This is the third in our continuing series of posts examining important Supreme Court cases in which the Court is expected to rule sometime before its term ends later this month, as well as cases raising similar issues in which Supreme Court nominee Sonia Sotomayor has participated during her tenure as a judge on the Second Circuit.

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by David H. Gans, Director of the Human Rights, Civil Rights, and Citizenship Program, Constitutional Accountability Center

There is no duty for a Supreme Court Justice that is more important than providing “equal justice under law” and, in the words of the Supreme Court, holding the balance of the scales of justice “nice, clear, and true.” The Justices not only serve as role models for other judges, they interpret constitutional mandates and federal statutes that set standards of judicial conduct for state and federal judges around the country. Since her nomination to the Supreme Court, Judge Sonia Sotomayor has repeatedly affirmed her commitment to equal justice, responding to ridiculous claims from her critics that a “wise Latina” can’t follow her judicial oath.

More important, her published opinions, speeches, and judicial disclosure forms all suggest strongly that Judge Sotomayor takes seriously the notion that judges have the obligation to secure impartial justice to all, and must take care to avoid even the appearance of partiality or bias. Her views on the matter – important in their own right – take on added significance as we await the Supreme Court’s soon-to-be released decision in Caperton v. Massey Coal Co., which raises the question whether the Due Process Clause requires a judge to recuse himself from the case of a corporate litigant whose CEO spent approximately $3 million in support of the judge’s state election campaign.

Kraham v. Lipmann, 478 F.3d 502 (2nd Cir. 2007), in which Judge Sotomayor wrote for a unanimous panel of the Second Circuit, exemplifies her approach. Kraham was a constitutional challenge to a New York state court rule that prevented officials of political parties, their families, and law firms with which they were associated, from receiving state court appointments as fiduciaries, such as guardians for incapacitated persons or children involved in litigation. For years, party leaders and the law firms with which they were connected received these appointments as political favors. After New York tried to shut down these corrupt practices, a lawyer and local Democratic Party officer named Bonnie Kraham filed suit, arguing that, under the First Amendment, New York could not disqualify officers of political parties from obtaining court appointments as fiduciaries. Judge Sotomayor’s opinion rejected the plaintiff’s claim, citing the important state interests in “eliminating corruption and favoritism in the judicial appointment process.” The ban on appointments to party leaders, and their associates, she wrote, was a reasoned response to “the politically motivated appointments actually occurring and . . . the resulting public perception that the process was compromised.” Her opinion is a clear and well-reasoned endorsement of government efforts to ensure appearance of impartiality in our justice system.

Likewise, in a 1996 speech, “Returning the Majesty to the Law and Politics: A Modern Approach,” then-District Court Judge Sotomayor spoke of the importance of maintaining the highest ethical standards for judges, and criticized the corrupting influence of campaign contributions. She observed that “[w]e would never condone private gifts to judges about to decide a case implicating the gift-givers’ interests,” yet “our system of election financing permits extensive private, including corporate, financing of candidates’ campaigns, raising again and again the question what the difference is between contributions and bribes . . . .” Judge Sotomayor did not discuss the constitutional issue now before the Court in Caperton, yet the speech suggests a deep reluctance to tolerate judicial action (or inaction) that deprives litigants of the appearance or actuality of unbiased and uncompromised judges.

During her tenure on the Second Circuit, Judge Sotomayor has voted to reverse convictions in cases in which the trial court judge was not the fully impartial decisionmaker the law requires. For example, in United States v. Amico, 486 F.3d 764 (2nd Cir. 2007), she joined George W. Bush appointee Barrington Parker’s unanimous opinion holding that the trial court judge should have recused himself from the trial of a fraud prosecution because of his past relationship with the government’s key witness, who had cooperated with the government to avoid jail time. Years before the trial, the witness, a mortgage broker, had submitted a mortgage application for the district court judge that appeared to contain misrepresentations, and the judge’s conduct became an issue during the defendant’s fraud trial. The unanimous panel, including Judge Sotomayor, concluded that the conviction had to be vacated because the judge’s impartiality might reasonably be questioned, emphasizing that “the presiding judge was confronted with accusations of impropriety that concerned the very type of criminal activity for which the defendants were on trial,” and went to great lengths to “defend himself against allegations of wrongdoing.” In reversing, Judge Sotomayor and the other members of the panel concluded that they could not “accept the results of such a trial without damaging the public’s faith in its judiciary . . . .”

Finally, as detailed by the Washington Post, Judge Sotomayor’s financial disclosure forms paint a picture of a committed public servant who has given up financial gain to serve the nation. Living in Manhattan on a judicial salary, Judge Sotomayor has accumulated very few assets and has no stock holding that would require recusal on the Court. She has been scrupulous about reporting money she received as reimbursements for participating in legal conferences, even going beyond what applicable ethical rules require. None of the trips she has taken could be fairly described as judicial junkets sponsored by corporate special interests.

As other posts in our Beyond Ricci series demonstrate, caricatures of Judge Sotomayor fall wide of their mark. Far from being a lawless judge, Judge Sotomayor’s record shows a deep recognition of the importance of an impartial judiciary, committed to deciding cases based on the law. Let’s hope the Supreme Court in Caperton does as good a job of living up to these first principles.