1 – When Supreme Court nominee Sonia Sotomayor met with Senator Jim DeMint (R-SC) in early June, she stated she “had never thought about” whether an unborn child has any inherent rights. If this is true, it shows a lack of curiosity and concern for the most vulnerable among us. If this is untrue, it shows that Sotomayor is willing to mislead the Senate in order to attain a seat on the highest court in the country, perhaps as a liberal, activist judge. Either way, she must elaborate further. After all, from 1980 to 1992–12 years–Sotomayor served as a governing member of the Puerto Rican Legal Defense and Education Fund (PRLDEF). While she was on the board overseeing the organization, it filed a minimum of six briefs in high-profile abortion-related court cases. The New York Times reported in May of this year that “The [PRLDEF] board monitored all litigation undertaken by the fund’s lawyers, and a number of those lawyers said Ms. Sotomayor was an involved and ardent supporter of their various legal efforts.” In two separate amicus briefs filed before the U.S. Supreme Court–Williams v. Zbaraz (1980) and Rust v. Sullivan (1991)–the PRLDEF argued against limitations on taxpayer funding of abortions. It is foolish to think while on the PRLDEF board Sotomayor did not consider the personal and legal ramifications of her organization’s actions on the unborn. So why the smoke and mirrors? Sotomayor must explain fully to the Senate her views on this highly sensitive and serious issue.
2 – President Obama has made it clear that empathy is an important virtue for a judge to possess. “We need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom, the empathy to understand what it’s like to be poor or African-American or gay or disabled or old—and that’s the criterion by which I’ll be selecting my judges,” Obama said on the 2008 campaign trail. Unquestionably, the President had this quality in mind when he selected Sotomayor as his first Supreme Court nominee. This elevation of empathy flies in the face of centuries of judicial tradition and philosophy. The iconic symbol of Lady Justice blindfolded–found on the sculpted lampposts of the Supreme Court building–is a reminder that in the United States of America, the rule of law is applied equally to all and is not subject to influence. The oath required of all federal judges and justices requires they swear to “administer justice without respect to persons and do equal right to the poor and to the rich, and … faithfully and impartially discharge and perform all [] duties.” Obama has called for judges who do not put their personal and political views aside when issuing rulings, a philosophy directly opposed to the judicial restraint and neutrality we have demanded as a country since our inception. “Equal justice under the law,” in fact, is etched above the doorway of the Supreme Court. As the embodiment of Obama’s promised judicial goals, Sotomayor must explain how these seemingly opposed viewpoints can be reconciled. She must explain how it is possible for an empathetic judge to not violate their oath of office.
3 – Sotomayor’s now-famous prepared remarks in a 2001 speech to a University of California at Berkeley conference on law and diversity must still be explained. “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,” she said. White House Press Secretary Robert Gibbs said her word choice in 2001 was “poor.” The President has said he’s sure she would have “restated” her thoughts if she had the chance. But her 2001 comments were her chance to restate her thoughts. In 1994, she stated her disagreement with the idea that “a wise old man and a wise old woman reach the same conclusion in dueling cases,” asserting that “there can never be a universal definition of ‘wise.’ … I would hope that a wise woman with the richness of her experience would, more often than not, reach a better conclusion.” This “wise woman” phrase was repeated by Sotomayor before the Women’s Bar Association of the State of New York in April 1999. The fact that the summary descriptions of speeches Sotomayor has provided to the Senate show she delivered comments nearly identical to the 1994 speech on three other occasions in 1999 and 2000 puts lie to the feeble attempts by Gibbs and President Obama to dismiss them as a simple slip of the tongue. Sotomayor has expressed the same sentiments multiple times over the last two decades. A draft version of an October 2003 speech Sotomayor delivered at Seton Hall University contained the exact same wording as her 2001 speech in Berkeley. In truth, the record shows that she holds firmly to beliefs that are antithetical to our country’s judicial tradition. Her thoughts on this, then, are deeply troubling and need to be fleshed out thoroughly before the Senate.
4 – Sotomayor’s affirmation of the lower court’s ruling in Ricci v. DeStefano and her attempt to essentially bury the case, which was overturned by the Supreme Court on June 29. The Supreme Court ruled in Ricci that the lower court violated Title VII of the Civil Rights Act and therefore improperly applied the Equal Protection Clause. Sotomayor had agreed with the lower court’s ruling. This case will be a central issue in her confirmation hearings, and she must explain whether she now believes she was wrong or if she still believes her overturned concurrence was right–and the Supreme Court’s recent ruling wrong. The fact that this is a racially tinged court case with a disabled white male as the plaintiff underscores the importance of her needed explanations regarding the role of empathy in judging and her “wise Latina” comments.
5 – In her meeting with Senator DeMint, Sotomayor refused to say that the Second Amendment was a “fundamental right that applies to all Americans.” Senator Mark Udall (D-CO) said Sotomayor told him that she considers the Supreme Court’s landmark 5-4 ruling in District of Columbia v Heller (2008) settled law. However, she ruled earlier this year in Maloney v. Cuomo that Second Amendment rights do not apply to the states. In Heller, the Supreme Court said that the right to keep and bear arms was a natural right of all Americans and that the Second Amendment guaranteed that right to everyone. A 2004 opinion Sotomayor joined stated that “the right to possess a gun is clearly not a fundamental right.” So which is it? Does Sotomayor believe Heller to be flawed yet settled? If so, will she work to overturn it? It seems evident that she believes local governments are able to suppress the rights of gun owners, which is at odds with Heller being settled law. We need to know more about Sotomayor’s views on this basic right of all Americans.
Democrats have argued that Sotomayor is qualified for the Supreme Court because of her brilliance and experience as an appeals judge–and yet she has had a majority of her opinions considered by the Supreme Court reversed. Democrats, including Obama, opposed Chief Justice Roberts and Justice Alito in the Senate even while acknowledging their more-than-adequate qualifications. President Obama and others have lauded Sotomayor’s compelling life story–but the importance of life stories never occurred to them when Clarence Thomas or Miguel Estrada were nominated. Democrats lambasted Charles Pickering as a racist despite the fact he had prosecuted a KKK Imperial Wizard in Mississippi in the 1960s and testified against him in open court at great personal risk–yet they cannot bring themselves to acknowledge the racist and misandrist undertones in Sotomayor’s “wise Latina woman” remarks. Republicans should not allow Democrats to demand they treat Sotomayor any differently than they treated Republican nominees such as, Robert Bork, Clarence Thomas or Miguel Estrada. Republicans should instead demand a fair, reasoned, thorough confirmation process that deals with these critical issues that, right now, lack much-needed answers and debate.
