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Riskiest Choice on Obama's List Embodies His Criteria
President and Judge Cite Her Life Experience

By Robert Barnes and Michael A. Fletcher
Washington Post Staff Writers
Wednesday, May 27, 2009

President Obama chose the most controversial of his potential nominees to the Supreme Court, and he presented Judge Sonia Sotomayor yesterday as the embodiment of the qualities he seeks in a judge: a rigorous intellect, an appreciation of the limited role of the judiciary and "an understanding of how the world works and how ordinary people live."

Obama never used the word "empathy." But he held fast to the notion, noxious to conservatives and challenging to some Democrats, that some of the answers to the most complicated legal questions come from life's experiences as well as the lawbooks.

The idea has been more clearly articulated by Obama than any president before him, and could create a different and perhaps more complicated confirmation process. It seems far different from Chief Justice John G. Roberts Jr.'s insistence at his confirmation that the role of a judge is to be like an umpire, calling balls and strikes.

Obama, who as a senator voted against Roberts, made clear he sees the role differently.

"Experience being tested by obstacles and barriers, by hardship and misfortune; experience insisting, persisting, and ultimately overcoming those barriers . . . is a necessary ingredient in the kind of justice we need on the Supreme Court," Obama told the nation and an East Room filled with supporters and family, including Sotomayor's tearful mother Celine, who moved to New York from Puerto Rico in the 1940s.

Sotomayor, 54, who would become the court's first Latina and only the third woman to serve among what would be 111 justices in the court's history, picked up the theme.

"This wealth of experiences, personal and professional, have helped me appreciate the variety of perspectives that present themselves in every case that I hear," said Sotomayor, who has served as a district judge and is currently on the U.S. Court of Appeals for the 2nd Circuit in New York.

"I strive never to forget the real-world consequences of my decisions on individuals, businesses and government."

3 Others Interviewed

Obama chose Sotomayor, who has drawn the most fire from conservative legal activists because of her outspoken statements on role, gender and ethnicity, after interviewing her Thursday and thinking about it over the holiday weekend. He also interviewed Judge Diane P. Wood of the U.S. Court of Appeals for the 7th Circuit; Solicitor General Elena Kagan; and Homeland Security Secretary and former Arizona governor Janet Napolitano.

Obama was more familiar with the latter three: Wood is well-known in Chicago's liberal legal establishment, where she enjoys celebrity status, and the president had placed both Napolitano and Kagan in his administration.

He spent an hour with Sotomayor, part of more than seven hours she spent at the White House that day meeting with advisers who were helping him make the critical decision. A senior White House official said the face-to-face meeting was a "key moment" and that Obama emerged to tell aides that he was especially impressed with the breadth of Sotomayor's experience.

That was something White House officials stressed yesterday: that she has worked as a prosecutor and corporate litigator, and has spent more time on the federal bench than any of the current justices when they were appointed.

Lee Epstein, a Northwestern University professor and an expert on nominations, was struck by how Sotomayor seemed to fit with Obama, the nation's first African American president. "Her life experiences parallel his, to some extent," she said, and filled what a president usually looks for in a nominee.

"A president usually has two motivations," Epstein said. "One is ideological -- 'I want to put someone who thinks like me on the court.' The other is electoral."

Sotomayor's nomination as the court's first Hispanic -- notwithstanding the disputed status of Justice Benjamin Cardozo, who never described himself that way -- carries obvious political benefits. The chance to appoint to the high court the first member of the nation's fastest-growing political demographic is a goal that presidents both Democratic and Republican had pursued.

Epstein said those motivations might be easier for a president to explain than more nuanced notions of empathy and life experience. "People get why Reagan appointed O'Connor," she said, referring to the former president's decision to nominate Sandra Day O'Connor as the court's first female justice and fulfill a campaign pledge.

Sotomayor immediately came under intense criticism from conservative groups for statements she has made suggesting that her work as a judge is informed by her life experience. "The president has nominated a highly credentialed judge with an inspiring life story," said Manuel Miranda, chairman of the Third Branch Conference, a group that supports conservative judicial nominees. "Regrettably, he also tainted the nomination from its start by suggesting that his nominee would judge based on personal feelings and background, or be biased with empathy for particular classes of litigants."

Administration officials said they are confident that the combination of Sotomayor's personal narrative, sterling academic credentials and long experience as a prosecutor, private attorney, trial judge and appeals court jurist would trump any criticism.

"What the president has said is that he is looking for someone who embodies legal excellence, restraint, a sense of how judging works and an understanding of its real-world consequences," said a senior administration official. "If opponents want to say that only one of those is important, that is a debate we are willing to have."

Similarities to Souter

Sotomayor's life experience is a world away from the man she is nominated to replace, retiring Justice David H. Souter. But Thomas C. Goldstein, a Supreme Court advocate whose Web site Scotusblog.com has taken an extensive look at Sotomayor's record on the appellate court, said the jurisprudence of the two is much closer.

"I think she will sit comfortably in his seat and not move the court ideologically," he said. "This will be the disappointment of the nomination to liberal groups," who had hoped Obama would appoint someone with a more bold approach to constitutional interpretation.

Her record is largely silent on some of the important issues on the court's horizon: presidential power, the death penalty, gay rights. Her most important decision on abortion rights turned away those seeking to challenge the Bush administration's "Mexico City Policy," which prohibited overseas organizations that received U.S. funds from providing abortion services or engaging in speech intended to ease restrictions on abortion.

The justices she hopes to join will review one controversial decision by Sotomayor in time to become a major issue at her confirmation hearing. She was part of a three-judge panel that upheld New Haven, Conn.'s decision to throw out a firefighter promotion test because no African Americans scored high enough for advancement.

White firefighters sued, saying their constitutional right to equal protection had been breached. Sotomayor and two other judges said the circuit's precedents showed the city was within its rights to scuttle the test, because its use might have led to a lawsuit from minority firefighters under Title VII of the Civil Rights Act, which forbids use of tests with such disparate effects.

White House press secretary Robert Gibbs was already trying out a new line about the case yesterday. He said Sotomayor "sympathized" with the plaintiffs in the case but "handed down a decision based on precedent."

That was not the mark of a judicial activist, he said.

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