With a desire to change the subject from the North Korean nuclear test, President Obama appointed an activist judge in hopes of tilting the Supreme Court further to the Left. On Tuesday morning, Barack Obama formally nominated Sonia Sotomayor, a judge on the 2nd Circuit Court of Appeals in New York, to replace the retiring David Souter as a U.S. Supreme Court Justice. Considering 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 – was a logical choice.
In response to the nomination, Vermont Democrat Patrick Leahy, who chairs the Senate Judiciary Committee, predicted that Sotomayor will serve “in the mold of Justice Souter, who understands the real-world impact of the Court's decisions, rather than the mold of the conservative activists who second-guess Congress, and who through judicial extremism undercut laws meant to protect Americans from discrimination.” In a similar spirit, Senator John Kerry of Massachusetts said that Sotomayor possesses “an excellent mind coupled with real world empathy but also passes Justice Potter Stewart’s famous test of someone who is neither liberal nor conservative but simply a great judge.” And according to Democrat Barbara Boxer of California, “Sotomayor’s life story serves as an inspiration, not just to every Hispanic and woman, but to every American, because in this country if you work hard, you can reach your dreams.”
A number of notable conservatives, meanwhile, have taken a different view of the nomination. For instance, Charmaine Yoest, president of Americans United for Life, called Sotomayor “an avowed judicial activist” who “believes the role of the Court is to set policy,” and who will likely “impose her personal policy and beliefs onto others from the bench.” Wendy Long, counsel for the Judicial Confirmation Network (an organization that opposes judicial activism), characterized the nominee as a “favorite of far-left special interest groups” who will “indulge…left-wing policy preferences instead of neutrally applying the law.” Republican Senator Jeff Sessions, who was formerly the Attorney General of Alabama, says, “we must determine if Ms. Sotomayor understands that the proper role of a judge is to act as a neutral umpire of the law...without regard to one’s own personal preferences or political views.” Similarly, RNC Chairman Michael Steele says, “Republicans will reserve judgment on Sonia Sotomayor until there has been a thorough and thoughtful examination of her legal views.”
Such an examination, if conducted without underlying political biases, is sure to reveal the unmistakable importance that Sotomayor places on her own ethnicity as her most defining personal characteristic. She began consciously developing a sense of her ethnic identity during her student years at Princeton in the 1970s, and ever since then, she has allowed identity politics to act as the lens through which she views the law.
At Princeton, 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 to this day, 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 has reached the loftiest heights of her 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 the hiring of minority job-applicants who score lower on competency tests than their white counterparts; 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 has held ever since.
As a federal judge, Sotomayor’s commitment to “serving the underprivileged” 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.
In 2001 Sotomayor gave a speech at UC Berkeley, during which she suggested, approvingly, that making the federal bench more “diverse”—in terms of ethnicity, race, gender, or sexual orientation—“will have an effect on the development of the law and on judging.” Refuting the notion that judges should not permit the foregoing personal traits to influence their legal decisions, she said: “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.” “Whether born from experience or inherent physiological or cultural differences,” she elaborated, “our gender and national origins may and will make a difference in our judging…. Personal experiences affect the facts that judges choose to see.” Questioning whether it is even “possible in all, or even, in most, cases” for judges to be absolutely impartial, she pondered: “I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society.” She also expressed agreement with law professors who have maintained that “to judge is an exercise of power” and that “there is no objective stance but only a series of perspectives.”
Perhaps the most noteworthy case over which Sotomayor 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, on average, had scored much lower on that test, the city of New Haven, reasoning that the exam itself must have been racially biased, ordered that the results be discarded and that no promotions be granted 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 is 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 less-qualified and punishing the deserving, while ignoring the law in the process.
In May 2009 a video surfaced of Sotomayor speaking at a 2005 panel discussion for law students. In that video, she said that a “court of appeals is where policy is made”—a candid rejection of the notion that a judge’s proper role is to interpret the law rather than to create it. Then, remembering that the event was being recorded, Sotomayor added immediately: “And I know — I know this is on tape, and I should never say that because we don’t make law. I know. O.K. I know. I’m not promoting it. I’m not advocating it. I’m — you know.” Her tone was unmistakably that of a person uttering, with a wink and a nod, words that she did not, even for a moment, believe.
Such judicial activism, founded on the twin premises that the Constitution is a “living document” subject to constant reinterpretation, and that the legal system should give certain compensatory advantages to people who are allegedly victimized by society’s inherent inequities, is “the critical ingredient” that Barack Obama identified, even during the 2008 presidential campaign, as the chief “criterion” by which he would select the next Supreme Court justice. He has proven to be true to his word.