Shortly after President Obama nominated her to a lifetime appointment to the Supreme Court, I read Judge Sonia Sotomayor’s now famous words:
“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.”
My initial reaction was strong and direct -- perhaps too strong and too direct. The sentiment struck me as racist and I said so. Since then, some who want to have an open and honest consideration of Judge Sotomayor’s fitness to serve on the nation’s highest court have been critical of my word choice.
With these critics who want to have an honest conversation, I agree. The word “racist” should not have been applied to Judge Sotomayor as a person, even if her words themselves are unacceptable (a fact which both President Obama and his Press Secretary, Robert Gibbs, have since admitted).
So it is to her words -- the ones quoted above and others -- to which we should turn, for they show that the issue here is not racial identity politics. Sotomayor’s words reveal a betrayal of a fundamental principle of the American system -- that everyone is equal before the law.
The Central Question: Is American Justice No Longer Blindfolded?
The fundamental issue at stake in the Sotomayor discussion or nomination is not her background or her gender but an issue that has implications far beyond this judge and this nomination: Is judicial impartiality no longer a quality we can and should demand from our Supreme Court Justices?
President Obama apparently thinks so. Other presidents, Republican and Democrat, have considered race and gender in making judicial appointments in the past. But none have explicitly advocated the notion that judges should substitute their personal experiences for impartiality in deciding cases. And certainly none have asserted that their ethnicity, race or gender would make them a better judge over a judge from a different background.
Here is how President Obama explained his criteria for appointing judges earlier this year:
“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.”
No Group Has Benefited More From Impartial Justice Than the Less Fortunate
With these words, President Obama is cleverly inviting his critics to come out swinging against empathy for the less fortunate among us. But Americans are smarter than this.
We understand that the job of a justice is to enforce the law, not the rule of empathy. And we understand that when a judge substitutes his or her personal experiences for the law, the law becomes what he or she wants it to be, not what the people, through their elected representatives, have decided it should be.
Most tragically, it is this principle of judicial impartiality -- of justice, not just for the rich and the powerful, but for all -- that has most benefited the vulnerable and the downtrodden in America.
No group has needed or continues to need justice -- that can’t be predetermined by wealth or privilege -- as much as the less privileged. President Obama doesn’t seem to grasp that, by weakening judges’ adherence to the rule of law, he is also weakening the very foundation of equal justice for the less fortunate Americans he wants to help.
The “Court of Appeals is Where Policy Is Made”
How does Judge Sotomayor come down on the issue of a judge’s fidelity to the law?
Here is what she told a Duke University Law School audience in 2005 (emphasis mine):
“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.”
Is Judge Sotomayor Being Quoted Out of Context? You Read, You Decide
If Judge Sotomayor, by her own words, believes the judge’s bench is “where policy is made,” what kind of law can we expect her to make as a Supreme Court Justice?
The Berkeley Law School speech in which Judge Sotomayor made the comments that I quoted at the outset of this newsletter -- that a “wise Latina” would make a better judge than a white male -- has been widely cited.
The White House is now claiming that critics are taking Judge Sotomayor’s comments in that speech out of context. So in the spirit of “you read, you decide” I am linking here to Judge Sotomayor’s speech in full.
As you read it, see if you agree with those respected legal scholars who have concluded that the speech as a whole isn’t as damaging as the Judge’s “wise Latina” comment -- it’s worse.
“Our Gender and National Origins May and Will Make a Difference in Our Judging”
Here are some excerpts from the speech (emphasis mine):
"I further accept that our experiences as women and people of color affect our decisions. The aspiration to impartiality is just that."
"Whether born from experience or inherent psychological or cultural differences...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 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."
Again, you read, you decide. Read Judge Sotomayor’s speech in full here. Then let me know what you think at Newt.org.
“Equal Justice Under Law” Is Chiseled in Stone on the Supreme Court
The central principle of American justice -- and perhaps the single, great idea of America -- is equal justice before the law.
This idea is expressed in the words “all men (and today we would say all men and women) are created equal.” It means that Americans stand before the law, not as members of groups, but as individuals.
"Equal justice under law" is in fact chiseled in stone on the front of the Supreme Court building -- and for good reason.
When a judge disregards the rule of law and applies a different standard to certain groups -- or, as the President would say, shows “empathy” -- he or she violates this central American principle.
One Group’s “Empathy” is Another Group’s Injustice. Ask Frank Ricci.
When a judge views Americans as members of groups and not individuals, one group’s “empathy” becomes another group’s injustice.
Nowhere is the injustice that results from judging Americans as members of groups and not as individuals more evident than in Judge Sotomayor’s ruling in the case involving Frank Ricci, a New Haven, Conn., firefighter.
Ricci quit his second job and studied 13 hours a day in 2003 for a civil service exam he hoped would earn him a promotion to lieutenant in the New Haven Fire Department. And when Ricci took the exam, all his hard work seemed to pay off. He got one of the highest scores. But because no African-Americans scored high enough on the exam to be promoted, the city of New Haven threw out the results of the test and promoted no one.
Frank Ricci, 16 other white firefighters, and one Hispanic firefighter sued the city, claiming they were denied promotions on the basis of their race. A district judge dismissed the case, and a three- judge panel of the Second Circuit Court of Appeals affirmed the dismissal. One of those judges was Judge Sotomayor.
An Opportunity to Have a Debate About Equal Justice for Americans Like Frank Ricci
The Supreme Court is currently hearing the Ricci case, and a ruling is expected next month, likely in the midst of hearings on Judge Sotomayor’s nomination.
Legal experts expect the Supreme Court to reverse Judge Sotomayor’s ruling. But however the high court rules, this is a moment for America to have a full, honest and open debate, not just about the impartiality of our judges, but about equal justice before the law for Americans like Frank Ricci.
Which Judge Sotomayor Will Show Up on the Supreme Court?
In fairness to the judge, many of her rulings as a court of appeals judge do not match the radicalism of her speeches and statements. She has shown more caution and moderation in her rulings than in her words.
So the question we need to ask ourselves in considering Judge Sotomayor’s confirmation is this: Which judge will show up on the Supreme Court, the radical from her speeches or the convention liberal from her rulings?
It’s no small question. Judge Sotomayor is 54 years old. Supreme Court Justice John Paul Stevens is 89. Judge Sotomayor has the potential to spend more than 30 years on the Supreme Court. There, unlike on the court of appeals, she will have no reason to show caution. On the high court, Judge Sotomayor will not have to worry about a higher court overturning her rulings. As a Supreme Court Justice, she will do the overturning.
The stakes are very high with this nomination. Has President Obama nominated a conventionally liberal judge to a lifetime tenure on our highest court? Or a radical liberal activist who will cast aside the rule of law in favor of the narrow, divisive politics of race and gender identity?
WRITTEN by Newt Gingrich as "Supreme Court Nominee Sotomayor: You Read, You Decide" at Human Events on June 3rd, 2009
