ROBERT SIEGEL, host:
From NPR News, this is ALL THINGS CONSIDERED. I'm Robert Siegel.
MELISSA BLOCK, host:
And I'm Melissa Block.
Sonia Sotomayor has submitted a lengthy questionnaire to the Senate Judiciary Committee, which would hold the hearing for her Supreme Court nomination. The questionnaire runs about 170 pages long, plus dozens of written speeches, her comments from panels, even videos of public appearances.
SIEGEL: There's been a lot of focus on the judge's record on race, sex discrimination, other hot button issues. But the bread and butter of the appeals court that Sotomayor sits on is business law. The Second Circuit Court of Appeals is, after all, based in New York City, the country's financial hub.
NPR's legal affairs correspondent Nina Totenberg reports on Sotomayor's record on business.
NINA TOTENBERG: Sonia Sotomayor basically had two jobs before she became a judge. For five years she was a prosecutor in the Manhattan district attorney's office. And for eight years she was a lawyer representing corporations at a small but prestigious New York firm. Among her clients at Pavia & Harcourt was Italian handbag retailer Fendi, and among the things she did for Fendi, was to famously accompany police when they raided a counterfeiting operation in Harlem.
That's good color for a personal profile, but it isn't what business interests really care about. What they care about is whether she's for 'em or against 'em. And the answer, according to many who have reviewed her rulings, is neither. Supreme Court advocate Kevin Russell has reviewed a lot of Sotomayor's business cases.
Mr. KEVIN RUSSELL (Advocate, Supreme Court): She doesn't seem to be a judge who has a particular ideological ax to grind one way or the other in cases involving issues that businesses care about. She doesn't seem to be driven by any larger policy objectives.
TOTENBERG: Stanford professor Joseph Grundfest, a former Securities and Exchange commissioner, notes that in the three big securities cases Sotomayor authored, one favored investors who were suing and two favored the securities industry. The one that favored investors, a highly technical case, was actually reversed by a unanimous vote of the U.S. Supreme Court. Professor Grundfest.
Professor JOSEPH GRUNDFEST (Stanford University): I think she's calling these shots fairly as she sees them, with no proclivity towards plaintiffs or defendants. We can all disagree with, you know, her interpretation of complex statutory matters, but I don't think that she's approaching these questions with any thumb on the scale whatsoever.
TOTENBERG: Lawyer Andrew Pincus often represents large corporate interests in the Supreme Court.
Mr. ANDREW PINCUS (Lawyer): What's interesting about looking at the range of her jurisprudence is that it's impossible to put her in a particular box as pro-business, anti-business.
TOTENBERG: President Obama has not backed away from his notion that empathy is a quality to be desired in a judge — a position that has drawn harsh criticism from some of his political opponents. But some of Sotomayor's written opinions on questions affecting business are decidedly unempathetic. In one case involving a TWA airline crash, she dissented from a decision that sided with the families of the 213 people killed. Siding with the airline, she said the majority's decision was based on what she called an understandable desire to provide more generous damages to the families of the victims. But, she said, that the law did not allow that.
Nonetheless, some business conservatives are worried about Sotomayor. University of Chicago professor Richard Epstein wrote in a Forbes magazine blog that business should, quote, "shudder in its boots" — if her vote in a property rights case is indicative of her approach. But, he concedes, even that case is not enough, in his view, to justify a vote against her confirmation.
Professor RICHARD EPSTEIN (University of Chicago): As best as I can tell, there's nothing about her opinions that stand out one way or another. There would be no grounds to oppose her nomination whatsoever. This is just simply, as I said in the Forbes piece I wrote, a straw in the wind.
TOTENBERG: Michael Greve, a senior fellow at the American Enterprise Institute, wrote in the National Review Online that Sotomayor is, quote, "one of the most aggressively pro-plaintiff, anti-business appellate judges in the country." But pressed to cite specifics, he concedes that the signs he sees of an anti-business bias are not neon.
One of the Sotomayor cases that galls him most is her 2001 opinion in an antitrust case brought by merchants against Visa and MasterCard over fees the credit companies charged, an opinion that ultimately cost the companies over $1 billion.
Supreme Court advocate Kevin Russell agrees that the standard Sotomayor set for allowing a class-action suit in that case was lenient. But, he notes, that five years later, Sotomayor joined other members of her court in making the standard for suing harder, in effect, reversing her own prior opinion.
Mr. RUSSELL: I think it reflects that when she decides that she has made a mistake, she's willing to own up to it.
TOTENBERG: AEI scholar Greve doesn't buy that argument. He thinks Sotomayor's colleagues persuaded her she was just completely out of line. Even so, though, Greve does not believe that is any basis for voting against the nomination.
Mr. MICHAEL GREVE (Senior Fellow, American Enterprise Institute): On the merits, she's supremely qualified, in my estimation. Is she the person who I would want on the Supreme Court? Absolutely not. Is there anything there, barring some unlikely scandal, that I would say she doesn't belong there? No. Not in a million years.
TOTENBERG: Nina Totenberg, NPR News, Washington.