Federal Courts and Nominations

The Sotomayor Puzzle


As one who had hoped for a moderately liberal, intellectually honest nominee and feared the possibility of an unprincipled left-liberal ideologue steeped in identity politics, I am having trouble figuring out Judge Sonia Sotomayor.


Sen. Lindsey Graham, R-S.C., captured my own puzzlement when he told Sotomayor on Tuesday that although her 17-year judicial record struck him as “left-of-center but within the mainstream, you have these speeches that just blow me away…. Who are we getting here?”


Graham was talking mainly about a succession of at least five very similar speeches between 1994 and 2003 in which Sotomayor appeared to glorify ethnic and gender identity repeatedly at the expense of the judicial obligation to be impartial and suggested that “a wise Latina woman” would be a better judge than “a white male”.


In response to questions such as Graham’s, Sotomayor and her supporters have touted her judicial decisions as proof that she has been a solid, impartial judge.


They have a point. Sotomayor’s more than 3,000 mostly unremarkable rulings have not been ultra-liberal, have not displayed any broad pattern of bias in race or gender cases, and have closely followed precedent.


Ordinarily, a judge’s record on the bench is the best guide to what she would do on the Supreme Court. She has also lived an admirable life.


But how persuasive were Sotomayor’s efforts to explain away those jarring speeches? Below I juxtapose excerpts from a typical speech — in October 2001, to an audience of Hispanic activists and others at the University of California (Berkeley) — with portions of her testimony on Tuesday and Wednesday.


* Berkeley speech: “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”.


Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., purporting at one point to quote this sentence, could not bring himself to quote it correctly. He omitted the words “a better conclusion than a white male” and inserted “wise decisions” in their place.


* Testimony: “I do not believe that any ethnic, racial, or gender group has an advantage in sound judging…. [I did not intend] to say that we could really make wiser and fairer decisions”.


Sotomayor added that the “wise Latina” line had been “a rhetorical flourish that fell flat,” one intended to inspire young Latinos by telling them “that our life experiences do permit us to see some facts and understand them more easily than others.” Her word choice, Sotomayor added, “was bad because it left an impression that I believe that life experiences commanded a result in a case.” She did not explain why she repeated the same rhetorical flourish so many times or why her way of inspiring young Hispanics was to suggest that they are “better” than white males.


* Berkeley speech: “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 that I agree with the statement”.


* Testimony: “The words that I used, I used agreeing with the sentiment that Justice Sandra Day O’Connor was attempting to convey. I understood that sentiment to be that both men and women were equally capable of being wise and fair judges”.


* Berkeley speech: “Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less than [a colleague], our gender and national origins may and will make a difference in our judging”.


* Testimony: “There are in the law — there have been upheld in certain situations that certain job positions have a requirement for a certain amount of strength or other characteristics that maybe … a person who fits that characteristics and have [sic] that job…. I certainly wasn’t intending to suggest that there would be a difference that affected the outcome. I talked about there being a possibility that it could affect the process of judging”.


* Berkeley speech: “[The same colleague] believes that judges must transcend their personal sympathies and prejudices…. Although I agree with and attempt to work toward [that] aspiration, I wonder whether achieving that goal is possible in all or even in most cases. And I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society”.


* Testimony: “What I was speaking about … is, life experiences … can affect what we see or how we feel…. But I wasn’t encouraging the belief or attempting to encourage the belief that I thought that that should drive the result.” She also said that “as a judge, I don’t make law” and “I apply the law to facts, not feelings to facts”.


* Berkeley speech: “We who judge must not deny the differences resulting from experiences and heritage but attempt … continuously to judge when those opinions, sympathies, and prejudices are appropriate [emphasis added]”.


* Testimony: “I was talking about the very important goal of the justice system … to ensure that the personal biases and prejudices of a judge [never] influence the outcome of a case”.


Read in full context, the more provocative assertions in Sotomayor’s speeches are often hedged, ambiguous, and sometimes internally inconsistent. But taken as a group, they appear — to me, at least — to suggest a leftist agenda that has not so far characterized her judicial record as a whole.


Sotomayor was stunningly frank in spurning Obama’s oft-stated philosophy that justices should be guided by “empathy”.


On the other hand, Michael Seidman, a liberal law professor at Georgetown law school, declared himself “completely disgusted” with Sotomayor’s testimony. In an online Federalist Society debate, Seidman explained: “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 [she] possibly believe that judging in hard cases involves no more than applying the law to the facts? First-year law students understand [that] the legal material … must be supplemented by contestable presuppositions, empirical assumptions, and moral judgments”.


Also interesting is an observation by another liberal expert, Doug Kendall of the Constitutional Accountability Center: “Judge Sotomayor’s approach obscures rather than illuminates very real differences between progressives and conservatives about the meaning of the Constitution and the role of a Supreme Court justice…. Empathy, perspective, and understanding pretty much went out the window”.


Indeed, Sotomayor was stunningly frank in spurning President Obama’s oft-stated philosophy that justices should be guided by “empathy” and their “hearts” in deciding the hardest cases. “I wouldn’t approach the issue of judging the way the president does…. Judges can’t rely on what’s in their heart…. The job of a judge is to apply the law”.


If I can bring myself to believe that the real Sotomayor is the unalarming judge suggested by her testimony and judicial record, I will support her nomination — but without enthusiasm, because of three major misgivings that her testimony did nothing to allay.


The first concerns her dismissive rejection last year of the reverse-discrimination lawsuit by firefighters in New Haven, Conn., who had done well on qualification tests but were denied promotions because blacks had not done well. That — like some of her pre-judicial work — suggests an agenda of extending and perpetuating de facto racial quotas.


My second misgiving is that from 1980 to 1992 — when Sotomayor was a very active member of the Puerto Rican Legal Defense and Education Fund’s board and (for several years) of its litigation committee — the PRLDF’s litigation agenda included filing multiple lawsuits challenging job-qualification tests as racially discriminatory; seeking racial gerrymandering of election districts; attacking laws against Medicaid funding of abortions as akin to slavery; and the like. That’s too left-activist for my taste.


My third is that despite her stellar academic record, Sotomayor’s judicial opinions, speeches, and confirmation testimony show her to be a highly capable legal mind but less than brilliant.


But pro-quota bias does not, alas, put Sotomayor outside the liberal mainstream. Nor did her work with the PRLDF, which was part of the liberal establishment and often successful in litigation. And she would hardly be the first less-than-brilliant legal mind to sit on the Supreme Court.


That leaves me with my doubts about the sincerity of Sotomayor’s testimony. If they persist, I will be left with two alternative theories to reconcile her speeches with her judicial record.


The first is that the speeches expose her as a left-liberal ideologue whose judicial decisions will show her true colors once she has the unique power of a Supreme Court justice, relatively unconstrained by binding precedents or by a higher court’s supervision. But it would require almost superhuman self-discipline for a judge to spend 17 years hiding her real agenda to give her a better shot at a Supreme Court seat.


The second theory is that she would be a restrained justice and that her more provocative off-the-bench remarks were either ill-considered efforts to inspire young Hispanics or, perhaps, carefully considered efforts to impress the activists to whom any Democratic president would look for guidance in choosing the first Hispanic Supreme Court nominee.


Which is the real Sonia Sotomayor? And is she honest enough?


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