The hearings on the confirmation of Sonia Sotomayor for the Supreme Court heated up yesterday. The outcome previously was thought not to be in doubt and there was speculation that she might even match Chief Justice John Roberts’ 78-vote total. But then she came before the Senate Judiciary Committee and began to tell one “jaw-dropper” (as a U.S. senator labeled one of her answers) after another, raising doubts about her credibility.
And it is not just conservatives who are disturbed. The Washington Post’s Eva Rodriguez, who had touted Sotomayor’s nomination, wrote: “I’m surprised and disturbed by how many times today Sonia Sotomayor has backed off of or provided less-than-convincing explanations for some of her more controversial speeches about the role of gender and ethnicity in judicial decision-making.” Indeed, that this the question of the moment: is Sotomayor being honest with the Senate?
From the Left, liberal law professor Louis Michael Seidman called her out for pretending to believe in something no liberal in good standing does: the ability of judges to apply the law to the facts before them. He decried her hypocrisy:
I was completely disgusted by Judge Sotomayor’s testimony today. If she was not perjuring herself, she is intellectually unqualified to be on the Supreme Court. If she was perjuring herself, she is morally unqualified. How could someone who has been on the bench for seventeen years possibly believe that judging in hard cases involves no more than applying the law to the facts? First year law students understand within a month that many areas of the law are open textured and indeterminate-that the legal material frequently (actually, I would say always) must be supplemented by contestable presuppositions, empirical assumptions, and moral judgments. To claim otherwise-to claim that fidelity to uncontested legal principles dictates results-is to claim that whenever Justices disagree among themselves, someone is either a fool or acting in bad faith. What does it say about our legal system that in order to get confirmed Judge Sotomayor must tell the lies that she told today? That judges and justices must live these lies throughout their professional careers?
Perhaps Justice Sotomayor should be excused because our official ideology about judging is so degraded that she would sacrifice a position on the Supreme Court if she told the truth. Legal academics who defend what she did today have no such excuse. They should be ashamed of themselves.
Whether or not one agrees with Seidman’s legal philosophy, there is plenty of reason to conclude, as Rodriquez did, that Sotomayor was being less than honest in her testimony. Many of Sotomayor’s misstatements were blatant and easily revealed. For example, Sotomayor testified on Tuesday in explaining her “wise Latina” speech that she had agreed with Justice Sandra Day O’Connor, who expressed the view that a wise old woman and wise old man would reach the same decision in deciding cases. In fact, Sotomayor said the opposite:
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 [Sandra Day] 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.