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Bar News - August 14, 2009


“Classic Traits”: Souter/Sotomayor

By:


Hon. David H. Souter at his confirmation hearing.

Hon. Sonia Sotomayor at her confirmation hearing.
Photo: Talk Radio News on Flicker
At David Souter’s confirmation hearings in the U.S. Senate, Senator Alan Simpson of Wyoming spoke of "the poor law professors and academics" who were "clawing and scratching" over the nominee’s record. "We have to realize that they have had an arduous summer." Nominee Souter replied (he was under oath, sworn to tell the truth): "If they were reading my opinions, they were." Back in 1990, I was one of those poor law professors reading David Souter’s judicial opinions. I had never heard of him, but I liked what I read in his opinions on the New Hampshire Supreme Court. His traits were precision, balanced judgment, carefully composed judicial opinions, the long view. David Souter had a nice touch. Suddenly he found himself the nominee of the President to take on the gravest responsibility any judge in our Republic can undertake: "The responsibility to join with eight other people, to make the promises of the Constitution a reality for our time, and to preserve that Constitution for the generations that follow us after we are gone from here."

After his confirmation, I championed Justice Souter against criticism that cast him as a mediocrity on the Supreme Court. David Souter’s record of eighteen years on the Supreme Court shows he fulfilled his promise to the Senate Judiciary Committee in full measure: "At the end of our task some human being is going to be affected. We had better use every power of our minds and our hearts and our beings to get those rulings right." Justice Souter’s work on the Supreme Court, if I may judge it, was nobly done.

One piece of David Souter’s fleece "left on the hedges of life" (Holmes’s figure) is an admiring essay in the New Hampshire Bar Journal entitled "Mr. Justice Duncan." It was written long before Souter’s confirmation hearings. It identifies "classic traits" that David Souter admired in his predecessor on the New Hampshire Supreme Court. These same traits are evident in Justice Souter’s eighteen years’ judging on the Nation’s highest court. What are they? And what do Judge Sonia Sotomayor’s judicial opinions as I have lately clawed and scratched over them augur for her service on the Supreme Court of the United States as Justice Souter’s successor?

I have no doubt Sonia Sotomayor will be confirmed by the Senate. She has the backing of President Barack Obama, who announced the need for a common touch and a sense of compassion on the Court. She has a majority of Democratic votes in the Senate. But, of signal importance to this teacher of the Court’s dramatis personae, Sonia Sotomayor’s opinions show the same classic traits identified by Justice Souter in appraising Duncan’s work. Hers is an important nomination. The humanity of our law is the promise. "There is no guarantee of justice," said New York’s Benjamin Cardozo, "except the personality of the judge." Sonia Sotomayor opinions show a tough-minded, compassionate personality trying with all her intellectual might and heart to get her rulings right. Let me sketch a few of her rulings for those who would judge Sonia Sotomayor. Classic traits abound.

Justice Duncan was "The Gimlet" to his colleagues on the New Hampshire Supreme Court. Duncan had a sharp eye for details. So too, Sotomayor. In rejecting a plea of qualified immunity, she quotes a New York State Trooper saying that protesting Ononadaga Indians needed "to get their asses kicked." Papineau v. Parmley, 465 F.3d 46 (2nd Cir. 2006). Judge Sotomayor knows a clear violation of the First Amendment when she sees it. She has Duncan’s gimlet eye.

Judge Sotomayor’s analysis of the holdings of cases, her exposition of doctrine, her willingness to extend a line of case law to accomplish the important goal "of providing a remedy for constitutional violations" reflects the wisdom of Justice John Marshall Harlan, also called to the Court from the Second Circuit, whom she followed in her opinion in Malesko v. Correctional Services Corp., 229 F.3d 374 (2nd Cir. 2000). The Supreme Court reversed her, 5 to 4. Chief Justice Rehnquist refused to "extend" the Bivens line of cases. Her contemporaries on the Court, Justices Stevens, Souter, Ginsburg, and Breyer, voted to affirm her. They share a common philosophy of judicial protection of constitutional rights. Justice Scalia decries "the heady days in which this Court assumed common-law powers to create causes of action." Such, then, are the lines drawn for the United States Senate.

Of Duncan, David Souter said, "He was a great judge because he saw beyond records and articulated premises, to litigants and to the sources of a court’s strength to do right by litigants, whatever the right might be. He took the long view, even when the litigants were not the most sympathetic and even when a majority in his own court were, in his judgment, wrong." So too, Sotomayor. Read her dissenting opinion in U.S. v. Gori, 230 F.3d 44 (2nd Cir. 2000), and you are overwhelmed by her passion for the privacy of the home, at its threshold, as police with guns drawn order its occupants outside. Here is real power in a terrific judge, "hard hitting, but without arrogance." Read her defense of a racist cop, not exactly New York’s finest: "I find the speech in this case patently offensive, hateful, and insulting. The Court should not, however gloss over three decades of jurisprudence and the centrality of First Amendment freedoms in our lives because it is confronted with speech it does not like and because a government employer fears a potential public response that it alone precipitated." Pappas v. Giuliani, 290 F.3d 143 (2nd Cir. 2002).

Judge Sotomayor objects loudly to a court deciding questions beyond the submission of the parties. This is another of Duncan’s classic traits. "He would not decide on issues not briefed and argued even when he know how he would probably rule." Her opinion concurring in the judgment in Shi Liang Lin v. U.S. Dept. of Justice, 494 F.3d 296 (2nd Cir. 2007), is evidence of her following Justice Alito’s wisdom of jurisdictional restraint. Forced to respond to the majority, however, she reveals the wisdom of Solomon in saying that asylum from forced abortion in China may be available to the husband as well as the wife. "I fail to understand how the majority can claim that the harm caused by a spouse’s forced abortion or sterilization is not personal harm to both spouses—either or both of whom can be sterilized for violation of population control programs—especially given the unique biological nature of pregnancy and special reverence every civilization has accorded child-rearing and parenthood in marriage." This is straight thinking.

And what of empathy and compassion in Sotomayor’s judgments? These are qualities the President seeks. He has found them in his nominee. David Souter’s compassion and empathy for 13-year-old Savana Redding, whose strip search the Court condemned this Term, confirms the like empathy and solid judgment of Sonia Sotomayor in N.G. v. Connecticut, 382 F.3d 225 (2d Cir. 2004), five years ahead of David Souter’s majority opinion in Savana Redding’s case.

One last opinion I should like to commend is Judge Sotomayor’s dissenting opinion in Croll v. Croll, 229 F.3d 133 (2nd Cir. 2000), under the Hague Convention on the Civil Aspects of International Child Abduction. It is magisterial in tone, grasp, and good sense. She would hold that a ne exeat clause in a Hong Kong custody order vests "rights of custody" for purposes of invoking the Convention’s remedy of return when the custodial parent removes the child from its place of residence. The question has divided the Circuit Courts of Appeals. If you want to know what kind of Justice Sonia Sotomayor will make, read her Croll opinion.

Like Duncan, in reaching judgment Sotomayor lives by the sword. She admires and quotes Justice Scalia. But, rest assured, they will butt heads on the Court, just as the Court split itself at the seam in Ricci v. DeStafano, reversing the Second Circuit and Judge Sotomayor yet again, 5 to 4. Justice Souter joined Justice Ginsburg’s dissent.

The scales of justice, sotto voce Souter/Sotomayor, are weighted the same.

Editor's Note:This article was submitted in advance of the Senate Judiciary Committee confirmation hearings on Justice Sotomayor's nomination.

Paul R. Baier



Paul R. Baier is George M. Armstrong, Jr., Professor of Law, Paul M. Hebert Law Center, Louisiana State University. His essay defending Justice Souter against unwarranted criticism is entitled The Court and Its Critics and appears in the February 1992 American Bar Association Journal.

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