Supreme Being

A few weeks ago, Judge Sonia Sotomayor, who is 54 years old and lives in Manhattan (and was most recently spotted attending to her duties with a cast on her newly broken ankle), was someone no one outside the legal community would have recognized, unless you were a baseball fan—in 1995, she was the judge who ended the contentious baseball strike with an injunction that took her just fifteen minutes to issue. Then, in early May, came the New Republic article by Jeffrey Rosen with anonymous sources questioning her intelligence and temperament; the heated Salon reply in her defense from a former litigator who argued in her court (“Sotomayor’s decades of achievement in the face of overwhelming obstacles just gets dismissed with a few slothful, totally irresponsible smears from Rosen and his invisible friends”); and even a skit on David Letterman featuring a judge whose chaotic courtroom is full of Hispanic immigrants who all speak at the same time.

Whether or not the summa cum laude graduate of Princeton has the intellectual firepower and analytic ability to combat the conservatives on the court, the skirmish about Sotomayor also centers on personality—whether she’s egotistical and unnecessarily aggressive from the bench. “When President Clinton nominated Sotomayor to the Court of Appeals, a substantial majority of the ABA judicial committee gave her the highest rating of ‘well qualified,’ while a minority gave her the intermediate ‘qualified’ rating,” American University law professor Darren Hutchinson pointed out in his blog. Her detractors, he wrote, “describe her as a fiery Latina tempest waiting to knife and brutalize lawyers in the courtroom.”

There’s no doubt that Sotomayor’s biography would make her nomination ground-breaking. She is self-made, having risen from the humble circumstances of a lower-income Puerto Rican family in public housing to the Ivy League. As a young child, she decided she would be a detective, just like Nancy Drew in the mystery books she loved to read. She was still in elementary school when she learned she had diabetes, which made her scratch the detective plan and look to another icon of the time for her career path—Perry Mason.

Manhattan District Attorney Robert Morgenthau, who hired her out of Yale Law, has called her a “fearless and effective prosecutor” who as a judge “believes in the rule of law.” In the ABA Journal, she’s described as a political centrist, which may explain why she’s been nominated previously by both Republicans and Democrats. President George H.W. Bush picked her for the District Court, and President Clinton elevated her to the Second Circuit Court of Appeals, where she’s been for more than a decade.

Once a clerk for Sotomayor, University of Illinois law professor Rob Kar describes his former boss as brilliant, warm, generous, and social—the person who threw the Christmas party everyone wanted to attend. Sotomayor, who has called the courts “the last refuge for the oppressed,” befriends the powerful and the less so, Kar says, including janitors and cafeteria workers at the court, some of whom came to see her Second Circuit induction ceremony. She may be able to relate to their circumstances, at least financially: Though she earns nearly $180,000 a year (in New York City, where the cost of living is higher), she reported no financial holdings in 2007 except a checking account and a savings account, whose combined total was $50,000 to $115,000.

Kar adds, “She is very intellectually engaged and exacting.” It’s not a good idea to raise weak arguments in her court or show up unprepared. He has noticed that some lawyers—especially older ones who may be accustomed to “a less inclusive bench”—can feel resentful when challenged by a Hispanic woman who is often younger than they are.

As for Sotomayor’s general disposition, says Jonathan Entin, a law professor at Case Western Reserve University who clerked for Justice Ruth Bader Ginsburg, “I’m reluctant to make too much of what people say about strong women. Most judges are not shrinking violets. Most lawyers are not shrinking violets. Very few judges become judges because someone comes along and notices them. They do something to make themselves noticed.”

Sotomayor’s noteworthy opinions include allowing the city of New Haven, Connecticut, to ditch the results of a test that would have promoted whites over minorities. The case went to the Supreme Court, which heard it last month but has not yet issued a ruling.

Sotomayor could have trouble in confirmation hearings for other reasons, as well. She has said the “Court of Appeals is where policy is made,” feeding perceptions she wants to make law rather than interpret it. Senator Orrin Hatch, a Republican on the Judiciary Committee, has somewhat ominously called that statement “a problem.”

Change on the highest court in the land won’t stop with the nomination of Sonia Sotomayor. Obama could make at least two more appointments during the next few years. Justice John Paul Stevens is 89, and Justice Ruth Bader Ginsburg, 76, has been treated for pancreatic cancer. By the end of Obama’s tenure, it’s possible a third of the court’s nine seats will be held by women.

However, according to a Gallup poll conducted in early May, 64 percent of Americans said it didn’t matter if Obama appointed a woman; 26 percent called it “a good idea, but not essential”; and just 6 percent said naming a woman is “essential.”

The other women who came up on Obama’s short list of nominees had the kind of résumés that could significantly alter the chemistry of the august body. Elena Kagan, a divorcée and a native of New York City, was the first woman to become dean of Harvard Law and once clerked for Justice Thurgood Marshall. Diane Pamela Wood, a mother of six children, is a former colleague of the president’s at the University of Chicago Law School.

If Obama gets to make other Supreme Court appointments, one or both of these women could mark the beginning of a new era at the Supreme Court.

What would a court with significantly more women mean for the nation? For one, women’s-rights groups could see a more diverse court as an invitation to take cases there, says Tracey George, a professor at Vanderbilt University Law School, because the cases that come before the court are chosen by the justices. Controversial topics in the next few years could include civil rights (such as terrorism-detainee rights or gay marriage), states’ rights, and criminal justice.

For some people, it’ll be a pleasant change to see even one more female in the boys’ club. “It seems shocking that only one of nine Supreme Court justices is a woman,” George says. “You want the body with the final word on the meaning of our constitutional rights to reflect the population whose rights they are protecting.”