Scouting Sotomayor

Since President Obama nominated Sonia Sotomayor for the Supreme Court on Tuesday, the judge's philosophy has been among the top stories on every news program. Her judicial history has been of so much interest that CNN has even replaced its news crawl with a scrolling description of Sotomayor's decisions during her time as judge. All that everyone wants to know is where she stands on various issues and whether or not she will shift the political leanings of the court. So, in an effort to stay in line with everyone's interests, here are a few links to summaries of Sotomayor's rulings as an appellate judge:

Appellate Opinions in Civil Cases (The most useful link in my opinion.)
Opinions with Dissent I
Opinions with Dissent II
Opinions with Dissent III
Opinions with Dissent IV

I'd advise you to read through the links on your own and form your own opinion, but, based on my perspective, it seems that Sotomayor is not heavily predisposed to either the left or the right. After looking at some basic biographical information on another reliable website (just kidding; it was Wikipedia), it seems that Sotomayor has had an appropriate education in law for a Supreme Court Justice. The most recently appointed justice, Samuel Alito, for example, went to Princeton University (with membership in Phi Beta Kappa) and then Yale Law School. Sotomayor graduated from Princeton with not only membership in Phi Beta Kappa, but also summa cum laude distinction. Then, like Alito, she graduated from Yale Law School. However, Sotomayor became an editor for the Yale Law Journal, which is a very impressive achievement. In terms of experience, Sotomayor was a judge for a federal district for 6 years and spent nearly 11 years in an appellate court. Another recently appointed justice, John Roberts, spent only about 2 years as a federal district judge. In other words, Stomayor's educational and judicial experience are sufficient when compared to those of the judges appointed under Bush.

Since Sotomayor has the education and experience necessary to be a Supreme Court Justice, the only thing left to check is whether or not her judicial philosophy is desirable. After going through the previously listed links, only 2 things stood out to me:

1) She has never directly handled a case about the extent to which the government can restrict abortion rights. The only relevant case she dealt with was Center for Reproductive Law and Policy v. Bush, which was based on whether or not the "Mexico City Policy", also known as the "Global Gag Rule," was constitutional. Sotomayor ruled that the policy would not be overturned on the grounds that the Center for Reproductive Law and Policy was acting on behalf of foreign groups, rather than itself, and that the federal government is allowed to use spend money on "the anti-abortion position" if it so chooses. This decision, though, seems to be based more on foreign policy rights than with abortion rights. Based on that case, one probably couldn't figure out whether or not she is pro-choice, but I'd have to assume that she was asked about her position prior to being officially nominated or that she will be asked directly when she is questioned by the Senate.

2) She seems to favor plaintiffs in cases where the plaintiff is suing based on what he or she perceives as discrimination. This relates to the whole issue of empathy vs. pure legal interpretation. However, there have been a fair number of instances where she has rejected allegations of discrimination against the defendant. This gives the impression that she displays this "empathy," but she isn't going to rubber stamp every claim of discrimination.

Even though this post is already starting to get a little lengthy, I still haven't covered the other issue that's been getting lots of attention: Sotomayor's race. Sotomayor is, of course, Hispanic, so this could influence whether or not she gets confirmed. Based on her race, her upbringing as the daughter of immigrants, and her time spent growing up in an area with a large Hispanic population, one would expect her to be able to perhaps understand the problems of people who aren't able to protect their rights, an attribute Obama showed interest in during a previous debate. This ability would be desirable and it could add some diversity to the court.

However, when all is said and done, Sotomayor's background is unimportant when one looks purely at which judge would be best for the court. After all, if ethnic background does, in fact, influence the way in which a judge rules, that influence should be present in her past judicial rulings. Therefore, in the ideal world, nobody would even pay attention to a nominee's race when deciding whether or not he or she is the most appropriate judge for the Supreme Court. Rather, the decision should be based on whether or not past rulings have reflected the traits that one would have wanted (or not wanted) in a nominee. With regard to Sotomayor, this means that a Hispanic woman would be expected to empathize with women and minorities, but the veracity of this expectation can only be based upon her past rulings, not just by looking at her ethnicity.

That being said, outside of official government business, I have been a bit shocked from the racism I've seen from both sides of the political spectrum. I've seen people from the left essentially use the race card to defend the selection, essentially calling it racist whenever someone criticizes Sotomayor. For example, one blogger wrote, "The argument that [Sotomayor's] 'stupid' is both gendered and racialized — no white man with her legal pedigree would be called 'stupid,' but you can bet that a man of color would." Essentially, this blogger's argument is that calling a political figure "stupid" is racist and that such an insult is reserved for minorities. The obvious flaw with this logic, other than the use of speculation, is that this term is constantly used for white men. For example, George W. Bush attended Yale University, Harvard Business School, and spent 6 years as governor of Texas before becoming president, and I can assure you that I'm not the only one who calls him "stupid." I'm not going to list every single example, but the general message I've gotten is that many on the left are blindly dismissing concerns from the right as racist. In reality, criticizing Sotomayor can be racist, but criticism of her is in no way inherently racist, as some have implied.

Meanwhile, on the right, there have been legitimate cases of racism. Some have called Sotomayor an affirmative action appointment. But as I explained in my earlier, Wikipedia-based description, she has an educational and judicial background that's at least equal to that of other Supreme Court justices, so such claims are clearly unfounded. The other type of complaint coming from the right deals with sound bites, specifically refusing to understand anything about Sotomayor beyond a single sound bite. Take for instance the whole idea of wanting a justice with empathy. Many conservatives, including Michael Steele, head of the GOP, have used sound bites like this to justify their belief that Obama wants someone who's empathetic without any regard for that person's knowledge of the legal system. The problem with this view is that it's just an example of either willful ignorance or intellectual laziness. The fact is that Obama does care about one's understanding of law as well, as shown by the same sound bite when shown in context.

The second way in which conservatives are using a sound bite to justify disapproval relates to Republicans' constant fear of Activist Judges^TM. According to conservatives, there's nothing worse than a judge who overturns pre-existing political philosophies. If a judge ever does his or her job by overturning unconstitutional laws, that judge is, in their minds, single-handedly controlling the legal system, removing power from the people. (These judges are not to be confused with Socially Responsible Judges^TM, who are identical to Activist Judges^TM except that they rule in favor of conservative policies.) So, what's this have to do with sound bites? As it turns out, many conservatives are complaining about a comment Sotomayor made back in 2005, as shown in this video. The problematic sound bite was, of course, "...court of appeals is where policy is made." This quote gives the appearance of judicial activism, but if you clicked on the link and saw her say the line, it's very obvious that she didn't mean that literally. After all, the context of the speech seemed to be a situation where she was explaining why her job is a fulfilling career option, a situation where any speaker would be expected to exaggerate the perks slightly. Furthermore, if you listen to what she says immediately after saying the line, it's incredibly obvious that she understands that her off-the-cuff remark wasn't well-worded. With that in mind, the argument that Sotomayor is an unfit judge because of a statement she made 4 years ago doesn't make much sense.

The final way in which conservatives are criticizing Sotomayor is based upon a comment she made while speaking at Berkeley Law School in 2001: "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." There is no question in my mind that this statement, when standing alone, is unquestionably racist on the grounds that it asserts that the culture surrounding a Latina woman makes her better than a White man when it comes to judicial decision-making. Anytime one asserts that people from one culture and/or gender are inherently superior to those of another, that statement is prejudiced. Quite frankly, it's disturbing to see otherwise liberal people refuse to admit that the comment in and of itself was inapproprate. (To be fair, when taken in context, which means in response to an assertion that a man and a woman would be expected to come to identical conclusions and then going on to clarify her own statement, Sotomayor's comment is somewhat less offensive. But that does not excuse those who don't present the quote in context and still argue that there's no way it could be construed as offensive.) At the same time, it's absurd that conservatives are claiming that this quote alone is reason enough to categorize Sotomayor as a racist and discount the entirety of her legal career. (Seriously, go to any conservative blog with an entry on Sotomayor, and if there are a decent number of comments, there'll be several people expressing this sentiment.) In essence, their claim is that because Sotomayor made this single, isolated comment, it somehow proves that she is a racist. Even a somewhat respected politician, Tom Tancredo, admitted on air that he wanted to see Sotomayor get rejected without even bothering to look at her judicial history, purely because she made a single gaffe. Now, if a former congressman is too lazy to look up her credentials, and instead chooses to rely on a single line the judge said, how much research do you think the average American will do?

But all things considered, I expect Sotomayor to be confirmed. Democrats will support their own president's decision and Republicans cannot afford to reject her out of fear of a more liberal nomination or of alienating Hispanic voters. So, if my predictions are correct, race will end up benefitting Sotomayor in the Senate confirmation process. As for the sound bite issues, they won't be a huge deal. After all, if Clarence Thomas could get by with the whole pubic hair on a Coke can incident, surely Sotomayor can get by with 2 poorly worded sentences.