Given the balance of votes in the Senate, it seems unlikely that President Obama's nomination of liberal appeals judge Sonia Sotomayor can be derailed. In replacing David Souter she will fill one of the four liberal seats. With 17 years on the federal bench and a few thousand opinions, to say nothing of speeches, Sotomayor is the opposite of Souter, of whom Teddy Kennedy feared might be "a Bork without a paper trail." Farther than the truth about Souter that was Teddy no one proved to be.
"A Latina Judge's Voice" (prints at 8 pages) is a speech given by Sotomayor in 2001, and expresses her view of how her heritage and background endow her with superior qualifications as a judge. She goes on for pages with detailed numbers on the percentage of women and various minority groups on the various federal courts. And then come these nine closing paragraphs:
"That same point can be made with respect to people of color. No one person, judge or nominee will speak in a female or people of color voice. I need not remind you that Justice Clarence Thomas represents a part but not the whole of African-American thought on many subjects. Yet, because I accept the proposition that, as Judge Resnik describes it, "to judge is an exercise of power" and because as, another former law school classmate, Professor Martha Minnow of Harvard Law School, states "there is no objective stance but only a series of perspectives - no neutrality, no escape from choice in judging," I further accept that our experiences as women and people of color affect our decisions. The aspiration to impartiality is just that--it's an aspiration because it denies the fact that we are by our experiences making different choices than others. Not all women or people of color, in all or some circumstances or indeed in any particular case or circumstance but enough people of color in enough cases, will make a difference in the process of judging. The Minnesota Supreme Court has given an example of this. As reported by Judge Patricia Wald formerly of the D.C. Circuit Court, three women on the Minnesota Court with two men dissenting agreed to grant a protective order against a father's visitation rights when the father abused his child. The Judicature Journal has at least two excellent studies on how women on the courts of appeal and state supreme courts have tended to vote more often than their male counterpart to uphold women's claims in sex discrimination cases and criminal defendants' claims in search and seizure cases. As recognized by legal scholars, whatever the reason, not one woman or person of color in any one position but as a group we will have an effect on the development of the law and on judging.
"In our private conversations, Judge Cedarbaum has pointed out to me that seminal decisions in race and sex discrimination cases have come from Supreme Courts composed exclusively of white males. I agree that this is significant but I also choose to emphasize that the people who argued those cases before the Supreme Court which changed the legal landscape ultimately were largely people of color and women. I recall that Justice Thurgood Marshall, Judge Connie Baker Motley, the first black woman appointed to the federal bench, and others of the NAACP argued Brown v. Board of Education. Similarly, Justice Ginsburg, with other women attorneys, was instrumental in advocating and convincing the Court that equality of work required equality in terms and conditions of employment.
"Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O'Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. 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. (Italics mine.)
"Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case. I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown.
"However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Other simply do not care. 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.
"I also hope that by raising the question today of what difference having more Latinos and Latinas on the bench will make will start your own evaluation. For people of color and women lawyers, what does and should being an ethnic minority mean in your lawyering? For men lawyers, what areas in your experiences and attitudes do you need to work on to make you capable of reaching those great moments of enlightenment which other men in different circumstances have been able to reach. For all of us, how do change the facts that in every task force study of gender and race bias in the courts, women and people of color, lawyers and judges alike, report in significantly higher percentages than white men that their gender and race has shaped their careers, from hiring, retention to promotion and that a statistically significant number of women and minority lawyers and judges, both alike, have experienced bias in the courtroom?
"Each day on the bench I learn something new about the judicial process and about being a professional Latina woman in a world that sometimes looks at me with suspicion. I am reminded each day that I render decisions that affect people concretely and that I owe them constant and complete vigilance in checking my assumptions, presumptions and perspectives and ensuring that to the extent that my limited abilities and capabilities permit me, that I reevaluate them and change as circumstances and cases before me requires. I can and do aspire to be greater than the sum total of my experiences but I accept my limitations. I willingly accept that we who judge must not deny the differences resulting from experience and heritage but attempt, as the Supreme Court suggests, continuously to judge when those opinions, sympathies and prejudices are appropriate.
"There is always a danger embedded in relative morality, but since judging is a series of choices that we must make, that I am forced to make, I hope that I can make them by informing myself on the questions I must not avoid asking and continuously pondering. We, I mean all of us in this room, must continue individually and in voices united in organizations that have supported this conference, to think about these questions and to figure out how we go about creating the opportunity for there to be more women and people of color on the bench so we can finally have statistically significant numbers to measure the differences we will and are making."
The nominee's defenders will try to put all sorts of context-saving interpretations on this speech. I can only urge LFTC readers, if not satisfied with my 9 paragraphs excerpted, to take a few minutes and read the entire speech. This was a major address at a major event, not a casual utterance. It is a statement of her deeply-held beliefs on a major topic of concern.
Washington Post columnist Ruth Marcus, no righty she, says that efforts to explain away the judge's Latina remark do not hold water. George Will, perhaps the finest non-lawyer analyst on Supreme Court matters, pegs the Latina lady as an "identity justice" candidate. Will excerpts a telling quote from Thurgood Marshall, the African-American lawyer (a great one) and Supreme Court Justice (an energetic liberal activist) and wonder if the nominee accepts it: "You do what you think is right and let the law catch up." In an earlier column Will reported crisply on the April oral argument in a case involving reverse discrimination against white firefighters in New Haven, Connecticut; white job applicants with higher test scores were denied promotions (fixed 1 PM, 6/1). Will notes that Chief Justice John Roberts asked a pointed question about whether New Haven could hire whites with lower exam scores than blacks and not get sued. Here is the April 22, 2009 Supreme Court oral argument transcript in the New Haven firefighter case, Ricci v De Stefano.
Terry Eastland, highly expert in judicial matters, shreds 44's "empathy" criterion for picking judges. Michael Barone wonders if the judge's style--and lack of intellectual heft--will impair her ability to influence other Supremes, should she win elevation. Put another way, would she be a mere vote, like the Justice, David Souter, she may replace; or would she provide the influential voice to sway others, that 44 wants? If she is just a vote, trading her for Souter is mostly a wash.
Charles Krauthammer notes that Judge Sotomayor was one of the appeals judges who ruled against the white applicants, and argues for GOP senators making the case against Sotomayor on principle. CK then says the GOP should vote to confirm Sotomayor--solely on the grounds that Presidents are entitled to appoint Justices who reflect their views. Nice, but a symbolic losing vote against Sotomayor is needed if the party is to explain to voters why her style of judging is unacceptable. Voters draw broad, not nice, distinctions, and procedural arcana sail by the vast majority. Jed Babbin at Human Events adds that Sotomayor is a member of the National Council of La Raza (the race"), a radical leftist Hispanic activist group that leads the cause of legalizing illegal immigration.
LA Times columnist Gregory Rodriquez illustrates the absurd thicket of racial politics, noting that most Hispanics identify themselves not as "Latino"--or "Latina" as Sotomayor does--but by country of origin; he adds that with 65 percent of Hispanics living in the US being of Mexican descent, the all-encompassing label Latino/Latina helps smaller Hispanic groups like Puerto Ricans, who are 10 percent of American Hispanics, and Cubans, who are 4 percent, but may not help the Mexican majority. GR fears that elevating a Puerto Rican to Associate Justice may make elevation of a Mexican-American to the Supreme Court less likely in the future--the Hispanic slot having been seen as filled. Can anything else better illustrate the insanity and incoherence of a racial spoils system?
WSJ pundit Kim Strassel dredges up history President 44 would rather forget: 44's statements about Clarence Thomas, as to ethnicity and legal qualifications:
The president, after all, had taken great pains to explain that this is more than an American success story. Rather, it is Judge Sotomayor's biography that uniquely qualifies her to sit on the nation's highest bench -- that gives her the "empathy" to rule wisely. Judge Sotomayor agrees: "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion [as a judge] than a white male who hasn't lived that life," she said in 2001.
If so, perhaps we can expect her to join in opinions with the wise and richly experienced Clarence Thomas. That would be the same Justice Thomas who lost his father, and was raised by his mother in a rural Georgia town, in a shack without running water, until he was sent to his grandfather. The same Justice Thomas who had to work every day after school, though he was not allowed to study at the Savannah Public Library because he was black. The same Justice Thomas who became the first in his family to go to college and receive a law degree from Yale.
By the president's measure, the nation couldn't find a more empathetic referee than Justice Thomas. And yet here's what Mr. Obama had to say last year when Pastor Rick Warren asked him about the Supreme Court: "I would not have nominated Clarence Thomas. I don't think that he was a strong enough jurist or legal thinker at the time for that elevation."
In other words, nine months ago Mr. Obama thought that the primary qualification for the High Court was the soundness of a nominee's legal thinking, or at least that's what Democrats have always stressed when working against a conservative judge. Throughout the Bush years, it was standard Democratic senatorial practice to comb through every last opinion, memo, job application and college term paper, all with an aim of creating a nominee "too extreme" or "unqualified" to sit on the federal bench.
There is more in KS's excellent column.
Bottom Line. What to make of this? First, Judge Sonia Sotomayor regards all choices as purely relative in principle, in that they are determined by one's perspectives. Second, she sees women and minorities a better at surmounting their biases because of their life experiences--being discriminated against, etc. Third, despite her genuflection to all choices being purely relative in principle, she trusts herself to choose better in practice than would white males.
Which leaves one question for me: Does Judge Sotomayor believe that her perspective as a Latina gives here superior insight into how to decide cases involving al-Qaeda detainees, all of whom allege unfair treatment?
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