Sonia Sotomayor

I was quite excited at the prospect of  a second woman on the Supreme Court bench, a first Hispanic, a first Supreme Court judge from the Bronx projects — an out and out American success story. I thought her confirmation will provide the right representational balance at the highest court of the land.

But then a few news items about Ms. Sotomayor’s views have dulled my enthusiasm.

One of course being her comment that resulted in the Conservatives calling her a “reverse racist.” Her comment, made back in 2001, asserts that her experiences as a Latina woman might make her judgments more sound than those of a white man. Though I am not going to call her a racist but a comment like that shows, among other things, lack of sound judgement and bias.

A piece of writing that influenced  me more was an Op-Ed article written by Ilya Somin (Assistant Professor at George Mason University School of Law) for the LA Times.


He reported, “In Doninger vs. Niehof,  Sotomayor supported a ruling that a public school could punish a student for speech harshly critical of school officials in an Internet blog post written outside the school. As liberal scholars Jonathan Turley and Paul Levinson have emphasized, this ruling poses a serious threat to the free speech rights of public school students. Students who criticize school officials or express unpopular views are especially likely to suffer.”

That, not only seems too deferential to authority and unconstitutional but more importantly a very wrong message to give to teens.
Ilya Somin goes on to elaborate on the 2001 speech, “….although Sotomayor’s inspiring life story is an important sign of racial progress, her attitude toward the role of race and ethnicity in judicial decision-making is not. In a 2001 speech, she said that she hopes that “a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male [judge] who hasn’t lived that life,” and generally expressed a belief that judges should base their decisions in part on their racial and gender backgrounds.”

I find the general beliefs most troubling. I thought the lady of justice with the weighing scales has a blind fold on her eyes to avoid exactly the reasons Ms. Sotomayor proudly proclaims as most important influences in judging.

While our background is bound to influence us the practice of justice demands that all who practice should strive to overcome biases and be as objective in their judgement as possible.

Ilya Somin continues, “Erwin, you point out that judges sometimes face “value questions” that they might answer on the basis of “life experience” and “ideology.” In my view, such questions are better addressed through objective analysis of legal argument, divorced as much as possible from consideration of the judges personal background, especially their racial or gender identity.”

I couldn’t agree more.

In conclusion, I whole heartedly support President Obama’s motives in choosing a Hispanic woman for the job but I am not sure I would have picked Ms. Sotomayor given her unjust view on justice.

4 Responses

  1. Have you read the speech from which that quote is taken?

    Second, here are the facts of Doninger vs Neihoff

    • Arun,

      “While recognizing the potential effect of individual experiences on perception, Judge Cedarbaum nevertheless believes that judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law. Although I agree with and attempt to work toward Judge Cedarbaum’s aspiration, I wonder whether achieving that goal is possible in all or even in most cases. And I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society.”

      Therein lies the heart of the problem. And there are numerous such references in the speech apart from the one quoted in my post. I am a univeralist and though fully realize that our individual experiences and personalities need to flourish and make for the wornderful diversity of opinion, the issue at hand is the “aspirations” and “motivations” of the supreme court justices.

      Already, they are too polticized and having another Supreme Court Judge who believes it is the “personal” interpretation of the law that she has been charged with and not the attempt at the “universal” interpretation of the law is where the problem lies. I disagree at a fundamental level as does Ilya Somin who BTW, is very liberal.

      To tell you what I am not — a reactionary. In the democratic party there is a religious fervor to support all of President Obama’s decisions, I am not from that camp.

      Finally, a mind teaser, Ms. Sotomayor’s salivating over pig’s feet, tongue and any other part of the pig’s body as she does in the first part of the speech might be a turn-off to a lot of vegetarians, people against cruelty to animals, jews and muslims……should that influence their view of her?
      According to her theory, it should. But then law doesn’t cover this topic? So does such influence play a role? No, is my answer but rigorously interpreting her viewpoint, yes, is her answer.

  2. Here is the District Court judgment in Doninger vs Neihoff.
    Worth a read (PDF file)

    The question would be – where is the hole in the district court’s reasoning?

    There also may be some misunderstanding of the role of the appeals courts in the US system of justice. To put it in software development terms, the appeals court checks whether software development process was followed; it does not look for software bugs. Only an activist appeals judge will rule against precedent.

    So unless the district court erred in its application of the previous precedents, or erred in process somewhere, the appeals court will uphold its decision.

  3. Please remember this basic fact about our legal system.

    Appeals judges are obliged to follow legal precedent. If Sotomayor is a “good” appeals judge, that is exactly what she will have done.

    Appeals court justices have much less discretion that SC justices. Thus, looking at Sotomayor’s record as an appeals court judge does not, of necessity, translate into valuable information about her proclivities as an SC judge.

    I think that Somin should be aware of that as much as I am, but she doesn’t indicate that awareness in her essay.

    Does George Mason University have a particular political bent that would allow us to predict the opinions of its professors?

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