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Sotomayor’s Judicial Opinions: A Sample

May 26, 2009

At the New York Law Journal, a substantive analysis of Judge Sotomayor, focusing on her legal opinions. For obvious reasons, Judge Sotomayor’s opinions as a Federal Circuit Court Judge provide the surest–but by no means certain–way to predict how she might rule if she is confirmed to the Federal Supreme Court. Below are descriptions of some notable cases heard by the Judge:

One case that is sure to come up in any confirmation hearing is one that deeply divided the circuit, Ricci v. DeStefano, 06-4996-cv, a reverse discrimination case that was argued last month in the U.S. Supreme Court.

Judge Sotomayor was on the panel that upheld the dismissal of a case brought by white firefighters and one Hispanic firefighter from New Haven, Conn. who challenged the city’s decision not to certify the results of exams administered in 2003 because minority applicants performed less well on the tests. The city feared Title VII liability if more minorities were not promoted into the upper ranks of the department and the test results were not helpful.

Judge Sotomayor and her fellow panelists Robert D. Sack and Rosemary S. Pooler first issued a summary order affirming Judge Janet Arterton and then withdrew it, replacing it only with a terse, one-page opinion praising the judge’s “thorough, thoughtful and well-reasoned opinion.”

Judge Jose A. Cabranes, part of a 7-6 minority that lost a bid to have the case reheard en banc, criticized the panel for issuing only a brief per curiam opinion instead of a full written one tackling the “indisputably complex and far from well settled” questions in the case, including whether New Haven was applying “an unconstitutional racial or set-asides” (NYLJ, June 24, 2008).

Judge Sotomayor was on the panel in Doninger v. Niehoff, 06-0457, where the circuit in 2008 upheld the denial of a preliminary injunction sought by a high-school student who was disqualified from running for senior class secretary when she posted on an independently operated blog a vulgar and misleading message about the supposed cancellation of a school event. The panel cited the potential disruption at the high school from the blog post as justifying the suspension.

Judge Sotomayor wrote the opinion in United States v. Howard, 06-0457, finding as constitutional ruses employed by state troopers to lure suspects away from two vehicles so that other troopers could search the cars for cocaine. Judge Sotomayor said there was “ample probable cause” to support the searches and “within the context of the automobile exception a reasonable search does not become unreasonable because law enforcement officials lack a warrant” (NYLJ, June 6, 2007).

James E. Long of Albany represented one of the defendants on the Howard appeal.

“In that case it was a hot bench and she was the hottest. Her questions were intense,” Mr. Long said. “I was relying on a 37-year-old Supreme Court case and saying it was still good law, but she said it had been distinguished repeatedly. So she knew all of the nuances of my argument.”

Judge Sotomayor wrote for the majority in Farrell v. Burke, 449 F. 3d 470 (2d Cir. 2006), finding parole officers did not violate the First Amendment when they enforced a ban on the possession of pornography by a paroled sex offender. “Although a series of strongly-worded opinions by this court and others suggest that the term ‘pornography’ is unconstitutionally vague,” Judge Sotomayor said, an illustrated book found in the possession of parolee Christopher J. Farrell fell within “any reasonable definition of pornography” and was not unreasonably vague as applied to Mr. Farrell.

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