Selling Sotomayor: Ethnocentricity or Rule of Law?

Judge Sonia Sotomayor should honestly answer the Senate Judiciary Committee’s questions about her strongly evidenced identity politics.

Sotomayor’s words could come back to roost, and what they indicate doesn’t exactly inspire confidence. At least not for those of us who associate fairness, impartiality, the rule of law and equality under law as being inseparable from the whole notion of American justice.

President Barack Obama has described a top criterion for his judicial nominees: empathy.  Not the rule of law.  Not concord with the U.S. Constitution.  But empathy with parties before the bar.

Now that criterion is playing out with his nomination for the opening Supreme Court justice seat. Sotomayor’s record shows that she may meet that Obama qualification.

The question is whether a strong dose of identity politics will hinder the nominee’s chances of Senate confirmation.  Betting money in Washington says it won’t.  But nothing’s definite.

The political dynamics tilt in Sotomayor’s favor. The president remains personally very popular, even if support for his excessive spending policies has slipped.

The Democrats hold a near-insurmountable numerical advantage in the U.S. Senate.  If grassroots aren’t overwhelmingly voicing opposition, then not enough Democratic senators will fear that their constituents will base their vote on this vote, and Sotomayor will be confirmed easily.

And the selection stacks the political deck: a liberal judge, twice confirmed by the Senate, sitting on the appellate court, female, ethnic minority, activist background.  Leading the Republicans on the relevant committee is a white Southerner.

Hmmm, smells like a political trap.

But liberals should be careful not to sell Sen. Jeff Sessions, R-Ala., short.  He has gone out of his way to assure a fair, thorough examination of the nominee and respectful treatment of the nominee.  His consistent conduct has won praise from Senate Judiciary Chairman Patrick Leahy, D-Vt., as “statesmanlike.”

And other things prove that Sessions is not easily typecast.  For instance, Vanderbilt law professor Carol Swain has noted how the senator, in leading fights against legalization of illegal aliens, has championed the economic prospects of minorities.  "Sen. Jeff Sessions has done more to protect the job opportunity of black Americans than has the Congressional Black Caucus," she observed.

Given Sessions’ unmovable intention to ensure a fair and respectful process of vetting the nominee, he and the GOP may not give opponents the fodder for their propaganda.

Also, the fact remains that someone qualified for a lower judicial position doesn’t necessarily qualify that person for the highest court in the land. A record of ethnic identity, particularly as an appellate judge, should raise concerns for anyone who cares about fairness and justice.

Even if her confirmation chances are strong, the judge still needs to answer a lot of questions at her confirmation hearing.  

She needs to explain what she means by such statements as, “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.”  

What do you mean by a “better conclusion?”  Do ethnocentric “experiences” trump statutory wording and congressional intent?  Wouldn’t that substitution constitute bias and improper suasion?

Should Americans be anxious over “my lifelong commitment to identifying myself as a Puerto Rican Hispanic,” which Judge Sotomayor said a 1998 speech in New Haven, Conn., to the state Hispanic bar association?  Can the judge separate herself and her strong ethnic self-identification from “empathetic” facts unrelated to the legal issues of a given case?  Will she come down on the side of what the law actually says or inject bias, regardless of motivation?
The troubling implication of such statements is that here is a judge who’s willing to substitute outside factors for a fair reading of the law and equal treatment of parties before the bar.

“Empathy,” as President Obama uses it as a judicial quality, is a code word for judicial activism, Sen. Lindsey Graham said on a recent TV appearance.  In other words, “empathy” becomes license for tipping the scales of justice.  Is this something Sotomayor does, even unconsciously?

To some degree, most people hold dear certain aspects of their background.  To a point, being proud of one’s Irish, Asian or Hindu heritage is just fine.  

But at a certain point, one’s perspective shifts from normal, healthy pride to obsessive, detrimental influence. When such extreme orientation makes one unable to be objective or does harm to the body politic, there’s a problem.

A number of Sotomayer’s remarks might cross the lines of ethical conduct, Curt Levey of the Committee for Justice has noted.  Canon 2 of the Code of Conduct for United States Judges requires that judges “should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”

Sotomayor owes the American people the benefit of honest, candid answers along these lines. The public deserves straight talk about the judge’s self-identification and how it will be restrained in judicial decisionmaking.  

The people of the nation, who’ll have to live under the decisions of this judge, should be fully assured that this jurist can separate her vigorous ethnopolitical identity from her sacred duty to fairness, equality and the rule of law.