Supreme Court Justice David Souter’s recent announcement that he will retire when the court’s latest term ends this June has launched widespread speculation about his successor, President Obama's first nominee to the Supreme Court. As part of an ongoing series, FrontPage Magazine will be reviewing the likeliest nominees, beginning with the current frontrunner for the nomination, Sonia Sotomayor, a judge on the U.S. Court of Appeals for the Second Circuit. – The Editors
With David Souter set to retire from the Supreme Court next month, there is much speculation that Sonia Sotomayor, a judge on the 2nd Circuit Court of Appeals in New York, ranks at the top of Barack Obama’s list of replacements. Considering President Obama’s stated preference for selecting a minority candidate who “understand[s] what it’s like to be poor, or African-American, or gay, or disabled, or old,” Sotomayor – a Latina from a Bronx housing project – may be a frontrunner for the nomination. This fact should trouble those who believe a Justice’s principal qualification for the country’s highest court should be his or her ability to interpret the Constitution accurately.
Sotomayor considers her ethnicity of paramount importance, as well. She began consciously developing a sense of her ethnic identity as a young woman and has allowed identity politics to act as a lens through which she sees her jurisprudence. During her student years at Princeton University in the 1970s, Sotomayor became actively involved in two campus organizations devoted chiefly to the celebration of an ethnicity distinct from that of the white majority. She reminisces: “The Puerto Rican group on campus, Accion Puertorriquena, and the Third World Center provided me with an anchor I needed to ground myself in that new and different world.”
The self-described goal of Acción Puertorriqueña (AP), which remains active, is to “unite Puerto Rican and Latino students both in the University and in the greater community and promote our culture.” But in practice, this means supporting increased rights and privileges for illegal aliens. In 1994, AP lobbied against Proposition 187, the ballot initiative designed to deny social-welfare benefits to illegal immigrants in California. Nine years later, AP sponsored an event focusing on the societal “inequality” that allegedly persisted in suppressing Latinos’ “access to higher education...throughout our nation.”
The other group to which Sotomayor belonged, Princeton’s Third World Center (TWC), was established in 1971 “to provide a social, cultural and political environment that reflects the needs and concerns of students of color at the University.” A 1978 Princeton publication explained that the TWC had arisen chiefly to address the fact that “the University’s cultural and social organizations have largely been shaped by students from families nurtured in the Anglo-American and European traditions,” and that consequently “it has not always been easy for students from different backgrounds to enter the mainstream of campus life.”
Thus indoctrinated, Sotomayor states that even though she holds one of the highest positions in her profession and is being considered for a lifelong appointment where her opinions would become precedent for the entire legal profession, she has never shed her sense of being an outsider looking in on American society:
The differences from the larger society and the problems I faced as a Latina woman didn’t disappear when I left Princeton. I have spent my years since Princeton, while at law school and in my various professional jobs, not feeling completely a part of any of the worlds I inhabit…. As accomplished as I have been in my professional settings, I am always looking over my shoulder wondering if I measure up and am always concerned that I have to work harder to succeed.
Sotomayor describes Latinos as one of America’s “economically deprived populations” which, like “all minority and women’s groups,” are filled with people “who don’t make it in our society at all.” Attributing those failures to inequities inherent in American society, she affirms her commitment to “serving the underprivileged of our society” by promoting Affirmative Action and other policies designed to help those who “face enormous challenges.”
Of Puerto Rican heritage, Sotomayor served from 1980 to 1992 as a Board of Directors member of the Puerto Rican Legal Defense and Education Fund. This organization promotes amnesty and expanded rights for illegal aliens living in the United States; advocates hiring minority job applicants who have lower testing scores; favors preferential treatment for minorities in job promotions and career advancement; seeks to promote Spanish as an acceptable alternative to English in the business world; and supports race-based redistricting plans that would guarantee electoral victories for Latinos.
In November 1991, on the recommendation of Democratic Senator Daniel Patrick Moynihan, President George H.W. Bush nominated Sotomayor to a seat on the U.S. District Court for the Southern District of New York. In June 1997, President Bill Clinton nominated Sotomayor to serve as a federal judge on the U.S. Court of Appeals for the Second Circuit, a seat she holds to this day.
As a federal judge, Sotomayor’s commitment to “serving the underprivileged” has led her to some highly contentious legal decisions where she has placed “empathy” over common sense or the dictates of the law. In 1998, the Family Research Council mockingly bestowed on Sotomayor its Court Jester Award for her decision to extend the application of the Americans with Disabilities Act to a woman whose self-identified “handicap,” which caused her to fail the New York State bar exam several times, was her illiteracy.
Perhaps the most noteworthy case over which Sotomayor has presided was that of Frank Ricci, a white New Haven, Connecticut fireman who, in 2003, had scored well on the test which the fire department administered to determine promotions to such positions as lieutenant and captain. But when it was revealed that black firefighters had, on average, scored much lower on that test, the New Haven Fire Department, reasoning that the exam itself must have been racially biased, discarded the results and granted no promotions that year. In response, Ricci and 17 fellow firefighters (16 whites and one Hispanic) filed a federal civil rights lawsuit which was argued before a three-judge panel of the U.S. Court of Appeals for the 2nd Circuit. The plaintiffs contended that they had been wrongfully denied promotions they deserved. The judicial panel, which included Sotomayor, upheld New Haven’s decision to dismiss the test results. Subsequently, all 13 members (including Sotomayor) of the same Appeals Court presided over a retrial of the Ricci case. They likewise affirmed, by a 7-6 margin, that the firefighters’ test was invalid. Six of the seven judges to rule that way were, like Sotomayor, Bill Clinton appointees.
The common thread in Sotomayor’s decisions seems to be her view that discrimination remains pervasive in the United States, and that the role of a judge is to “level the playing field,” even if it means rewarding the unqualified and punishing the deserving, while ignoring the law in the process. It is indicative of how she sees the role of a justice that she has previously said that the Court of Appeals “is where policy is made.” This is the textbook definition of judicial activism. Unfortunately, it is also “the critical ingredient” that Barack Obama has identified as the chief “criterion” by which he will select the next Supreme Court justice.