Confirmation hearings for Supreme Court nominee Sonia Sotomayor began yesterday with a sense of predictability and inevitability within the Senate chambers. Leading Republican Senators called for respectful review of and debate on Sotomayor’s candidacy during the hearings. Conservative Senator Jeff Sessions, ranking minority member of the committee, stated:
I expect this hearing and resulting debate to be characterized by a
respectful tone, a discussion of serious issues, and a thoughtful
dialogue, and I have worked hard to achieve that from day one.
That message, however, apparently was not heard outside the walls of the hearing room, as representatives of the extreme right in the media engaged without shame in a smear campaign replete with racist and sexist remarks about the nominee.
To begin, Sotomayor gave a relatively brief statement describing the path she took to these hearings, and her judicial philosophy as one guided by "fidelity to the law."
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In the past month, many Senators have asked me about my judicial
philosophy. It is simple: fidelity to the law. The task of a judge is
not to make the law – it is to apply the law. And it is clear, I
believe, that my record in two courts reflects my rigorous commitment
to interpreting the Constitution according to its terms; interpreting
statutes according to their terms and Congress’s intent; and hewing
faithfully to precedents established by the Supreme Court and my
Circuit Court. In each case I have heard, I have applied the law to the
facts at hand.
She did not, however, shy away from the inevitable human element inherent in being a judge, a role about which she has said frankly one can never truly be impartial.
The process of judging is enhanced when the arguments and concerns of
the parties to the litigation are understood and acknowledged. That is
why I generally structure my opinions by setting out what the law
requires and then by explaining why a contrary position, sympathetic or
not, is accepted or rejected. That is how I seek to strengthen both the
rule of law and faith in the impartiality of our justice system. My
personal and professional experiences help me listen and understand,
with the law always commanding the result in every case.
Both Democratic and Republican members of the Senate Judiciary Committee gave opening statements that largely echoed the themes already played out in the weeks leading up to these hearings: empathy (whether you were for or against it split along party lines), judicial temperment, respect for the law, and respect for the process.
The empathy debate was sparked by President Obama’s statement during the early stages of the nominating process, quoted by Sessions, that in tough cases, the critical ingredient for a judge is the:
breadth of one’s empathy," as well as "their broader vision of what
America should be."
This debate was further fueled by the ongoing use–out of context–of the so-called "wise Latina" quote by Judge Sotomayor in a 2001
speech, delivered at the University of
California-Berkeley School of Law and published in 2002 in the Berkeley La Raza Law Journal.
In a portion of that speech, as pointed out by Media Matters, Sotomayor was
discussing the importance of judicial diversity in deciding
"race and sex discrimination cases." In that speech, which can be read here, Sotomayor said:
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 [Sandra Day] 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.
As reported at length by Media Matters, the media has not only continued to aid the far right and many Republican Senators in taking that quote out of context, it also has completely ignored similar comments by conservative darlings such as Justices Thomas and Alito.
[I]n criticizing or reporting
criticism of Sotomayor’s comments, they have
also failed to report similar comments by Justices Clarence Thomas and
Samuel Alito regarding the impact their
backgrounds and personal experiences have had
on their judicial thinking.
During his 2006 confirmation hearing;
"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." Similarly, during Thomas’ confirmation hearing, Sen. Herb Kohl
(D-WI) asked, "I’d like to ask you why you want this job?" Thomas
replied, in part, "I believe, Senator, that I can make a contribution, that
I can bring something different to the Court, that I can walk in the shoes of
the people who are affected by what the Court does."
[Never mind that the majority of women in this country no doubt agree that it’s about time for a few more "wise women" on the largely white, majority male court, or that it is clear that the males on that court have their own experiences, or lack of experiences, guiding their decisions.]
There is an obvious need for real people–not computers, as Senator Sheldon Whitehouse (D-Rhode Island) pointed out in an excellent speech last month to the American Constitution Society–to interpret law.
And even some of the statements by Republicans underscored just how "subjective" objectivity can be. Senator came from Senator Lindsay Graham (R-South Carolina) stated:
I don’t know what I’m going to do yet, but I do believe that [as an advocate] you…took on some cases that I would have loved to have been on the other side, that your organization advocated taxpayer-funded abortion and said in a brief that to deny a poor black woman Medicaid funding for an abortion was equivalent to the Dred Scott case. Now, that’s a pretty extreme thing to say, but I think it was heartfelt.
I would look at it the other way. To take my taxpayer dollars and provide an abortion to — to pay for abortion I disagree with is pretty extreme. So there’s two ways of looking at that.
Senator Herbert Kohl (D-Wisconsin) put it succinctly and directly when he said:
Your critics are concerned that your background will inappropriately
impact your decision-making. But, it is impossible for any of us to
remove ourselves from our life story with all of the twists and turns
that make us who we are.
As you have acknowledged, "My
experiences in life unquestionably shape my attitudes." And, I hope
that we on this Committee can appreciate and relate to ourselves what
you said next, "but I am cognizant enough that mine is not the only
experience." You will have an opportunity before this Committee to
assure us that your life experiences will impact but not overwhelm your
duty to follow the law and Constitution.
The sense of inevitabilty, however, pervades. Senator Graham made one of the most honest statements of the day, when he said:
This is mostly about liberal and conservative politics more than anything else.
I don’t know how I’m going to vote, but my inclination is that elections matter. [W]e lost, and President Obama won. And that ought to matter. It does to me.
Nonetheless, outside the halls of the Senate, the debate was the furthest thing from respectful. Rush Limbaugh, for example, called Sotomayor a racist, and the Washington Times changed the wording and intent of her remarks to strengthen their own call for the defeat of her nomination.
This political circus will likely continue: As the hearings begin today in earnest, the heat will certainly rise inside the Senate chambers with direct questioning of Sotomayor on her record and ongoing efforts by the extreme right to cause her to "melt down." If her composure so far is any indication, that is highly unlikely.