A case that could spell trouble for Sotomayor
Sonia Sotomayor's judicial opinions are marked by diligence, depth and unflashy competence. If not always a pleasure to read, they usually are models of modern judicial craftsmanship, which prizes careful attention to facts and a methodical application of layers of legal principles.
The New York Times
WASHINGTON — Sonia Sotomayor's judicial opinions are marked by diligence, depth and unflashy competence. If not always a pleasure to read, they usually are models of modern judicial craftsmanship, which prizes careful attention to facts and a methodical application of layers of legal principles.
Sotomayor has issued no major decisions concerning abortion, the death penalty, gay rights or national security. In cases involving criminal defendants, employment discrimination and free speech, her rulings are more liberal than not.
But they reveal no larger vision, seldom appeal to history and studiously avoid quotable language. Sotomayor's decisions instead are almost always technical, incremental and exhaustive, considering all relevant precedents and supporting even completely uncontroversial propositions with elaborate footnotes.
All of which makes her remarkably cursory treatment last year of the discrimination claims of white and Hispanic firefighters in New Haven, Conn., so baffling. The unsigned decision by Sotomayor and two other judges, which affirmed the dismissal of the firefighters' claims, contained a single paragraph of reasoning.
The brief decision in the case, which bristles with interesting and important legal questions about how the government may take account of race in employment, probably will attract more questions at her Supreme Court confirmation hearings than any of the much more deeply considered decisions she has written.
Sotomayor's current court, the 2nd U.S. Circuit Court of Appeals, in New York, is a collegial one. But Judge Jose Cabranes, writing for himself and five other judges, used unusually tough language in dissenting from the full court's refusal to rehear the firefighters' case.
Cabranes said the panel's opinion "contains no reference whatsoever to the constitutional claims at the core of this case" and added that "this perfunctory disposition rests uneasily with the weighty issues presented by this appeal."
That assessment, directed at the work of all three judges on the panel, may have carried extra weight with Sotomayor. Cabranes was a mentor to her, and he administered the judicial oath to her twice — in 1992, when she joined the U.S. District Court in Manhattan, and again in 1998, when she was elevated to the 2nd Circuit.
The case, Ricci v. DeStefano, now is before the Supreme Court. In the next month or so, that court will render an unusually high-profile judgment on the work of a judge who hopes to join it. Based on questioning at the argument in the case last month, the majority's assessment is likely to be unflattering.
In an interview shortly before she joined the district court in 1992, Sotomayor spoke about what awaited her, saying "95 percent of the cases before most judges are fairly mundane."
Her six years on the trial court and more than a decade on the 2nd Circuit probably confirmed those intuitions, in part because of the idiosyncratic dockets of the federal courts in New York.
The judges on that appellate court hear many important cases involving business, securities, employment, white-collar crime and immigration. But they do not regularly confront great issues of the day.
One exception is on the horizon. The full 2nd Circuit, including Sotomayor, recently reheard the case of Maher Arar, a Canadian who contends that U.S. officials sent him to Syria in 2002 to be tortured. A divided panel had dismissed Arar's case. The decision from the full court should provide clues about Sotomayor's views concerning government efforts to combat terrorism.
Thomas Goldstein, a lawyer who argues frequently before the Supreme Court and founded Scotusblog, a Web site that covers the court, said there could be no doubt about Sotomayor's intellectual capacity.
"She's got the horses, for sure," Goldstein said.
Nor, he added, was there any question of her fundamental orientation, based on her decisions. "From the outcomes," Goldstein said, "she's certainly on the left."
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