As I’m sure you know, President Obama has nominated Judge Sonia Sotomayor to replace Justice David Souter on the Supreme Court. Prior to making his selection, President Obama said this:
“I view that quality of empathy, of understanding and identifying with people’s hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes.”
You can see the full video here. Let’s talk for a minute about the concept of “empathy” in a Supreme Court Justice. Have you ever seen a picture of Lady Justice? Take a look:
This is the typical picture of Lady Justice holding the scales. Does anyone notice what she’s wearing besides that oh so sexy robe and a smile? Yes, the even sexier blindfold, which matches nicely with her sword. Now I ask you: How does she show empathy with a blindfold on? Hmmmm? I know, I know, Lady Justice is some invention of a bigoted white guy who wants an excuse to screw over anyone HE doesn’t like. Well, let’s pretend that’s not true. Let’s pretend that Lady Justice reflects more than 200 years of American jurisprudence tradition, since that’s far closer to the truth. Lady Justice was a graphical representation of how we all expect to be judged. The facts are weighed without prejudice and decisions are made according to the law.
But, apparently, this is a concept unfamiliar to President Obama. That’s a little frightening, considering he used to teach Constitutional law at the University of Chicago!!
Regardless, “empathy” is now a requirement for a Supreme Court Justice. And it looks like President Obama found her. Judge Sonia Sotomayor is someone who has made a career out of telling anyone and everyone who will listen that she feels it is her background that makes her fair and not her judicial reasoning. I’ll get to that in a moment. Let’s start by looking at her judicial record – is she qualified?
A quick glance at her Wikipedia profile shows quite a resume. Certainly from an experience point of view, she’s qualified. What do her colleagues say about her? Well, according to an article by Jeffrey Rosen in The New Republic, it’s a mixed bag. Those who worked for her think she was great. They have lots of nice things to say about her. Those who worked for other judges on the Second Circuit seem to have a different opinion. Some of the comments are quite interesting:
“not that smart and kind of a bully on the bench”
“She has an inflated opinion of herself, and is domineering during oral arguments, but her questions aren’t penetrating and don’t get to the heart of the issue.”
You can’t always trust these kind of comments. Professional jealousy can sometimes play a role, especially if those who worked FOR her, like her. But it’s certainly worth noting.
What about her legal decisions? According to Mr. Rosen’s research, her decisions aren’t all that impressive to those she works with. One example cited from the article is, “In 2001, for example, a conservative colleague, Ralph Winter, included an unusual footnote in a case suggesting that an earlier opinion by Sotomayor might have inadvertently misstated the law in a way that misled litigants.” In addition, National Review Online has an article detailing her being overturned by the Supreme Court. Apparently, she has had five cases reviewed by the Supreme Court over the years. A whopping three of those five cases have been overturned! Ok, that’s not professional jealousy, that’s bad law!
So her qualifications alone are suspect, but let’s look at her philosophy. There are a couple of things that give us pause. First, in 2005 at Duke University, Ms. Sotomayor said that, “Court of Appeals is where policy is made.” (It’s fun to watch the video of her making this comment. She realizes she let the cat out of the bag and quickly tries to put it back in.) That’s why we have LEGISLATORS! Legislators make the policy because they are the ones who are accountable to the voters. If judges, who are appointed, are left to make policy from the bench, they have no accountability. There’s no way to overturn their ruling unless they contradict themselves. Alternatively, Congress or the state legislatures would have to make new law prohibiting the enforcement of this new policy from the court. This is what we call judicial activism. It flies in the face of how our government was constructed and is something eagerly practiced by left-wing advocates. They know they can’t get their ideas passed by law because the overwhelming majority of Americans are conservative, whether they are Republican or Democrats. Most people live their lives as conservatives, with conservative principles.
Second, there’s the very troubling comment from a 2001 speech at Berkeley in California. You may have heard it, here it is:
“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.”
Ok, everybody take a breath. (And by everybody, I mean me!) Wow, this is inflammatory! It goes right back to the issue of empathy. She believes, according to this quote, that a wise Latina woman would be more fair, right? Is this what she’s saying? Obviously, if a white man were to say this about a Latina woman, he would not only be disqualified from being a Supreme Court judge, but would be ostracized from society. Does anyone remember what happened to Trent Lott for saying something WAY more innocuous about Strom Thurmond? On the occasion of Mr. Thurmond’s 100th birthday, Mr. Lott said that, “we wouldn’t have had all these problems over the years” if Mr. Thurmond had been elected President in 1948. In 1948, Mr. Thurmond was a Dixiecrat and a segregationist. This comment, although immediately apologized for, led to Mr. Lott’s resignation as Majority Leader in the Senate.
When the quote from Ms. Sotomayor surfaced, Robert Gibbs, the White House spokesman, said that he thought, “if she had the speech to do all over again, I think she’d change that. . .” Well, she did have the speech to do over again. In fact, she’s given many speeches over the years and it turns out she didn’t change that. According to Congressional Quarterly, she “delivered multiple speeches between 1994 and 2003 in which she suggested ‘a wise Latina woman’ or ‘wise woman’ judge might ‘reach a better conclusion’ than a male judge.”
So does this mean, as Rush Limbaugh says, that she’s a racist? A sexist? Well, I’m not going to go as far as Rush and say she’s a racist. I think that word is thrown around far too easily. I would say that her world view is certainly racially biased and probably gender biased. Does this mean she’s disqualified from being a Supreme Court Justice? Probably! I certainly don’t want someone on the bench who’s going to look first at who’s standing before her and only then take a look at the facts of the case. The real question here is does her judicial philosophy affect her decisions?
I’m glad you asked! Right now one of her cases is before the Supreme Court. It will be decided before she sits on the bench, if she does. The case is Ricci v. DeStefano. In the case, Frank Ricci, who is a New Haven, CT, firefighter, took a test for a promotion along with 77 other firefighters back in 2003. Ricci is white and he and 16 other white firefighters, along with one hispanic, all passed the test and should have been considered for promotion. The problem is that none of the black candidates passed the test so the city of New Haven decided not to promote anybody for fear of cries of discrimination. Now they are embroiled in a case of reverse discrimination.
Ricci is a dyslexic who bought his own copy of the books he can’t read and paid a friend $1000 to record audio tapes of the books needed to study. He also quit a second job to allow more time to study. This is a case I know a little something about since I live in CT. I was in a bar the other night and happened to strike up a conversation with an EMT who had some very strong feelings about this case. He is adamant that this is not a case of discrimination. He points out that although the books are expensive, every firehouse has a set of the needed books which are available to study from. He believes there is no discrimination here, just politics.
Ms. Sotomayor wrote the decision which upheld the city’s decision not to promote. I have read the summary of Title VII of the Civil Rights Act of 1964 (the law being cited here), and there is nothing that prevents the promotion in this case as long as the test has been evaluated by an impartial board for racial bias, and it has. So the test has been vetted, the books are available, and even a dyslexic has been able to pass it. If the test is biased against anyone, it’s biased against him!
So here you have a case where race is clearly at issue and she decides in favor of the minority race, even though it has been shown that every precaution has been taken to avoid prejudice. I’d say she considers race when she sits on the bench. Clearly, this is just my opinion.
So what are we left with? Her resume is strong, colleagues have mixed opinions of her, and she has said some racially charged things. I think we can do better than this in our Supreme Court Justices. Having said all this, unless she says something outrageous at her hearings or some other information comes to light, she is going to be confirmed. The Republicans are powerless to stop a racially biased, judicial activist from being confirmed. Elections have consequences. VOTE!