Politics & Society

US/ Rhetoric and Facts about Sonia Sotomayor

Suzanne Lewis

giovedì 11 giugno 2009

When the president nominates a judge to the United States Supreme Court, an inevitable typhoon of rhetoric (glowing endorsements from the president's political party and prophesies of doom coupled with ad hominem attacks from the opposite party) swirls in all the news and media outlets throughout the country. Amid all the rhetoric, posturing, and editorializing, few facts about the candidate may be discerned.

First, let's examine the rhetoric.

The criticism of President Barack Obama's nominee, Sonia Sotomayor, has been intense: "The first Hispanic nominee to the court is being called racist. She is being attacked as not smart enough, as too abrasive... Another attack is that Judge Sotomayor is too combative on the bench. It is not hard to find lawyers who will say, usually anonymously, that a judge questioned them too sharply."(The New York Times).

Many fear that she is an "activist" judge, meaning that she intends to make the law rather than interpret it. This concern stems from a remark that Judge Sotomayor made during an appearance at a Duke Law School Panel in 1985, “the court of appeals is where policy is made;" however, many argue that Sotomayor is only describing reality, not expressing her opinion. To make this point, they quote Justice Antonin Scalia, a judge noted for his more conservative view of justice, who wrote the majority opinion of the 2002 case Republican Party of Minnesota v. White: "Not only do state-court judges possess the power to 'make' common law, but they have the immense power to shape the States' constitutions as well. See, e.g., Baker v. State, 170 Vt. 194, 744 A. 2d 864 (1999)."

Finally, Sotomayor's critics express concern over Sotomayor's attitude toward her Puerto Rican background. In a lecture Sotomayor delivered at the University of California at Berkeley in October 2001 (and published in the Berkely La Raza Law Journal), she said, “Our experiences as women and people of color affect our decisions... The aspiration to impartiality is just that — it’s an aspiration because it denies the fact that we are by our experiences making different choices than others.” Later in her speech, she added, “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." In Sotomayor's defense, her supporters quote another conservative justice, Samuel Alito who said, during his confirmation hearing, “Because when a case comes before me involving, let's say, someone who is an immigrant -- and we get an awful lot of immigration cases and naturalization cases -- I can't help but think of my own ancestors, because it wasn't that long ago when they were in that position... When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account."

Now, here are some facts:

On freedom of religion, Judge Sotomayor "As a district judge, Sotomayor advanced First Amendment religious claims by tossing out a state prison rule banning members of a religious sect from wearing colored beads to ward off evil spirits, and by rejecting a suburban law preventing the display of a 9-foot-high menorah in a park." Anthony Picarello, general counsel of the U.S. Conference of Catholic Bishops, said he was still studying Sotomayor's judicial rulings, but that, "on first blush, her religious freedom decisions are encouraging." Jesuit Father Joseph O'Hare, the retired president of Fordham University and Sonia Sotomayor's good friend, has confirmed that the Supreme Court nominee is a practicing Roman Catholic. If she joins the Supreme Court, she will be the sixth Roman Catholic on the Court.

In her career as judge, her rulings on abortion-related matters are slim; however, in two cases she ruled according to the pro-life position. In the 2002 decision Center for Reproductive Law and Policy v. Bush, Sotomayor upheld the Mexico City Policy, which states that "the United States will 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 government is free to favor the anti-abortion position over the pro-choice position, and can do so with public funds."

In a second case, from July 2007, Judge Sotomayor wrote the dissenting opinion in a political asylum case. In this opinion, she argued that spouses of women who were subjected to China's harsh and inhumane population control measures: "The majority clings to the notion that the persecution suffered is physically visited upon only one spouse, but this simply ignores the question of whom exactly the government was seeking to persecute when it acted... The termination of a wanted pregnancy under a coercive population control program can only be devastating to any couple, akin, no doubt, to the killing of a child... The harm is clearly directed at the couple who dared to continue an unauthorized pregnancy in hopes of enlarging the family unit." Sotomayor also noted “the unique biological nature of pregnancy and special reverence every civilization has accorded to child-rearing and parenthood in marriage.” Meanwhile, though, observers note that when President Obama announced his selection of Judge Sotomayor, he said that she has a "respect for precedent," a comment which convinces many pro-abortion activists that Judge Sotomayor will uphold Roe v. Wade, the ruling that overturned most state and federal laws that restricted or outlawed abortion in the United States.

In the end, these points hardly constitute clear and certain indications concerning how Judge Sotomayor would make judgments should she be appointed to the Supreme Court. The only conclusion one can draw from a study of the various commentaries and of Sonia Sotomayor's judicial record is that should she join the Supreme Court, she will likely surprise everyone. Meanwhile, the rhetoric and vitriol will continue, unabated, long after the hearing is complete.