What is the right wing Republican view of a proper judge? Judges in the mode of Scalia, Thomas or Alito? Judges who are so-called strict constructionist? Judges who are pro-life? Whatever their definition may be Supreme Court nominee Judge Sonia Sotomayor does not fit their bill.
Judge Sonia Sotomayor, a Princeton and Yale Law graduate, a distinguished prosecutor, advocate, and judge is undoubtedly qualified to sit on the nation’s highest court. Her critics, the most vocal of whom reside on AM radio, contend that she is out of step with mainstream America and some have called her racist for comments she made in a speech at Berkeley in 2001. In the now infamous “wise Latina” speech Sotomayor stated in part, “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.” The critics, however, take this quote out of context and if one reads the entire speech it is actually a great discussion on the jurisprudence of women and judges of color. In particular how the background and experience of judges may play a role in determining the outcome of cases. See Transcript Was it not a Supreme Court dominated by wise old white males who brought with them their lifetime of experiences in reading out much meaning of the 14th and 15th Amendments of the Constitution as applied to African Americans, during and post reconstruction? (See The Civil Rights Cases, Cruikshank, Plessy) Directly contributing to 100 more years of a race based caste system of violence and segregation.
Speaking of race, Sotomayor was part of a circuit court panel which struck down the city of New Haven’s new firefighters test because it resulted in an illegal disparate impact on African Americans under Title VII of the Civil Rights Act of 1964. The previous test used by the city did not result in discrimination. White firefighters sued claiming reverse discrimination. Unfortunately for advocates of the protections of Title VII this case is now before the right leaning Supreme Court. where Chief Justice Roberts and his conservative brethren may overrule the Second Circuit in yet another 5-4 vote. One can imagine the future docket of employment discrimination cases where employers create a test that results in discrimination against women or other minorities.
On other decisions Sotomayor appears to be a political moderate to the chagrin of some on the left. She agreed with the Bush administration in ruling that the Mexico City Policy, was constitutional. The policy stated that the U.S. would no longer contribute to separate nongovernmental organizations which perform or actively promote abortion as a method of family planning in other nations. Sotomayor held that the policy did not constitute a violation of equal protection as, “the government is free to favor the anti-abortion position over the pro-choice position, and can do so with public funds.” The problem with this decision is that despite the controversy surrounding abortion, the procedure is constitutional as a privacy right. Could the U.S. withhold funds to NGOS who promote free speech, freedom of religion? Would the government be free to take an anti-free speech position? Many of President Barack Obama’s supporters on the left are perplexed that he did not choose a sure fire progressive to counter the strong right wing tilt of the Supreme Court. Especially given Obama’s popularity and landslide victory. George W. Bush who won elections by the closest in American history had no problem nominating sure fire right wing conservatives.
Despite criticism on both sides of the aisle Judge Sotomayor appears to be exactly what is needed on the Supreme Court. A distinguished scholarly judge with the perspective of a woman of color in the American experience. A perspective missing from the current make up of the Supreme Court and necessary in a nation of changing demographics. If conservatives such as Samuel Alito and John Roberts can be approved by a fractured Senate, then surely a political moderate can be confirmed by a Democratically controlled Senate.