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The public questioning of Judge Sonia Sotomayor begins on Monday. The Senate Judiciary Committee will kick off confirmation hearings on Sotomayor's nomination to the U.S. Supreme Court.
This week, NPR legal affairs correspondent Nina Totenberg has been reporting on the issues the senators will examine in the judge's career and biography. Today, Nina reports on Sotomayor's 17 years as a federal judge.
NINA TOTENBERG: At next week's 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 Fund. During that time, she served on and even chaired the board's litigation committee, when challenges were brought 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 over a promotions exam. Last month, the U.S. Supreme Court reversed that ruling by a five to four vote, and Republicans have focused on both the ruling and Sotomayor's role at the Puerto Rican Legal Defense Fund, known as PRLDF.
Alabama Senator Jeff Sessions is the ranking Republican on the Senate Judiciary Committee. Here he is on Fox News.
Senator JEFF SESSIONS (Republican, Alabama): It's pretty clear her active participation on the board as a supervisor of the lawyers who actually litigated the cases is important. And there's no evidence that she objected to the positions they were taking. The question really is: is this a philosophy that she's allowed to influence her decision-making processes on the bench?
TOTENBERG: Taking issue with Sessions' characterization of the role of the board are other board members past and present, including Jose Cabranes, who brought Sotomayor on 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 opinion Sotomayor joined reviewed by the full court.
In addition to Cabranes, other PRLDF board members dispute Sessions' characterization of how the board works. Among them, District Attorney Robert Morgenthau, and Benito Romano appointed by the first President Bush as U.S. attorney in New York City, a former PRLDF board chairman.
Mr. BENITO ROMANO (Former U.S. Attorney, New York City): The proper role of a board is to provide oversight. It's not to perform the work of management or staff. It's not to decide which cases to bring.
TOTENBERG: Romano, Cabranes and others point to the rules governing lawyers' conduct, rules which 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's certainly true that if Sotomayor or the board didn't like the direction the staff was taking, they could've changed the overall policy. That's 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 '80s, but Judge Cabranes, who essentially dissented from the New Haven ruling at the appeals court, has refused to play along.
In a written statement, he said, quote, "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'm enormously proud of all that she's achieved."
Sotomayor's appointment to the federal trial court in 1991, when she was not yet 38, is a remarkable story. Though she'd worked for the legendary Manhattan district attorney Robert Morgenthau for five years, and won his admiration, she didn't have the usual political rabbis that even very qualified judicial candidates usually need to win a federal judgeship.
It was her luck that then-Senator Daniel Patrick Moynihan had set up a merit screening committee for judicial appointments that was the real deal. And Sotomayor's senior law partner, David Botwinik, suggested that she apply.
As she told the story at her swearing-in, she ignored him for three months, believing she had no chance, until he finally 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, as well as a paralegal and his secretary could fill out the burdensome application form.
In the end, she was one of three applicants recommended to Senator 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 that lesser mortals had crumpled in that chair, but not Sotomayor.
Mr. JOSEPH GALE (Attorney): It was striking how, as a 38-year-old, she absolutely went toe-to-toe with Moynihan on any question he asked her. She was unflappable and completely poised and incredibly mature. Sotomayor knocked his socks off.
TOTENBERG: When the interview was over, Moynihan turned to Gale and said simply...
Mr. GALE: Where did they find her?
TOTENBERG: Moynihan recommended Sotomayor to President Bush. He nominated her, and she was confirmed by a unanimous vote of the Senate. On the job, she was assigned a mentor, a young judge named Louis Freeh who would subsequently be named to head the FBI.
Mr. LOUIS FREEH (Former Director, FBI): Yeah, she was just a delight to work with, a quick study. And it was pretty clear that, you know, she wasn't going to need a lot of help.
TOTENBERG: 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.
Mr. FREEH: I've been in a lot of courtrooms where, you know, 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. And I thought that was quite an insight into her character.
TOTENBERG: After she'd 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.
On the appeals court, she's 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 the most recent evaluations produced some less flattering remarks, as well: a terror on the bench, nasty, a bully. The theme was picked up by Republican Senator Lindsey Graham.
Senator LINDSEY GRAHAM (Republican, South Carolina): I just don't like bully judges. But there's some judges that have an edge, that do not wear the robe well.
TOTENBERG: Justice Antonin Scalia said Graham is no shrinking violet, either, but there's a difference between tough and a bully. Graham says he's not decided how he'll vote on Sotomayor. Meanwhile, her judicial colleagues dispute the bully characterization.
Judge Roger Miner is a Reagan appointee.
Judge ROGER MINER (U.S. Court of Appeals, Second Circuit): I've never seen her bully a lawyer or anything else. She certainly is a person who presses hard for an answer or points out an inconsistency in any argument, and I suppose some lawyers resent that.
TOTENBERG: Judge John Walker, nominated by the first President Bush.
Judge JOHN WALKER (U.S. Court of Appeals, Second Circuit): She cuts to the chase, and I think she's respected for that. She's not rude. She's not abusive in any way. She's just direct.
TOTENBERG: Walker is pleased the president has not nominated what he calls an ivory tower judge.
Judge WALKER: She has experienced life in the law in the trenches at the ground level, where cases are tried and cases are decided for average litigants. And that's unusual, I think, in the Supreme Court. And I think that'll be a welcome change, in my view, because it'll offer a different perspective and one that I think would be very helpful to the Court.
TOTENBERG: On Monday, when Sonia Sotomayor appears before the most important jury of her career, the Senate Judiciary Committee, she'll have plenty of chances to demonstrate that down-to-earth quality, or to bore the committee to death, or to mess up.
Nina Totenberg, NPR News, Washington.
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