Ainda Sonia Sotomayor: uma vida ligada à Justiça

Um artigo de Richard Lacayo, na Time:

«Barack Obama said he wanted: a Supreme Court nominee with a "common touch." With Sonia Sotomayor, he got somebody with a common touch and an uncommon story. Nobody expects you to be chosen someday for the Supreme Court when your father was a welder with a third-grade education. Nobody expects you to make it to Princeton when you come from a public-housing project.

But barring a big surprise, most people expect Sotomayor to be on the court when it opens its next term in October. The Democrats already have 59 votes in the Senate. And Sotomayor isn't a barn-burning leftist. She tends to write narrowly crafted rulings that focus on close application of the law. She resists rhetorical flourishes and sweeping philosophical statements. Altogether, she's a liberal jurist who will be replacing another mostly liberal vote on the court, David Souter, which means her arrival there won't do much to change the ideological balance.

If anything, Sotomayor may disappoint activists on the left who were hoping that Obama would choose a two-fisted progressive to trade punches with Justice Antonin Scalia, who anchors the conservative end of the court. There are episodes in her history as a judge that Republicans will scrutinize carefully, especially an affirmative-action decision that the Supreme Court is re-examining right now. But absent a time bomb hidden among her rulings and public statements, there's not much Sotomayor's opponents can do to turn her into a scary radical — or to counter that compelling personal story.

On May 21, when he met her for the first time, Obama, a former law professor, engaged Sotomayor in a lengthy discussion about the court and the Constitution. "What the President told us," an Obama senior adviser said later, "was that he was very struck by her discussion of her approach to judging, how effective she has been in working with her colleagues on the Second Circuit, including colleagues appointed by Republican Presidents, and how her judicial craftsmanship and precision in the law can be effective in bridging ideological differences and producing consensus opinions."

A Bronx Tale
But as Obama said when he introduced Sotomayor at the White House on Tuesday, he was also drawn to her by her "extraordinary journey" in life. It could be said to have begun with a journey her parents made during World War II, when they moved from Puerto Rico to New York City, where their daughter was born in 1954. Sotomayor was 3 when the family found an apartment at the Bronxdale Houses, a city-owned development built to provide affordable housing to working-class families. Her father died when Sotomayor was just 9 — one year after she was given a diagnosis of Type 1 diabetes, which still requires her to monitor her blood sugar and inject herself regularly with insulin. After that, her mother Celina raised Sotomayor and her younger brother Juan on a nurse's salary but still managed to send them to Catholic schools that prepared them for bigger things. Today Juan is a doctor. His sister, who spent a lot of time as a kid watching Perry Mason on television, had other plans.

By 1972, Sotomayor had moved on to Princeton, where she studied history. She once said that when she got there, she felt like a "visitor landing in an alien country." But she left with highest honors and a Phi Beta Kappa key. From there, she went on to law school at Yale, where she was an editor of the Yale Law Journal. By that time, she was also married to a high school sweetheart, Kevin Edward Noonan — a marriage that ended in divorce in 1983.

At Yale, Sotomayor never took her foot off the pedal. "She was something of a grind," says Stephen Carter, a classmate and friend who now teaches at Yale. "She was always in the library, always had a casebook under her arm." But unlike some of the hardest-charging young law students, says Carter, "she always had a manner that was open. She didn't put down other people." Even then, her approach to the law was meticulous and small bore, as in a piece she published in the law journal on a technical issue affecting potential Puerto Rican statehood. "She wasn't advocating for or against a particular position on statehood," says Martha Minow, a colleague at the journal who now teaches at Harvard Law School. "She was carefully parsing out the legal questions." (See four myths about Supreme Court nominees.)

After law school, Sotomayor worked for five years in the office of Manhattan district attorney Robert Morgenthau, where she prosecuted everything from petty drug crimes to felony assaults and murder. No less than her background in the projects, her experience pressing criminal cases may have affected her outlook years later on the bench. One case she presided over, U.S. v. Falso, seemed likely to go against police who had charged a man with possessing child pornography after they entered his house on a wrongly issued search warrant. Instead, Sotomayor ruled in favor of the officers. "It wasn't just a pro-prosecutor bias," says Carter. "It was her understanding of the practical problems of being a police officer."

Sotomayor left Morgenthau's office in 1984 to move into private practice as an attorney with a firm specializing in business cases. When George H.W. Bush was looking for nominees to the federal district court in the Southern District of New York, it was a Democrat, New York Senator Daniel Moynihan, who recommended her. She was easily confirmed, but in 1997, when Bill Clinton decided to move her up to the appeals court, Republicans held off a confirmation vote for more than a year, fearing that she was being fast-tracked to be Clinton's next Supreme Court nominee.

More than a decade later, her appointment has finally arrived, and it couldn't come at a more difficult moment for her opponents. For now, the GOP strategy for dealing with Sotomayor is to walk softly and carry a big magnifying glass, searching for a potentially explosive opinion buried somewhere in her roughly 400 rulings from the federal bench. Republicans have their work cut out for them. The Second Circuit Court of Appeals hears plenty of cases involving business and securities law but not many that touch on the hot-button issues that make for good attack ads. Abortion, the death penalty, gay rights, executive power — those haven't come up much, if at all, on Sotomayor's docket. The White House says its nominee has been fully researched, but Republicans are pinning their hopes on the fact that the Obama Administration has had a somewhat spotty vetting record.

The New Haven Case
So far, Sotomayor's involvement in an affirmative-action case last year is the episode attracting the most attention. The case, Ricci v. DeStefano, involves a group of 18 white firefighters, including one Hispanic. They filed a discrimination suit against the city of New Haven, Conn., after the city decided in 2004 not to certify the results of a job-promotion exam because no African Americans had scored high enough to be promoted. The city argued that federal law treats tests resulting in such outcomes as suspect, meaning that New Haven would probably have been sued by the minorities who failed the test had the white firefighters been promoted.

A lower court decided in favor of the city. In February 2008, Sotomayor was part of a three-judge panel that upheld the lower-court decision in a very brief ruling. Four months later, she was part of a 7-6 majority that decided not to rehear the case before the full appeals court. Writing for the six dissenters, Judge Jose Cabranes, a Clinton appointee who has been something of a mentor for Sotomayor, said the majority "failed to grapple with the questions of exceptional importance raised in this appeal." The three-judge panel's "perfunctory disposition," he wrote, contained "no reference whatsoever to the constitutional claims at the core of this case" — unusually blunt language for a court known for its collegiality in public.

That case is now before the Supreme Court, which heard arguments last month. On that day, both Chief Justice John Roberts Jr. and Justice Scalia indicated that they believed New Haven officials were concerned only about the test's failure to produce a desired outcome. When a lawyer representing the Federal Government told Roberts that the government would have supported tossing out the exams if the results of blacks and whites had been reversed, the Chief Justice raised a skeptical eyebrow, and Scalia said, "I don't think you'd say that." Gregory Coleman, an attorney representing the firefighters, told the Justices his clients were being punished solely because they are white. "Racial classifications are inherently pernicious and, if not checked, lead as they did in New Haven to regrettable and socially destructive racial politics," he said.

The New Haven dispute will probably be one of the final cases the court rules on before adjourning for the summer in late June. The Justices have already reversed three rulings that Sotomayor had joined over the years. That's not a high number for a longtime appellate judge, and unlike the affirmative-action case, those generally involved such technical issues that it would be hard to build an opposition campaign around them. For instance, this year a 6-3 Supreme Court overturned a 2007 Sotomayor decision that ruled that the Environmental Protection Agency could not use cost-benefit analysis when deciding whether to require power plants to take steps to limit their impact on aquatic life.

In another case, Sotomayor ruled that investors could bring certain kinds of fraud suits against investment firms in state courts rather than in federal courts. The Supreme Court unanimously overturned that decision, ruling that to permit the suits in state courts would lead to "duplicative litigation." In the third case, the court reversed a decision written by Sotomayor that said individuals have the right to sue a corporation working on behalf of the Federal Government for violations of their constitutional rights. But that was a narrow, 5-4 reversal in which the court's four most consistent liberals — Souter, Stephen Breyer, Ruth Bader Ginsburg and John Paul Stevens — all supported her reasoning.

In one of her rare hot-button rulings, seven years ago Sotomayor decided against an abortion-rights group that attempted to challenge the federal ban — since lifted by President Obama — on funding international family-planning groups that provide abortions. Writing to uphold a lower-court decision that threw out the case, Sotomayor said, "The Supreme Court has made clear that the government is free to favor the antiabortion position over the pro-choice position, and can do so with public funds." But that case didn't require Sotomayor to comment on the fundamental premise of Roe v. Wade — that the Constitution provides a right to abortion. Nothing has come to light so far in her rulings from the bench that give any clue as to whether she thinks Roe was correctly decided.

How Big a Battle?For Republicans, opposing a candidate first nominated to the bench by a Republican President and twice confirmed by the Senate will be hard enough. But to do that without stumbling over the fact that she's also the first female Hispanic nominee will require an especially delicate touch. Having alienated many Hispanics with years of anti-immigrant rhetoric, the GOP can scarcely afford to drive them deeper into the Democratic fold. Last November, Obama won 67% of Latino votes, compared with John McCain's 31%, enough to put Florida, New Mexico and Colorado in the Democratic column.

But if Republicans are worried about putting off Hispanics, they are also under enormous pressure from the right not to let Sotomayor go without a fight. "President Obama carried through on his threat to nominate a Justice who would indulge her policy preferences and biases on the bench," says Ed Whelan, president of the Ethics and Public Policy Center, a group opposing Sotomayor's candidacy. "I'm going to continue to do all I can to expose Sotomayor's view of judging and why she's not a good pick for the court." Conservative activist groups are already airing commercials that attack Sotomayor's role in the New Haven case. Even a losing fight can have benefits for a party as disabled as the GOP is now.

Leading the charge will be Jeff Sessions of Alabama, who became the top Republican on the Senate Judiciary Committee when Arlen Specter switched parties last month. Sessions himself was once a Reagan nominee to the federal bench who was rejected by this same committee — at the time controlled by Republicans — after he called the American Civil Liberties Union and the National Association for the Advancement of Colored People "un-American," reportedly telling a colleague that they "forced civil rights down the throats of people." He now runs the risk of becoming the story if he says anything that could be interpreted as indelicate. So after Sotomayor's nomination was announced, Sessions responded with a statement as blandly worded as a high school civics paper: "The Senate Judiciary Committee's role is to act on behalf of the American people to carefully scrutinize Ms. Sotomayor's qualifications, experience and record."

Meanwhile, Republicans are pushing to slow down the process, to give themselves maximum time to find that incendiary something in her rulings and public statements. Senate Majority Leader Harry Reid has said he'd like to see Sotomayor confirmed before the Senate leaves town on Aug. 7 for its summer recess.

Texas Senator John Cornyn, a Republican on the Judiciary Committee, says Obama has agreed to a "John Roberts timetable" — there were 74 days from the day the Chief Justice was nominated to his swearing-in. For Sotomayor, the equivalent date would be Aug. 6, but Kevin McLaughlin, a spokesman for Cornyn's office, now says that date might not give Republicans enough time. "Given the length and breadth of her record, we're not sure it's possible to meet that deadline," he says.

Conservatives who want to go after Sotomayor may find more ammunition in her public statements outside the court than in her rulings. During a panel discussion at Duke University four years ago, Sotomayor said the federal court of appeals is where "policy is made," the kind of statement that can get you tagged an "activist" judge who tries to make law instead of interpret it. Sotomayor appeared to know that was the danger in the words she had let slip, because she quickly added, "And I know that this is on tape, and I should never say that. Because we don't 'make law' ... I'm not promoting it, and I'm not advocating it."

In a 2001 speech at the University of California, Berkeley, Sotomayor aired the view that judges' gender and ethnic backgrounds inevitably affect their decision-making and probably should. She said then, "Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am also not so sure that I agree with the statement ... I would hope that a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn't lived that life."

Perhaps. But for all the controversy or appeal that sentiment may arouse, it's not a useful guide to how Sotomayor has ruled. Like that of most lower-court judges, much of her history on the bench has involved minute applications of the law, not the kind of cases in which life experience, even when it is as inspiring as hers, would have offered much guidance. There tend to be more cases of the big-picture kind on the Supreme Court, and if she gets there, she may take the opportunity to become the passionate liberal she has never really been on the lower benches. First, of course, she has to get there. But one thing that everybody agrees on about Sotomayor: all her life, she's been very good at getting places.»