Will Sotomayor Be the New Rutledge?

As some academics and court watchers wonder whether Judge Sonia Sotomayor is a first-rate intellect or a legal visionary, I couldn't help but think back to Franklin Roosevelt's selection of Wiley Rutledge for the Supreme Court in 1943. Few analogies are perfect, but consider some similarities. Rutledge, like Sotomayor, was a sitting judge on the federal court of appeals. Although he served on the D.C. Circuit, he spent many years West of the Mississippi and was touted as a diversity candidate—i.e., he would improve geographic diversity to the Supreme Court. Additionally, Rutledge found himself pitted against other candidates, most notably Learned Hand, with strong advocates (including Felix Frankfurter) hoping for a brilliant addition to the High Court.

Supporters of Rutledge, including Francis Biddle, needed to counter Learned Hand's stellar legal bona fides. They made three arguments to Roosevelt and others. First, at 71, Learned Hand was too old to have a significant impact on the Supreme Court. Beyond presidential legacy, some also argued that appointing a someone advanced in years exposed FDR to charges of hypocrisy after his court-packing initiative.

Second, Rutledge had the chops to do the Court's business. A memorandum by Herbert Wechsler arranged by Biddle argued that Rutledge's legal opinions were sometimes overwritten, but nevertheless demonstrated a "soundness of judgment, a searching mind, a properly progressive approach to legal issues."

Third, as John Ferren recounts, Rutledge came to be perceived as a "trusty liberal." What, exactly, did that mean? The obvious part is that he would not wreck the New Deal, something Wechsler pointed out. But I think it meant something more to liberals within the administration hoping to make more inroads on questions of civil rights and liberties. Wechsler pointed out "civil liberty problems" among those Rutledge handled as a judge, and concluded that "his work leaves no room for doubt that these values are safe in his hands." Biddle described Rutledge as "a liberal who would stand up for human rights, particularly during a war when they were apt to be forgotten."

Today Rutledge is never mentioned in the same breath as Cardozo, Brandeis, or Holmes. But consider what he achieved in his six years on the Court. Rutledge authored Thomas v. Collins, an overlooked decision involving union organizing that provided an important link between the solitary speaker model of free expression and the group advocacy model that we now recognize. He voted to overrule Gobitis. On those occasions Robert Jackson or Hugo Black preferred a narrower reading of the First Amendment, such as Jones v. City of Opelika or Terminiello v. Chicago, Rutledge often provided an important vote for free speech protections. He authored Kotteakos v. U.S., which helped define "harmless error" review in criminal appeals involving non-constitutional claims. Rutledge dissented in Everson v. Board of Education, arguing that the Establishment Clause forbade public funds to be spent on transporting children to parochial schools. However, he joined Black's majority opinion in Korematsu v. U.S. upholding the wartime internment of persons of Japanese ancestry.