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High court pick shows no slant on business

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High court pick shows no slant on business

WASHINGTON—Companies likely would find Sonia Sotomayor an even-handed judge of business issues if she joins the U.S. Supreme Court, observers say.

Judge Sotomayor, whom President Obama nominated last week to fill the vacancy created by the retirement of Justice David Souter, has a reputation as a liberal on social issues. But on business issues, she is as likely to rule for business as she is against it, observers say.

Judge Sotomayor, who has been both a New York prosecutor and a corporate intellectual property attorney, was appointed in 1992 as a federal judge by President George H. Bush. In 1998, President Bill Clinton elevated her to the 2nd U.S. Circuit Court of Appeals in New York, where she has served since.

Her most prominent decision may have been her 1995 ruling as a district court judge that effectively ended the 232-day Major League Baseball strike, a ruling President Obama cited when he introduced her (see box).

Also regarded as significant is her role as a member of the three-judge panel that ruled in June 2008 for New Haven, Conn., in Frank Ricci et al. vs. John DeStefano et al. in rejecting reverse discrimination charges brought by white firefighters (BI, Jan. 19).

Appellate attorney Thomas H. Dupree Jr., a partner with Gibson, Dunn & Crutcher L.L.P. in Washington, said that while the Supreme Court tends to vote along a traditional conservative-liberal split on affirmative action and related constitutional issues, “business cases are different, and I don't think that you can really reliably predict” how Judge Sotomayor is likely to rule.

“There are a lot of cases where she's ruled for business and a lot of cases where she's ruled against business,” Mr. Dupree said.

“I think there is reason to believe that she is a moderate on issues that are of concern to the business community,” said Lauren Rosenblum Goldman, a partner with law firm Mayer Brown L.L.P. in New York, who is an appellate attorney.

“She has resisted attempts by plaintiffs lawyers...to allow more class actions to be brought against business” and has been a moderate on federal pre-emption issues, Ms. Goldman said.

“She is a careful and thoughtful jurist,” said Ms. Goldman.

Employment law attorney Michael W. Fox, a shareholder with law firm Ogletree, Deakins, Nash, Smoak & Stewart P.C. in Austin, Texas, has reviewed Judge Sotomayor's employment-related decisions. She “looks to me like someone who's pretty traditional in the sense of not far out of the mainstream one way or the other,” Mr. Fox said.

Judge Sotomayor has ruled both for and against employers and is willing to “side with the "establishment' if she feels they've got the strong argument,” Mr. Fox said.

Although Judge Sotomayor is likely to fall on the liberal side of the court's liberal-conservative split, Mr. Fox said, “it strikes me that the business community should not be terribly upset” by her nomination.

“You just don't seem to be able to find any sort of political agenda” in her decisions, said employment law attorney Dennis Westlind, a member of law firm Stoel Rives L.L.P. in Portland, Ore.

Even the Ricci ruling was “sensible” in that ruling against New Haven would have led to filing more class action discrimination lawsuits, said Paul J. Siegel, a partner with employment law firm Jackson Lewis L.L.P. in Melville, N.Y.

Employment law attorney Bettina B. Plevan, a partner with Proskauer Rose L.L.P. in New York, said while Judge Sotomayor likely would show empathy for cases involving individuals who oppose big companies, “many of the issues that go before the Supreme Court are one business against another business.”

With regard to insurance cases, “She's been extremely favorable to insurers in coverage disputes,” said Randy J. Maniloff, an insurer attorney with White & Williams L.L.P. in Philadelphia. “The fact she favors insurers so much, who are typically not a sympathetic bunch, would be further evidence that she's not as liberal on business issues as she might be on social issues,” he said.

However, Richard Samp, chief counsel for the Washington Legal Foundation, said he is “tentatively troubled” by Judge Sotomayor's nomination. For instance, her 2005 decision in Shadi Dabit vs. Merrill Lynch, which the U.S. Supreme Court overturned in a unanimous ruling, “would have significantly expanded the scope of securities fraud class actions.”

Even so, “we certainly want to take a careful look, and we recognize that whoever is going to get confirmed is going to be a Democratic nominee that is probably more liberal than I would choose,” Mr. Samp said.

Meanwhile, Judge Sotomayor's tenure on the 2nd U.S. Circuit Court of Appeals, which frequently rules on business issues, will be a positive for businesses, Mr. Dupree said. “As a lawyer, you always want to have a knowledgeable and experienced judge,” he said.