Child of Grievance

When Supreme Court Justice David Souter announced his June retirement, President Obama said he would nominate a replacement who had “empathy” for the people whose cases he heard, and brought “understanding” to the court.

Obama said, “I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a casebook; it is also about how our laws affect the daily realities of people’s lives — whether they can make a living and care for their families, whether they feel safe in their homes and welcome in their own nation.”

He has nominated Second Circuit Judge Sonia Sotomayor to become the first Hispanic on the court.

Sotomayor is the liberals’ equivalent of Harriet Miers. Only her most ardent supporters would claim she is of Supreme Court caliber or intellect. Ignoring her liberalism for the moment, she is the Harold Carswell unintellectual sort of judge that lawyers run into all the time.

Should we accept mediocrity in the cause of diversity? Obama has essentially said that Sotomayor was picked on the basis of race and gender. But most important to the confirmation process, she is sort of ideological judge Obama — and Biden, and Schumer and the rest – have always said they favored.

Both Obama and Senate Democrats are now warning that any significant criticism of Sotomayor is a huge political risk for Republicans. Obama says that the Senate should rush the confirmation process so that Sotomayor could be on the bench when the Court reconvenes in October.

But Senate Republicans must not allow the nomination to be rushed: this is a nominee who deserves every bit of investigation and scrutiny that the process allows, for she is not a child of poverty: Sotomayor is a child of grievance.

As a Princeton undergraduate, Sotomayor was the head of Acción Puertorriqueña, a Puerto Rican activist group.  According to a Washington Post report, in April 1973 she wrote and made a formal complaint to the U.S. Department of Health, Education and Welfare, accusing “…Princeton of an “institutional pattern of discrimination” in hiring “Puerto Rican and Chicano” faculty, as well as in admitting students from those ethnic groups.”

As a Yale law student, according to that Post report, she braced the dean of the school over allegedly discriminatory questions asked by a recruiter for a law firm and when she graduated, took a job with that firm while joining the board of the Puerto Rican Legal Defense and Education Fund.  That fund sought reform of the hiring processes in the New York police and fire departments. 

Given Sotomayor’s action in the New Haven firefighters case — about which more in a moment — this is a part of Sotomayor’s background that deserves the deepest inquiry by Senate Republicans.

In the days following her nomination, the media have been focused on the 2001 speech Sotomayor gave at the University of California Berkeley’s law school. The speech was published in the Berkeley La Raza Law Journal.

Judge Sotomayor is a member of the National Council of La Raza (“the Race”), one of the most radical activist groups pushing for legalization and citizenship for illegal immigrants.

In the quote that has attracted so much attention, Sotomayor said, “I would hope that a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn’t lived that life.”

President Obama has tried to walk that quote back, saying “I’m sure she would have restated it.”

The president’s spokesman, Robert Gibbs, went further: “I think she’d say that her word choice in 2001 was poor, that she was simply making the point that personal experiences are relevant to the process of judging.”

Just so. To Obama and — more importantly now — to Sotomayor, her personal experiences, her ethnic identity, is as important in reaching decisions as is the law.

There is no way to recast Sotomayor’s comment to make it better or even remotely appropriate for a judge to make. But it is not enough to look at one quote. The entire speech and Sotomayor’s record have to be examined in detail to understand Sotomayor’s judicial philosophy and temperament.

The speech was titled, “A Latina Judge’s Voice.” In it, she refers to herself as a Latina more than a dozen times and criticizes — at length — the small number of Latinos and Latinas who are among the federal judiciary.

Sotomayor said, “As of September 1, 2001, the federal judiciary consisting of Supreme, Circuit and District Court Judges was about 22% women. In 1992, nearly ten years ago, when I was first appointed a District Court Judge, the percentage of women in the total federal judiciary was only 13%. Now, the growth of Latino representation is somewhat less favorable. As of today we have, as I noted earlier, no Supreme Court justices, and we have only 10 out of 147 active Circuit Court judges and 30 out of 587 active district court judges. Those numbers are grossly below our proportion of the population. As recently as 1965, however, the federal bench had only three women serving and only one Latino judge. So changes are happening, although in some areas, very slowly. These figures and appointments are heartwarming. Nevertheless, much still remains to happen.”

Sotomayor’s fondness for racial and ethnic quotas is thus established. Which may explain the short shrift she gave white New Haven, Connecticut firefighters in the Ricci v. DeStefano case.

Sotomayor wrote the Circuit’s opinion in that case, all 134 words of it, summarily denying the appeal. And she did so without addressing any of the constitutional issues it raised.

Her colleague, Judge Jose Cabranes, wrote a dissent that leveled harsh criticism at Sotomayor’s decision, but in very measured terms.

Cabranes’ dissent says, in part, “The use of per curiam opinions of this sort, adopting in full, the reasoning of a district court without further elaboration, is normally reserved for cases that present straight-forward questions that do not require explanation or elaboration by the Court of Appeals. The questions raised in this appeal cannot be classified as such, as they are indisputably complex and far from well-settled.”

Sotomayor’s decision ignores questions of first impression, which are the most important province of a court of appeals.

Cabranes’ opinion examines them at length. One is a good starting point for the Senate Judiciary Committee.

Cabranes wrote, Sotomayor’s decision “…lacks a clear statement of either the claims raised by the plaintiffs or the issues on appeal. Indeed, the opinion contains no reference whatsoever to the constitutional claims at the core of this case, and a casual reader of the opinion could be excused for wondering whether a learning disability [Ed. Note: Ricci is dyslexic] played at least as much a role in this case as the alleged racial discrimination. This perfunctory disposition rests uneasily with the weighty issues presented by this appeal.”

Cabranes’ discomfort with Sotomayor’s work can be explained by another portion of Sotomayor’s 2001 speech.

Sotomayor said, “Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.”

But judges aren’t supposed to allow their personal experiences or biases to filter the facts. As my sainted law partner Billy Butterfield always said, the facts are the facts and we’re all stuck with them.

The job of a judge — on which the American legal system depends — is to shun personal biases and experiences, even in like circumstances, to see the important facts on which the case depends.

But Sotomayor does not shun her personal biases: she embraces them. She doesn’t — as every good judge must — work earnestly to ensure that they don’t affect the judgments she renders. And that makes her unfit to serve on the Supreme Court.

Senate Republicans — led by Sen. Jeff Sessions (R-Ala), the ranking member of the Senate Judiciary Committee — cannot allow Judge Sotomayor’s “Latina” identity to block them from probing her beliefs, her self-proclaimed biases, and from opposing her if she fails to convince them of her suitability to sit on the nation’s highest court.

And when the nomination comes to the Senate floor for a vote, they need to stand on principle. Even if the Republicans can’t muster forty-one votes to oppose Sotomayor, the Democrats still need sixty votes to confirm her. Republicans must not allow the president to stampede them into a vote too soon, or to vote to confirm someone who embraces her biases in her judgments.

Our legal system is not a racial spoils system. Our Constitution established personal rights and protected them from government intrusion. Neither President Obama nor Judge Sotomayor recognizes the essential nature and function of it. Which means Republicans must do everything in their power to stop her confirmation.