Janet Napolitano Joe Arpaio

Napolitano and Arpaio

WASHINGTON (By Ginger Thompson, NYT) May 19, 2009 — The day before she mounted her first campaign for public office, Janet Napolitano, then a federal prosecutor, held a news conference with one of the most polarizing figures in law enforcement: Sheriff Joe Arpaio of Maricopa County.

Ms. Napolitano had her sights set on a run for Arizona attorney general. Sheriff Arpaio had been under investigation by the Justice Department because of accusations of inhumane and degrading treatment of prisoners, including excessive use of stun guns and pepper spray, using tents as holding cells, and requiring detainees to work on chain gangs and wear pink underpants.

An independent investigation had found evidence of abuses, but at the news conference, Ms. Napolitano announced that her department’s inquiry had been suspended after reaching a deal with Sheriff Arpaio to improve conditions at the jail.

 

“You can either spend the taxpayer dollars getting something resolved,” Ms. Napolitano said, according to news reports, “or you can spend it litigating over when you can depose someone.”

Sheriff Arpaio, who drew broad support from law-and-order conservatives and remains the focus of civil rights scandals, went on to support Ms. Napolitano’s political ambitions. And Ms. Napolitano went on to become a wildly popular Democrat in a state dominated by Republicans, winning one election as attorney general, two as governor and an appointment as President Obama’s homeland security secretary.

But now that she has landed on the short list of people being considered to succeed Justice David H. Souter on the Supreme Court, those old alliances are raising questions about whether her commitment to upholding the law is driven as much by political consideration as strictly legal ones.

To some, the fact that she has never been a judge makes Ms. Napolitano a long shot for the high court. To others, her success in elected office — putting pragmatic compromise ahead of ideology or standard partisan lines — gives her just the kind of real-world experience setting policy and reaching consensus that Mr. Obama might seek to add to a court filled entirely by former federal appellate judges.

 

Ms. Napolitano’s résumé looks a lot like Earl Warren’s did when President Dwight D. Eisenhower nominated him 56 years ago. However, if history is a guide, it would suggest that Chief Justice Warren’s time on the court, while momentous, was not at all what Eisenhower had hoped for.

Although Ms. Napolitano, 51, is widely praised for having an open mind, sharp analytical skills, and a deep understanding of the law, critics say her sensitivity to political winds could make her similarly unpredictable.

As homeland security secretary, she has faced Republican outrage for an intelligence assessment that characterized war veterans as potential threats.

Her liberal critics see her record on immigration enforcement and worry although she describes herself as a moderate, she is more prone to lean toward the right — and the likes of Mr. Arpaio — than to the left.

“She seems malleable” said Michael Ratner, executive director of the Center for Constitutional Rights. “That doesn’t suggest she’d position herself as a strong liberal on the court,” Mr. Ratner said. “It doesn’t say that’s not how she’d position herself. But we just don’t know.”

To be sure, Ms. Napolitano has held firmly to certain positions, and as governor she used her veto power more than any of her predecessors.

But to map those positions is to zigzag the partisan divide.

Ms. Napolitano is as staunchly in favor of abortion rights as she is pro-death-penalty, which has been the focus of cases she has argued before the Supreme Court and the International Court of Justice. She was against Arizona’s “Victims’ Bill of Rights,” before running for office, and changed her position after working with victims as a federal prosecutor.

Immigration, Arizona’s hottest issue, seems where Ms. Napolitano is most all over the map. As governor, she played down the effectiveness of building walls, but called for the deployment of the National Guard along the border. She pushed through some of the country’s toughest sanctions against employers who knowingly hire illegal immigrants.

Ms. Napolitano takes pride in defying easy labels. Her supporters said her positions reflect clear-minded and nuanced assessments of problems, that she sees good ideas in people on both sides of the political divide, and she is driven less by ideology than by a determination to achieve results.

“Being a leader who reaches out to people of both parties doesn’t mean you’re a weak leader,” Ms. Napolitano said in a speech two years ago. “It doesn’t mean you’re a pushover. It doesn’t mean you cave to pressure. It doesn’t mean you’re not serious about your principles and your values. And it doesn’t mean you go along to get along.”

Ms. Napolitano is so action-oriented — as governor, she ticked off a project to accomplish each year — that some wonder whether the Supreme Court would be a good fit for her.

“She’s obviously very smart and she’s obviously a great lawyer,” said Larry Hurwitz, who argued against Ms. Napolitano before the Supreme Court in Ring v. Arizona, and whom Ms. Napolitano as governor later appointed to be chief justice of the Arizona Supreme Court. “But she’s an action person. She’s an executive. Is the court the best use of her talents? That’s a question she’ll have to answer.”

In just four months as secretary of homeland security, she has made changes in border security, immigration enforcement and led the government’s response to the swine flu outbreak. She has never talked about aspiring to join the court, friends say.

Born in New York and raised in New Mexico, where her father was a scientist, she was thrust onto the political stage not long after graduating from the University of Virginia Law School when she was among the team of lawyers who defended Anita Hill during the highly-charged confirmation hearings for Justice Clarence Thomas.