Verdict on Sotomayor

In introducing Judge Sonia Sotomayor as his first nominee to the Supreme Court, President Obama said that she satisfied three criteria: a rigorous mastery of the law, a recognition that judges “interpret, not make, law,” and an understanding, rooted in experience, of how ordinary people live. If there were any doubts about that characterization, they were dispelled by the nominee’s impressive performance last week at her confirmation hearings before the Senate Judiciary Committee.

For many senators, that is the beginning and end of the inquiry. We don’t agree. It matters, at this point in U.S. history, that Sotomayor is also (in words that have haunted her) a “wise Latina” -- that is, a woman and a member of a minority whose increasing numbers have been accompanied in many parts of the country by hostility and discrimination. Whatever else her televised testimony demonstrated, it showed that a woman who has celebrated her Puerto Rican heritage also has excelled at the highest level in a profession still dominated by white men. The symbolism of that fact can’t be underestimated, especially in California, where more than a third of the population identifies as Latino.

Excessive caution

Memorable as the imagery of the hearings was, substance was in disappointingly short supply. Although her confirmation seemed to be a foregone conclusion, Sotomayor was excessively cautious in addressing important but general constitutional questions, such as whether the Constitution recognizes a right to self-defense or whether Roe vs. Wade is, in the words of Sen. Arlen Specter (D-Pa.), a “super” precedent deserving of special respect.

Perhaps the most significant missed opportunity came when Sotomayor was asked by Sen. John Cornyn (R-Tex.) if she agreed with Chief Justice John G. Roberts Jr.’s simplistic assertion in a school integration case that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Read in context, Roberts was asserting that a school assignment plan designed to bring children of different races together in the same classroom was just as offensive to the Constitution as the segregated schools outlawed by the 1954 decision of Brown vs. Board of Education.

It’s possible for a nominee to indicate, as Sotomayor did, that she respects precedent and still offer her views about the larger constitutional issues that figured in the school case and others -- such as whether the 14th Amendment’s guarantee of “equal protection of the laws” requires the rigid colorblindness advocated by Roberts. Yet, like Roberts and then-Judge Samuel A. Alito Jr., she was content to allow senators and the public to infer such views from either her comments off the bench or her long-ago activities as an advocate.

In Sotomayor’s case, this magnified the importance of her pre-judicial service with the Puerto Rican Legal Defense and Education Fund and her exhaustively examined statement 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.” Sotomayor was right to concede that that statement was “a rhetorical flourish that fell flat” and to make the significant point that her decisions as a judge haven’t reflected the view that “life experiences [command] a result in a case.” But she conceded too much in downplaying the larger point in her speech that “our gender and national origins may and will make a difference in our judging.” In her quest to play defense, she missed an opportunity to note that she was right.

As Sotomayor noted in the speech, there is statistical evidence that female appellate judges have voted more often than male judges to uphold women’s claims in sex-discrimination cases. That doesn’t mean those judges are biased against the other side. More likely, it reflects the fact that female judges possess greater knowledge about sex discrimination than their male colleagues, just as an African American judge can illuminate for his white colleagues the realities of racial discrimination. The politics of confirmation allowed neither side to acknowledge this reality at Sotomayor’s hearings.

Presidential prerogative

Sotomayor is hardly to blame for a process that encourages nominees to straitjacket themselves in answering questions. In the past, senators of both parties often (but not always) deferred to the prerogative of the president to appoint judges congenial to his legal philosophy and focused primarily on a nominee’s probity and professional qualifications. Justice Antonin Scalia, whose conservative views were no secret, was confirmed by a margin of 98 to 0. Justice Ruth Bader Ginsburg received 96 votes, Justice Stephen G. Breyer 87.

Given her record as a judge and her mainstream constitutional views, Sotomayor is entitled to a similarly lopsided “yes”vote. If she falls short of overwhelming confirmation, it will be because of the extreme politicization of judicial selection, in which both parties are complicit. Some Democrats, including Barack Obama, opposed the confirmation of Roberts, a conservative but no radical. Some Republicans, in the spirit of tit-for-tat, have subjected Sotomayor to the same treatment.

The most egregious Republican overreaction involved a decision by Sotomayor’s appeals court, recently overturned by the Supreme Court, that permitted the city of New Haven, Conn., to discard the results of a test on which no black firefighter earned a promotion. Not content to harp endlessly on the ruling in their questions, Republican senators invited one of the white firefighters to testify before the committee in an attempt to show that Sotomayor lacked empathy for them -- never mind the Republicans’ criticism of Obama for listing empathy among the qualifications to serve on the court.

We had problems with Sotomayor’s handling of the New Haven case. But to vote against a nominee because of one overruled decision is ridiculous. That some Republican senators apparently will do so is a depressing commentary on the bipartisan trivialization of the Senate’s “advice and consent” responsibility. Sotomayor, and the country, deserve better.