Strikes against Sotomayor


Obama with Judge Sotomayor


President Barack Obama's SCOTUS nominee Sonia Sotomayor has a long judicial record as both a U.S. District Court judge in New York and a federal Court of Appeals Judge on the 2nd Circuit.  Like many others around the country, we will be looking into her judicial record for indications of whether Judge Sotomayor has upheld her oath to "support this Constitution" as the "supreme Law of the Land," as the Constitution states in Article VI.  Early indications show she is an activist and mostly (but not entirely) liberal judge.  More to follow as her judicial career is scrutinized further.

More troubling than her judicial opinions, or at least more readily available, are a few statements made by Judge Sotomayer sans her judicial robe.  First, is a video available on YouTube in which Sotomayer is speaking on a panel at Duke Law School in 2005 and she notes that legal defense fund groups like to hire appellate court judges because "Court of Appeals is where policy is made."  She immediately backpedals, notes (or remembers) that she is being taped, and then dismissively utters that "we don't make law, I know," and that "I'm not promoting and I'm not advocating it. Okay."  Her demeanor and flustered attitude demonstrates that she knows she has "stepped in it" with such a comment, however much she tried to back away from it.  The laughter of the audience seems to confirm it.

Second, Sotomayor wrote in a Berkeley law journal that she rejected a judicial proverb that "a wise old man and wise old woman will reach the same conclusion in deciding cases."  Sotomayor countered:

I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.

Lest this be considered an out-of-context extraction, consider this passage a few paragraphs later:

Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.

Thus, Sotomayor not only acknowledges that her own sex and ethnicity will affect her judicial decisionmaking, but that being a Latina woman makes her a better judge than a "white male" who "hasn't lived that life."

In Justice Joseph Story's Commentaries on the Constitution (1833), he warned,

"Without justice being freely, fully, and impartially administered, neither our persons, nor our rights, nor our property, can be protected."

By her own account, Sotomayor prides herself on letting her personal experience and race make her partial in her administration of justice—and thinks herself a superior jurist for having done so.

As a blatant corruption of the judicial role Sotomayor's comments ought to appall but not surprise.  After all, this is exactly the type of judge Obama promised to nominate, one with life "experience" that would display "empathy" for one side of a controversy over another:

"We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom, the empathy to understand what it's like to be poor, or African American, or gay, or disabled, or old. And that's the criteria by which I'm going to be selecting my judges."

These may be the qualities of an effective "community organizer" but they are the antithesis of the "blind justice" we should expect from the judiciary.

Sotomayor certainly had a difficult early life as the daughter of poor Puerto Rican immigrants raised in New York City.  Her successes are an inspiring example of what the American dream has to offer.  These experiences do not, however, make her any more (or less) qualified to sit on the Supreme Court or any other bench.  Her failure to understand that, combined with her view that courts "make policy," may, however, disqualify her.

The issue is not the life she's lived but rather the law she's followed or flaunted.  Sotomayor should be as closely scrutinized and questioned by Republican and Democratic Senators as much as any ole "white male" would be.

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