Sotomayor v. Obama
A pseudo confirmation conversion.
Jul 27, 2009, Vol. 14, No. 42 • By TERRY EASTLAND
Republicans were frustrated with Sotomayor inasmuch as they agreed with her rhetoric about judging but worried whether she actually believed what she was saying. They were mostly unable to find cases in which she had participated during her 17-year tenure as a federal judge that might call into question her declared approach to judging. One case they did query her on, persistently, was Ricci v. DeStefano, the now well-known New Haven case in which the city, acting on the basis of race, threw out test results that had they been certified would have led to promotions for high-scoring firefighters all but one of whom are white. Sotomayor sat on the three-judge panel that upheld the district court's summary judgment for the city, but the Supreme Court (just three weeks ago) reversed the panel, finding New Haven in violation of federal antidiscrimination law. If Sotomayor was siding with the city for reasons other than what she thought was a correct reading of the law, however, the Republicans could not prove that. They concluded that her record as a judge was "in the mainstream" (Senator John Cornyn) or at least "not . . . radical" (Senator Lindsey Graham).
A problem for Republican senators was that there seem to be two Sotomayors--not just the judge, but also a writer and speechmaker. And her writings and speeches, as Kyl put it, "appear to fit into what the president has described as this group of cases in which the legal process or the law simply doesn't give you the answer," and other grounds for decision may be used. When Republicans pressed Sotomayor about some of her off-the-bench statements, invariably she directed them back to her judicial record as the evidence showing she based her decisions only on the law.
The statement that most concerned Republicans was one she made not just once but on numerous occasions, in varying formulations. Here is how she put it in a 2001 lecture at the University of California Law School: "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." Within days of her nomination Sotomayor's advocates, including President Obama, were saying that it was "a poor choice of words." It was inevitable that Sotomayor, who spent 12 years on the board of the Puerto Rican Legal Defense and Educational Fund, would have to address that remark during the hearings. And she did, calling it "a rhetorical flourish that fell flat," a "play" on words that failed, and just plain "bad." Bad, she said; "it left an impression that I believed life experiences commanded a result in a case, but that's clearly not what I do as a judge."
It also left another impression, which she sought to erase in an exchange with Senator Leahy: "I want to state up front, unequivocally, and without doubt, I do not believe that any ethnic, racial, or gender group has an advantage in sound judging," adding, "I do believe that every person has an equal opportunity to be a good and wise judge regardless of their background or life experiences."
By the end of the hearings, though, it was apparent that Sotomayor remains committed to the advancement of certain groups. Rejecting "identity politics" as a description of some of her activities off the bench, she said her speeches have "embrace[d] the concept" of helping to promote the "interests" of certain groups (most of all, females and Americans of Puerto Rican descent). Here, in exchanges with Senator Graham, Sotomayor was conceding her own political involvements, which, not surprisingly--she is a Democrat after all--are to the left. She maintained that her work as a judge was different, a point that Graham accepted. "I thank you," she told Graham, "for recognizing that my decisions have not shown me to be an advocate on behalf of any group. That's a . . . a dramatically different question [from] whether I follow the law."
Doubtless the Senate will confirm Sotomayor. She is the first nominee of a popular president in his first year on the job, and the Senate is overwhelmingly of the president's party. These are optimal conditions for Senate approval. On the Court, she will join its liberal wing, but because she is replacing one of the liberals she will not change the Court's ideological composition. And the questions largely unprobed in the hearings--just what she understands law to be; how the Constitution is to be interpreted and applied; what, if any, role legislative history should have in the interpretation of statutes--will be answered case by case.