Sotomayor's Past, Personality To Be Scrutinized

Correction July 12, 2009

Previous versions of this story incorrectly said that the firefighters who filed the lawsuit over a promotion exam were African-American. In fact, the firefighters were white.

Judge Sonia Sotomayor. i i

hide captionSonia Sotomayor has served as a judge on the United States Court of Appeals for the Second Circuit since October 1998.

The White House
Judge Sonia Sotomayor.

Sonia Sotomayor has served as a judge on the United States Court of Appeals for the Second Circuit since October 1998.

The White House

Next week, when the Senate Judiciary Committee holds confirmation hearings on the nomination of Judge Sonia Sotomayor to the U.S. Supreme Court, her past experience and judicial style will be finely parsed.

During the confirmation hearings, Republicans are expected to focus much of their attention on Sotomayor's 12-year tenure as a board member of the Puerto Rican Legal Defense and Education Fund.

During those 12 years, she served on and even chaired the board's litigation committee when the fund brought challenges to testing procedures used by the New York police, fire and sanitation departments for hiring and promotion.

Nearly two decades later, Judge Sotomayor was a member of an appeals court panel that sustained similar objections in New Haven, Conn., over a promotion exam. Last month, the U.S. Supreme Court reversed that ruling by a 5-4 vote, and Republicans have focused on both the ruling and Sotomayor's role at the Puerto Rican legal defense fund.

"Its pretty clear her active participation on the board as a supervisor of the lawyers who actually litigated the cases is important, and there is no evidence that she objected to the positions that they were taking," Alabama Sen. Jeff Sessions, the ranking Republican on the Senate Judiciary Committee, told Fox News. "The question really is: Is this a philosophy that she has allowed to influence her decision-making process on the bench?"

Others from the Puerto Rican legal defense fund take issue with Sessions' characterization of the role of board members. One of them is Jose Cabranes, who brought Sotomayor onto the board and eventually became a judge on the same appeals court that she would later join. What makes Cabranes' views important is that in the New Haven firefighters case, he led an unsuccessful effort to have the full appeals court review the opinion issued by the three-judge panel that included Sotomayor.

A Link To The New Haven Case?

In addition to Cabranes, other board members of the legal defense fund dispute Sessions' characterization of how the board works. Among them are Manhattan District Attorney Robert Morgenthau and Benito Romano, who was appointed by the first President Bush as U.S. attorney in New York City. Romano is a former board chairman of the legal defense fund.

"The proper role of a board is to provide oversight," Romano said. "It is not to perform the work of the management or staff. It's not to decide which cases to bring."

Romano, Cabranes and others point to the rules governing lawyers' conduct. Such rules permit lawyers to serve on legal services boards, but forbid them to be involved in particular cases because of potential conflicts of interest with their firms, and because of rules governing lawyer-client confidentiality.

Still, it is certainly true that if Sotomayor or the board did not like the direction the staff were taking, they could have changed the overall policy. That is a point Republicans will almost certainly stress.

But making the link to the New Haven firefighters case nearly 20 years later is going to be harder. Not only was the New Haven testing quite different from the tests challenged in the 1980s, but Cabranes, who essentially dissented from the New Haven ruling at the appeals court level, has refused to play along. In a written statement, he said: "The fact of disagreement in a particular case reflects no more and no less than that fact. I have known Sonia Sotomayor since she was a student at Yale Law School. I was honored to administer the oath of office upon her appointment to the district court and the court of appeals, and I am enormously proud of all that she has achieved."

Improbable Rise To The Bench

Sotomayor's appointment to the federal trial court in 1991, when she was not yet 38 years old, is a remarkable story. Though she had worked for Morgenthau, Manhattan's legendary district attorney, and won his admiration, she did not have the usual political mentors that even very qualified judicial candidates usually need to win a federal judgeship.

It was her luck that then-Sen. Daniel Patrick Moynihan (D-NY) had set up a merit screening committee for judicial appointments that was the real deal. Sotomayor's senior law partner, David Botwinik, suggested that she apply.

As she recounted at her swearing-in ceremony, she ignored Botwinik for three months, believing she had no chance, until finally he pulled rank, tossed the application on her desk and ordered her to fill it out. He even took all work away from her for a week so that she and her secretary, a paralegal, and his secretary could fill out the burdensome application form.

In the end, Sotomayor was one of three applicants recommended to Moynihan, a lion of the Senate and a distinguished former academic. Joseph Gale, then a staff counsel for Moynihan, was there when Sotomayor came in for her interview. She took one of the two big chairs in front of the fireplace, with the towering Moynihan in the other. Gale, now a tax court judge, says lesser mortals had crumpled in that chair, but not Sotomayor.

"It was striking how, as a 38-year-old, she absolutely went toe-to-toe with Moynihan on any question he asked her," Gale said. "She was unflappable and completely poised, incredibly mature." He adds: "Sotomayor knocked his socks off."

When the interview was over, Moynihan turned to Gale and said simply: "Where did they find her?"

Moynihan recommended Sotomayor to the first President Bush. He nominated her, and she was confirmed by unanimous vote of the Senate.

In Tune With Her Courtroom

On the job, Sotomayor was assigned a mentor, a young judge named Louis Freeh who would subsequently be named to head the FBI.

"She was a delight to work with, a quick study, and it was pretty clear that she wasn't going to need a lot of help," Freeh recalled.

Freeh actually sat with her on a couple of trials to make sure she knew the ropes. He was struck by her poise and ease in the courtroom, and attributes that in part to her experience as a Manhattan prosecutor and as a trial lawyer in civil practice.

But there was more. For instance, when she asked a terrified witness if a break would be in order, the witness grabbed at the offer like a lifeline.

"I've been in a lot of courtrooms where judges run things pretty much as they wish them to, on their schedule, without a lot of situational awareness — should we call it — sometimes for other people," Freeh said. "I thought that was quite an insight into her character."

After she had been on the trial court for five years, President Clinton nominated Sotomayor to the federal appeals court. Republicans held up the nomination for months, figuring she was a potential nominee to the Supreme Court, but eventually she was confirmed.

Branded A Bully

On the appeals court, Sotomayor has won praise from liberals and conservatives alike. For years, she got almost nothing but rave reviews from lawyers in the Almanac of the Federal Judiciary. But recent evaluations have painted a different picture of Sotomayor: a terror on the bench, nasty, a bully.

That theme was picked up by Sen. Lindsey Graham (R-SC).

"I just don't like bully judges," Graham said. "There are some judges that have an edge, that do not wear the robe well."

Justice Antonin Scalia is no shrinking violet, either, Graham said, but there's a difference between tough and a bully. Graham says he has not decided how he will vote on Sotomayor.

Meanwhile, her judicial colleagues dispute the bully characterization.

"I've never seen her bully a lawyer," said Judge Roger Miner, a Reagan appointee who serves on the U.S. Court of Appeals for the Second Circuit. "She certainly presses hard for an answer or points out an inconsistency in the argument, and I suppose some lawyers resent that."

Judge John Walker, who also serves on the Second Circuit and was nominated by the first President Bush, agrees.

"She cuts to the chase, and I think she's respected for that," Walker said. "She's not rude. She's not abusive in any way. She's just direct."

Walker is pleased that President Obama has not nominated what he calls an "ivory tower judge."

"She has experienced life in the law in the trenches, at the ground level, where cases are tried and cases are decided for the basic, average litigants," Walker said. "That's unusual, I think, in the Supreme Court, and a welcome change, in my view, because it will offer a different perspective and one that I think will be very helpful to the court."

On Monday, when Sotomayor appears before the most important jury of her career, the Senate Judiciary Committee, she will have plenty of chances to demonstrate that down-to-earth quality, or to bore the committee to death ... or to mess up.

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