How does one ask questions of an Untouchable?
A host of Democrats, from U.S. Sen. Chuck Schumer to U.S. Rep. Nydia Velazquez to White House press secretary Robert Gibbs, have warned that critics should be very careful about how to talk about or question Supreme Court nominee Sonia Sotomayor, considering her Latina heritage. Nevertheless, her record is so replete with hugely controversial speeches and rulings, especially involving her strongly and oft-expressed views about the superior judging abilities of Latina women and the extra benefits due to certain ethnicities, that some senators rightly feel a duty to probe those controversies for the public’s benefit.
Fortunately, we already know what sorts of public statements about and questions for Judge Sotomayor, particularly for the Senate Judiciary Committee hearing, are presumptively valid. And we know that being somewhat repetitive is perfectly acceptable in order to really make the points and leave no room for error. Here are some of those presumptively valid comments:
1) This has no bearing on our view of her as a person. This is how we do it here, because many of us believe the views are more important or just as important or certainly very important… and we have to elicit those views. My worries about Judge Sotomayor’s record are based on statements she made, not based on that of any group…. In a way, unfortunately, her views seem to be an unfortunate stitching together of the worst parts of the most troubling judges we have seen thus far. I would say this, the one nominee she does not seem to resemble is Miguel Estrada….
We respect her candor. Candor is necessary, but not sufficient, at least in my view, in terms of approving a nominee. And I know that, and I have an expectation, that you will answer our questions about those views.
But I will say this, and I would caution my colleagues, it is just not enough to say, “I will follow the law.” Every nominee says that. And then we find when they get to the bench they have many different ways of following the law. And what I worry about, I do not like nominees too far left or too far right, because ideologues tend to want to make law, not do what the Founding Fathers said judges should do, interpret the law.
And in Judge Sotomayor’s case her beliefs are so well known, so deeply held, that it is very hard to believe, very hard to believe that they are not going to deeply influence the way she comes about saying, “I will follow the law,” and that would be true of anybody who had very, very deeply held views.
So a person’s views matter. There is a degree of subjectivity, especially in close cases and controversies on hot-button issues, and it is hard to believe that the incredibly strong ideology of this nominee will not impact how she rules if confirmed.
We will get into much of this when we have an opportunity to question the nominee, but I do want to take a moment to review some of the remarks that seem more disturbing that Judge Sotomayor has made and some of the more worrisome positions she has taken.
For a judge to set aside his or her personal views, the commitment to the rule of law must clearly supersede his or her personal agenda. That is something some can pull off, but not everybody can.
Based on the comments Judge Sotomayor has made on this subject, I have got some real concerns that she cannot, because she feels these views so deeply and so passionately.
I am deeply concerned that any man who comes before you, seeking to vindicate his rights, his constitutional rights as defined by the Supreme Court, will have a tough time finding objectivity with Sonia Sotomayor.
Judge Sotomayor has been one of the staunchest advocates of … efforts to roll back the clock, not just to the 1930s, but even to the 1880s, to an anti-gun decision in that decade.
She is an ardent supporter of an activist Supreme Court agenda…. It appears that only when the judge likes the outcome, she is on the States’ rights side….
She was the driving force behind the Norville case in which a nurse contracted a disability, took time off to deal with her illness, and when she returned found that in [alleged] violation of the ADA she had been demoted. Judge Sotomayor believed the State university hospital where she worked had every right to demote Ms. Norville [on at least two of her three claims]… and managed to convince two fellow judges to agree with her.
For me, Judge Sotomayor’s record screams “passionate advocate,” and doesn’t so much as whisper “judge.” I do not believe the ideological warriors, whether from the left or the right, should predominate on the bench. They tend to make law, not interpret law, and that is not what any of us should want from our judges.
I would close by just saying that this appears to be another nomination that will divide us, not unite us. More than any administration in history, this White House is choosing judges through an ideological prism. I am disappointed we have to… fight these nominees who are chosen more for their allegiance to a hard-line ideological agenda than any other factor.
Ms. Sotomayor, at least to this one member, has to go a long way before she will convince me, and I think many of us, that she will be a fair, down-the-middle dispassionate justice for all Americans.
I take it from these comments and others that you have made in the past few years, you believe that a judge’s ideology does at least in some circumstances drive how he rules on cases. I appreciate your candor in this regard, and the evidence supporting that position is more or less irrefutable now.
What is your opinion? We are just asking you your opinion.
I do not think it is enough, as I mentioned earlier, for us to simply hear you say, “I will follow the law.”
2) In a speech you gave in 2001, I want to quote something you said: “I wonder whether by ignoring our differences as men and women of color we do a disservice to law and society…. 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’.…
“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. … 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.”
You likewise said almost the exact same thing in 1994, quote: “I would hope that a wise woman with the richness of her experience would, more often than not, reach a better conclusion.”
3) A number of people have characterized your political philosophy. How would you characterize it?… Do you consider yourself a moderate liberal or one who is more liberal than most? Put yourself on the spectrum.
Where would you put yourself in terms of believing in the concept of equal rights before the law as opposed to special advantages for ethnic or racial minorities?
Traditionally States’ rights have been used to justify discrimination, particularly during the civil rights era and when it comes to questions like disabled Americans and their rights. Do you view States’ rights as often being the shelter that people who want to practice discrimination rush to?
Can you understand the anxiety and fear that many people have when they hear you argue about the opinion that Latina physiology and culture gives you an advantage and the many positions you have taken relative to the assertion of the special legal privileges for minorities?
I am white man myself, and I can understand how people who are not black or Latino would feel that this is a form of discrimination against them. And I would ask you, how do you reconcile then your admiration for Martin Luther King Jr.’s courage to stand up against discrimination against people of color and the fact that you seem to have an ambivalence when it comes to the whole question of asserting the rights of those who don’t happen to be a minority?
What I am asking you is: Do you not understand that that type of statement in a diverse society like America raises concerns of those who don’t happen to be of darker skin, that you are asserting an agenda of your own, a cultural belief of your own, inconsistent with the Fourteenth Amendment and Civil Rights Act’s prohibitions against any discrimination based on skin color, which we have honored since the Civil War?
4) All of us are impressed about your background and about the success that you have had in the private sector and also in the political sector, and obviously you bring a great deal of energy and talent to this particular position that you have at the present time, and we congratulate you on the nomination. Now, having said that, I think we have a very important responsibility to make sure that anyone that is going to serve on the courts is committed to the core values of the Constitution. And the way we do that, as you understand, is through this process and also reviewing the statements and comments that you have made. And over the period of time we have had a number of nominees who have been very effective advocates for positions that we differ with but have been approved by the Senate and who we have voted for.
I think the very legitimate issue in question with your nomination is whether you have an agenda; that many of the positions which you have taken reflect not just an advocacy but a very deeply held view and a philosophy, which you are entitled to have. But you are also not entitled to get everyone’s vote. If we conclude — in any particular vote we have a responsibility not to just be a rubber stamp for the Executive, but to make an independent judgment whether you have the temperament and also the commitment to interpret the law and also to enforce the law.
And I am troubled by these series — with the time that we have, the series of statements and all that they mean in terms of their significance on the public policy issues that are central to constitutional values.
5) I only raise this because we expect circuit court judges to be able to reach consensus with their colleagues as much as possible. Obviously in these cases you were unique … do you feel that you may be giving a signal that you might not be collegial enough to be on the court?
You have been criticized because of your personal views and your political philosophy, which are always open to question for any one of us, except that no matter what your personal views, no matter what your political philosophy is, you are expected to be a fair and impartial Federal judge if you are confirmed. What assurances can you give us that you would be that fair and impartial judge that people coming into your courtroom wouldn’t look at you and say, well, I am the wrong political party or I am the wrong political philosophy so I am not going to be treated fairly? What assurances would you give?
6) Is that an accurate quotation of yours?…. Is that one which would fall into the category that President Obama has commented on, you wish you had not made?
You are obviously a woman with a very distinguished record, summa cum laude undergrad and a graduate of Yale law school, and you are a very articulate witness. You have had a very distinguished career, and what arises as a point of concern is that when these questions come up and they are so very, very close, whether your own philosophical orientation will steer you one way as opposed to another. So could you give us a statement as to the prevailing principles on these decisions which go both ways and have a very hard time to see if somebody could find a clear path as to what the standard is?
There. That should do it. And if those questions and comments seem a little harsh, don’t worry. They clearly are well within bounds. If they weren’t, they why did liberal senators make those very remarks during the June 11, 2003 hearing on the appeals court nomination of Alabama’s then-attorney general, now 11th Court of Appeals Judge Bill Pryor?
Yep. Every word of the above statements/questions is taken directly from the transcript of that hearing, with the following exceptions: All of the words in bold print above are simple substitutions of exactly comparable words, such as “him” for “her” and “Judge Sotomayor” for “General Pryor”; or of virtually comparable words or concepts such as “the separation of church and state” for “prohibitions against any discrimination based on skin color” (the italicized part about gun rights is my own insertion for purposes of parallelism); or of excerpts from one controversial speech to excerpts from another controversial speech.
In the latter instance, the difference is that Sen. Dianne Feinstein took Pryor’s words grossly out of context — as would be evident to almost anybody who read the whole speech — while the portions of the Sotomayor speech excerpted in its place are utterly and completely and exactly the whole point of the whole speech, with arguments carefully developed in the rest of the speech to try to support the obvious and undeniable meaning of the excerpted portions.
In every case, the liberal senators’ statements as thus minimally altered can be applied directly and entirely truthfully to Judge Sotomayor. No exceptions. But unlike with the case of Bill Pryor, whose actual record contradicted the conclusions the liberal senators were trying to draw, Judge Sotomayor’s record largely supports the conclusions inherent in the statements above.
For the record, the speakers in order were senators 1) Chuck Schumer, 2) Dianne Feinstein, 3) Richard Durbin, 4) Edward Kennedy, 5) Patrick Leahy and 6) Arlen Specter.
Also for the record, it is entirely defensible to say that Judge Sotomayor’s decisions and speeches involving property rights, gun rights, equal rights for all races, and voting privileges of still-imprisoned felons, among other decisions, are such as to make not just conservatives but moderates and even moderate-liberals absolutely cringe, not just based on the results but on the legal “reasoning” and jurisprudential approach employed.
Judge Sotomayor deserves to be treated with respect – frankly, with far more respect that the liberal senators showed to Bill Pryor. But unlike Pryor, whose record as an advocate actually showed plenty of examples of judiciousness, Sotomayor’s record as a judge shows plenty of examples of what certainly look like policy advocacy. Advocacy of that sort is a good skill and can be a real character asset — but, as Senator Schumer said, it is exactly the last thing needed, and in fact should be seen as disqualifying, from a judge.