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Sotomayor's rulings trend mainstream

WASHINGTON — Weeks ago, when President Barack Obama nominated her for the Supreme Court, Sonia Sotomayor was branded an activist, a liberal and, most explosively, a "reverse racist."

But those charges have largely cooled since then, and a portrait is emerging of a measured judge who seldom departs from conventional interpretations of the law.

On Monday, when her Senate confirmation hearings begin, 55-year-old Sotomayor will take the first step in what is widely expected to be her ascent to the high court. She would be the third woman to serve on the court and the first Hispanic.

Critics persist, lately adding gun-rights concerns to the mix, but they have struggled to gain momentum, while Sotomayor's supporters have countered with influential Republican support such as that of former FBI director Louis Freeh.

Meanwhile, reviews of Sotomayor's judicial record have blunted the liberal activist label. The Brennan Center for Justice at New York University examined the 1,194 cases decided by the 2nd U.S. Circuit Court of Appeals during the decade of Sotomayor's service and found that she voted with the majority in 98 percent of constitutional cases. "She's straight up mainstream," said Monica Youn, who wrote the report.

The nonpartisan Transactional Records Access Clearinghouse at Syracuse University found that Sotomayor was tougher on convicted criminals than her colleagues during her six years as a federal district judge. What's more, the American Bar Association last week gave Sotomayor its highest ranking.

"The criticism that she's going to go off the wall, it's just completely unfounded," said University of Florida law professor Juan Perea, who reviewed some of Sotomayor's cases and concluded she closely sticks to established law.

Issue of race

In a country where race still matters, however, Sotomayor's past statements, decisions and affiliations will be thoroughly dissected over the next four or five days — the time scheduled by the Senate Judiciary Committee. She then needs approval of at least 51 of the 100 senators to replace retiring Justice David Souter.

Outnumbered in the Senate, Republicans are unlikely to halt Sotomayor but will use the hearings as an opportunity to condemn "judicial activism" and demonstrate their commitment to gun rights and antiabortion issues.

Drama is assured when Republicans call as a witness the lead plaintiff in a racially charged case — Ricci vs. DeStefano — that Sotomayor helped decide as a member of a three-judge appeals panel.

The case was brought by white firefighters in New Haven, Conn., after the city threw out an exam required for promotion because minority firefighters largely failed while white firefighters did well. The white firefighters sued but were rebuffed in court.

At more than one level, the courts said it was okay for the city to toss the exams because of the racial disparity that emerged in the results. Sotomayor was on the appeals court that heard the case and agreed with earlier rulings that favored the city over the firefighters.

Thrust into the national spotlight by her nomination, the decision has opened Sotomayor, who is of Puerto Rican descent, to criticism that she allows racial preferences to affect her decisions. Republicans were emboldened when the Supreme Court last month overturned that appellate court ruling and said the exam results shouldn't have been tossed.

Critics say it gives them pause about how Sotomayor may side on future cases.

"As we consider her nomination to the Supreme Court," Sen. Mitch McConnell of Kentucky said in a speech on the floor Senate Tuesday, "my colleagues should ask themselves this important question: Is she allowing her personal or political agenda to cloud her judgment and favor one group of individuals over another, irrespective of what the law says?"

Aiding her enemies

The judge has aided critics with some eye-catching public statements. Sotomayor has said that a "wise Latina" can reach a better decision than a white male and suggested that "policy is made" in appeals courts.

Sen. Patrick Leahy, the Vermont Democrat who chairs the Judiciary Committee, recently said that Sotomayor told him that "of course one's life experience shapes who you are," but "ultimately and completely, a judge has to follow the law no matter what their upbringing has been."

But Republicans fear Obama's preference for a justice who shows "empathy" for "people's hopes and struggles" will translate into racial bias, even if it's the sort of "reverse" bias that has been asserted in the New Haven firefighter case. Criticism carries risks, especially as the GOP tries to recover from lost Hispanic support following the heated immigration debate in Congress.

Florida Sen. Mel Martinez embodies the balancing act facing Republicans. Martinez, who is Cuban-American, has embraced the milestone of Sotomayor's nomination but said she must undergo serious scrutiny.

"Her speeches give rise to some issues that I understand but others may not understand, how she views herself as a Latin person in our society and why it's important that we have diverse representation in our courts," Martinez said. "That's the way we want it, but I don't think there's anything wrong with questioning her."

Sen. Orrin Hatch, R-Utah, who is on the Judiciary Committee, raised fresh concerns last week about Second Amendment issues.

Often cited is Maloney vs. Cuomo, in which Sotomayor joined an opinion that upheld New York state law banning nun-chucks, a pair of sticks on a chain. The decision noted the right to bear arms but said "it is settled law, however, that the Second Amendment applies only to limitations the federal government seeks to impose on this right."

Hatch said, "She needs to be really careful how she responds and she better mean it too, because that's a serious issue to both Democrats and Republicans and we're all tired for people trying to do away with those rights."

The National Rifle Association has joined the criticism in a letter to the committee but has not outright opposed Sotomayor.

Among the many other letters, pro and con, submitted in advance of Monday's hearing is one signed by more than 1,000 law professors, including 54 from the Sunshine State, supporting Sotomayor.

Perea of the University of Florida was among them. "Having more ideas and a more robust exchange of ideas gets us closer to the truth," he said in an interview. "In a similar way, having a more diverse range of experiences on the court gets us closer to justice."

Alex Leary can be reached at leary@sptimes.com.

FAST FACTS

Sonia Sotomayor

Federal judicial service:

• Judge, U.S. Court of Appeals for the Second Circuit, 1998-present.

• Judge, U.S. District Court, Southern District of New York, 1992-1998.

Professional career:

• Private practice, New York City, 1984-1992.

• Assistant district attorney, New York County District Attorney's Office, 1979-1984.

Education:

• Juris doctor, Yale Law School, 1979.

• Bachelor of Arts, Princeton University, 1976.

Sotomayor's rulings trend mainstream 07/11/09 [Last modified: Tuesday, July 14, 2009 11:33am]
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