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Sotomayor’s Appellate Opinions Are Unpredictable, Lawyers and Scholars Say

Publication Date: 
May 28, 2009
The New York Times
John Schwartz

Professor Joseph Grundfest is quoted in an article in the New York Times analyzing the decisions of Supreme Court nominee Judge Sonia Sotomayor during her time on the Second Circuit Court of Appeals:

In the decade she has served on the Second Circuit Court of Appeals — the busiest appellate court for business and financial matters in the nation — Judge Sonia Sotomayor has authored some 150 civil and business cases and voted on hundreds more. But many lawyers and scholars who have examined her record closely say that her opinions in this field are unpredictable, and do not put her clearly in a pro- or anti-business camp.


And in a key property-rights case, Didden v. Village of Port Chester, Judge Sotomayor took part in a brief unsigned order from the Second Circuit in 2006. The order, which followed the Supreme Court’s major property-taking decision in Kelo v. City of New London, supported a town’s effort to seize property for the use of a developer. Richard A. Epstein, a conservative legal scholar at the University of Chicago, wrote in Forbes magazine that “American business should shudder in its boots if Judge Sotomayor takes this attitude to the Supreme Court.”

Other legal scholars argue, however, that for any case that conservatives deplore, there is a counterexample. For example, Joseph A. Grundfest, a former commissioner of the Securities and Exchange Commission, contrasted the Merrill Lynch case with a similar one in which Judge Sotomayor voted on the company’s side. Taken together, he said, the two cases suggest that “this judge can’t be neatly pigeonholed as pro-plaintiff or pro-defendant in securities litigation matters.”