Senate Judiciary Committee Chairman Pat Leahy (D-Vt) is rushing the Supreme Court nomination of Second Circuit Judge Sonia Sotomayor to its first hearing on Monday.
Since President Obama made the nomination on May 26, we have learned a lot, but not enough, about Sotomayor’s background and performance in her twelve years on the bench, first as a district court judge and then on the Second Circuit Court of Appeals.
We know that Sotomayor is a self-labeled “affirmative action baby.” She was, as a Princeton undergraduate, already a political activist. She was head of the campus chapter of Acci√?¬≥n 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.”
Her activism continued, apparently up to the moment she was appointed to the bench. She was a leader of the Puerto Rican Legal Defense and Education Fund (PRLDEF, now called “Latino Justice”), an activist civil rights group that frequently engaged in litigation and took positions that were far beyond mainstream legal thought in the United States.
Sotomayor has been a federal judge since 1992 and was elevated to the Second Circuit in 1998. Many of her most controversial statements (and all controversial decisions, of course) have been since she took the bench.
We know that she has proclaimed her racial and gender pride repeatedly and — contrary to the most basic tenets our law and Constitution — said that she embraces them in rendering her version of justice. And we know that she has been reversed by the Supreme Court in cases that raise serious questions about her judicial temperament.
It’s time to ask tough questions and insist on complete and honest answers.
Here are five questions which Sotomayor should have to answer before her nomination is voted on by the Senate Judiciary Committee.
1. PRLDEF’s Positions Outside the Legal Mainstream: For twelve years (1980-1992), Judge Sotomayor served in various legal and policy making roles in the PRLDEF. She was at times a member of their Board of Directors, Vice President, and Chairperson of their Litigation and Education Committees. In 1981, PRLDEF wrote to the Governor of New York that “capital punishment represents ongoing racism within our society.” PRLDEF also took the position that it “opposes any efforts to overturn or in any way restrict the rights recognized in Roe v. Wade.”
Question for Sotomayor: We know that you played an active role, frequently participating directly in the development of legal positions and strategies for PRLDEF. With respect to the 1981 letter on the death penalty and with respect to the opposition to Roe v. Wade, tell us precisely what your role was in developing each position and how you influenced its development.
2. Embracing Biases, not Facts: The Supreme Court only last month reversed Sotomayor in the New Haven firefighters’ case, Ricci v. DeStefano. In the lower court, the judge granted the defendant “summary judgment,” which meant two things. First, what the law (or the Constitution) says on an issue determines which facts are important to the case and which are not. When a court grants summary judgment, it means that there is no real dispute on the important facts, so no jury needs to decide what the facts are and the court can apply the law.
In Ricci, the district court granted summary judgment to the City of New Haven, saying that the important facts were not disputed and, on that basis, the white firefighters alleging that they had been discriminated against had no legal grievance.
Sotomayor (joined by two other judges) sustained the lower court’s decision without comment on the facts or explaining their application of the law.
The Supreme Court reversed Sotomayor’s panel AND granted summary judgment to the firefighters, which means they found — on the basis of the same facts — that the firefighters had sustained a legal claim and that the city had no serious factual challenge to it.
In effect, the Supreme Court said that both the lower court and Sotomayor had based their judgments on the wrong set of facts.
In her 2001 Berkeley 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.”
Question for Sotomayor: In reviewing the District Court’s decision in Ricci v. DeStefano, how did your gender and Latina heritage affect your choice of the facts on which to judge the case?
3. Second Amendment: In the 2009 decision in Maloney v. Cuomo, an opinion co-authored by Sotomayor, the Second Circuit upheld a law prohibiting the possession of a nunchaku, a martial arts weapon consisting of two wooden or steel rods connected by a rope or chain. Denying the defendant’s claim that his Second Amendment rights were violated, Sotomayor’s opinion said that it was “settled law . . . that the Second Amendment applies only to limitations the federal government seeks to impose” on the individual’s right to bear arms. The Supreme Court’s recent decision in District of Columbia v. Heller, the court continued, “does not invalidate this longstanding principle.”
Question for Sotomayor: In D.C. v Heller, the Supreme Court wrote that,
“As the quotations earlier in this opinion demonstrate, the inherent right of self defense has been central to the Second Amendment right. The handgun ban amounts to a prohibition of an entire class of “arms” that is overwhelmingly chosen by American society for that lawful purpose. The prohibition extends, moreover, to the home, where the need for defense of self, family and property is most acute. Under any standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,”…would fail constitutional muster.”
In light of that statement of the Constitutional law, do you believe a state or city which is not a federal entity can ban the possession of handguns?
4. International Law: Sotomayor wrote the foreword to Daniel Terris’ book, “The International Judge” published in 2007. In that foreword, Sotomayor wrote:
A proposed bill in Congress to prohibit the citation of foreign law in federal judicial decisions gave rise in recent years to a heated and extensive dialogue among American judges, academics and commentators on the appropriate role that foreign and international law should play in American constitutional adjudication.
But the question of how much we have to learn from foreign law and the international community when interpreting our Constitution is not the only one worth posing. As The International Judge makes clear, we should also question how much we have to learn from international courts and from their male and female judges about the process of judging and the factors outside of the law that affect our decisions.
Questions for Sotomayor:
(a) Specifically how, and to what extent, should international law or foreign law be considered in interpreting the U.S. Constitution?
(b) What can we learn from international courts and their judges about the process of judging?
(c) How shall we differentiate among the male and female judges to learn from them?
(d) And, specifically and most importantly, what factors outside the law should affect your decisions?
5. Does an Unborn Child Have Constitutional Rights? In her interview with Sen. Jim DeMint (R-S.C.), Sotomayor said that she had never thought about whether an unborn child has constitutional rights. How is that possible for a judge who has been on the bench since 1992? And how can that be reconciled with the actions of the Puerto Rican Legal Defense and Education Fund, which Sotomayor served as a prominent member from 1980-1992?
Question for Sotomayor: A child that is born is inarguably a person, and if that person is lucky enough to be born in the United States or come here later, he or she has rights under our Constitution. At some point in the pregnancy — and we needn’t debate when that occurs in this hearing — we believe the unborn fetus achieves the Constitutional status of a person, and thus has rights. Without debating when that moment occurs, do you agree that at some point an unborn child has rights under our Constitution?
If Sotomayor is asked those questions, the answers should illuminate for all Americans the answer to the question of her fitness to serve on the Supreme Court, or the powerful court on which she now serves.
Teo Molin contributed research and reporting to this article.