On Some Criticisms of Sonia Sotomayor

There are two statements made by Supreme Court nominee Sonia Sotomayer which have come under a great deal of criticism in conservative circles. These are:

"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 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."

"All of the legal defense funds out there, they're looking for people with Court of Appeals experience. Because it is - Court of Appeals is where policy is made. And I know, and I know, that this is on tape, and I should never say that. Because we don't 'make law,' I know. [laughter] Okay, I know. I know. I'm not promoting it, and I'm not advocating it. I'm, you know. [laughter] Having said that, the Court of Appeals is where, before the Supreme Court makes the final decision, the law is percolating."

As I mentioned in my previous post, I believe Judge Sotomayer is a badly flawed judge, but we should make her evaluation on a rational basis and these quotes as given above are not a sound basis for such an evaluation.

In the first quote, she is said by many conservatives to have taken a racist stance. Well, no, this is not the case. I think some of her case judgments and other statements reveal her as racist, but this statement does not. The reason is that anyone of any race who is wise is, of course, going to make better judgments and decisions than the average person of any race. Wise people are not all that common and many people of any race in positions of authority are not wise. So, a wise Latina woman is going to make better decisions more often than not than a white male. Similarly, a wise white male is going to make better judgments and decisions more often than not than a Latina woman. These statements will both be true provided that the person not specified as wise is not one of the few wise members of the given race. There are specifically very wise judges who are white males (Judge Andrew Napolitano), white females, black males (Justice Clarence Thomas), black females, Latin males, and Latina women, Asian males, Asian females, Native American males and females. Whoever is chosen for the Supreme Court position ought to be one of those few judges who is wise. I do not care what race or nationality they are, only that they are wise.

Now, a wise judge would have a very good understanding that all laws should be consistent with our Constitution and that the purpose of the Constitution is to protect, preserve, and defend the sovereign rights of the individual to life, liberty, property, and the pursuit of happiness. In addition, a wise judge would know that the rule of law and the impartiality of law with respect to wealth, race, religion, and national origin is very important. The wise judge would understand that the law must be consistent and intelligible and that it must be as simple as it is reasonably possible to make it. Overly complex laws are effectively unknowable and are therefore an abomination. For instance, any law that Congress cannot even interpret is clearly not a law at all and should be thrown back in their faces as a disgrace. Much of the tax code, EPA regulations, and anti-trust law all fall into the realm of unintelligible law which should be unenforceable in the courts. Judge Sotomayor is certainly not such a wise judge based upon her decision record.

Let us now examine the statement that the Court of Appeals is where policy is made. Looking at her record, there is reason to be concerned here with respect to Judge Sotomayor's understanding of the law. But, one really does have to look beyond this statement to come to that conclusion. This statement could be understood in a context that the lower courts may disagree with one another on the law and the Court of Appeals, which produces the final appeal decision on 99% of court cases, has to set the policy of what the law actually means with its decisions. This does not necessarily mean that they are making up law, as some conservatives have implied. Unfortunately, an examination of Sotomayor's actual decisions does lead one to conclude that she makes up law as it suits her, but this quoted statement does not make that clear. One has to dig deeper.

The argument against Judge Sotomayor's appointment is trivialized if we stop with these quotes and base all of our objections to her upon them. We must examine her decisions and look to other quotes for a true understanding of her philosophy of law. We will not be happy with what we find, since she has no business serving on the Appeals Court, let alone on the Supreme Court.