Judge Sonia Sotomayor likely to be opposed by Republicans despite previous federal confirmations...
By Ernest A. Canning on 5/26/2009, 12:04pm PT  

Guest Blogged by Ernest A. Canning

President Barack Obama has nominated 54-year old Sonia Sotomayor, a Judge on the U.S. Second Circuit Court of Appeal in New York, to fill the upcoming vacancy brought about by the pending retirement of Supreme Court Justice David Souter.

Despite degrees from Princeton (A.B. summa cum laude 1976) and Yale Law School (J.D. 1979), Sotomayor's Puerto Rican roots are truly working class. Her father, a tool-and-die maker with a third grade education, died when she was nine years old. She and her brother, who became a physician, grew up in a Bronx housing project, raised by her single mother, a nurse.

Although she was initially nominated to the federal bench by George H. W. Bush, in 1998 (when she was approved by a vote of 35 to 11, among still serving U.S. Senators) and is considered a judicial centrist by the ABA journal, her nomination to the Second Circuit Court of Appeal was bottled up by Republicans for more than a year after she was nominated by President Clinton. The hold-up was no mere coincidence...

The delay in her circuit court confirmation process was all part of the hard-right's judicial project in which it was easier to quietly bottle-up Clinton nominees to the federal bench at the trial and intermediate appellate level while approving his high-profile nominees to the Supreme Court. This left a large number of vacancies that Republicans pressed to fill during the Bush/Cheney era --- a strategy which was so successful that by the end of 2005, "about 60 percent of the 165 judges on the federal appeals courts were appointed by Republican presidents, with 40 percent from Democratic presidents. Of the 13 circuit courts of appeal, 9 have majorities of judges named by Republicans presidents."

As John Dean observed in Conservatives without Conscience (2006), it "is at the federal appellate level that most law is made, and with the exceptions...of the Second Circuit...and the Ninth Circuit...the federal circuits are more conservative than the Supreme Court."

In announcing the nomination, President Obama, quoted Justice Oliver Wendell Holmes: "The life of the law has not been logic, it has been experience." The President said it was essential that a Justice know “how the world works, and how ordinary people live."

During a 2001 lecture at the University of California, 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.

In accepting the nomination, Judge Sotomayor said:

I firmly believe in the rule of law as the foundation for all of our basic rights...[and I will] never forget the real-world consequences of my decisions on individuals, businesses and government.

Where her University of California statement would no doubt be seen by Justice Holmes as a reflection of judicial strength, Republicans treat it as a line of attack, just as they earlier attacked the President's statement that he wanted a jurist with a sense of empathy. But that is to be expected from a hard-right which will likely oppose this nomination with a level of feigned righteous indignation. I share the assessment of The New York Times and others, however, that it is doubtful the hard-right can successfully use the filibuster to prevent confirmation.

UPDATE 05/27/09: Yesterday, we were criticized by a commenter for declaring Judge Sotomayor as the "first Hispanic" to be nominated to serve as a Justice on the U.S. Supreme Court --- a description shared by, among others, Democracy Now's Juan Gonzales, himself an Hispanic. The contention was made that the first Hispanic was Justice Benjamin Cardozo, who was nominated by Pres. Hoover.

Brad Friedman corrected the headline to read: "First Female Hispanic"

Today, The New York Times weighed in. Harvard Law Prof. Andrew Kaufman described the debate as "esoteric, complicated, and, perhaps amusing." Kaufman notes that the word, Hispanic, was not in use during the 30s and that Cardozo would have "regarded himself as a Sephartic Jew whose ancestors came from the Iberian Peninsula."

While Webster's includes people of Portuguese decent within the definition of Hispanic, The New York Times reports that "most Hispanic organizations and the United States census bureau do not regard Portuguese as Hispanic." Arturo Vargas, the executive director of the National Association of Latino Elected and Appointed Officials, argues that Hispanic applies only to people from Spanish-speaking countries in the Americas and does not apply to either Spain or Portugal.

In a May 27, 2009 DSCC email, Sen. Robert Menendez (D-NJ) avoided this faux controversy by referring to Judge Sotomayor as the "first Latina."

UPDATE 05/27/09: In responding to a comment I criticized James Fantino for having misread Judge Sotomayor’s 2001 University of California remarks as reflecting a belief in the superiority of a female Hispanic’s intellect over that of a white male. While my criticism is valid, part of the fault for Mr. Fantino’s misperception lies with yours truly. In trying to get this piece out as a “breaking news” story, I did not take the time to examine the full context of Judge Sotomayor’s remarks.

Here is the context of her remarks courtesy of Keith Olbermann:

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….Each day on the bench I learned something new about the judicial process and about being a professional Latina woman in a world that sometimes looks at me with suspicion. I am reminded each day that I render decisions that affect people concretely and that I owe them constant and complete vigilance in checking my assumptions, presumptions and perspectives and ensuring that to the extent my limited abilities and capabilities permit me, that I reevaluate them and change as circumstances and cases before me requires. I can and do aspire to be greater than the sum total of my experiences.

UPDATE 05/30/09: The full text of Judge Sotomayor's entire 2001 University of California speech may be read here. I fully concur with Mikhail Lyubansky's forceful argument that right-wing efforts to paint Judge Sotomayor as a "reverse racist" are way "off-base." Lyubansky observes:

[Sotomayor] is not saying that her experience as a Latina makes her a better judge. She is saying that her life experiences provide her with perspectives [in race and sex discrimination] cases that white men do not have and that these additional perspectives benefit her deliberations....Basically, what Sotomayor is doing in this speech is examining the influence of her ethnicity on her life and giving voice to some of the complexities of being not only a judge but also a woman and a person of color. Is this racist? Or sexist? Only if you think that we are able to leave all our life experiences at the door when we come to the workplace....

The almost exclusively white men who have historically made up the U.S. Supreme Court have always ruled, in part, on the basis of their lived experience. But because they were part of the privileged majority, it occurred neither to them nor their observers to question how their whiteness or their maleness affected their thinking. Sotomayor is not doing anything different from her predecessors. The difference is that because she is a woman of color we’re asking these questions…and she’s answering them. Rather well, I think.

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Article Categories: Barack Obama, U.S. Supreme Court