Legal Scholars Tout Sotomayor's 'Restraint'

Attorneys who know Supreme Court nominee praise her adherence to factual record, First Amendment

By John Eggerton -- Broadcasting & Cable, 5/27/2009 3:50:44 PM

The White House put a handful of legal scholars on the phone with reporters Wednesday to talk about the president's pick of Second Circuit Judge Sonia Sotomayor for the Supreme Court, particularly her judicial restraint and adherence to the factual record, including in cases implicating speech and the First Amendment.

The general consensus among the attorneys on the call was that Sotomayor read statutes closely, carefully and in context. That view is meant to counter suggestions that she would be a judicial activist, a view abetted by Sotomayor herself in a comment at Duke University Law School several years ago about policy being made from the appeals court bench.

Paul M. Smith, a partner at Jenner & Block and a former classmate of Sotomayor's who has argued Free Speech cases before the high court, said that when it came to Free Speech issues, she "does not come into cases with a broad, doctrinal bias, but instead takes each case as it comes and looks very closely at the details and the facts to decide which way the constitutional analysis ought to go."

He cited two speech cases she decided. One, he said, involved a police officer who was fired from his job for engaging in private bigoted and offensive speech, off hours, to private parties anonymously. Two of the three judges voted to affirm the dismissal of his First Amendment claim, finding it was "perfectly constitutional" to fire him for that private speech. Judge Sotomayor dissented, he said. "She said: 'not so fast. It is a pretty radical idea to fire a public employee for private, off-hours expression. I think we should let this case go to trial.'"

In another case, he said, she joined the majority in a student speech case, in which the student was disciplined for an off-hours blog post attacking administrators and urging people to complain. In that case, he said, she joined the opinion that, given the factual details of that particular case, the discipline was consistent with the First Amendment.

"She is a careful person who can go either way but remains focused on not just broad doctrine but how the doctrine applies to particular factual situations. That is certainly true in the First Amendment, free speech area."

Also singing Sotomayor's praises and leading the chorus of "judicial restraint" on the call was Martha Minow, Harvard law professor and daughter of Newton Minow, the FCC Chairman who once famously branded broadcast programming a "vast wasteland."

Minow, a former classmate of Sotomayor's as well, said the judge sticks to a careful reading of the factual record. "For those of us who are teachers and scholars of statutory interpretation, this appointment is a superb appointment because this is a lawyer's lawyer" who "understands how working with facts and law requires close reading of both."

The White House was stumping big time for the nomination, also bicycling an e-mail packed with positive comments about the judge from other judges, prosecutors, former clerks, legislators, academics and more.