Mon, 01 Jun 2009 05:30:26 +0000 – By Lanny J. DavisAttorney/Former White House Counsel
Suppose a black female nurse is seriously injured during her work at a hospital and is forced to take a medical leave of absence. When she returns almost a year later, she reapplies for new jobs but doesn't get any offers of comparable salary and seniority. For one of the jobs for which she was turned down, two white women with disabilities are chosen. For another job for which she was rejected, a younger white male is hired.
The facts and her record prove that she is no ideologue and certainly not a result-driven judge.
So how did Judge Sonia Sotomayor rule? The ultra-right talk show hosts who spent all last week attacking the judge as a "liberal activist" or even a "racist" would surely predict that she would have ruled in favor of this sympathetic black female with a severe disability.
They would have been wrong.
Read Judge Sotomayor's 11-page published opinion, on behalf of a unanimous 3-judge panel of the 2nd U.S. Circuit Court of Appeals, in the case of Norville v. Staten Island University Hospital. The case, decided Nov. 3, 1999, can be found in the published federal court decision reports at 196 F.3d 89. She found no race or age discrimination and voted for a new trial on the disability claim because of legally erroneous jury instructions.
Sure, it will be argued, this is just one case. But the Norville case is emblematic -- not atypical. Read the more than 3,000 decisions in which Judge Sotomayor participated and the more than 400 opinions that she signed during her 12 years on the appeals court. I am betting you will find in case-after-case, she has voted based on applying the law to the facts -- even where the result is contrary to the expected "liberal" ideological position, such as her vote to protect a racist cop from dismissal on free-speech grounds (Pappas v. Giuliani, 2002); or upholding the Mexico City policy barring foreign groups receiving U.S. funds from performing or supporting abortions (Center for Reproductive Law and Policy v. Bush, 2002).
In the Norville case, plaintiff Wendy Norville was certainly someone who one would expect to draw many people's "empathy." The 56-year-old black woman suffered a severe spinal injury while working in the Staten Island University Hospital's neurology unit and was forced to take a one-year leave of absence.
When she returned, she claimed that she was denied substitute jobs comparable in pay and job security as her prior job, and that the open jobs for which she was qualified were given to whites and a younger male because of illegal race, age and disabilities discrimination.
On the race discrimination claim, Judge Sotomayor and her co-panelists applied the required legal standard of discrimination based on race in granting a disabled person "reasonable accommodation" in working on another job. Judge Sotomayor found that there was insufficient evidence to show that the two whites were "similarly situated" in disabilities or performance to Ms. Norville; thus, she didn't make a case of RACE discrimination by the hospital.
Similarly, on the age discrimination claim, Judge Sotomayor found that, while there was some evidence supporting Ms. Norville as qualified for the substitute job, the hospital's reasons for preferring the younger applicant based in part on qualifications were not merely a "pretext," the required legal standard.
On the disabilities claim, however, Judge Sotomayor and her two fellow appellate judges found that the trial judge had issued legally incorrect instructions to the jury that could have affected their verdict against Ms. Norville. The judge erred by not telling the jury that offering a disabled person a new job with less seniority and job security does not constitute a "reasonable accommodation" under the Americans With Disabilities Act.
So in the run-up to Judge Sotomayor's confirmation hearings and Senate confirmation vote, try to ignore the overheated rantings and non-factual name-calling of certain conservative radio talk show hosts and TV cable hosts and guests.
As to Judge Sotomayor's statement that she "would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life": The obvious answer is to view the statement in the broader context of what she meant -- similar to what Judge Samuel A. Alito said during his confirmation hearings, i.e., that his background coming from an immigrant family would inevitably be "taken into account" as he made his judicial decisions.
But let's get it over with: the word "better" was, in my opinion, a flat-out gaffe, as President Obama and his press secretary suggested last week. I expect that Judge Sotomayor will say as much during her confirmation hearings -- similar to when Judge John G. Roberts Jr. admitted to second thoughts concerning some of his legal memoranda written many written years before as a Reagan administration attorney.
If there were a "one-innocent-gaffe rule" that disqualified people from holding public office in Washington, there would probably be no one left in Washington holding public office.
Excuse me: Did I just write a sentence that could produce a national standing ovation?
To state the obvious, there can be no dispute that Judge Sotomayor is highly qualified to serve on the U.S. Supreme Court. A summa cum laude graduate of Princeton University and graduate at Yale Law School, she would bring more federal judicial experience to the Supreme Court than any justice in 100 years.
The facts and her record prove that she is no ideologue and certainly not a result-driven judge. For example, in cases where Judge Sotomayor and at least one judge appointed by a Republican president were on the three-judge panel, she and the Republican appointee(s) agreed on the outcome 95 percent of the time.
I admit that Democrats, including the president, set the precedent that it is fine to vote against a Supreme Court justice if you have serious disagreements with an overall judicial philosophy that leans too "conservative," no matter how qualified the nominee.
That being the case, there are thoughtful Republicans who will choose to vote against Judge Sotomayor because, in their opinion, she leans too "liberal," and those decisions should be respected.
This column's theme of "purple nation" requires adherence to the rule of "what's good for the goose ...."
But one thing is certain: Judge Sotomayor will be confirmed by the U.S. Senate; the only question is when. And I predict she will get considerably more than 60 votes, with some Republicans voting to confirm. This is because, in the final analysis, fair-minded senators from both parties will judge her on the facts and her actual record, not on the smears and reckless accusations from the far right of the far right of the Republican Party.
Lanny J. Davis, a Washington lawyer and former special counsel to President Clinton, served as a member of President George W. Bush's Privacy and Civil Liberties Oversight Board. He is the author of "Scandal: How 'Gotcha' Politics Is Destroying America."
Editor's Note: This column appeared in Mr. Davis' weekly column, "Purple Nation," published in the Washington Times on Monday, June 1, 2009.
Lanny Davis is a regular weekly columnist for The Hill. In 1996-98, Davis served as special counsel to President Bill Clinton. He attended Yale Law School with Hillary Clinton in 1969-70 and has remained friends with her ever since. He is the author of the book, "Crisis Tales: Five Rules for Coping With Crises in Business, Politics, and Life," (Simon & Schuster March 2013). Follow him on Twitter at @LannyDavis.