s a “doting” aunt to three of her brother’s children and an “attentive godmother to five more.”

And did you know she was a “fearless and effective prosecutor” and anti-child-pornography crusader widely credited “with saving baseball”?

These biographical gems come from the official, 200-plus-page White House playbook distributed to Senate Judiciary Committee Democrats tasked with defending President Barack Obama’s SCOTUS nominee during this week’s confirmation hearings.

What emerges from the document is a streamlined, no-drama strategy modeled on the flawless performance of Chief Justice John Roberts back in 2005. Roberts bedeviled Democrats by deflecting questions about his judicial philosophy with the law school equivalent of Greenspan-speak, the art of saying virtually nothing in the most expansive language possible.

“Roberts is our gold standard,” conceded one Democratic aide.

The document emphasizes three major talking points:

1. Sotomayor has an inspiring, only-in-America personal narrative, rising from a single-parent Puerto Rican home in the South Bronx to the apex of U.S. jurisprudence.

2. She’s been a tough, law-and-order jurist and prosecutor absolutely adored by cops and other lawyers.

3. She respects precedent, has adopted a pragmatic legal approach and has more federal bench experience than any other high court nominee over the past 70 years.

“We want to make it the boringest hearings ever,” said a senior Democratic Senate aide.

Republicans, for their part, concede they are too outnumbered in the Senate (60 Democrats to 40 Republicans) and the Judiciary Committee (12 to 7) to stop the nomination.

But they’ll try — and here are six things to watch as they do:

“Wise” Cracks About Her "Wise Latina" Statement:

Barring any other major surprises, “wise Latina” is the one issue with potential to awake the slumbering American masses lulled by the sedate Roberts and Samuel Alito hearings.

“I would hope that a wise Latina woman with the richness of her experiences would, more often than not, reach a better conclusion,” Sotomayor famously (or infamously) said in a 2001 speech.

The nominee has spent more time defending those two dozen words during her “murder board” prep sessions with administration officials and in closed-door meetings with senators than any case she’s dealt with in nearly two decades on the bench.

Sotomayor’s defense: The comment was meant to suggest the need for more Latinas on the bench — not fewer white guys — and subsequent passages of the same speech put “wise” in a far less threatening context.

Some senators have apparently been mollified. Maine’s moderate Republican Sen. Susan Collins emerged from her early June sit-down with Sotomayor to say she’d been somewhat assured the judge would never, ever use that phrase again.

But most Republicans, led in lock step by Senate Minority Leader Mitch McConnell, aren’t buying it. Nearly universally, they profess “skepticism” — a middle-ground word that conveys the GOP’s desire to dent the nominee without provoking a wholesale Hispanic backlash against the party.

Whatever her performance in private, Sotomayor must offer a credible explanation under the bright lights this week.

A fumbled answer — or worse still, one that makes the nominee seem evasive or phony — would undercut weeks of Democratic efforts to portray Sotomayor as America’s nonthreatening, earthy, empathetic, law-and-order Aunt Sonia.

Will she offer an all-out apology for the comment?

Don’t count on it, Democratic aides say.

The Ankle:

Sotomayor fractured her ankle going through security at LaGuardia Airport in early June, and it’s still such a problem she’s had to prop it up on a trash can during cram sessions.

It hurts, it swells up if she exerts herself — “and it itches,” said a source close to the ankle.

Sotomayor will keep it elevated on a footstool behind black bunting underneath the witness table this week, but the source predicted that she may have to take an injury timeout if the ankle annoyance becomes unmanageable.

Of course, there’s possible political gain with this pain — stoking sympathy and giving the nominee time to collect her thoughts.

You think Clarence Thomas wouldn’t have wanted a break to ice his knee at the precise moment he heard the words “long dong silver”?

Meet Jefferson Sessions, GOP Crash-Test Dummy:

When questioning begins on Tuesday, all Republican eyes will be on Alabama Sen. Jeff Sessions, the top Republican on the Judiciary Committee — and the only sitting member of the Senate to have been rejected for a federal judicial appointment.

Sessions has politely but passionately pursued an all-fronts attack on the nominee.

He’s implied that she’ll let her personal feelings interfere with strict constitutional interpretations, blasted her ruling in the New Haven firefighters case and questioned her commitment to the Second Amendment based on a decision to uphold a local New York law banning the use of a Bruce Lee-type nunchuka.

In a Friday interview with conservative columnist Byron York, Sessions described the aforementioned issues as “huge,” “serious” and “monumental,” and he vowed to be tough, tough, tough.

“If a judge is not committed to setting aside their sympathies and prejudices and background biases when they take the bench, then they shouldn’t sit on any bench,” he said.

The GOP’s other legal sharpshooters on the committee — Utah’s Orrin Hatch, Arizona’s Jon Kyl, South Carolina’s Lindsey Graham and Texan John Cornyn — are watching Sessions to see if the attacks work or if Sessions comes across as badgering, bullying or mean-spirited, GOP sources say.

If he bombs, they’ll likely raise their issues politely, praise Sotomayor’s attributes, vote against her in committee and hope they haven’t antagonized a rapidly growing Latino electorate that already views Republicans with suspicion.

On the other hand, Cornyn and Kyl are already unpopular with Hispanic groups after rejecting President George W. Bush’s immigration reform effort. So they don’t have much to lose, personally.

Graham, the canniest cross examiner on the committee, is a true wild card: He’s both questioned Sotomayor’s judicial philosophy and said he might vote for her.

Herb Kohl. Oy:

Who’s the No. 2 Democrat on the committee — the guy responsible for building Sotomayor back up right after the Sessions grilling?

Why, it’s Sen. Herb Kohl (D-Wis.), a genial, soft-spoken, nonconfrontational Milwaukee Bucks owner who is almost universally regarded as the Democrats’ weakest questioner.

Cameos From Obama and Bush 41:

Like Alfred Hitchcock inserting himself into each one of his movies, the president scripted himself a small walk-on role by declaring that he was looking for a justice with “empathy.”

That’s not a particularly novel statement — allowing nonjudicial factors to influence court rulings was first articulated in the landmark “Brandeis brief” exactly 100 years ago, and Alito emphasized the importance of personal experience in his own confirmation hearings.

But coming from Obama, Republicans see the “empathy” comment as a harbinger of liberal judicial activism — and will likely press that case against Sotomayor.

Former President George H.W. Bush will also make an appearance: Committee Democrats will push back against GOP attacks by pointing out that it was Daddy Bush who gave Sotomayor her first federal judicial appointment back in 1991.

Arlen Specter’s Sitting Next to That ‘Saturday Night Live’ Dude at the End of the Podium:

Oh, how the mighty hath fallen — into the after-lunch question-and-answer period.

Four years ago, Pennsylvania’s Arlen Specter lorded over the Roberts and Alito hearings as the Republican chairman of the Judiciary Committee.

Now he’ll be sitting at the end of Democratic side of the dais, one slot up from the lowest-in-seniority senator, Al Franken of Minnesota.

Specter, an abortion-rights advocate, has been supportive of Sotomayor and has taken his demotion in stride.

Still, he’s a serious constitutional scholar and no patty-cake questioner — and he has been cramming for the hearings by requesting reams of cases and commentaries from his counsel, according to his staff. And he’s expected to press the nominee on several out-of-the-box issues, including the televising of SCOTUS sessions and his belief that the court has been taking on too few cases despite beefed-up staffing levels.


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Sources: Politico, Day Life, Google Maps

In Weekly Address Pres. Obama Boldly Stands By Sotomayor As His SCOTUS Pick

President Obama:
"This week, I nominated Judge Sonia Sotomayor of the U.S. Court of Appeals to replace Justice David Souter, who is retiring after nearly two decades on the Supreme Court. After reviewing many terrific candidates, I am certain that she is the right choice. In fact, there has not been a nominee in several generations who has brought the depth of judicial experience to this job that she offers."

"Judge Sotomayor’s career began when she served as an Assistant District Attorney in New York, prosecuting violent crimes in America’s largest city. After leaving the DA’s office, she became a litigator, representing clients in complex international legal disputes. She was appointed to the U.S. District Court, serving six years as a trial judge where she presided over hundreds of cases. And most recently, she has spent eleven years on the U.S. Court of Appeals, our nation’s second highest court, grappling with some of the most difficult constitutional and legal issues we face as a nation. She has more experience on the federal bench than any incoming Supreme Court Justice in the past 100 years. Quite simply, Judge Sotomayor has a deep familiarity with our judicial system from almost every angle."

"And her achievements are all the more impressive when you consider what she had to overcome in order to achieve them. Judge Sotomayor grew up in a housing project in the South Bronx; her parents came to New York from Puerto Rico during the Second World War. Her father was a factory worker with a third grade education; when she was just nine years old, he passed away. Her mother worked six days a week as a nurse to provide for her and her brother, buying the only set of encyclopedias in the neighborhood and sending her children to Catholic school. That’s what made it possible for Judge Sotomayor to attend two of America’s leading universities, graduating at the top of her class at Princeton University, and studying at Yale Law School where she won a prestigious post as an editor of the school’s Law Journal."

"These many years later, it was hard not to be moved by Judge Sotomayor’s mother, sitting in the front row at the White House, her eyes welling with tears, as her daughter – who had come so far, for whom she sacrificed so much – was nominated to the highest court in the land."

"And this is what makes Judge Sotomayor so extraordinary. Even as she has reached the heights of her profession, she has never forgotten where she began. She has faced down barriers, overcome difficult odds, and lived the American dream. As a Justice of the Supreme Court, she will bring not only the experience acquired over the course of a brilliant legal career, but the wisdom accumulated over the course of an extraordinary journey – a journey defined by hard work, fierce intelligence, and the enduring faith that, in America, all things are possible."

"It is her experience in life and her achievements in the legal profession that have earned Judge Sotomayor respect across party lines and ideological divides. She was originally named to the U.S. District Court by the first President Bush, a Republican. She was appointed to the federal Court of Appeals by President Clinton, a Democrat. She twice has been overwhelmingly confirmed by the U.S. Senate. And I am gratified by the support for this nomination voiced by members of the legal community who represent views from across the political spectrum."

"There are, of course, some in Washington who are attempting to draw old battle lines and playing the usual political games, pulling a few comments out of context to paint a distorted picture of Judge Sotomayor’s record. But I am confident that these efforts will fail; because Judge Sotomayor’s seventeen-year record on the bench – hundreds of judicial decisions that every American can read for him or herself – speak far louder than any attack; her record makes clear that she is fair, unbiased, and dedicated to the rule of law. As a fellow judge on her court, appointed by Ronald Reagan, said recently, "I don’t think I’d go as far as to classify her in one camp or another. I think she just deserves the classification of outstanding judge."

"Congress returns this week and I hope the confirmation process will begin without delay. No nominee should be seated without rigorous evaluation and hearing; I expect nothing less. But what I hope is that we can avoid the political posturing and ideological brinksmanship that has bogged down this process, and Congress, in the past. Judge Sotomayor ought to be on the bench when the Supreme Court decides what cases to hear this year and I’m calling on Democrats and Republicans to be thorough, and timely in dealing with this nomination."

"As President, there are few responsibilities more serious or consequential than the naming of a Supreme Court Justice. The members of our highest court are granted life tenure. They are charged with applying principles put to paper more than two centuries ago to some of the most difficult questions of our time. And the impact of their decisions extends beyond an administration, but for generations to come."

"This is a decision that I have not taken lightly and it is one that I am proud to have made. I know that Justice Sotomayor will serve this nation with distinction. And when she ascends those marble steps to assume her seat on the Supreme Court, bringing a lifetime of experience on and off the bench, America will have taken another important step toward realizing the ideal that is chiseled above its entrance: Equal justice under the law."

"Thanks."


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Sources: Whitehouse.gov, Day Life, Reuters, Google Maps

Sonia Sotomayor's Impressive Resume & Key Case Rulings....Liberal SCOTUS Nominee or No?

• Age: 54 (Born June 25, 1954, New York City)


Judicial Career:

• U.S. Appeals Court judge, 2nd Circuit, 1998-present

• U.S. District Court judge, 1992-1998

• Nominated to federal bench by Bush in 1991, Clinton in 1997


Government/Legal Career:

• Former N.Y. County Assistant District Attorney, 1979-1984

• Former private practice attorney, Pavia & Harcourt, New York, 1984-1992


Politics:

• Confirmed by Senate 67-29 in 1998

• Confirmation to current seat took over 1 year

• Was opposed by majority of GOP senators

• Was unopposed in 1991 confirmation process


Historic Milestones If Nominated:

• Would be first Hispanic Supreme Court justice

• Would be third female Supreme Court Justice (second on current Court)


Education:

• J.D., Yale Law School, 1979

• B.A., Princeton, 1976 (summa cum laude)


Academic Positions:

• Adjunct Professor, New York University School of Law since 1998; lecturer-in-law, Columbia Law School, since 1999


Professional Associations:

• American Bar Association

• Puerto Rican Bar Association

• Hispanic National Bar Association

• Association of Judges of Hispanic Heritage

• New York Women's Bar Association


Judicial Committees & Activities:

• Former Member, Second Circuit Task Force on Gender, Racial and Ethnic Fairness in the Courts


Other Activities:

Former member, Board of Directors, New York City Campaign Finance Board; Former member, Board of Directors, State of New York Mortgage Agency; Former member, Board of Directors, Puerto Rican Legal Defense & Education Fund; Former member, Board of Directors, Maternity Center Association; Former member, New York City Campaign Public Finance Board (Mayor's Appointee); Former member, Board of Directors, State of New York Mortgage Agency (Governor's Appointee)


Honors & Awards:

Herbert L. Lehman College, Degree of Law Honoris Causa, 1999; Brooklyn Law School Degree of Juris Doctor Honoris Causa, 2001; Princeton University, Degree of Juris Doctor Honoris Causa, 2001;


Publications:

Statehood and the Equal Footing Doctrine: The Case for Puerto Rican Seabed Rights, 88 Yale Law Journal 825 (1979); Sonia Sotomayor & Nicole A. Gordon, Returning Majesty to the Law and Politics: A Modern Approach, 30 Suffolk U.L. Rev. 35 (1996)


Possible Controversial Positions and Statements:

• Wrote the 2008 opinion supporting the City of New Haven's decision to throw out the results of a firefighter promotion exam because almost no minorities qualified for promotions. The Supreme Court heard the case in April 2009 and a final opinion is pending.

• Sided with environmentalists in a 2007 case that would have allowed the EPA to consider the cost-effectiveness of protecting fish and aquatic life in rivers and lakes located near power plants. Was overturned by the Supreme Court.

• Supported the right to sue national investment firms in state court, rather than in federal court. Was overturned unanimously by the Supreme Court.

• Ruled that a federal law allowing lawsuits against individual federal government officers and agents for constitutional rights violations also extends to private corporations working on behalf of the federal government. Was overturned by the Supreme Court.

• Sotomayor was first appointed to the federal bench in 1991 by a Republican President, George Bush, but it was a Democrat, Sen. Patrick Moynihan, who recommended her to Bush.

• In a 2005 panel discussion at Duke University, Sotomayor told students that the federal Court of Appeals is where "policy is made." She and other panelists had been asked by a student to describe the differences between clerking in the District Court versus in the Circuit Court of Appeals. Sotomayor said that traditionally, those interested in academia, policy, and public interest law tend to seek circuit court clerkships. She said, "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. And I know, and I know, that this is on tape, and I should never say that. Because we don't 'make law,' I know. [audience laughter] Okay, I know. I know. I'm not promoting it, and I'm not advocating it. I'm, you know. [audience laughter] Having said that, the Court of Appeals is where, before the Supreme Court makes the final decision, the law is percolating. Its interpretation, its application." [Duke University School of Law, 2/25/2005, 43:19, http://realserver.law.duke.edu/ramgen/spring05/lawschool/02252005clerk.rm]

• At a 2001 U.C. Berkeley symposium marking the 40th anniversary of the first Latino named to the federal district court, Sotomayor said that the gender and ethnicity of judges does and should affect their judicial decision-making. From her speech:

"I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society....

"I further accept that our experiences as women and people of color affect our decisions. The aspiration to impartiality is just that - it's an aspiration because it denies the fact that we are by our experiences making different choices than others....

"Our gender and national origins may and will make a difference in our judging. Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am also not so sure that I agree with the statement. First, as Professor [Martha] Minnow has noted, there can never be a universal definition of wise. Second, 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." [U.C. Berkeley School of Law, 10/26/2001]


Cases Reviewed by the Supreme Court:

• Ricci v. DeStefano 530 F.3d 87 (2008) -- decision pending as of 5/26/2009

• Riverkeeper, Inc. vs. EPA, 475 F.3d 83 (2007) -- reversed 6-3 (Dissenting: Stevens, Souter, Ginsburg)

• Knight vs. Commissioner, 467 F.3d 149 (2006) -- upheld, but reasoning was unanimously faulted

• Dabit vs. Merrill Lynch, 395 F.3d 25 (2005) -- reversed 8-0

• Empire Healthchoice Assurance, Inc. vs. McVeigh, 396 F.3d 136 (2005) -- reversed 5-4 (Dissenting: Breyer, Kennedy, Souter, Alito)

• Malesko v. Correctional Services Corp., 299 F.3d 374 (2000) -- reversed 5-4 (Dissenting: Stevens, Souter, Ginsburg, Breyer)

• Tasini vs. New York Times, et al, 972 F. Supp. 804 (1997) -- reversed 7-2 (Dissenting: Stevens, Breyer)

• Affirmative Action (New Haven firefighter case): Sotomayor was part of a three-judge panel that ruled in February 2008 to uphold a lower court decision supporting the City of New Haven's decision to throw out the results of an exam to determine promotions within the city's fire department. Only one Hispanic and no African-American firefighters qualified for promotion based on the exam; the City subsequently decided not to certify the results and issued no promotions. In June 2008, Sotomayor was part of a 7-6 majority to deny a rehearing of the case by the full court. The Supreme Court agreed to review the case and heard oral arguments in April 2009. Ricci v. DeStefano 530 F.3d 87 (2008)

• Environment (Protection of fish at power plants): Sotomayor, writing for a three-judge panel, ruled that the Environmental Protection Agency may not engage in a cost-benefit analysis in implementing a rule that the "best technology available" must be used to limit the environmental impact of power plants on nearby aquatic life. The case involved power plants that draw water from lakes and rivers for cooling purposes, killing various fish and aquatic organisms in the process. Sotomayor ruled that the "best technology" regulation did not allow the EPA to weigh the cost of implementing the technology against the overall environmental benefit when issuing its rules. The Supreme Court reversed Sotomayor's ruling in a 6-3 decision, saying that Sotomayor's interpretation of the "best technology" rule was too narrow. Justices Stevens, Souter, and Ginsburg dissented, siding with Sotomayor's position. Riverkeeper, Inc. vs. EPA, 475 F.3d 83 (2007)

• Taxes (Deductability of trust fees): In 2006, Sotomayor upheld a lower tax court ruling that certain types of fees paid by a trust are only partly tax deductable. The Supreme Court upheld Sotomayor's decision but unanimously rejected the reasoning she adopted, saying that her approach "flies in the face of the statutory language." Knight vs. Commissioner, 467 F.3d 149 (2006)

• Finance (Rights of investors to sue firms in state court): In a 2005 ruling, Sotomayor overturned a lower court decision and allowed investors to bring certain types of fraud lawsuits against investment firms in state court rather than in federal court. The lower court had agreed with the defendant Merrill Lynch's argument that the suits were invalid because the Securities Litigation Uniform Standards Act of 1998 required that such suits be brought only in federal court. The Supreme Court unanimously overturned Sotomayor's ruling in an 8-0 decision, saying that the federal interest in overseeing securities market cases prevails, and that doing otherwise could give rise to "wasteful, duplicative litigation." Dabit vs. Merrill Lynch, 395 F.3d 25 (2005)

• Health Insurance (Reimbursement of insurance benefits): In 2005, Sotomayor ruled against a health insurance company that sued the estate of a deceased federal employee who received $157,000 in insurance benefits as the result of an injury. The wife of the federal employee had won $3.2 million in a separate lawsuit from those whom she claimed caused her husband's injuries. The health insurance company sued for reimbursement of the benefits paid to the federal employee, saying that a provision in the federal insurance plan requires paid benefits to be reimbursed when the beneficiary is compensated for an injury by a third party. The Supreme Court upheld Sotomayor's ruling in a 5-4 opinion. Justices Breyer, Kennedy, Souter, and Alito dissented. Empire Healthchoice Assurance, Inc. vs. McVeigh, 396 F.3d 136 (2005)

• Civil Rights (Right to sue federal government and its agents): Sotomayor, writing for the court in 2000, supported the right of an individual to sue a private corporation working on behalf of the federal government for alleged violations of that individual's constitutional rights. Reversing a lower court decision, Sotomayor found that an existing law, known as "Bivens," which allows suits against individuals working for the federal government for constitutional rights violations, could be applied to the case of a former prisoner seeking to sue the private company operating the federal halfway house facility in which he resided. The Supreme Court reversed Sotomayor's ruling in a 5-4 decision, saying that the Bivens law could not be expanded to cover private entities working on behalf of the federal government. Justices Stevens, Souter, Ginsburg, and Breyer dissented, siding with Sotomayor's original ruling. Malesko v. Correctional Services Corp., 299 F.3d 374 (2000)

• Intellectual Property (Distribution of freelance material): As a district court judge in 1997, Sotomayor heard a case brought by a group of freelance journalists who asserted that various news organizations, including the New York Times, violated copyright laws by reproducing the freelancers' work on electronic databases and archives such as "Lexis/Nexis" without first obtaining their permission. Sotomayor ruled against the freelancers and said that publishers were within their rights as outlined by the 1976 Copyright Act. The appellate court reversed Sotomayor's decision, siding with the freelancers, and the Supreme Court upheld the appellate decision (therefore rejecting Sotomayor's original ruling). Justices Stevens and Breyer dissented, taking Sotomayor's position. Tasini vs. New York Times, et al, 972 F. Supp. 804 (1997)


Other Notable Cases:

• Abortion (Mexico City policy): Sotomayor ruled against an abortion rights group in its challenge to the so-called "Mexico City Policy," which states that nations that receive U.S. funds may neither perform nor promote abortions. The abortion rights advocates alleged that the policy violated their First Amendment, due process, and equal protection rights. Sotomayor upheld a lower court ruling dismissing the case, saying that the group's First Amendment rights had not been violated and that it had not been denied due process. On the equal protection claim, Sotomayor wrote, "The Supreme Court has made clear that the government is free to favor the anti-abortion position over the pro-choice position, and can do so with public funds." Sotomayor did not address the underlying abortion issue. Center for Reproductive Law and Policy vs. Bush, 304 F.3d 183 (2002)

• Major League Baseball Strike: As a district court judge, Sotomayor issued an injunction against team owners for alleged violations of the National Labor Relations Act during collective bargaining negotiations with the MLB players association. The owners had sought to end the system of free agency and salary arbitration and imposed a lock-out against players as negotiations began to break down. The ruling ended the longest baseball strike in history. National Labor Relations Board vs. Major League Baseball, 880 F. Supp. 246 (1995)

Sources: CNN, Day Life