Wednesday, July 15, 2009

Comments on Sonia Sotomayor

I don't know enough about Supreme Court nominee Sonia Sotomayor to offer a truly informed opinion about whether or not she should be confirmed as a justice. But I have been troubled by some of her publicized statements, namely her repeated statement to the effect that a "wise Latina" would reach a better decision than a white man and her comment that federal appellate courts make public policy. Yesterday, she offered explanations on both of these issues.

As to the "wise Latina" comments, I find insufficient her ex post facto explanation that she made a bad play off of Justice Sandra Day O'Connor's assertion that a wise old woman and a wise old man should be able to reach the same legal conclusion in the case. According to Sotomayor, "My play...fell flat. It was bad, because it left an impression that I believed that life experiences commanded a result in a case, but that's clearly not what I do as a judge." As Eva Rodriguez of the Washington Post notes, it strains credibility to believe that Sotomayor just realized that her words left the wrong impression because she made essentially the same comment in several speeches over multiple years. I agree with Rodriguez's conclusion that Sotomayor's "explanation came across as dodgy at best and disingenuous at worst."

Update: Senator Lindsey Graham apparently did not find Sotomayor's explanation of her "wise Latina" comment very convincing either:

Graham: Do you understand, maam, how if I said anything like that, and I justified it as saying I was trying to inspire someone, they would have my head?

Sotomayor: I can understand how it could be hurtful, particularly if read in isolation.

Graham: I don't know how you can justify — if I said that because of my experience as a Caucasian male I am a better person to represent the people of South Carolina, and my opponent was a minority, it would make national news, and it should. I am not going to judge you based on that one statement... I just hope you appreciate the world we live in, and how you can say something like that, meaning to inspire someone, and still have a chance to get on the Supreme Court. Others could not, if they had said anything remotely like that statement. Does that make sense to you?

Sotomayor: It does.

Graham: Some people deserve a second chance if they misspeak... If people come to that conclusion based on this hearing, then already some good has come out of this.

Hat tip to Jim Geraghty.

Further Update: Sotomayor's current explanation of her "wise Latina" appears to contradict at least one of her speeches that included that term:

JUDGE SONIA SOTOMAYOR, NOW: “The Words I Used, I Used Agreeing With The Sentiment That Justice Sandra Day O'Connor Was Attempting To Convey." (Judge Sotomayor, Remarks, Confirmation Hearing Of Judge Sonia Sotomayor, 7/14/09)

JUDGE SOTOMAYOR, THEN: “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 . . . Second, 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.” (A Latina Judge’s Voice, 13 Berkeley La Raza L. J. 1 (2002), and “Raising the Bar,” talk to La Raza at Boalt Hall, October 26, 2001).

Additional hat tip to Mr. Geraghty.

Sotomayor's explanation of her public policy comments was much more convincing, and I believe it properly notes the different roles of the federal district courts and appellate courts. According to Sotomayor:

I was focusing on what district court judges do and what circuit court judges
do. And I noted that district court judges find the facts, and they apply the
facts to the individual case. And when they do that, they're holding, they're
finding doesn't bind anybody else. Appellate judges, however, establish
precedent. They decide what the law says in a particular situation. That
precedent has policy ramifications because it binds not just the litigants in
that case, it binds all litigants in similar cases, in cases that may be
influenced by that precedent.

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