Sonia Sotomayor Confirmation Hearings Coming

Supreme Court Justice nominee Sonia Sotomayor will be facing confirmation hearings this week. Her confirmation is assured, but this is an opportunity for Republicans to shine a light on the Constitution and the dictates within which a sitting SCOTUS Justice is suppose to conduct him/herself. Those parameters do not include empathy or personal experience. The law is the law and the requirement of a Justice is to judge laws according to the Constitution. How would Sonia Sotomayor conduct herself as a Justice? Here are her words:

“I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion [as a judge] than a white male who hasn’t lived that life.”

“Yet, because I accept the proposition that, as Judge Resnik describes it, ‘to judge is an exercise of power’ and because as, another former law school classmate, Professor Martha Minnow of Harvard Law School, states ‘there is no objective stance but only a series of perspectives—no neutrality, no escape from choice in judging,’ 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.”

“Judge [Miriam] Cedarbaum [of the federal District Court in New York]… 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. Whatever the reasons… we may have different perspectives, either as some theorists suggest because of our cultural experiences or as others postulate because we have basic differences in logic and reasoning…”

“Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. 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. First… there can never be a universal definition of wise. 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.”

“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.”

“All of the legal defense funds out there, they’re looking for people with Court of Appeals experience. Because it is — Court of Appeals is where policy is made. And I know, and I know, that this is on tape, and I should never say that. Because we don’t ‘make law,’ I know. [Laughter from audience] Okay, I know. I know. I’m not promoting it, and I’m not advocating it. I’m, you know. [More laughter] Having said that, the Court of Appeals is where, before the Supreme Court makes the final decision, the law is percolating. Its interpretation, its application.”

Judge Sotomayor appears willing to expand constitutional rights beyond the text of the Constitution and many of her statements strike me as racist against white men. The most direct example of her ideas on judicial activism can be found in her decision in Malesko v. Correctional Services Corp., 229 F. 3d 374 (2d Cir 2000), rev'd 534 U.S. 61 (2001). In that case, Judge Sotomayor attempted to expand the liability of individual federal agents who violate constitutional rights to include corporations. In a 5-4 decision, the U.S. Supreme Court reversed the Second Circuit's decision. Chief Justice Rehnquist noted that the plaintiff was "seek[ing] a marked extension of Bivens, to a context that would not advance Bivens' core purpose of deterring individual officers from engaging in unconstitutional wrongdoing." Correctional Services Corp v. Malesko, 534 U.S. 61 (2001).

She also was recently overturned by the SCOTUS in her decision to not rule on Ricci v. DeStefano in which white firefighters and one Hispanic firefighter did not have test results for a promotion counted because no black firefighters passed the test. Her decision to not rule in the case left the firefighters without promotions and thus the case continued to the SCOTUS.

Judge Sotomayor does not support U.S. sovereignty and wrote in a foreword to a book called The International Judge: An Introduction to the Men and Women Who Decide the World's Cases, that she believes foreign case law and statutes have a role in the adjudication of U.S. cases. And her track record with the SCOTUS is not positive either. She has drawn criticism and only received 11 out of 44 possible votes for her reasoning in five cases not including the Ricci case, which now brings her to 15 out of 53.

This woman should not be confirmed, but our hands appeared to be tied.