May 28 (Bloomberg) -- Over the past two years, Judge Sonia Sotomayor has come face-to-face with two of the most controversial topics in U.S. law: racial preferences and the right to bear arms. In both cases, she tried to duck a fight.

Sotomayor’s handling of those cases will be an issue as the Senate considers her nomination by President Barack Obama to the U.S. Supreme Court. In each, Sotomayor joined two other judges to produce a few sentences of legal reasoning, opting not to make broader arguments that might have influenced other courts.

Sotomayor’s supporters point to the cases as examples of judicial restraint. Her detractors say Sotomayor, 54, was trying to divert attention from the cases, hoping to prevent Supreme Court review and possibly enhance her resume for a promotion.

“It makes me wonder whether she’s just cautious by nature or whether she was already thinking about being appointed to a higher court,” said Curt Levey, executive director of the Committee for Justice in Washington and a critic of the Sotomayor nomination. He said Sotomayor might have been “covering her tracks” by limiting the scope and prominence of the opinions.

Overall, Sotomayor’s record on the 2nd U.S. Circuit Court of Appeals in New York suggests she isn’t afraid of controversy. Last week she issued an opinion backing a challenge to a county jail’s requirement that new inmates strip naked in front of others while changing into prison clothes. She chose not to ask her colleagues to delay the decision though Obama was then considering whether to nominate her.

Confirmation Battle

Still, the race case in particular will loom large in the confirmation battle because it is now before the Supreme Court. The justices are reviewing a decision by New Haven, Connecticut, to cancel planned promotions of city firefighters after no blacks scored well enough in testing to qualify. A group composed mostly of white firefighters who did well on the tests sued, saying they were victims of racial bias.

The case contains a wealth of legal issues, including the scope of the primary federal job-discrimination law, known as Title VII, and the meaning of the Constitution’s equal protection clause.

When the case came before a three-judge court that included Sotomayor, the panel nonetheless rejected the lawsuit with just a paragraph of discussion about those issues. The judges wrote that the city’s civil service board “was simply trying to fulfill its obligations under Title VII when confronted with test results that had a disproportionate impact.”

No Binding Precedent

The opinion at one point was labeled as a “summary order,” meaning it wouldn’t serve as binding precedent for future 2nd Circuit cases. The panel’s handling of the case drew criticism from Judge Jose Cabranes when the full 2nd Circuit voted not to review it.

The procedure used by the three-judge panel was “normally reserved for cases that present straightforward questions that do not require explanation or elaboration by the court of appeals,” Cabranes wrote. “The questions raised in this appeal cannot be classified as such, as they are indisputably complex and far from well-settled.”

In a conference call organized by the White House yesterday, legal experts defended Sotomayor’s handling of the New Haven case.

The ruling was “an example of her instincts for judicial restraint,” said William Marshall, a law professor at the University of North Carolina and former deputy White House counsel under President Bill Clinton. Summary orders are a common practice used by appeals courts to manage the thousands of appeals they decide every year, Marshall said.

Second Amendment

In the weapons case, Sotomayor this year joined two other 2nd Circuit judges in saying that the Constitution’s Second Amendment, which protects gun rights, restricts only the federal government and not the states. The Supreme Court left open that question when it ruled 5-4 last year in a case from the District of Columbia that the Second Amendment protects individual rights.

The opinion that Sotomayor joined came in a case involving nunchakus, or numchucks, a weapon made of two sticks connected by a rope. The panel pointed to an 1886 Supreme Court precedent that said the Second Amendment didn’t apply to the states.

Saying the high court should have “the prerogative of overruling its own decisions,” the panel used less than 400 words in discussing the Second Amendment.

Three months later, the San Francisco-based 9th Circuit disagreed, analyzing more recent Supreme Court decisions to conclude that the Second Amendment now binds the states. The lower-court conflict likely means the Supreme Court will ultimately resolve the issue.

‘Old Precedents’

“The liberal 9th Circuit ruled the other way,” Levey said. “You certainly can’t argue that based on old precedents it’s an easy question.”

Harvard Law School professor Martha Minow said Sotomayor’s panel “simply adhered to what the state of the law was at that time.” Sotomayor “neither reached out to extend the Second Amendment to the states, which the Supreme Court has not done, nor said the contrary is true,” Minow said.

In the prison strip-search decision, issued four days before Obama announced her nomination, Sotomayor dissented from a 2-1 decision rejecting an inmate lawsuit.

“The privacy interests protected by the Fourth Amendment do not become irrelevant merely because we use the nomenclature of ‘clothing exchange’ instead of ‘strip search,’” she wrote. She accused the majority of a “usurpation” of the trial judge’s duty to assess the facts of the case.

That side of Sotomayor -- willing to challenge more conservative colleagues -- ultimately may prevail on the Supreme Court, said Manuel Miranda, a former Senate Republican aide who heads the Washington-based Third Branch Conference, which favors conservative judicial nominees. He said Sotomayor so far “has carefully managed her career.”

Should she be confirmed to the high court, “It’ll be a completely different situation,” Miranda said. “She will always go head-to-head and will always do it forcefully.”

To contact the reporter on this story: Greg Stohr in Washington at gstohr@bloomberg.net.

Last Updated: May 28, 2009 00:01 EDT