A Very Political Woman

politics * feminism * media * totally biased opinion

Justice Sotomayor, I Presume?

Posted on | May 26, 2009 |

Word came early this morning that Obama had made his pick to replace Justice Souter on the Supreme Court.  That pick–Judge Sonia Sotomayor–appears to come in the form of a female (only the third to ever hold a spot on the bench, if confirmed) and a Latina (only the first to hold a spot on the bench, if confirmed).  So far the nomination (or rumors thereof) has provided liberals with much food for thought.

Judge Sotomayor would likely provide progressives with a voice on the bench to replace that of retiring Justice Souter’s–a calm, but consistent liberal approach.  It would also provide identity representation to two groups who are extremely underrepresented on the federal bench–women and Latinos.

But does it provide ideological security?  Her resume seems to confirm that it would:

• Wrote the 2008 opinion supporting the City of New Haven’s decision to throw out the results of a firefighter promotion exam because almost no minorities qualified for promotions. The Supreme Court heard the case in April 2009 and a final opinion is pending.

• Sided with environmentalists in a 2007 case that would have allowed the EPA to consider the cost-effectiveness of protecting fish and aquatic life in rivers and lakes located near power plants. Was overturned by the Supreme Court.

• Supported the right to sue national investment firms in state court, rather than in federal court. Was overturned unanimously by the Supreme Court.

• Ruled that a federal law allowing lawsuits against individual federal government officers and agents for constitutional rights violations also extends to private corporations working on behalf of the federal government. Was overturned by the Supreme Court.

• Sotomayor was first appointed to the federal bench in 1991 by a Republican President, George Bush, but it was a Democrat, Sen. Patrick Moynihan, who recommended her to Bush.

• In a 2005 panel discussion at Duke University, Sotomayor told students that the federal Court of Appeals is where “policy is made.” She and other panelists had been asked by a student to describe the differences between clerking in the District Court versus in the Circuit Court of Appeals. Sotomayor said that traditionally, those interested in academia, policy, and public interest law tend to seek circuit court clerkships. She said, “All of the legal defense funds out there, they’re looking for people with Court of Appeals experience. Because it is — Court of Appeals is where policy is made. And I know, and I know, that this is on tape, and I should never say that. Because we don’t ‘make law,’ I know. [audience laughter] Okay, I know. I know. I’m not promoting it, and I’m not advocating it. I’m, you know. [audience laughter] Having said that, the Court of Appeals is where, before the Supreme Court makes the final decision, the law is percolating. Its interpretation, its application.” [Duke University School of Law, 2/25/2005, 43:19, http://realserver.law.duke.edu/ramgen/spring05/lawschool/02252005clerk.rm]

Maybe more importantly for this discussion, she recognizes that disowning gender or race and ethnicity are intrinsicly intertwined in any court ruling:

• At a 2001 U.C. Berkeley symposium marking the 40th anniversary of the first Latino named to the federal district court, Sotomayor said that the gender and ethnicity of judges does and should affect their judicial decision-making. From her speech:

“I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society….

“I further accept that our experiences as women and people of color affect our decisions. The aspiration to impartiality is just that - it’s an aspiration because it denies the fact that we are by our experiences making different choices than others….

“Our gender and national origins may and will make a difference in our judging. Justice 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. I am also not so sure that I agree with the statement. First, as Professor [Martha] Minnow has noted, there can never be a universal definition of wise. Second, 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.” [U.C. Berkeley School of Law, 10/26/2001]

So what do you think America?  Is Judge Sotomayor a good pick?  And do you agree with her statements about gender, ethnicity and the law?

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