Judge Sonia Sotomayor's Confirmation Hearings
Likely Issues Before the Senate Judiciary Committee
Jul 14, 2009 Renato Bautista, Jr.
Although a filibuster-proof majority for Democrats in the Senate will almost certainly mean the confirmation of Judge Sotomayor's nomination to the US Supreme Court, Republican Senators made sure during their alloted 10-minute opening statements in yesterday's session of the Senate Judiciary Committee that Judge Sotomayor will not escape questioning on the issues that have been raised against her since being nominated by President Obama.
Background on Sotomayor's Appointment
Sotomayor, who is a federal judge in the Court of Appeals (Second Circuit), was nominated to the Supreme Court by President Obama in May after Justice David Souter announced his retirement. Justice Souter retired last month. If confirmed, Sotomayor will be the first Hispanic and third woman to be appointed to the Supreme Court. The other two women justices on the court are Sandra Day O'Connor, who already retired, and Ruth Bader Ginsburg.
"Wise Latina" Remark
The most controversial issue against Sotomayor is her statement during a lecture at the University of California Berkeley Law School in 2001. She said that "a wise Latina woman with the richness of her experiences" would make a better decision than a white male who hasn't lived that life. This statement has led Republicans, such as former House Speaker Newt Gingrich and conservative radio host Rush Limbaugh, to brand Sotomayor as racist.
Republican senators on the Senate Judiciary Committee, led by their ranking member Sen. Jeff Sessions, raised questions on Sotomayor's ability to become an impartial justice on the basis of this remark. They fear that she would be influenced by racial considerations in making decisions.
But President Obama dismissed the criticism as baseless during a May 29 interview by NBC's Brian Williams, where he said - while at the same time admitting Sotomayor could have rephrased her statement - that a look at Sotomayor's entire statement would show she was only saying she would know the difficulties and circumstances of litigants appearing before her court which would make her a better judge.
In a May 29 study entitled "Judge Sotomayor and Race - Results from the Full Data Set" by Tom Godlstein, a Supreme Court litigation specialist, which was posted in his SCOTUS blog, it was found out that Sotomayor dismissed the claim of discrimination at a rate of 8 to 1 in all the 96 race-related cases decided by the court of appeals panel where she was a member.
No doubt this issue will be tackled at length when they proceed to question Sotomayor this week, which will start today.
New Haven Firefighters' Case
The other issue being raised against Sotomayor is the Ricci v. DeStefano case. While on the court of appeals panel, Sotomayor and her fellow judges upheld a decision by the city of New Haven in Connecticut to disregard the results of a firefighter promotion examination because African-Americans scored low on the test. The city justified its decision to avoid a possible discrimination lawsuit by African-American firefighters who will be passed over for promotion.
But when the case was reviewed by the Supreme Court last month it held that the city lacked a strong basis in evidence in its claim that it would have been subjected to a discrimination lawsuit had it certified the test results. The effect was that the city's action resulted in an unjustified discrimination of white firefighters who topped the examination.
During their opening statements, Republican senators likewise harped on this decision by the Supreme Court, suggesting that Sotomayor appears to lean strongly on racial considerations.
An Activist Judge
Taking her "wise Latina" remark together with President Obama's statement that he will appoint to the Supreme Court someone with excellent judicial record and empathy, Sotomayor's conservative and Republican detractors claim that she is an activist judge or one who will legislate from the bench by deciding on considerations other than the law and judicial precedents. But Sotomayor may have allayed this fear when she unequivocally stated during her 5-minute opening statement in yesterday's session of the Senate Judiciary Committee that her judicial philosophy is to simply apply the law.
Position on Other Issues
It is expected that Sotomayor will also be quizzed on hot-button issues like abortion and gun control by determining her position on these matters. Abortion has traditionally been a favorite subject in confirmation hearings since Roe v. Wade - the 1973 case in which the Supreme Court held that abortion is part of the woman's right to privacy. When Sotomayor's prospective predecessor, Justice David Souter, was asked about his position on this issue he wisely parried the question by saying he hadn't thought about it and that it is not his habit to hear cases with his mind made up one way or the other.
CNN senior legal analyst and author Jeffrey Toobin observes in his July 13 article "Sotomayor a Cautious, Careful Liberal" on CNN Politics.com that Sotomayor's 18 years of judicial career does not say much about her position on abortion simply because she never had the chance to decide relevant cases. He, however, concludes that being a liberal and appointee of President Obama she will likely not vote to overturn Roe v. Wade.
Toobin also does not find any indication about her position on gun control in the many cases she decided. But he believes that being a former prosecutor Sotomayor may take conservative positions on criminal cases by leaning more toward affirming them on appeal.
Conclusion
In the final analysis, Sotomayor will eventually be confirmed given the strong Democrat majority in the Senate. Likewise, although Republican senators will not fail to point out their opposition to Sotomayor's questionable statements in the past, there is a feeling that they will temper their attacks during the proceedings for fear that they may alienate the Hispanic community, which is strongly behind her. Her Democratic supporters in the committee, on the other hand, will capitalize on her long judicial career, excellent educational background and story of hard work and perseverance to generate further public support for her confirmation.
Sonia Sotomayor
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