Lawyers for White House: Sonia Sotomayor is No Activist

The White House trotted out an array of lawyers today to essentially send the message that Sonia Sotomayor is no judicial activist.

Lawyers that know her personally or who have combed through some of her decisions say they see no proof that she would be an "activist" judge, in fact, she very well may be just the opposite.

"Judge Sotomayor is not a judge that goes out on a limb" to issue her version of the law, said University of Colorado law professor Scott Ross.

After listening to them on a conference call today, one would almost think Sotomayor would be seen more favorably by Republicans than Democrats.

Here's why:

Republicans, and even some Democrats, have said they see no room for an "activist" judge on the bench, meaning, someone who doesn't just interpret and apply principles of the Constitution, but someone who reaches beyond that document and interjects their personal beliefs in their decisions. Although President Bush and other Republicans liked to decry "activist" judges in the case of Terri Schiavo and the eminent domain case in New London, CT, the term is by no means used derogatorily just by Republicans.

Martha L. Minow, Harvard law professor who attended Yale with Sotomayor, told reporters today that her former classmate adhered to a "careful adjudicatory approach," closely reads statutes and applies them to particular facts in each case. She and others cited instances where Sotomayor has gone for a strict interpretation of the law, despite where her sympathies may lie.

"This is a lawyer's lawyer - this is someone who actually understands all the way down how the craft of law works," Minow said. "I am so struck by her mastery ... this is a pro."

Another classmate, Paul M. Smith, partner at Jenner & Block and former Yale classmate, said even in free-speech cases Sotomayor has ruled on, "she doesn't come into cases with a broad, doctrinal bias."

In Pappas v. Guilini, Thomas Pappas was fired by the New York City Police Department for anonymously mailing racially offensive political materials from home to groups that had solicited him for donations. Pappas fought his firing on First Amendment freedom-of-speech grounds. The District Court dismissed his claim, and the Second Circuit said that Pappas' mailings were in fact a violation of NYPD regulations, even though he had done it on his own free time from home. But Sotomayor dissented, warning the majority against "gloss[ing] over three decades of jurisprudence and the centrality of First Amendment freedoms in our lives just because it is confronted with speech is does not like."

"She's a careful person who could go either way," Smith said.

University of North Carolina law professor William P. Marshall, who doesn't know Sotomayor personally, said that even on business cases, she has decided them based on narrowly reading the statutes. Even in the Ricci v. DeStefano case in New Haven, Ct., which is getting much attention and which likely will provide the most legal fodder for Sotomayor's detractors, he said "it also an example for her instincts for judicial restraint." In that case, Sotomayor and the other judges said they were bound by previous rulings and couldn't make new law on the matter. The case is now before the Supreme Court.

"The issue itself is being framed as an affirmative action case but it's really not," Marshall said. "The court, including Judge Sotomayor, expressed real sympathy for the plaintiff ... but said they were essentially bound by previous decisions in this area."

Another example of this "judicial modesty," which may cheer Republicans up a bit:

-Center for Reproductive Law and Policy versus Bush (per Scotusblog): Sotomayor wrote the 2002 opinion for the case that challenged the "Mexico City Policy," which prohibited foreign organizations receiving U.S. money from performing or supporting abortions. Abortion-rights groups protested the policy, saying it violated FIrst Amendment, due process and equal protection rights. But Sotomayor relied on earlier case law that said the First Amendment doesn't apply in this way, and the government is "free to favor the anti-abortion position over the pro-choice position" with public funds.

"She wasn't going to try to get out of that in a way another activist judge might have tried to do," said Kevin K. Russell of Scotusblog. She "does not see it as her job to fix every social ill in the world or thinks her opinion is the only one that matters."

But, quite conveniently - was this a purposeful move by President Obama? - we have really no idea how she would rule on any hot-button issues of today, like gay-marriage, Second Amendment rights, or abortion. But what these legal experts kept hammering home is that Sotomayor offers a strict interpretation of the law and leaves little room for personal opinion. On its face, that should be good news for Republicans if they're worried about some flaming liberal coming in causing havoc on the court.