Legal Fans Tout Sotomayor's 'Restraint'

The White House put a handful of legal scholars on the phone with reporters Wednesday to talk about the president's pick of Second Circuit Judge Sonia Sotomayor's, particularly her judicial restraint and adherence to the factual record, including cases implicating speech and the First Amendment.

The general concensus among the attorneys on the call was that Sotomayor reads statues closely, carefully and in context. That view is meant to counter suggestions that she would be a judicial activist, a view abetted by Sotomayor herself in a comment at Duke university Law School several years ago about policy being made from the appeals court bench.

Paul Smith, a partner at Jenner & Block and a former classmate's of Sotomayor's who has argued free speech cases before the high court, said that when it came to those issues, she "does not come into cases with a broad, doctrinal bias, but instead takes each case as it comes and looks very closely at the details and the facts to decide which way the constitutional analysis ought to go."

He cited two speech cases she decided. One, he said involved a police officer who was fired from his job for engaging in private bigoted and offensive speech, off hours, to private parties anonymously. Two of the three judges voted to affirm the dismissal of his First Amendment claim, finding it was "perfectly constitutional" to fire him for that private speech. Judge Sotomayor dissented, he said. "She said: 'Not so fast. It is a pretty radical idea to fire a public employee for private, off-hours expression. I think we should let this case go to trial. ' "

In another case, he said, she joined the majority in a student speech case, in which the student was disciplined for an off-hours blog post attacking administrators and urging people to contact to complain. In that case, he said, she joined the opionion that, given the factual details of that particular case, the discipline was consistent with the First Amendment.

"She is a careful person who can go either way, but remains focused on not just broad doctrine but how the doctrine applies to particular factual situations. That is certainly true in the First Amendment, free speech area."

Also singing Sotomayor's praises and leading the chorus of "judicial restraint" on the call was Martha Minow, Harvard law professor and daughter of Newton Minow, the former FCC chairman who once famously branded broadcast programming a "vast wasteland."

Minow, a former classmate of Sotomayor's as well, said the judge sticks to a careful reading of the factual record. "For those of us who are teachers and scholars of statutory interpretation, this appointment is a superb appointment because this is a lawyer's lawyer" who "understands how working with facts and law requires close reading of both."

The White House was stumping big time for the nomination, also bicycling an e-mail packed with positive comments about the judge from other judges, prosecutors, former clerks, legislators academics and more.

John Eggerton

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.