Sonia Sotomayor: The Facts

I. Judicial Activism

The scourge of judicial activism poses one of the most serious threats to individual liberty and the rule of law.  If confirmed, Judge Sonia Sotomayor will undoubtedly move the Supreme Court in a more liberal, activist direction based on statements she has made on the subject.    

Lack of Impartiality

Over the course of her judicial career, Judge Sonia Sotomayor has woven her gender and ethnicity into virtually all of her speeches and writings, suggesting that she places more emphasis on personal experience than the rule of law when it comes to reaching decisions.

“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.”

- Speech at  Judge Mario G. Olmos Memorial Lecture in 2001, delivered at the University of California, Berkeley, School of Law

Contrary to the Obama administration’s claim that this was simply a “poor choice of words,” Sotomayor has delivered the same phrase on at least seven occasions between 1994 and 2004. 

Also from the same speech:

“I wonder whether achieving that goal [of transcending one’s personal sympathies and prejudices to achieve a greater degree of fairness] 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.”

These statements, when combined with President Obama’s main criterion of nominating a judge with the capacity to empathize with the “oppressed” people of society, raises concerns about Sotomayor’s ability, or even desire, to make impartial decisions as a Supreme Court justice.

Legislating from the Bench

Sotomayor has also indicating that she embraces a more activist role for judges in the public policy arena:  

"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 this is on tape, and I should never say that because we don't make law, I know. (laughing) Okay, I know. I know. I'm not promoting it and I'm not advocating it. I'm -- you know. (laughing)" 

- Comments at a panel discussion for law students interested in becoming clerks, 2005

II. Issues

Given the fact that Sonia Sotomayor believes in some degree of judicial activism, her opinions on political issues are likely to influence her rulings should she be confirmed.

Second Amendment

The case of Maloney v. Cuomo, Sotomayor and two of her colleagues on the Second Circuit Court concluded that the Second Amendment only applies to federal laws, leaving citizens outside the District of Columbia without constitutional protection from gun restrictions imposed by state and local governments.  Even the notoriously liberal Ninth Circuit ruled the opposite way on a similar case.

Here is a quote from the opinion:

“It is settled law […] that the Second Amendment applies only to limitations the federal government seeks to impose” (on the individual’s right to bear arms).

 

In another case, U.S. v. Sanchez-Villar, a Second Circuit panel that included Sotomayor wrote: 

"the right to possess a gun is clearly not a fundamental right.”

One can hardly expect Sotomayor to rule in favor of the right to bear arms on the Supreme Court when she has made such statements.

Property Rights

The Second Circuit’s ruling in Didden v. Village of Port Chester provides us with some unsettling insights on Sotomayor’s view of property rights.  Here, Sotomayor upheld the government’s use of eminent domain to rob Bart Didden, an independent property-owner of his land and transferring it to a politically-connected developer without requiring the condition of public use.  To make matters worse, when Didden initially approached the developer for permission to build a pharmacy on the land, the developer threatened to condemn the property unless Didden paid him $800,000 or agreed to give him 50% of the profit from the pharmacy.  The lack of respect Sotomayor’s decision shows for the right of Americans to own property should appall anyone, especially in light of the outrage sparked by the Supreme Court’s 2005 decision in Kelo v. New London.           

Affirmative Action

The most well-known of Sotomayor’s cases is that of Ricci v. DeStefano, in which a group of white and Hispanic firefighters were denied a promotion because no black firefighters passed the promotional exam.  The Second Circuit, with Sotomayor’s support, ruled in favor of the city for its decision to discard the exam in fear of allegations of minority discrimination.  When the case was brought before the Supreme Court, however, the justices ruled the denial a violation of Title VII of the Civil Rights Act of 1964.  This case demonstrates that Sotomayor favors affirmative action, even though its popularity among the public has waned dramatically. 

III. Ethical Concerns

Per Curiam Opinions

Per curiam (unsigned) opinions are often issued by judges to decide cases that are straightforward and do not require intense scrutiny by the court.  Judge Sotomayor, however, has used this tool on a number of cases that can hardly be construed as clear-cut.  The cases of Ricci v. DeStefano, Maloney v. Cuomo, and Didden v. Village of Port Chester were all per curiam opinions, even though they all present complex constitutional issues.

Group Membership

Puerto Rican Legal Defense and Education Fund (PRLDEF)

Sotomayor served on the board of directors for this controversial group from 1980 to 1992.  PRLDEF is a New York-based public-interest law group that works to remove discrimination against Latinos through advocacy and legislative endeavors.  Some of its most radical efforts include attacking New York Mayor David Dinkins for labeling three Puerto Ricans who shot five members of Congress “assassins,” approving of a federal judge’s decision to force teachers at a Michigan elementary school to undergo “consciousness raising” about “Black English” at a cost of $44,000 to taxpayers, supporting a lawsuit alleging that an entry level government test discriminated against the minorities who failed the exam, and opposing the death penalty for its association with racism and the “inhuman psychological burdens” it places on the offender.  

La Raza

Sotomayor was also a member of the National Council of La Raza from 1998 to 2004.  La Raza is a non-profit Hispanic organization supposed focused on reducing discrimination.  However, it has been known to have separatist tendencies, and potentially being pro-illegal immigration.  In a December 2005 edition of the conservative publication Human Events, Representative Norwood criticized congressional earmarking of four million dollars for NCLR housing initiatives. He said that "we ought not to send taxpayer's money to people who absolutely advocate perhaps using that money for the country not to follow the law of the land and not to secure our country's borders."  Rep. Norwood had a couple of other battles with La Raza, but the point remains clear: it is a radical liberal group with racist and separatist overtones.  La Raza was also famously non-supportive of Bush Appeals Court nominee Miguel Estrada, stating that they cannot take a position either way. 

Belizean Grove

Sotomayor revealed in her Senate questionnaire that she is a member of the Belizean Grove, “a group of influential women who are key decision makers in the profit, non-profit, and social sectors.” It has been suggested that her membership in this women-only group violates Canon 2 of the American Bar Association’s Code of Judicial Conduct, which states, “A judge should not hold membership in any organization that practices invidious discrimination on the basis of race, sex, religion, or national origin.”  

Initially, Sotomayor defended her membership by pointing out that men are involved in its activities, and perhaps the only reason the group appears exclusively female is because no man has ever asked to be considered for membership.  She recently resigned her membership in the group, apparently acknowledging the fact that her involvement could compromise her confirmation.

Political Activity

The Code of Conduct also prohibits judges from participating in political activity.  On April 17, 2009, Sotomayor delivered a speech to the Black, Latino, Asian Pacific American Law Alumni Association.  Here are some of her statements:

“The wide coalition of groups that joined forces to elect America’s first Afro-American President was awe inspiring in both the passion the members of the coalition exhibited in their efforts and the discipline they showed in the execution of their goals.”

“What is our challenge today: Our challenge as lawyers and court related professionals and staff, as citizens of the world is to keep the spirit of the common joy we shared on November 4 alive in our everyday existence.”

As is evident from these quotes, Sotomayor has no problem with disregarding the Code, even though a the Judicial Council for the Second Circuit sanctioned a judge in 2005 for making similarly partisan comments. 

IV. Temperament

Questions have arisen about whether or not Sotomayor has the appropriate temperament to qualify as a Supreme Court justice.  Based on quotes from the Almanac of the Federal Judiciary, which contains ratings of judges based on anonymous, collective opinions of lawyers who have worked with them, these concerns appear well-founded: 

“She is a terror on the bench." "She is very outspoken." "She can be difficult." "She is temperamental and excitable. She seems angry." "She is overly aggressive--not very judicial. She does not have a very good temperament."  “She abuses lawyers." "She really lacks judicial temperament. She behaves in an out of control manner. She makes inappropriate outbursts." "She is nasty to lawyers. She doesn't understand their role in the system--as adversaries who have to argue one side or the other. She will attack lawyers for making an argument she does not like."

V. Send Message to Obama

The nomination of Sonia Sotomayor does two things for Obama: first, it provides a Supreme Court justice who is ideologically similar to his own jurisprudence; and second, it brings the façade of post-racism to his presidency.  If the nomination of Sotomayor is not confirmed, then America will send a strong message: not only is our constitution a great document to be adhered to generation after generation, but we will not accept identity politics, particularly in the one institution that prides itself on being “blind”, the one institution where equality is achieved.