Lawyers give Sotomayor high marks

Monday, June 15, 2009

Several attorneys who have argued First Amendment cases before U.S. Supreme
Court nominee Judge Sonia Sotomayor praise her knowledge of law, her challenging
questions at oral argument and her overall abilities as a jurist.

Sotomayor, a Bronx-born jurist on the 2nd U.S.
Circuit Court of Appeals, is also a former federal district judge.

“She was very well prepared and understood the First Amendment issues,” said
New York-based attorney Stuart W. Gold, who argued on behalf of Muslim inmate
Wayne Ford before Sotomayor on the 2nd Circuit in 2003. In the case, Ford
contended that his religious free-exercise rights were violated when prison
officials denied him a religious meal in conjunction with Ramadan.

Sotomayor wrote for a unanimous panel in Ford v.
that the district court prematurely dismissed Ford’s
constitutional claim under the free-exercise clause. She ordered the claim
reinstated and sent back down to the district court asking it to apply the
prevailing standard for free-exercise clause cases in O’Lone
v. Estate of Shabazz
(1987), which is that prison restrictions be
reasonably related to legitimate concerns for safety and efficient operation.
She also refused to grant the defendant-prison officials qualified immunity,
writing that “prior cases make it sufficiently clear that absent a legitimate
penological justification, which for present purposes we must assume defendants
were without, prison officials' conduct in denying Ford a feast imbued with
religious import was unlawful.”

Gold relates that the case was settled after the 2nd Circuit remanded the
case. He recalls that Sotomayor challenged him and opposing counsel at oral
argument. “She was pretty demanding and asked tough questions during oral
argument,” he said. “She not only asked tough questions but also expected
attorneys to respond with citations to the record or appendix in their

Robert J. Anello, another New York-based attorney, has similar observations
after arguing a First Amendment case — Papineau
v. Parmley.
(2006) — in front of a three-judge panel that included
Sotomayor. “She is very active in oral argument and always prepared,” said
Anello, who has practiced law for nearly 30 years. “In addition, she will push
attorneys if they don’t answer her questions or answer wrongly.”

In Papineau, Sotomayor wrote on behalf of a three-judge panel that
involved First and Fourth Amendment claims by members of the Onondaga Nation.
These members had demonstrated in protest of an agreement between Onondaga
chiefs and New York state that would permit the state to tax tobacco products
sold to non-Native Americans on Onondaga land. The protesters alleged that after
they moved their protest to a public highway, they were beaten by law
enforcement officials. Sotomayor refused to grant qualified immunity to law
enforcement, noting that it was clearly established law that demonstrators had a
constitutional right to protest free from interference as long as the protesters
did not present a clear and present danger to public safety.

“Sotomayor was well-informed and active during oral arguments in the
Papineau case,” recalled Anello, who is the president-elect of the
Federal Bar Council. “And she wrote a tough opinion, as my clients were not a
favored class. She was very focused on their right to protest without getting
their heads bashed in by law enforcement.”

Anello says Sotomayor does not have a preconceived bent in First Amendment
cases: “She doesn’t come to cases with any predisposition. She applies First
Amendment standards but will rule for you or against you based on the law. She
wants to know if the law is on your side.”

Anello also participated in Sotomayor’s first trial as a federal district
judge. “It was business litigation in a securities-related case. She was right
on top of things and immediately controlled the courtroom. She appeared to be an
incredibly quick study.”

Praise from the bar for Sotomayor comes not only from those who prevailed in
First Amendment cases before her, but also from those who did not. In New York State
Restaurant Association v. New York City Board of Health
Sotomayor sat on the three-judge panel that rejected a First Amendment challenge
by the New York Restaurant Association to a New York City health-code policy
requiring eateries to disclose calorie contents of their food. The panel, in an
opinion by Judge Rosemary Pooler, ruled that the law “mandates a simple factual
disclosure of caloric information and is reasonably related to New York City's
goals of combating obesity.” The panel added that “regulations that compel
purely factual and uncontroversial commercial speech are subject to more lenient
review than regulations that restrict accurate commercial speech.”

New York-based attorney Kent A. Yalowitz had argued that the health-code
policy violated association members’ First Amendment rights and that it should
have been subjected to heightened review. But he says he holds Sotomayor in high
regard: “She is very smart and generally practical. I think she will make an
excellent addition to the Court should she be confirmed. I disagreed with her
decision in the Restaurant Association case but I have very high regard for her
ability, integrity and competence.”

Gold and Anello also agree that Sotomayor would make an excellent addition to
the high court and an able replacement for retiring Justice David Souter. “She
is talented, thoughtful and well-prepared,” says Gold. “She is well qualified to
be a Supreme Court Justice.”

“I think she will make a fabulous addition to the Supreme Court,” said
Anello. “I joked with Justice (Samuel) Alito the other night at a dinner in D.C.
— telling him, ‘You need someone from the Bronx.’”

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