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Supreme Court nominee Sonia Sotomayor was selected by a Democratic president and has already come under conservative groups’ fire.

But her record on the 2nd Circuit reveals the work of a moderate jurist who isn’t afraid to rule on either side of criminal, civil rights and business cases. And in some cases Sotomayor, selected by President Barack Obama to replace retiring Justice David Souter, isn’t afraid to change her mind.

Though she is a former Manhattan assistant district attorney, as an appellate judge she doesn’t automatically vote in favor of government actors.

In the 2006 case Papineau v. Parmley, Sotomayor wrote an opinion declining to reverse the denial of a summary judgment motion in favor of police, who were accused of violating street protesters’ First and Fourth Amendment rights.

The police moved for summary judgment on the plaintiffs’ claims that the officers impeded their free speech and used excessive force in stopping the demonstration.

But Sotomayor’s majority disagreed.

In an opinion that, like most of her writings, systematically addresses the elements of each argument without flashy language or hyperbole, Sotomayor wrote that the claims could proceed.

“Because the extensive factual record reveals that material issues already exist concerning the excessive force claims which the district court did not dismiss, we see no reason to remand this issue here, where as a matter of law, defendants would not be entitled to qualified immunity on the facts as alleged by plaintiffs,” she wrote.

But in the 1999 case U.S. v. Santa, Sotomayor wrote an opinion affirming a ruling in favor of police in a criminal case, aligning herself with the Supreme Court’s conservative bloc, which would consider a similar issue a decade later.

The defendant sought to suppress drug evidence found during a police search incident to arrest. However the arrest was made based on a warrant that had been vacated months before, but had erroneously remained in the computer system.

Finding the admission of the evidence proper based on the Supreme Court’s standard in Arizona v. Evans, Sotomayor wrote that the error was the fault of a court clerk, not the police.

“We … are troubled by the [court officials'] repeated errors in this case,” she wrote. “The outcome in Evans, however, did not turn on the particular type or magnitude of the error, but on the identity of the individuals responsible for the error.”

Earlier this year, the U.S. Supreme Court held in a 4-5 ruling that evidence gathered from a search is admissible if the police reasonably believed the warrant was valid and the error was a clerical mistake. In Herring v. U.S., the Court’s more liberal justices – Justices John Paul Stevens, Ruth Bader Ginsburg, Stephen Breyer and David Souter – all dissented.

Discrimination claims

Sotomayor’s vote with the majority in an unsigned 2nd Circuit opinion, currently under review by the Supreme Court, that barred plaintiffs’ claims of racial disparity in the results of a promotion test for New Haven firefighters received fast attention.

But Sotomayor has authored opinions favoring both employees and employers in bias cases.

Norville v. Staten Island University Hospital, involved a disabled black woman who claimed she was fired after her employer failed to make adequate accommodations, even though they were provided for younger white employees.

The jury ruled for the plaintiff on the disability bias claim, but the trial court granted judgment as a matter of law for the employer on the disability, race and age bias claims. Affirming the ruling, Sotomayor wrote that the plaintiff didn’t meet her burden.

“Because [the plaintiff] produced insufficient evidence at trial to show that the hospital treated similarly situated white employees more favorably, she failed to establish a prima facie case,” she wrote in the fact-driven 1999 opinion.

Yet in the 2001 ruling in Raniola v. Bratton, Sotomayor wrote an opinion reversing a dismissal of a hostile work environment and retaliation claim brought by a female police officer.

“[The plaintiff] was subjected to offensive sex-based remarks, disproportionately burdensome work assignments, workplace sabotage, and one serious public threat of physical harm,” Sotomayor wrote. “A reasonable jury could find that these incidents were sufficiently continuous and concerted to have altered the conditions of [the plaintiff's] work environment.”

Reversing herself

In the 2001 case In re Visa Check/MasterMoney Antitrust Litigation, Sotomayor wrote an opinion that established a relatively low standard for certification of a class action under Federal Rule of Civil Procedure 23.

“Given the strong commonality of the violation and the harm among the merchants, this is precisely the type of situation for which the class action device is suited,” she wrote of the class of merchants alleging antitrust violations by Visa and MasterCard.

But five years later in In Re Initial Public Offering Securities Litigation, she voted with the court’s majority in adopting a stricter certification standard, in effect overturning herself.

Questions or comments can be directed to the writer at: kimberly.atkins@lawyersusaonline.com.

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