By James Oliphant and David G. Savage
July 19, 2009
Reporting from Washington — Two months ago, Sonia Sotomayor’s Latino heritage was viewed as an overwhelming asset. And though history will be made if she becomes the Supreme Court’s newest justice, there wasn’t much talk about that during three days of grueling testimony last week. For some, her confirmation hearings left a bitter taste.
“This is a great first, but we are not being allowed to celebrate it in the way we are allowed to celebrate Thurgood Marshall as the first African American on the court,” said Laura Gomez, a University of New Mexico law professor.
That’s because Republicans on the Senate Judiciary Committee attempted to shine a negative light on Sotomayor’s earlier statements about what she as a Latina could bring to judging and on her connections with a Latino advocacy group. In wave after wave of questions, they suggested that statements by the New York federal appellate judge indicated an inability to remain impartial on the bench.
Sotomayor had given them ammunition: speeches in which she said she hoped that “a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male.”
You can read the speech in it’s entirety here
By the end of the week, however, she had forcefully rejected that notion — along with the idea that her diverse background meant she would judge with “empathy,” a quality President Obama had said was important for a high court justice.
She also denied being involved in abortion-rights lawsuits filed by the Puerto Rican advocacy group whose board she served on for 12 years.
Even though Sotomayor is almost certain to be confirmed, some Republicans considered their bid to root out what they saw as potential prejudices as a kind of victory.
What Sen. Jeff Sessions calls an ‘honest discussion’ on race, some observers say is an attack on ethnic pride.
“We had a more honest discussion of some of the complexities and sensitivities of the race question in this hearing than in the 12 years I have been in the Senate,” said Sen. Jeff Sessions of Alabama, the ranking Republican on the committee, whose own bid for a federal judgeship was blocked because of racially insensitive remarks he had made in the past.
Sotomayor’s supporters, however, viewed the questioning another way.
“It was extremely disappointing and a walk backward from the point of diversity,” said Sherrilyn Ifill, a law professor at the University of Maryland. “This was not a productive conversation. It was unfortunate posturing by the Republicans.
“This was an all-white judiciary committee asking condescending questions. And it was an unequal power situation. She was not in a position to honestly engage with them, because she needed their votes.”
What last week’s public exercise illustrated was the nature of questions of race and identity in America: Ethnic pride to some is identity politics to others.
At the heart of the Republican questioning was a sense of mistrust that they said was based on a notable difference between the probity of Sotomayor’s decisions as a judge and the more liberal tone of her speeches. Some senators were convinced she was masking her true nature — and that it would be revealed once she was given a lifetime post on the Supreme Court.
To put a human face on their concerns, they invited a white firefighter and a Latino firefighter from Connecticut to testify on Sotomayor’s ruling in their discrimination case, Ricci vs. DeStefano.
“I think we all want a justice who is neutral and impartial,” said Jenny Rivera, a law professor at the City University of New York, who once clerked for Sotomayor. But Republicans, she said, maintained that “when you put on the robes, you put on the shelf your sense of history and identity and heritage.”
Conservatives, however, said that the GOP senators had succeeded in forcing Sotomayor to distance herself from her earlier statements about ethnicity and gender swaying her decisions.
“It seems conservatives are winning the larger war over the judiciary, even if losing the battle over this nomination,” Jonathan Adler, a law professor at Case Western Reserve University in Cleveland, wrote in the Washington Post.
Sotomayor “ended up disavowing many of her previous statements or trying to reinterpret them,” said Ilya Somin of George Mason University School of Law.
“More significantly, she ended up publicly rejecting the president’s view that empathy should often guide judicial decision-making,” he said.
Democrats on the judiciary committee seemed to go out of their way to avoid the issue of Sotomayor’s heritage, focusing instead on her 17-year judicial record, one that even some Republicans conceded contained little to fight about.
And Sotomayor herself was forced to step lightly around the subject, disavowing her “wise Latina” comment as a “rhetorical riff” that had the opposite meaning than she had intended.
“Her selection by the nation’s first black president is a testament to the advances in diversity and tolerance that we have made as a nation,” said Rachel Moran, a law professor at UC Irvine.
But, Moran noted, Sotomayor “made no explicit reference to her personal story as the daughter of Puerto Rican parents who moved to New York. Instead, she described her life as ‘uniquely American.’ ”
Several GOP senators cast their line of questioning in terms of achieving a goal laid out by Chief Justice John G. Roberts Jr., who has said: “The best way to stop discriminating based on race is to stop discriminating based on race.”
Their actions had an effect.
“I think, before the hearings, we were seeing a discussion that diversity can enrich any institution,” said Victoria DeFrancesco Soto, a political science professor at Northwestern University. But that talk “became too radioactive,” she said.
The GOP senators “were playing to the angry white male voter. Some of the remarks were clearly about saying that ‘you’ can say things that ‘we’ can’t,” said Julian Zelizer, a professor of history and public affairs at Princeton University.
“These kinds of comments attacking ethnic pride and the benefits of diversity in any institution — which is really what her remark was about — combined with the Ricci case looked like backlash politics, pure and simple.”
Despite the hearings, Sotomayor’s Puerto Rican heritage and Bronx upbringing will have an effect inside the Supreme Court, legal experts said.
“Thurgood Marshall’s presence changed the Supreme Court in profound ways, and I do not doubt that Judge Sotomayor will also have a significant impact on the court,” said John Payton, president of the NAACP Legal Defense Fund.
“She is a powerful personality. She is extremely thoughtful and self-reflective. . . . She will be the second woman, the second nonwhite member and the first Latina. All of these will certainly matter.”
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