June 05, 2009

Sotomayor Questionnaire Raises New Questions

CFJ Executive Director Curt Levey on the release of Sonia Sotomayor’s Judiciary Committee questionnaire and related documents:

Yesterday’s release of Judge Sotomayor’s Senate questionnaire conclusively puts the lie to President Obama’s assertion that he is "sure she would have restated" her now famous 2001 remark in Berkeley, CA 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.” Ditto for Robert Gibbs’s earlier assertion that "if she had the speech to do all over again, I think she'd change that word." The Associated Press summarized the evidence to the contrary found in the released documents:
“Obama has said he is ‘sure she would have restated it.’ In fact, she said it almost precisely the same way in speeches to the Princeton Club in 2002 and one at Seton Hall law school in 2003, according to copies she sent the Senate.”
Not only did Sotomayor repeat her controversial claim about racial and gender superiority in 2002 and 2003, but the documents released yesterday reveal she also made similar claims – substituting “wise woman” for “wise Latina woman” – in a 1999 speech to the Women's Bar Association of New York State and in a 1994 speech to the Conference on Law Reviews.

Now that the attempts to explain away Sotomayor’s statements are no longer plausible, there will inevitably be questions about what Obama and Gibbs knew about the 1994, 1999, 2002, and 2003 speeches and when they knew it. Were their untrue assertions in defense of Sotomayor the result of poor vetting or an attempt to mislead the press and public?

Moreover, Sotomayor’s work as a Puerto Rican activist – from the time she was a Princeton undergraduate to her 12 years on the board of the Puerto Rican Legal Defense and Education Fund – now becomes relevant fodder for questions by Senate Judiciary Committee members. A judicial nominee should ordinarily be afforded the presumption that activism before joining the bench is not relevant to fitness for the bench. Sotomayor would deserve that presumption if her Berkeley remark were really an offhand comment she regretted. However, that presumption cannot logically survive Sotomayor’s repetition of the remark and the similar remarks she has made – for example “I further accept that our experiences as women and people of color affect our decisions [as judges].” (Berkeley 2001)

In other words, since Sotomayor believes that the “richness of her [Latina] experiences” make her a better judge, it is only logical to question her about those experiences. As an illustration, here’s an obvious question for a Judiciary Committee member to ask Sotomayor concerning her controversial decision in Ricci v. DeStefano, which upheld the discarding of results of a New Haven promotional exam on which only one black or Hispanic firefighter qualified for promotion:
While you served on the board of the Puerto Rican Legal Defense and Education Fund, it sued New York City, claiming that promotional exams for police officers had an adverse impact on blacks and Hispanics. Did that experience, and any empathy you may have felt for the minority officers, influence your opinion in Ricci v. DeStefano or otherwise lead to a better decision than a white judge would have made?
The fact that Sotomayor’s remarks naturally raise such questions makes one wonder if those remarks run afoul of Canon 2 of the Code of Conduct for United States Judges, which states that a judge “should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Of particular concern is the conclusion Sotomayor draws from her ethnocentric, experience-based theory of judging. In the Berkeley speech, she concludes that
“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.”
It’s difficult to see how that statement promotes public confidence in the impartiality of the judiciary. Ed Whelan notes that an April 2009 Sotomayor speech released yesterday, in which she repeatedly extols the election of Barack Obama, also presents a Canon 2 problem (see link below).

The same can be said for another one of the released documents, a Suffolk University law review article written by Sotomayor while she was a federal trial judge. In it, she rails against “private money play[ing] such a large role in [election] campaigns” and suggests “strict, well-enforced regulation, to ensure that politicians are not inappropriately influenced.” Ask yourself if a citizen challenging campaign finance reform in her court could have confidence that she would impartially decide the case.

I don’t believe that Judge Sotomayor intended to violate Canon 2 or undermine confidence in the judiciary. But I do believe that her loose lips problem, exhibited time and again, is indicative of Sotomayor not fully comprehending the profound difference between her role as a activist prior to 1992 and her role as a judge since then. Her blurring of the two roles is reason enough to oppose her elevation to the Supreme Court.