Barack Obama - Sonia Sotomayor
Justice Sonia Sotomayor became the 111th Associate Justice of the Supreme Court of the United States in August of 2009. Justice Sotomayor served on the U.S. District Court for the Southern District of New York from 1992 to 1998. She served on the U.S. Court of Appeals for the Second Circuit from 1998 until her nomination to the Supreme Court in 2009. Justice Sotomayor has a J.D. from the Yale Law School, and has taught at the New York University School of Law and Columbia Law School. Her nomination was confirmed by the United States Senate by a vote of 68–31.
Any Supreme Court nomination is going to be controversial. The wikipedia page for Justice Sotomayor discusses her career and her many rulings that impact a broad range of American law. Justice Sotomayor was the first hispanic to reach the Supreme Court and prior statements she made concerning her race and gender, along with her ruling in Ricci vs DeStefano were the primary points of concern in her confirmation.
"Wise Latina" statement(s)
In late May of 2009, a 2001 speech Judge Sotomayor gave to the 'Raising the Bar' symposium at the UC Berkeley School of Law began to cause controversy. In that speech, she addresses the fact that her live as both a female and a Puerto Rican affects her view of right and wrong and therefore affects her view of the law. Near the beginning of the speech she states:
I intend tonight to touch upon the themes that this conference will be discussing this weekend and to talk to you about my Latina identity, where it came from, and the influence I perceive it has on my presence on the bench.
Later in that same speech, she discusses a statement which is often attributed to Justice O'Connor which is that a wise old man would reach the same conclusion concerning the law as a wise old woman. The point of the statement is that the law is set, and the purpose of the supreme court justices is to apply that law to the cases before them. The gender and race of the person applying that law is irrelevant as any two people who are sufficiently intelligent and properly schooled in the law would reach the same decision.
Justice Sotomayor then states that she does not agree with this viewpoint. She states that a "wise latina woman ... would more often than not reach a better conclusion that a white male". This statement has caused a great deal of controversy as Justice Sotomayor seems to suggest that her personal beliefs would influence her legal interpretation - she might not rule according to her interpretation of the law, but rather be belief in what the law should be. The entire text of the speech can be found here.
Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. 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 not so sure Justice O'Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. 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.
At the end of May and early June, the White House and top Democrats began to defend and apologize for the remarks made by Justice Sotomayor. White House Press Secretary Robert Gibbs stated that Justice Sotomayor used a poor choice of words in the speech:
I’ve not talked specifically with her about this, but I think she’d say that her word choice in 2001 was poor, that she was simply making the point that personal experiences are relevant for the process of judging.
New York Sen. Chuck Schumer refused to concede that Sotomayor chose her words poorly. He made the following statement on ABC’s “This Week” :
She'll stand by the entire speech. I think that she will show that the speech, when you read it, says rule of law comes above experience, ... the specific sentence there is simply saying that people's experiences matter and we ought to have some diversity of experience on the court. And I think that's accurate.
Sen. Dianne Feinstein of California suggested the debate over Sotomayor’s statement may be taking it more seriously than she intended it. On CBS's "Face the Nation she said the following :
I’d say that one statement, probably made with a sense of a smile, you know, that ‘here I am, I can do better’ – I don’t have a problem with it. It’s not – it’s not the right thing to say. It’s not the right thing, but I don’t think she meant it that way either. ... there’s one word, Bob (host Bob Schieffer), in the statement. It’s the word ‘better.’ That a Latina woman who has gone through these experiences – that her views would be better. And without that one word, it’s a perfectly fine statement. And I understand what she meant by it.
Pennsylvania Sen. Arlen Specter played down the comment on “Fox News Sunday”
(it) didn’t stand out all that much in context (of the speech). I think she meant that somebody with her experience has something to add. The diversity and the point of view of Latina woman is significant. It adds to the mix.
Sen. Lindsey Graham of South Carolina said the following on Fox News Sunday:
If the legislative law doesn’t sit with her, she finds a way as a judge to get around it, in my opinion. It’s inappropriate and I hope she’ll apologize. If I had said something like that – or someone with my background and profile [had] – we wouldn’t be talking about this nomination going forward.
Within days of the the above remarks it was discovered that the "wise latina" line in that address was in fact not an isolated incident where a poor choice of words was used. Instead, the line was used many times between 1994 and 2003. A draft version of a October 2003 speech Sotomayor delivered at Seton Hall University stated, "I would hope that a wise Latina woman with the richness of her experiences would, more often than not, reach a better conclusion." That is identical to her October 2001 remarks at the University of California, Berkeley.
In addition, Sotomayor delivered a series of earlier speeches in which she said "a wise woman" would reach a better decision. She delivered the first of those speeches in Puerto Rico in 1994 and then before the Women's Bar Association of the State of New York in April 1999.
The summary descriptions of speeches Sotomayor provided indicated she delivered remarks similar to the 1994 speech on three other occasions in 1999 and 2000 during two addresses at Yale and one at the City University of New York School of Law.
Ricci vs DeStefano
Ricci vs DeStefano was a court case arising from a lawsuit brought against the city of New Haven, Connecticut by 19 city firefighters alleging that the city discriminated against them with regard to promotions. The firefighters (17 white, 2 hispanic), had all passed the test for promotions to management. City of New Haven officials invalidated the test results because none of the black firefighters who passed the exam had scored high enough to be considered for the positions. They stated that they feared a lawsuit over the test’s disparate impact on a protected minority. The complainants claimed they were denied the promotions because of their race—a form of racial discrimination. (Some text taken from the Wikipedia link)
The single judge federal district court ruled for the city, granting its motion for summary judgment. On appeal, the three-judge panel for the Second Court of Appeals, which included Sotomayor, then affirmed the district court's ruling in a summary order, without opinion, on February 15, 2008. On June 9, 2008, the court withdrew its summary order in response to a request to hear the case en banc. The en banc request was denied and the court issued instead a unanimous per curiam (anonymous) opinion. The panel's June 9, 2008 per curiam opinion was eight sentences long. It characterized the trial court's decision as "thorough, thoughtful and well-reasoned" while also lamenting that there were "no good alternatives" in the case. The panel expressed sympathy to the plaintiffs' situation, particularly Ricci's (who is dyslexic and paid for private instructions to help pass the test), but ultimately concluded that the Civil Service Board was acting to "fulfill its obligations under Title VII [of the Civil Rights Act]." The panel concluded by adopting the trial court's opinion in its entirety.
The case was heard be the supreme court in April of 2009, and in a 5-4 decision the court overturned the ruling and ruled in favor of the firefighters. The court found that:
- In these circumstances, the standard for permissible race-based action under Title VII is that the employer must "demonstrate a strong basis in evidence that, had it not taken the action, it would have been liable under the disparate-impact statute."
- The respondents cannot meet that threshold standard
The court case became a controversy for Justice Sotomayor both because it represented an overturned ruling at the time when her record was being scrutinized by opponents, and that the ruling dealt with racial issues at the time when Justice Sotomayor's previous statements were coming to light. The ideal that test scores could simply be dismissed for the sole reason that the test giver did not like the race of those who scored the highest was one that most Americans did not understand, and the fact that the ruling was made anonymously seemed to hint that the judges were unwillingly to openly stand by the ruling. The short length of the ruling added to beliefs that the legal argument behind the case was weak. This lead to speculation that Judge Sotomayor may have been influenced by beliefs outside of the law.
 Website: Bloomberg.com Article: Gibbs Says Sotomayor Word Choice in Speech Was ‘Poor’ Author: Edwin Chen and Hans Nichols Accessed on: 04/26/2010
 Website: Politico.com Article: Democrats differ on 'wise Latina' defenses Author: KENNETH P. VOGEL & JOSH GERSTEIN Accessed on: 04/26/2010
 Website: CQ Politics Article: Sotomayor Repeatedly Referenced 'Wise Woman' in Speeches Author: Seth Stern Accessed on: 04/26/2010