Nominee’s Links With Advocates Fuel Her Critics

Sonia Sotomayor’s work as a board member of the Puerto Rican Legal Defense and Education Fund may become an issue during her confirmation hearings.

Vincent Laforet for The New York Times

Cesar A. Perales, the president of LatinoJustice PRLDEF, the former Puerto Rican Legal Defense and Education Fund.


May 29, 2009
Nominee’s Links With Advocates Fuel Her Critics
By RAYMOND HERNANDEZ and DAVID W. CHEN

In the 1980s, the Puerto Rican Legal Defense and Education Fund sued the New York City Police Department, claiming that its promotion exams discriminated against Latinos and African-Americans.

The fund, one of the advocacy groups pressing similar cases across the country, also helped redraw voting districts in the city that increased the number of Hispanic elected officials. The defense fund even sued a former Reagan administration official for defamation after he claimed that virtually all Puerto Ricans in New York received food stamps.

All those efforts were backed by the defense fund’s board of directors, an active and passionate group that included a young lawyer named Sonia Sotomayor, who this week was chosen by President Obama to join the country’s highest court.

Ms. Sotomayor’s involvement with the defense fund has so far received scant attention. But her critics, including some Republican senators who will vote on her nomination, have questioned whether she has let her ethnicity, life experiences and public advocacy creep into her decisions as a judge. It seems inevitable, then, that her tenure with the defense fund will be scrutinized during her confirmation hearings.

Curt Levey, executive director of Committee for Justice, a conservative legal group active in judicial nominations, said that “while it’s fine to let your Puerto Rican heritage influence — or any heritage for that matter — influence your positions when you’re on a board, it’s quite a different story when you’re a judge, and I wonder whether she knows the difference.”

Of course, it is not as if a lawyer and judge with a history of involvement in racial issues has not made it onto the Supreme Court. Thurgood Marshall, a fierce advocate for racial justice as a lawyer for the N.A.A.C.P., sailed onto the highest bench in the 1960s.

The White House, in a statement, emphasized Judge Sotomayor’s experience issuing more than 3,000 decisions from the bench and played down her influence on the board, saying that staff attorneys handled the cases. The White House also said that the case involving minority police officers had its origins in litigation that predated her arrival on the board.

Founded in 1972, the Puerto Rican Legal Defense and Education Fund, which recently changed its name to LatinoJustice PRLDEF, is a public-interest law group with its own long record of civil rights battles. Ms. Sotomayor joined its board in 1980 when she was a young prosecutor in Manhattan and fresh out of Yale Law School. It was full of young, idealistic Latino lawyers like her who were eager to make a mark.

“She just believed in the mission,” Luis Alvarez, a former chairman of its board, said of Ms. Sotomayor. “This was a highly refined group of individuals who came from the premier academic institutions. It was almost like Camelot. It was a wonderful growth period.”

But Ms. Sotomayor stood out, frequently meeting with the legal staff to review the status of cases, several former members said. And so across her 12 years on the board — she left when she was appointed a federal judge in 1992 — she played an active role as the defense fund staked out aggressive stances on issues like police brutality, the death penalty and voting rights.

The board monitored all litigation undertaken by the fund’s lawyers, and a number of those lawyers said Ms. Sotomayor was an involved and ardent supporter of their various legal efforts during her time with the group.

Its efforts helped bring bilingual education to public schools around the country. In 1981, the fund filed a lawsuit that prompted a federal court, on the eve of the city’s primary elections, to block voting in New York City. The suit, supported by Ms. Sotomayor and the rest of the board, alleged that the new City Council district boundaries diminished the influence of minority voters.

“It was a stunning victory,” recalled Cesar A. Perales, the defense fund’s president and general counsel, noting that the entire board embraced the effort. “Imagine you wake up and are going to vote and the headlines tell you, ‘No Election Today.’ ”

Ms. Sotomayor was part of a three-person committee of the board that recommended in 1981 that the fund oppose the reinstitution of the death penalty in New York State, according to board minutes from that time.

“Capital punishment is associated with evident racism in our society,” the panel wrote. “It creates inhuman psychological burdens for the offender and his/her family.”

Not every effort was a success. The lawsuit against the Reagan administration official, for example, was dismissed, and some former fund officials concede that publicity may have been a motivating factor in filing the suit.

One of the legal defense fund’s most important suits charged that a Police Department promotional exam discriminated against minority candidates. It was filed on behalf of the Hispanic Society of the New York police. The exams, the group charged, did not really measure the ability to perform in a more senior position, and were yielding unfair results: Too many whites were doing well, and too many Hispanics and African-Americans were not.

“We saw the lawsuit as a vehicle to level the playing field,” said Mr. Perales. “It’s important to understand that she and the rest of the board, in that context, shared the philosophy that we had to remove the barriers to the advancement of Latinos.”

The suit resulted in a settlement with the city that produced greater numbers of promotions to sergeant for Latino and African-American officers.

Some white officers, however, felt that the settlement was unfair. They said that many white officers had outscored their Hispanic and African-American counterparts, yet were not allowed to fill the spots because of quotas. They sued, and their case, Marino v. Ortiz, reached the Supreme Court, where it failed by a 4-to-4 vote in 1988.

Two decades later, as a federal appellate judge, Ms. Sotomayor was again forced by a volatile case to confront the issue of promotion tests and race. She and her colleagues on the United States Court of Appeals for the Second Circuit were asked to review a ruling on a claim by white firefighters in New Haven, Conn., that they had lost promotions because of their race — even though they had performed well on the Fire Department’s tests.

Judge Sotomayor voted to affirm the lower court’s dismissal of the case, and her ruling is behind some of the most intense debate about her selection. Mr. Levey said that the employment discrimination case filed by the defense fund on behalf of Hispanic police officers raised questions about Judge Sotomayor’s credibility in the New Haven case. “It adds to the conviction that this was not accidental, and that she had a very specific agenda here.”