Selection of a justice for the U.S. Supreme Court is one of the most important constitutional responsibilities of any president. The recent nomination of Judge Sonya Sotomayor has raised many issues in the legal and political camps of her supporters and opponents.
If confirmed by the Senate, she would be the first Hispanic woman to serve on the Supreme Court. A graduate of Princeton and Yale Law School, she has previously been confirmed by the Senate for lifetime appointments on the Federal District Court and Federal Circuit Court of Appeals. She has recently received the "highly qualified" rating of the American Bar Association, the same rating given to Chief Justice Roberts. There is little doubt she is qualified to serve the rest of her judicial life as Supreme Court Justice, but the confirmation process can be grueling and daunting.
There are many who oppose Sotomayor for a variety of reasons. This column will discuss three of their arguments: First, she is prejudiced against white males because of remarks she made comparing a white male view of the law to her life experience. Second, she publicly admitted that all judges, especially appellate ones, make decisions that are not only legal interpretations but also make policy. Third, she stands accused of being a bully who does not allow other judges to speak at oral arguments and can become quite contentious at the meetings of judges where they vote on their decisions.
I have read the exact statements she made on matters of life experience and judicial policymaking, and, on both occasions, her remarks were taken out of context. Underlying these criticisms is the belief that judges must decide cases based on only the law and facts and not their life experience. This is an intellectually ungrounded and naïve view of what judges do every day. They decide cases based upon the law, the facts and, yes, their life experience.
A review of the Supreme Court recent membership shows each justice brings a unique life experience to the Court. Justice Alito, the most recently confirmed justice, testified that because his parents, like those of Sotomayor, were immigrants, he would bring that life experience to the court and scrutinize all immigration issues. Justices Stevens and Kennedy are veterans who served in the Navy in World War II and the Army Reserve. Justice Ruth Bader Ginsberg and former Justice Sandra Day O'Conner, both pioneering women, were unable to find employment in the white male law firms of the 1950s despite graduating from Stanford and Columbia law schools with exemplary academic records. They also have been mothers and wives, as has Judge Sotomayor, and balanced profession and family constantly. Justices Antonin Scalia and Samuel Alito are both proud Italian Americans, both born in New Jersey. Justice Clarence Thomas, an African-American raised by his grandparents in the segregated South graduated, like Sotomayor, from Yale Law School. Justice Stephen Breyer, born in San Francisco, is a former law professor and a graduate of an Ivy League law school, the only life experience common to all justices.
Sotomayor's statement that she sees life and the law differently than the average white male is both honest and reasonable. Yes, she is a Hispanic woman who lived in public housing and lost her father at a young age. She has been a daughter, wife, mother, divorcee, prosecutor and Yale and Princeton graduate. She is proud of her heritage and brings a unique life experience to the court, which will expand the life experiences of the Supreme Court and make it a court with a broader human and legal perspective.
The statement that judges are not making policy but simply deciding cases based upon their view of the law and the facts is equally naïve, if not outright boneheaded. Judges come in all colors and have all kinds of stripes: conservative, liberal, moderate, pro-liberty, restrained, hard and moderate on criminal sentencing and hard-line on every issue imaginable. That they make policy continually is the reason we encourage former trial attorneys, veterans, prosecutors, public defenders, people of color and women to serve on the bench. They are enforcing the law and in their interpretation. Every judge, whether interpreting the Constitution or a city garbage collection ordinance is given wide discretion in every case, and when they decide the issues and rules, they are enforcing and making policy judgments.
Finally, I hope Sotomayor is one tough justice on the Supreme Court, because it is packed with some bullies already, and all of them are male. She will have to defend her views, her written scholarship and her position against a group of equally brilliant justices who also hold strong legal view and values. She is a strong, highly qualified woman who will not shrink from her constitutional duties to be fair, impartial and an independent judicial voice.
The nation will be served well by this woman.
Michael McLachlan is a Durango attorney. Reach him at 247-8236.