Wednesday's New York Times led with Obama's choice of Sonia Sotomayor as his Supreme Court nominee -- "Obama Chooses Hispanic Judge for Supreme Court Seat," by Peter Baker and Jeff Zeleny. Baker and Zeleny never directly acknowledged Sotomayor's liberal outlook, although there is enough in her judicial record (and her own words) to indicate her ideology.
President Obama announced Tuesday that he would nominate Sonia Sotomayor, a federal appeals judge in New York, to the Supreme Court, choosing a daughter of Puerto Rican parents who was raised in a Bronx public housing project to become the nation's first Hispanic justice.
In making his first pick for the court, Mr. Obama emphasized Judge Sotomayor's "extraordinary journey" from modest beginnings to the Ivy League and now the pinnacle of the judicial system. Casting her as the embodiment of the American dream, he touched off a confirmation battle that he hopes to wage over biography more than ideology.Judge Sotomayor's past comments about how her sex and ethnicity shaped her decisions, and the role of appeals courts in making policy, generated instant conservative complaints that she is a judicial activist. Senate Republicans vowed to scrutinize her record. But with Democrats in reach of the 60 votes needed to break a filibuster, the White House appeared eager to dare Republicans to stand against a history-making nomination at a time when both parties are courting the growing Hispanic vote.
Again, the Times hinted at but didn't directly label Sotomayor with the still-damaging label of "liberal," never using the term to describe her.
If confirmed to succeed Justice David H. Souter, a mainstay of the liberal wing who is retiring, Judge Sotomayor would probably not change the court's broad philosophical balance. But her views on same-sex marriage, gun rights, financial and environmental regulation, executive power and other polarizing issues could help shape judicial rulings for years, if not decades, to come.
At the heart of the fight over her nomination will be a debate over the role that a judge's experience should play in rendering decisions. Although Mr. Obama said on Tuesday that "a judge's job is to interpret, not make law," his emphasis on a nominee with "empathy" has generated criticism from Republicans, who saw that as code for legislating personal views from the bench.
After sashaying around the "liberal" label, the Times found plenty of "conservative" activists complaining about Sotomayor, using the label four times to describe Sotomayor's opposition.
"Judge Sotomayor is a liberal activist of the first order who thinks her own personal political agenda is more important than the law as written," said Wendy E. Long, counsel to the Judicial Confirmation Network, a conservative group. "She thinks that judges should dictate policy and that one's sex, race and ethnicity ought to affect the decisions one renders from the bench."Other conservatives said they would focus on her ruling in a New Haven affirmative action case or on how she might rule on same-sex marriage. "Abortion is in some sense a stale issue that has been fought over many times, but gay marriage is very much up for grabs," said Curt Levey, executive director of the Committee for Justice, a legal group. "Gay marriage will be bigger than abortion."As she was nominated on Tuesday, Judge Sotomayor did not retreat from her view that judges ought to look at the impact of their rulings. "I strive never to forget the real-world consequences of my decisions on individuals, businesses and government," she said.While conservative groups took aim, Republican senators responded more cautiously, weighing how aggressively they want to fight her confirmation. Twenty-nine Senate Republicans voted against her confirmation to the appellate bench in 1998, including Mitch McConnell of Kentucky, now the party's Senate leader, while 25 voted for her. Of those still in the Senate, 11 voted against her and 9 for her.
Compare the lack of "liberal" labels to how the Times reacted when George W. Bush nominated Samuel Alito to the Supreme Court. The lead story from November 1, 2005 by Elisabeth Bumiller and Carl Hulse called Bush's nominee conservative (at least on abortion) in the very first sentence and kept going:
President Bush on Monday named Samuel A. Alito Jr., an Ivy League-educated federal appeals court judge with a conservative record on abortion and a history of prosecuting organized crime in New Jersey, to succeed Justice Sandra Day O'Connor on the Supreme Court....Legal scholars call Judge Alito's jurisprudence respectful of precedent and solidly conservative, not only on abortion but on other issues like the death penalty and the separation of church and state....When the death of Chief Justice William H. Rehnquist created a second opening on the court, Mr. Bush was determined to name a woman, and ended up with Ms. Miers. Having tried that and failed, Republicans said, Mr. Bush felt less pressure to select a woman and turned then to Judge Alito, who had bona fide conservative credentials but also an easygoing personality that would wear well in confirmation hearings.
White House reporter Sheryl Gay Stolberg penned the personality-driven "Woman in the News" look at Obama's Supreme Court nominee Sonia Sotomayor, "A Trailblazer And a Dreamer." Sotomayor was described as liberal only once by Stolberg, in indirect and mild fashion, even though the judge was quoted calling herself a liberal in the piece itself.
She was "a child with dreams," as she once said, the little girl who learned at 8 that she had diabetes, who lost her father when she was 9, who devoured Nancy Drew books and spent Saturday nights playing bingo, marking the cards with chickpeas, in the squat red brick housing projects of the East Bronx.She was the history major and Puerto Rican student activist at Princeton who spent her first year at that bastion of the Ivy League "too intimidated to ask questions." She was the tough-minded New York City prosecutor, and later the corporate lawyer with the dazzling international clients. She was the federal judge who "saved baseball" by siding with the players' union during a strike.Now Sonia Sotomayor -- a self-described "Nuyorican" whose mother, a nurse, and father, a factory worker, left Puerto Rico during World War II -- is President Obama's choice for the Supreme Court, with a chance to make history as only the third woman and first Hispanic to sit on the highest court in the land. Her up-by-the-bootstraps tale, an only-in-America story that in many ways mirrors Mr. Obama's own, is one reason for her selection, and it is the animating characteristic of her approach to both life and the law.
Stolberg saw conservative critics of the judge, yet refused to directly call Sotomayor a liberal:
In describing his criteria for a Supreme Court pick, Mr. Obama said he was looking for empathy -- a word that conservatives, who are already attacking Judge Sotomayor, have described as code for an activist judge with liberal views who will impose her own agenda on the law. Her critics also raise questions about her judicial temperament, saying she can be abrupt and impatient on the bench.
But Judge Sotomayor's friends say she is simply someone who will bring the "common touch" that the president has said he prizes to her understanding of the law.
Stolberg marveled that although Sotomayor was a "grind" at Princeton, "she also smoked, drank beer and danced a mean salsa." She briefly sketched Sotomayor's liberal environment and even quoted the judge calling herself a liberal, which is more than Stolberg was willing to do:
In her fifth year in the office, she was interviewed for The New York Times Magazine about the prosecutors working for [Manhattan District Attorney Robert] Morgenthau. She was described as an imposing woman of 29 who smoked incessantly, and spoke of how she had coped in a job that some liberal friends disapproved of.
"I had more problems during my first year in the office with the low-grade crimes -- the shoplifting, the prostitution, the minor assault cases," she said. "In large measure, in those cases you were dealing with socioeconomic crimes, crimes that could be the product of the environment and of poverty."Once I started doing felonies, it became less hard. No matter how liberal I am, I'm still outraged by crimes of violence. Regardless of whether I can sympathize with the causes that lead these individuals to do these crimes, the effects are outrageous."In 1984, Ms. Sotomayor left the district attorney's office and joined Pavia & Harcourt, a boutique commercial law firm in Manhattan."We had an opening for a litigator, and her résumé was perfect," said George M. Pavia, the managing partner who hired her. "She's an excellent lawyer, a careful preparer of cases, liberal, but not doctrinaire, not wild-eyed."
Not until the 73rd paragraph of the 84-paragraph, 5,000-word piece did Stolberg indirectly hint that Sotomayor just might be ideologically located somewhere vaguely left of center:
Judge Sotomayor has had several rulings that indicate a generally more liberal judicial philosophy than a majority of justices on the current Supreme Court, leading some conservatives to label her a "judicial activist."
In 2000, for example, she wrote an opinion that would have allowed a man to sue a government contractor he accused of violating his constitutional rights. In 2007, she wrote an opinion interpreting an environmental law in a way that would favor more stringent protections, even if it cost power plant owners more money. The Supreme Court reversed both decisions.
The ruling by Judge Sotomayor that has attracted the most attention was a 2008 case upholding an affirmative action program at the New Haven Fire Department. A group of white firefighters sued because the city threw out the results of a test for promotions after few minority firefighters scored well on it. The Supreme Court is now reviewing that result.
By contrast, Samuel Alito's "Man in the News " profile from November 1, 2005, after Bush announced Alito as his Supreme Court nominee, was crammed with ideological labels. The Alito profile by Neil Lewis and Scott Shane began with a flattering anecdote, but quickly added:
While Judge Alito, 55, has built a reputation for decency, he has also compiled a conservative record that is coming under intense scrutiny from activists on the left and the right who understand his potential for shifting the balance on the bench....Judge Alito's jurisprudence has been methodical, cautious, respectful of precedent and solidly conservative, legal scholars said.
In all, Alito was labeled conservative five times, and was described as conservative by others twice more. Finally, an op-ed Wednesday by self-described conservative law professor (and Sotomayor friend) Gerald Magliocca argued the judge should be confirmed without protest by Republicans, given that she shares the president's "measured temperament." How convenient!This post is an encapsulation of two longer articles available at TimesWatch.