Legal Heavyweights Hold Forth on Sotomayor

     WASHINGTON (CN) – In a White House-organized conference promoting the image of Supreme Court nominee Sonia Sotomayor as a judicial moderate, lawyers from big firms and Ivy League law professors described her as careful, discerning, and a firm believer in judicial restraint. “She doesn’t come into cases with a broad doctrinal bias,” said Paul Smith at Jenner & Block, “but takes each case as it comes.”




     Martha Minow, a professor of law at Harvard Law School described Sotomayor as “a master of the relating of law to fact.”
     Kevin Russell of Howe & Russell remarked, “Soto has shown herself to be very respectful of binding precedent,” adding that she abides by “judicial modesty.”
     Participants noted a media potrayal, encouraged by political conservatives, of Sotomayor as a judicial activist.
     That view was confirmed in a separate interview with Theodore Frank, a scholar from the American Enterprise Institute, who said Sotomayor’s past rulings suggest that she will “legislate from the bench.”
     But at the Wednesday conference put together by the White House, Stephen Carter, a law professor at Yale Law School, said the perception of Sotomayor as an activist comes from her being “incredibly well prepared.” Minow added, “She does not let any ambiguities go by in the oral arguments.”
     During the phone conference, none could say how Sotomayor would rule on controversial issues.
     When a reporter asked how Sotomayor would rule on gay-marriage or the “Don’t Ask, Don’t Tell” policy in the military, Minow replied that Sotomayor “has not made any decision on any of the hot button issues.” She added, “People who are going to try to read from her background, it’s just a guessing game.”
     Others said her stance is impossible to tell simply by the way Sotomayor approaches cases, which is that she pays very close attention to the details of that particular case. “She’s been on both sides of discrimination cases,” said William Marshall, a professor of law at the University of North Carolina School of Law.
     In an interview after the conference, Resident Fellow Theodore Frank of the conservative think tank American Enterprise Institute said the descriptions of Sotomayor as a firm believer in judicial modesty “contradict behavior exhibited by a number of Sotomayor’s actual opinions.”
     Frank gave an example, “She went out of her way to give a crabbed anti-business reading of the Securities Litigation Uniform Standards Act that was reversed 8-0 by the Supreme Court.”
     Frank here is referring to the 2005 Dabit v. Merrill Lynch case, where investors holding securities argued that misleading statements prompted them to retain securities they otherwise would have sold.
     Here, the question rode on whether lawyers bringing the securities class action were able to bring the case in state court as a way of avoiding federal legislation designed to stop the perceived abuse of federal class action securities fraud litigation.
     As a member of the Second Circuit Court of Appeals, Sotomayor allowed the suits, but when the case made its way to the Supreme Court, the justices voted 8-0 to reverse the decision, deciding that the act applies in state court cases, as well.
     Business representatives have expressed concern that Sotomayor will favor plaintiff positions attacking business entities.
     “If this is what she does when constrained as an intermediate appellate judge,” Frank worried, “it’s hard to envision that she will not legislate from the bench when on the Supreme Court.”
     Asked whether a strict interpretation of the law runs counter to using empathy in decisions, Frank replied that it does.
     “Obama’s definition of empathy involves ignoring the law to rule favorable on behalf of parties that Obama favors,” he argued. “If it didn’t, there would be no need for Obama to say that simply following the law wasn’t enough.”

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