What the Right Says About Judge Sotomayor (update)

Back in May I wrote about the nomination of Judge Sonia Sotomayor to the Supreme Court of the United States. In that post, I examined both her “wise latina” comment and the issues of empathy and background. Given how the speeches and questions have gone in the first few days of her nomination hearings, I thought it worth revisiting some of that earlier post (portions of this post are extracted from that prior post) and briefly commenting on the blatant hypocrisy of some of her critics.

Keeping in mind some of the criticism being leveled against Judge Sotomayor, let’s once again consider previous statements and testimony.

First, recall these comments from Sen. Jeff Sessions (more on him in a moment), the ranking Republican on the Senate Judiciary Committee, and apparent leader of the Republican effort to portray Judge Sotomayor as a racist:

I will not vote for — no senator should vote for — an individual nominated by any President who believes it is acceptable for a judge to allow their own personal background, gender, prejudices, or sympathies to sway their decision in favor of, or against, parties before the court.

Apparently, Sen. Sessions forgot that he voted for Justice Samuel Alito just a few years ago. What did Judge Alito have to say about the subject during his nomination hearings just a few years ago?

I don't come from an affluent background or a privileged background. My parents were both quite poor when they were growing up.

And I know about their experiences and I didn't experience those things. I don't take credit for anything that they did or anything that they overcame.

But I think that children learn a lot from their parents and they learn from what the parents say. But I think they learn a lot more from what the parents do and from what they take from the stories of their parents lives.

And that's why I went into that in my opening statement. Because when a case comes before me involving, let's say, someone who is an immigrant -- and we get an awful lot of immigration cases and naturalization cases -- I can't help but think of my own ancestors, because it wasn't that long ago when they were in that position.

And so it's my job to apply the law. It's not my job to change the law or to bend the law to achieve any result.

But when I look at those cases, I have to say to myself, and I do say to myself, "You know, this could be your grandfather, this could be your grandmother. They were not citizens at one time, and they were people who came to this country."

When I have cases involving children, I can't help but think of my own children and think about my children being treated in the way that children may be treated in the case that's before me.

And that goes down the line. When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account. When I have a case involving someone who's been subjected to discrimination because of disability, I have to think of people who I've known and admire very greatly who've had disabilities, and I've watched them struggle to overcome the barriers that society puts up often just because it doesn't think of what it's doing -- the barriers that it puts up to them.

So those are some of the experiences that have shaped me as a person.

(Emphasis added.) So, apparently it is OK for a white man to consider his gender and ethnic background but the same does not hold true for a Hispanic woman? What about any woman? Well, here’s what Justice Sandra Day O’Connor had to say about herself:

I bring to the court the perspective of a woman primarily in a sense that I am female, just as I am white, a college graduate, etc.

“Yes, I will bring the understanding of a woman to the court, but I doubt that that alone will affect my decisions,” she said. “I think the important fact about my appointment is not that I will decide cases as a woman, but that I am a woman who will get to decide cases.”

And Justice O’Connor also noted that Justice Thurgood Marshall “imparted not only his legal acumen but also his life experiences”.

Even Judge Clarence Thomas acknowledged during his confirmation hearings that his background played a role (emphasis added):

And I believe, Senator, that I can make a contribution, that I can bring something different to the Court, that I can walk in the shoes of the people who are affected by what the Court does. You know, on my current court I have occasion to look out the window that faces C Street, and there are converted buses that bring in the criminal defendants to our criminal justice system, bus load after bus load. And you look out and you say to yourself, and I say to myself almost every day, "But for the grace of God there go I."

Yes, I recognize that Judge Alito's and Justice O’Connor’s and Judge Thomas’ comments are not precisely the same as Judge Sotomayor’s; however, when examined in their broader context, I believe that all of these judges are saying essentially the same thing: Who we are and where we come from has an impact on our view of the world and our understanding of the issues with which we are confronted. And is that so bad? Or, think of it this way: Who do we want our judges to be? Living, breathing human beings who understand that their decisions have an impact upon the litigants as well as the rest of the nation or robots who have no concern whatsoever for the implications of a decision? Yet critics like Sen. Sessions seem to denigrate only those with whom they disagree

President Obama has also been criticized for saying that he wanted to appoint to the bench someone with "empathy"; the right has argued that word is simply a code word for "activist judge". If so, then they might want to have a talk with President George H.W. Bush who said when nominating Clarence Thomas: "He is a delightful and warm, intelligent person who has great empathy and a wonderful sense of humor” (emphasis added). And John Yoo (now infamous for his role in the torture memos) said this about Justice Thomas (in a review of the Justice's memoir):

Justice Thomas's views were forged in the crucible of a truly authentic American story. This is a black man with a much greater range of personal experience than most of the upper-class liberals who take potshots at him. A man like this on the Court is the very definition of the healthy diversity his detractors pretend to support.

So both empathy and life experiences are apparently acceptable as long as they're not from someone on the "left". Or, said another way, empathy and life experiences are acceptable if they lead one to make the “correct” decision (with “correct”, obviously, being in the eye of the beholder).

It is also worth considering the subtle (and not-so-subtle) racism on display in Judge Sotomayor’s nomination hearing. For example, Sen. Sessions, in asking Judge Sotomayor about her ruling in the Ricci case said (emphasis added):

You voted not to reconsider the prior case. You voted to stay with the decision of the circuit, and in fact, your vote was the key vote. Had you voted with Judge Cabranes, himself of Puerto Rican ancestry, had you voted with him, you could have changed that case. So in truth you weren't bound by that case.

What was the purpose of pointing out that Judge Cabranes was “himself of Puerto Rican ancestry”? Are all Puerto Ricans supposed to march in lockstep without the ability to disagree upon the law? Is Judge Sotomayor wrong because another jurist of Puerto Rican heritage holds a different view? Replace Puerto Rican with “African American” or “Jew” or “White Anglo Saxon Protestant” and you’ll see the racism inherent in Sen. Sessions’ question. We should no more expect Judge Sotomayor to agree with every other Puerto Rican jurist than we should expect Justice Clarence Thomas to agree with every other African American jurist. And we certainly don't think of expecting Justice Roberts or Justice Stevens to agree with every other white jurist.

What is particularly worth noting is that Sen. Sessions was previously nominated to a federal court, but his nomination was rejected by the Senate. Why? Because of racist comments and insensitivity. But unlike Judge Sotomayor who is accused of racism on the basis of comments taken out of context and without due comparison to previous nominees, witnesses actually came forward to talk about Sessions' racist views, including his claims that the NAACP was "un-American" and "communist inspired" and that civil rights were forced "down the throats of people." He thought that the KKK was OK until learning that some were "pot smokers". Oh, and there's also the charming tale of Sessions' calling an African American subordinate "boy" and telling him to be careful about what he said to "white folks" (apparently the subordinate had reprimanded a secretary). And now Sen. Sessions helps lead the Republican noise machine in its efforts to paint Judge Sotomayor as a racist. Talk about a pot calling the proverbial kettle black.

But that's simply par for the course in the world of Republican politics where hypocrisy has been elevated to fine art and truth is an inconvenient roadblock.