Conservatives are understandably chagrined at the nomination of Sonia Sotomayor to replace Supreme Court Justice David Souter. She is horrible on the Second Amendment. She is antagonistic toward business. And on it goes. But this, after all, is what one expects from a liberal Democratic president. What one shouldn’t expect is a justice who doesn’t believe in judging per se and, even more troubling, doesn’t believe in racial equality, at least not as most Americans understand it.
This is what should be the focus of her confirmation hearings.
On the judging front, the president let it be known he’s out for empathy — that is, the business (one supposes) of picking the “deserving” litigant and then finding the legal hook to justify the decision (because of course judges really aren’t supposed to do that sort of thing.) In what will be “Exhibit A” on the list of things a Supreme Court aspirant doesn’t want to say, Sotomayor was captured on tape with these morsels of wisdom:
Um, all of the legal defense funds out there, um, they’re looking for people out there with court of appeals experience, because court of appeals is where policy is made. And I know, I know this is on tape and I should never say that because we don’t make law, I know. Um, um — [laughter] — I know. I’m not promoting it, I’m not advocating it, and, I’m … you know. [laughter]
The Senate might wonder whether this is a glimpse into her theory of jurisprudence or simply an example of poor judgment and taste.
In either case, one wonders what she thinks her job entails. The president is clear: it’s about fishing out the neediest, the most downtrodden, and the least powerful. The Supreme Court is composed, in his view, of nine community organizers who are out to right wrongs, regardless of their assigned task. (That task, for those who have forgotten, is to interpret the statutes and constitutional provisions which are before the Supreme Court and to render justice equally and impartially to all who come before it.) Does Sotomayor share Obama’s view, while intending to deceive litigants and the country about her legal reasoning which always (wow, like magic!) arrives at the “right” result?
And that brings us to the second substantial concern about Sotomayor. Stuart Taylor writes:
“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.” — Judge Sonia Sotomayor, in her Judge Mario G. Olmos Law and Cultural Diversity Lecture at the University of California (Berkeley) School of Law in 2001.
The above assertion and the rest of a remarkable speech to a Hispanic group by Sotomayor — widely touted as a possible Obama nominee to the Supreme Court — has drawn very little attention in the mainstream media since it was quoted deep inside the New York Times on May 15.
It deserves more scrutiny, because apart from Sotomayor’s Supreme Court prospects, her thinking is representative of the Democratic Party’s powerful identity-politics wing.
Sotomayor also referred to the cardinal duty of judges to be impartial as a mere “aspiration because it denies the fact that we are by our experiences making different choices than others.” And she suggested that “inherent physiological or cultural differences” may help explain why “our gender and national origins may and will make a difference in our judging.”
We are thus presented with a Supreme Court nominee who seems to doubt her own ability to render impartial decisions (must she recuse herself on a regular basis, then?) and the fundamental premise of our government — the part about “all men are created equal.” (Does she, like Reverend Wright, also believe “African and African-American children have a different way of learning”?) One wonders what candidate Obama would have said during the campaign about such a stark repudiation of the inherent intellectual equality of Sotomayor’s fellow citizens.
And this outlook extends beyond a single speech. This philosophy has permeated her work as a dogged advocate for racial preferences on campus and as an appellate judge as well. She played a critical role in the New Haven firefighter case (Ricci v. DeStefano) which makes clear her views on racial discrimination. In that case she voted with the majority of the Second Circuit to reject the claim of Frank Ricci, a white, dyslexic firefighter, who struggled for a top grade on a promotion exam, only to have the test thrown out because no African Americans achieved a top score.
Sotomayor did not merely vote against Ricci’s claim. Taylor explains that after the district court dismissed Ricci’s claim, Sotomayor did her best to nix his claim — and then to also foreclose his opportunity to appeal the case:
A three-judge panel of the U.S. Court of Appeals for the 2nd Circuit affirmed the dismissal, in a process so peculiar as to fan suspicions that some or all of the judges were embarrassed by the ugliness of the actions that they were blessing and were trying to sweep the case quietly under the rug, perhaps to avoid Supreme Court review or public criticism, or both. …
So were the three 2nd Circuit judges who heard the initial appeal, including Sonia Sotomayor, who is touted by liberal and Hispanic groups as a leading candidate for an Obama appointment to the Supreme Court. The three-judge panel initially deep-sixed the firefighters’ appeal in a cursory, unpublished order that disclosed virtually nothing about the nature of the ideologically explosive case.
Then the Circuit’s more conservative judges got wind of the case. They sought to have it reheard by the full Appeals Court but lost in a 7-6 vote.
Her actions raised the ire of her colleague Jose Cabranes (a Clinton appointee) who questioned why Sotomayor’s panel had issued its initial “perfunctory” opinion with no mention of the hot-button constitutional issues which were clearly germane to the case. The case is now before the U.S. Supreme Court. Court watchers at the oral argument opined that the Court seemed ready to reverse the Second Circuit’s decision and thereby deal a blow to Sotomayor’s scheme to deprive Ricci of both his promotion and his day in court.
Even Richard Cohen, hardly a conservative, suggested (before Sotomayor’s nomination) that Ricci is a test of sorts:
Blatant affirmative action always entailed a disturbing and ex post facto changing of the rules — oops, you’re white. Sorry, not what we wanted. As a consequence, it was not racists who were punished but all whites. There is no need to cling to such a remedy anymore. There is, though, every need to retain and strengthen anti-discrimination laws, especially in areas such as fire departments, where racial discrimination was once endemic. Sufficient progress has been made to revert to treating individuals as individuals. After all, it is not some amorphous entity called “whites” who will suffer: It is un-lieutenant Ricci.
[. . .]
Ricci is not just a legal case but a man who has been deprived of the pursuit of happiness on account of race. Obama’s Supreme Court nominee ought to be able to look the New Haven fireman in the eye and tell him whether he has been treated fairly or not. There’s a litmus test for you.
Ricci highlights then two troubling aspects of Sotomayor’s judging: a contempt for colorblind equality and a view that the rule of law is simply an inconvenience to be sidestepped on the road to some grander vision of social justice (presumably one which doesn’t entail judging citizens according to the content of their character).
So rather than chase down the many strains of Sotomayor’s questionable jurisprudence or bemoan the fact that she offends conservative sensibilities in so many ways, conservative activists and Republican senators would do well to focus on two issues. Does she believe in the rule of law? And does she believe in equality — that is, the right to be judged according to one’s merit and adherence to the view that race does not determine one’s intellectual ability or moral value?
If there is any possibility the answer to either is “no” then the Senate should — indeed must — reject her nomination.