Uncommon Detail Marks Rulings by Sotomayor
She Almost Oversteps Her Role, Experts Say
Thursday, July 9, 2009
Supreme Court nominee Sonia Sotomayor's opinions show support for the rights of criminal defendants and suspects, skepticism of corporations, and sympathy for plaintiffs alleging discrimination, an analysis of her record by The Washington Post found. And she has delivered those rulings with a level of detail considered unusual for an appellate judge.
During nearly 11 years on the federal appeals court in New York, Sotomayor has made herself an expert on subjects ranging from the intricacies of automobile mechanisms to the homicide risks posed by the city's population density. Her writings have often offered a granular analysis of every piece of evidence in criminal trials, and sometimes read as if she were retrying cases from her chambers.
Legal experts said Sotomayor's rulings fall within the mainstream of those by Democratic-appointed judges. But some were critical of her style, saying it comes close to overstepping the traditional role of appellate judges, who give considerable deference to the judges and juries that observe testimony and are considered the primary finders of fact.
"It seems an odd use of judicial time, given the very heavy caseload in the 2nd Circuit, to spend endless hours delving into the minutiae of the record," said Arthur Hellman, a University of Pittsburgh law professor and an authority on federal courts.
Adrienne Urrutia Wisenberg, a Washington criminal appellate lawyer, said appellate judges "are not in the role of reweighing the credibility of a witness. Someone's demeanor is not reflected on a transcript."
But Wisenberg said she admires Sotomayor's "tenacious trial lawyer's personality," and Dan Himmelfarb, a Washington lawyer and former clerk to conservative Supreme Court Justice Clarence Thomas, said Sotomayor is "extraordinarily thorough, and a judge would ordinarily be praised for writing thorough opinions."
To examine the record of Sotomayor, whose Senate confirmation hearings begin Monday, The Post reviewed all 46 of her cases in which the 2nd Circuit issued a divided ruling, nearly 900 pages of opinions. Although Sotomayor has heard about 3,000 cases, judicial scholars say split decisions provide the most revealing window into ideology because in such cases the law and precedent are often unclear, making them similar to cases heard by the Supreme Court. President Obama, who nominated Sotomayor to replace retiring Justice David H. Souter, has said Supreme Court justices will be in agreement 95 percent of the time.
Sotomayor's votes in split cases were compared with those of other judges through a database that tracks federal appellate decisions nationwide, a random sampling of 5,400 cases. The database codes decisions as "liberal" or "conservative" based on what its creator, University of South Carolina political scientist Donald Songer, says are common definitions. Votes in favor of a defendant, for example, are classified as liberal, while those supporting prosecutors are called conservative.
Sotomayor's votes came out liberal 59 percent of the time, compared with 52 percent for other judges who, like her, were appointed by Democratic presidents. Democratic appointees overall were 13 percent more liberal than Republican appointees, according to the database analysis.
Experts said the results show that Sotomayor's ascension would probably not alter the balance of a high court closely divided between conservatives and liberals such as Souter. But they also provide a more nuanced picture of the 17-year federal judge than those offered by her supporters and her critics.
The White House has portrayed Sotomayor as a tough-on-crime moderate who favors the "judicial restraint" often sought by Republicans, while conservatives call her a liberal activist whose decisions are influenced by ideology and her Latina heritage.