There is nothing in Supreme Court nominee Sonia Sotomayor’s professional or personal background to lead someone to conclude she is a great friend of the business community.
But, more importantly, there is nothing in her background to conclude that she has any legal animosity toward business. From that limited standpoint, Sotomayor’s impending appointment to the court should be no cause for concern.
As a member of the U.S. 2nd Circuit Court of Appeals in New York, she certainly is no stranger to business cases. But it is difficult to pigeonhole her given her record.
She voted in favor of Major League Baseball players in a 1995 dispute against owners, then nine years later supported National Football League owners in a dispute over the eligibility of a former college football star.
Sotomayor ruled in favor of TWA after the 1996 crash of Flight 800 off Long Island, concluding that the crash took place in international waters. The decision, which was in the minority on the appeals court, would have limited the damages against the airline and parts manufacturer.
The decision “is clearly a legislative policy choice, which should not be made by the courts,” she wrote.
To be sure, she has voted against business interests. In 2001, she joined a 2-1 decision by the 2nd U.S. Circuit Court of Appeals conferring class-action status on an antitrust suit by merchants against the nation’s largest credit-card companies.
She twice upheld large punitive damage awards as constitutional despite their size. As a federal trial judge in 1999, Sotomayor upheld a $1.25 million punitive award to the victim of on-the-job sex discrimination and retaliation.
Stanford law professor Joseph Grundfest, a former Securities and Exchange Commission member, recalled for the Los Angeles Times two securities cases Sotomayor handled in which investors brought suits. She sided with the plaintiff in a class-action suit against Merrill Lynch and with the defendant in the other, rejecting millions of investors’ claims to recoup money lost during the dot-com bust.
“She cannot be called pro-business or pro-plaintiff,” Grundfest told the Times. “She doesn’t come into the case with any preconceived notions.”
Michael Greve, a senior fellow at the conservative American Enterprise Institute, told the Times that while Sotomayor’s approach is not pro-business, “she is not somebody who has animosity toward business.”
The U.S. Chamber of Commerce has said it is in the midst of reviewing her record before it makes a recommendation.
In her hearings last week, Sotomayor, 55, addressed the importance of law in business transactions.
“In business, the predictability of law may be the most necessary, in the sense that people organize their business relationships by how they understand the courts interpret their contracts,” she said.
Her testimony was “music to my ears,” Roy Englert, a Washington, D.C. appellate lawyer who has represented the U.S. Chamber of Commerce before the Supreme Court, told Bloomberg News. “Businesses are very adaptable to law changes, but what they have a hard time with is uncertainty and unpredictability in the law.”
Sotomayor was nominated to replace retired Justice David H. Souter, who in many cases was not friendly to business.
Stephen Bainbridge, a UCLA law professor, told the Times, “Business will find her to be an available vote, where Souter was not so available.”
Given the political leanings of the president who nominated her, the business community can’t ask for much more.
