The US Senate today opened its confirmation hearings for Pres. Obama’s nominee to fill the vacancy on the US Supreme Court, Judge Sonia Sotomayor. Her nomination has been oddly both controversial and not so controversial, in that she is the most experienced federal judge to be named to the Court in 100 years, was appointed to the federal courts by Pres. George H.W. Bush, a Republican, and is not overtly ideological, but has been accused of bias by conservatives for a speech that has been widely misread in the press.
The speech itself, a Berkeley lecture from 2001, was supposed to touch on the theme of the role of Latin heritage in her work as a jurist. This was by invitation. Sotomayor used the speech to highlight the problem of personal bias and the need to transcend it and achieve a broader empathy with those arguing their cases, focusing always on using one’s best judgment of the applicability of law and judicial precedent to the facts at hand.
She suggested that having been raised within a minority ethnic background, she might have insights that would allow her to be self-critical enough to transcend personal bias and make more objective rulings on the evidence before her. Her choice of words led some to believe she was suggesting that Latina women are inherently wiser than white men, when in fact she was arguing the opposite, that wisdom lay in overcoming one’s own personal experience and potential bias. She even cited examples of all-white-male courts that had achieved this.
Sotomayor has been painted by a minority faction of hard-line conservative groups as a radical, largely because they do not want anyone on the bench who might find in favor of abortion rights. But abortion rights are the mainstream of American jurisprudence, and it would tend to be overtly ideological “activist” judges, with a religious basis for their views, who would say they must overturn Roe v. Wade, without a case before the Court to judge.
Sen. Jon Kyl (R-AZ)’s question for Judge Sotomayor essentially engaged the senator in a deliberate misrepresentation of the judge’s record, by alleging that Pres. Obama seeks a judge who will use bias and pushes an agenda “based on her biases and prejudices”. Kyl took the quote from her 2001 speech, as out of context as possible, to argue that Sotomayor made a racist claim that as a Latina woman she should use her bias to make decisions not based in law or precedent. In fact, Sotomayor’s argument was precisely the opposite, that she is committed to the idea that one must transcend personal bias.
Sen. Schumer argued that she has “stellar credentials” and defended her “judicial modesty”, a quality he says “our conservative friends” have long demanded, but have seldom exhibited in their judicial choices. Sotomayor’s record as a jurist is moderate and shows little to no evidence of ideological or demographic bias. Schumer’s remarks set the stage for what may be the key to her winning confirmation: though Kyl and others oppose her, their allegations appear spurious, and the mainstream of the US Senate will likely see her as a sound choice for the Court.
Sen. Lindsay Graham (R-SC), a respected former military lawyer and Senate leader, affirmed this tone, telling Sotomayor in his opening remarks that “Unless you have a complete meltdown, you’re going to get confirmed”, and reminding those gathered that “I don’t think anyone worked harder for Sen. McCain than I did, but we lost, and Pres. Obama won, and that ought to matter”. He took the nominee on for a series of views supported by the Puerto Rican Defense Fund, an organization she had worked with before coming to the bench.
He opposed that group’s support for “taxpayer-funded abortion” for underprivileged minorities, and questioned Sotomayor’s reputed view that denial of Medicaid funding for such health-related procedures to ethnic minorities amounted to a race-based application of government abortion policy. He also questioned the PRDF view that the death penalty was applied in a racially-skewed way and should, for that reason, be abolished. But he also said he did not believe that one should oppose a judge’s nomination for ideological reasons, should that judge’s record show an attitude of judicial moderation and objectivity.