Sotomayor Nomination

Judge Sonia Sotomayor has been nominated to succeed Justice Souter on the Supreme Court bench. Already the quotes are flying. Newsmax has embeded video of the arrogant statement about appeals courts making policy. Viewers can hear and see her telling “potential law clerks”:

“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. O.K. I know. I’m not promoting it. I’m not advocating it …“.

Policy is made by the President, law is made by the Congress and interpreted by the courts. The quoted statement displays both arrogance and an attitude of judicial activism, both of which should militate against this nomination to the Supreme Court.

Issues of racism & sexism may be less directly related to the appointment, but they do reflect upon judicial temperament. The New York Times has an interesting quote and links to an article with more details. At U.C. Berkeley, in ’01, Judge Sotomayor said this.

“While recognizing the potential effect of individual experiences on perception, Judge Cedarbaum nevertheless believes that judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law. Although I agree with and attempt to work toward Judge Cedarbaum’s 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.”

The issues of race & gender identity politics is clearly raised. So much for judicial objectivity.

“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 link above is to the fourth of five pages containing the transcript of the lecture. There is plenty of significant detail bearing on this issue; I encourage you to read it.

In the context of a law scholar’s quote, attributed to Justice O’Conor (doubted by Sotomayor), she expresses disagreement with a statement that a wise old man and a wise old woman would come to the same conclusion. This quote comes from the fifth page of the transcript.

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.”

With that, Judge Sotomayor threw objectivity out the window and took a firm stand on the race & gender platforms. The last two paragraphs give us a great deal to contemplate, including this.

“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.”

At the bottom of each page of the transcript, there is a menu linking to the other pages so that the two links I have furnished above give you access to the entire transcript. I encourage you to read it before advising your Senators how to vote on this nomination.

The ABA Journal has information about two of Sotomayor’s important cases. If you have the motivation and patience to delve into her decisions, visit SCOTUS Blog.