Presidential elections have consequences and few are more important than the power to shape the federal judiciary. With the selection of Judge Sonia Sotomayor to replace retiring Justice David Souter on the U.S. Supreme Court, President Barack Obama has begun the process of altering the federal courts.
Sotomayor's selection has sparked controversy already, as much for the judge's pronouncements off the bench as for her judicial decisions as a member of the 2nd U.S. Circuit Court of Appeals and as a trial judge. Critics have pointed especially to her comments at a conference at Duke University in 2005, in which she seemed to imply that the role of appellate courts is to set policy, and to a 2001 speech published in the Berkeley La Raza Law Journal.
"Justice (Sandra Day) O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases," Sotomayor is quoted in the journal as saying. "I am … not so sure that I agree with the statement. … 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," she said.
The statement is offensive, and it is also highly revealing. However, it says as much about President Obama's judicial philosophy as it does about Judge Sotomayor's. In announcing her appointment, the president made clear that he picked Sotomayor because he shares her view that certain personal experiences are as relevant as intellect or judicial impartiality in making a good justice.
"Experience being tested by obstacles and barriers, by hardship and misfortune, (and) experience insisting, persisting and ultimately overcoming those barriers" are important qualifications, he explained in introducing Sotomayor. "It is experience that can give a person a common touch and a sense of compassion an understanding of how the world works and how ordinary people live. And that is why it is a necessary ingredient in the kind of justice we need on the Supreme Court," he said.
President Obama's words were not as racially charged as Judge Sotomayor's, but the intent was the same. He will choose judges whose life experiences will make them sympathetic to certain classes of people: the poor, ethnic minorities, women and others he considers deserving of empathy.
I expect that in her confirmation hearings, Judge Sotomayor will try to soften her claim that "a wise Latina woman" reaches better conclusions as a judge than a white male. Too bad, because her original candor at least would provoke a real debate over whether a justice should base his or her decisions on the law or on personal experiences and preferences.
This is a debate worth having and one that avoids defining Judge Sotomayor as a racist, which some opponents of her nomination have charged she is. It isn't just her views on race or gender that are at issue; it is more fundamentally her judicial philosophy that the Senate should consider.
Before the Senate votes to confirm Judge Sotomayor, senators should know whether she believes a justice should be impartial or favor certain groups. They should find out whether she would apply the law as it is written or to achieve a particular outcome. And they should examine her record carefully. She has decided hundreds of cases over 17 years on the federal bench.
A good place to begin is by looking at her recent role at the 2nd Circuit in Ricci v. DeStefano, a case in which Judge Sotomayor sided with the city of New Haven, Conn., in denying promotions to one Hispanic and 17 white firefighters who scored highest on promotion exams. They were denied because no African-Americans qualified. Her decision not only showed precious little wisdom but also, more importantly, ignored both civil rights law and constitutional equal protection. In this case, Sotomayor's empathy turned out to be little more than bias toward the outcome she preferred.