A revealing anecdote about Sonia Sotomayor

The claim that she disregards law in favor of emotions and sympathy is the opposite of reality.

Published May 28, 2009 11:29AM (EDT)

(updated below - Update II)

The same right-wing extremists who drove the country into the ground continue to attack Sonia Sotomayor with blatant and ugly stereotypes.  She's one of those judges selected "for their readiness to discard the rule of law whenever emotion moves them," claims the highly credible legal scholar Karl Rove today in the Wall St. Journal.  According to Rove -- whose profound respect for the rule of law is legendary -- she makes decisions based on her emotional "concern for the downtrodden, the powerless and the voiceless" rather than legal considerations.  Because of her background, ethnicity and gender, hordes of people who know nothing about her and haven't bothered to examine what she's actually done as a judge instantaneously believe this caricature, while the media keeps repeating these accusations without, as usual, any critical scrutiny.

As happens virtually always, the facts are now starting to be examined and they reveal just how deliberately false are these right-wing smears.  They just make things up without having any idea if they're true.  Not only is that caricature of Sotomayor false, the opposite is true:  if anything, Sotomayor's flaw is that she is excessively legalistic in her approach.  And the assumption -- from both sides -- that she is some sort of pure, doctrinaire liberal seems quite dubious at best.

The Washington Post's E.J. Dionne says that today "liberals would be foolish to embrace Sotomayor as one of their own because her record is clearly that of a moderate."  The New York Times' Charlie Savage suggests that pro-choice groups are worried about how reliable a vote she will be.  And Daphne Eviatar thoroughly examines Sotomayor's judicial record and concludes that liberals "may end up being disappointed with the president’s choice" because "it’s starting to sound like Obama nominated a highly capable technocrat."

My writing about this issue from the start has not been based on my view that Sotomayor is the best choice for the Court.  There is still too much unknown about her to reach a conclusion in that regard (though see this encouraging snippet of her at Oral Argument in a critical case).  My interest has been due to the fact that the smears against her were both totally unrecognizable, driven by very ugly sentiments and enabled by reckless "reporting" methods.  Along those lines, I want to recount the facts behind a case I had before Judge Sotomayor because it helps to demonstrate just how false and baseless are the attacks thus far against her:

That case, Norville v. Staten Island University Hospital, involved one of the most sympathetic plaintiffs I had in my legal career.  The plaintiff, Wendy Norville, was a black woman who grew up in poverty in the Caribbean, moved to the U.S., and put herself through nursing school while working as a maid and raising her children as a single mother.  After graduating at the age of 44, she went to work at SIU hospital as an R.N. in the neurology unit, where, for the next 12 years, she compiled an exemplary record of uniformly excellent performance reviews.

During her 13th year as an R.N., while working in the neurology unit, a very tall male patient had a seizure while lying on a table.  Norville attempted to restrain the patient to prevent him from injuring himself or falling on the floor, and when doing so, she sustained a very severe back injury.  She was unable to work for a full year, but after extensive rehabilitation, she told the hospital she wanted to return to work, but her back injury imposed some mild physical restrictions -- such as limitations on her ability to lift heavy objects -- and she requested that they find a nursing position for her where heavy lifting was not required.

The hospital claimed that the only positions they could offer her were ones that were part-time or would require her to lose all of her union seniority and benefits, and after a couple of months of pretending to search more, the hospital notified her that there were no comparable positions for her and they thus fired her.  Because she was 56 years old and disabled by then, she was unable to get hired by another hospital.  So after working for 12 years as an R.N., she was left fired and unemployed -- all because of an injury she sustained on the job, while helping a patient.  She then sued the hospital (which was large and fully insured) for failing to accommodate her disability under the ADA and for race and age discrimination (they had accommodated white nurses far more injured than she and also rejected her for the one open nursing position in favor of a much younger nurse).

If ever there was a case where one's "emotions" for "the downtrodden, the powerless and the voiceless" would be strong, it was this one.  This was a poor, black and highly admirable woman who -- through no fault of her own -- was left jobless and impoverished at the age of 56, suing a large and fully insured corporation.  And her case was not only emotionally compelling, but legally strong as well:  the federal judge presiding over the case from the start refused to dismiss any of her claims at the close of discovery, holding that there was ample evidence to support all of her claims and to enable a jury to decide in her favor.

Right before her trial was to begin, that judge got caught up in a massive criminal trial, and as a result, a federal judge from Louisiana was shipped to New York to preside over the trial.  This visiting judge hated the case and the plaintiff from the start.  At trial, he excluded most of her best evidence showing discrimination, then dismissed her race and age discrimination claims before they even got to the jury, and then -- on her sole remaining claim for violations of the ADA -- gave the jury patently unfavorable and inaccurate instructions about the law that caused the jury to decide against her.

That was the state of the case as it was appealed to a three-judge panel of the Second Circuit.  Judge Sotomayor was by far the most active questioner at Oral Argument and it was she who wrote the opinion for the unanimous appellate court.  Without a trace of sympathy or even interest in the plight of the plaintiff, Sotomayor methodically recounted the evidence of discrimination and, in as cold and legalistic a manner as possible, concluded that Norville "produced insufficient evidence at trial to show that the hospital" discriminated against her.  She thus affirmed the trial judge's dismissal of Norville's claims of race and age discrimination. 

[On a very technical ground, Sotomayor did rule, for the unanimous panel, that the trial judge had inaccurately instructed the jury about what the ADA requires and thus re-instated that one claim (and the judge thereafter admitted he was wrong on that one issue).  Just to underscore what a sympathetic plaintiff Norville was, the jury then decided in her favor at the new trial on her sole remaining claim and awarded her $1.6 million in back pay, front pay, attorneys' fees and other compensatory damages.]

One shouldn't derive too much meaning from one decision (though at least the same caution applies to a single snippet from a speech someone gave 8 years ago).  But this case was one where she acted exactly contrary to the Rove-led disparagement of her jurisprudence -- the accusation that she disregards objective legal considerations in favor of emotions and sympathy for what Charles Krauthammer euphemestically described as "certain ethnicities."  And there are many other cases like that.  As Supreme Court expert Tom Goldstein put it:  "we have been struck by how the amount of commentary about Judge Sotomayor has ignored the most accessible and valuable source of information: her opinions as an appellate judge."  As Daphne Evitar put it after doing real reporting on Sotomayor's actual judicial record:  "President Obama’s just chosen an extremely cautious, legalistic nit-picker."

I have no doubt that there are legitimate grounds for criticizing Sotomayor.  I have reservations about her and am very interested in her answers at her confirmation hearing.  She's a Supreme Court nominee and shouldn't be beyond intense scrutiny.  But the bile coming thus far from the Right (and Respectable Intellectual Center) is laughable, contrary to all the available evidence, and grounded in the most naked and destructive stereotypes (the little lady can't keep her emotions in check or her mouth shut; the Latina woman decides in favor of minorities at the expense of the oppressed white male).  Before the media keeps repeating the screeching and inflammatory accusations from Rush Limbaugh, Newt Gingrich and Karl Rove, they might actually want to first see if there is evidence to support those accusations.  That is what "reporting" allegedly is about.


UPDATE:  The Washington Independent's Daphne Eviatar, who worked as a clerk to a federal appellate judge, adds some interesting thoughts and observations about Sotomayor's conduct in the Norville case and what it reflects about her judicial approach.


UPDATE II:  Here's an e-mail I received from Steven Bergstein, a New York lawyer who has appeared before Judge Sotomayor several times:

Your post on Norville makes the correct point that Sotomayor is not a doctrinaire liberal, however much she may care for the "downtrodden." I am a civil rights lawyer practicing in the SDNY and 2d Circuit and have argued many appeals in that court, including about half-dozen before Sotomayor. (I also blog on the 2d Circuit's civil rights decisions at www.secondcircuitcivilrights.blogspot.com).

In 2004, I argued an appeal in which she actually vacated a jury verdict in a very sympathetic involuntary commitment case brought under Section 1983. See, Olivier v. Robert L. Yeager Mental Health Center, which actually had a dissenting opinion from Judge Raggi that Judge Sotomayor could have joined, but did not. Decisions like this are noteworthy because she had a choice to vote in a knee-jerk way for a victorious plaintiff, and it would have been easy to do so. I lost a lot of money on that appeal, but I actually admire her for having the guts to do what she thought was right. I think she's a very good choice for the Supreme Court, by the way.

There might be some judges who let "emotions" and the like override their legal considerations, but Judge Sotomayor simply isn't one of them.

By Glenn Greenwald

Follow Glenn Greenwald on Twitter: @ggreenwald.

MORE FROM Glenn Greenwald

Related Topics ------------------------------------------