Linda Chavez’s Rhetoric Fell Flat
By Claudine Karasik, MALDEF Legislative Staff Attorney on 07/20/2009 @ 02:56 PM
When Linda Chavez, chairman of the conservative Center for Equal Opportunity, took her seat at the panel to testify before the Senate Judiciary Committee yesterday, she began her remarks by stating:
I testify today, not as a wise Latina, but as an American who believes that skin color and national origin should not determine who gets a job, promotion, or public contract, or who gets into college or receives a scholarship…It is clear from her record that the she has drunk deep from the well of identity politics. I know a lot about that well, and I can tell you that it is dark and poisonous. It is, in my view, impossible to be a fair judge and also believe that one’s race, ethnicity, and sex should determine how someone will rule as a judge.
Such vacuous comments reflect Chavez’s lack of knowledge regarding Judge Sotomoyor’s moderate judicial record. Chavez and other conservatives use the term to imply that one who “drinks from the well of identity politics” has a separatist ideology that seeks to undermine an oppressor or that a woman or person of color has sought to advance in society through affirmative action programs irrespective of her talent and intellect. Using the term “identity politics” in such a way only supports the idea that perhaps a political theory is needed to describe and explain the efforts of an historically marginalized or underrepresented group’s political struggles. One might argue that to use the term to denigrate, say a Supreme Court nominee’s career in such a public setting as a confirmation hearing, illustrates the need to adjust social and political paradigms so that one day people will be judged solely for the content of their character, as Dr. Martin Luther King envisioned.
Linda Chavez’s characterization of Judge Sotomayor as some sort of affirmative action revolutionary and a Latina who succeeded only by availing herself of such programs is, dare I say, rhetoric that falls flat. Lindsey Graham (R-South Carolina), after telegraphing his support for Judge Sotomayor and stating that he does not believe Judge Sotomayor to be an activist judge, took issue with Chavez’s testimony, pointedly asking “Have you ever known a Republican political leader to actively try to seek putting a minority in a position of responsibility to help the party?” to which, perhaps reflecting on her own career, Chavez never gave a direct answer. Senator Graham went on to say:
And, you know, what I want to tell the country is that Republicans very much do sit down and think about political picks and appointments in a political sense to try to show that we're a party that looks at all Americans and intends to give an opportunity. And that's just life, and that's not a bad thing.
MALDEF and other civil rights groups that advocate on behalf of Latinos, support Judge Sotomayor’s nomination to the Supreme Court not simply because she a woman with Latino roots, but rather because she represents the American ideal that no matter where you come from, whether a South Bronx housing project or an affluent suburb, realizing one’s dreams is entirely possible.
It goes without saying that what’s best for the country and our democracy is that our government be truly representative of the people, and that we populate our governmental institutions with the best the country has to offer, irrespective of gender, race, or ethnicity. To have found a Supreme Court nominee who embodies these ideals is to have arrived at moment in history when our society has come that much closer to becoming a more perfect union. And this, no doubt, is something about which both liberals and conservatives can agree.
An Instant Role Model in Judge Sotomayor
By Claudine Karasik, MALDEF Legislative Staff Attorney on 07/16/2009 @ 09:00 PM
Judges are public figures whose words and actions hold particular prominence. It’s fair to say that among most Americans generally, and in the Latino community specifically, judges are highly respected and their authority is highly revered. Judges symbolize our nation’s aspiration to “justice for all.” Judges hold great power, have great authority, and accept awesome responsibility. And because judges are highly accomplished and yield great authority and power, they serve as role models to those in their profession and in the general community.
Today, as I sat in the hearing room at the Senate Hart Office building, I watched Judge Sotomayor respond to Senator Diane Feinstein’s (D-CA) question regarding how the Judge felt about becoming an instant role model. Judge Sotomayor responded that she chose the career of a judge because it suited her desire to serve the public and that she has always strived to make herself accessible to the community.
Judge Sotomayor has served as a role model since long before she became a Supreme Court nominee, and there are many reasons to hold her in such high regard. As a young girl, she endured the loss of a father and was raised by a widowed mother in a South Bronx housing project. Yet, she studied, excelled and earned a scholarship to Princeton University, where she graduated summa cum laude. She went on to Yale Law School, where she served as editor of the Yale Law Review. All of those things are worthy of role model status.
Judge Sotomayor spent her early legal career prosecuting serious felonies as a Manhattan District Attorney. From there, she entered private practice and litigated complicated cases in the areas of real estate, contracts, employment, and intellectual property law, later becoming a partner in the law firm. Remarkably, she became a federal district judge at the very young age of 38. That too, is worthy of role model status.
Throughout her career, she has remained involved in her community, making herself available to a variety of groups, people of all backgrounds, law students and new lawyers. This is a monumental moment for Judge Sotomayor. She has kept a rigorous schedule over the last several months despite battling diabetes and a broken foot, has risen above the unfounded and undeserved character assassinations, has successfully survived the scrutiny of her judicial record, and has solidly and steadily made the case for herself during the hearings. There she has sat this week, her leg in a cast, beneath hot, bright lights, with the senate staring at her, the entire room including internet and television audiences focused on her, some hoping, perhaps for a “meltdown” that never came, but most, awed by the historic proceedings and proud of a judge who has earned and appreciates her status as a role model.
Judge Sotomayor's Record Speaks for Itself
By Claudine Karasik, MALDEF Legislative Staff Attorney on 07/16/2009 @ 12:56 PM
Judge Sotomayor’s record as a federal district court and appellate judge is beyond reproach which is in large part why some conservatives are left only to stir controversy regarding sensational tidbits. Judge Sotomayor’s detractors won’t acknowledge her moderate record but rather highlight statements she has made—not while wearing her robe—but while delivering speeches to law groups and associations and lawyers and law students. Those who are attempting to cast her as a judicial activist do not cite the words she has spoken from the bench but rather take out of context comments she has made in other settings.
As Ruth Bader Ginsberg recently discussed in an interview with the New York Times Magazine, it is “ridiculous for [some members of Congress]” to criticize her for a statement that clearly was intended only to mean that people with different life experiences bring to any appointment or job or post in life a diversity of ideas. Justice Ginsburg aptly points out that many of us have said things publicly that, upon reflection, might have been better said another way.
The idea that Judge Sotomayor would allow her life experience as a Latina to get in the way of her ability to judge cases has no merit. In fact, her record shows that she consistently applies existing law to the unique facts of each case. For example, in her dissent in Pappas v. Giuliani, a case in which a police employee was fired for distributing racist materials, she opined that the “First Amendment commands that we respect people's rights to engage in hateful speech.” This inarguably illustrates her ability to put aside what she may personally deem morally reprehensible and still render fair and impartial judgment in a case.
In response to the politically charged questioning during the confirmation hearings, she has repeatedly assured the panel that judges do not make policy because our Constitution provides that such is the purview of the legislative branch of government. Judge Sotomayor has repeatedly stated that she believes a strict adherence to legal precedent is paramount in judging cases and that judges, no matter their gender or their ethnic background, must always keep their personal opinions and perspectives in check. Judge Sotomayor is unequivocal in her position that a judge must never allow unconscious influences to affect his or her decision-making.
Sotomayor Clears First Day of Senators' Questions
By Terry A. Maroney on 07/14/2009 @ 07:01 PM
Terry Maroney is an associate professor of law, specializing in Supreme Court decision-making, law and emotion, race and gender in law, and criminal and juvenile justice. She most recently wrote an article on “Emotional Common Sense as Constitutional Law,” which will be published in the Vanderbilt Law Review (forthcoming, 2009).
This was the day to watch. Yesterday each side set out the broad themes and primary points of contention, and Judge Sonia Sotomayor made some initial remarks. While revealing, Day One is not where fates rise or fall. Today we moved on to substantive questioning and debate, within which the Judge was able to speak more freely and at length, explaining both particular decisions and her judicial philosophy. Well, Day Two is over, and Sotomayor has not had a “complete meltdown.” According to the Day-One prediction of Senator Lindsey Graham, then, she certainly will be confirmed. This is as it should be: her judicial and academic credentials are unimpeachable. More, not only has she not had a “complete meltdown,” but she’s answered both friendly and hostile questions with equal care and poise. Like nominees before her, she was unwilling to broadcast her views on issues likely to come before her on the Supreme Court, but she capably justified a variety of her rulings, including the hot-button Ricci decision. Whether discussing the importance of stare decisis or the bounds of Chevron deference, Sotomayor demonstrated her expertise and intellect.
Perhaps most significantly, the threatened tempest over “empathy” and the role of personal background appears to have fizzled. This, too, is as it should be. All judges have a gender, an ethnicity, and other life parameters (like being from an urban or rural environment) that necessarily shape their perspective. This is part of why we aim for a broadly diverse bench. Further, all judges should have a robust capacity for empathy, for otherwise they cannot imagine the relevant experiences of those affected by their rulings. This is why other recent nominees—like Justices Alito and Thomas—have assured the Senators that they know how to “walk in someone else’s shoes.” That these relatively noncontroversial notions have attracted such attention (and, unfortunately, vitriol) with this nominee has—again in Senator Graham’s words—more to do with “liberal and conservative politics” than anything else. But the sting of this line of questioning appears to have been considerably eased, if not eliminated, by Sotomayor’s testimony affirming her commitment to judicial impartiality. Even Senator Sessions appeared largely satisfied on this count.
Good. With the potential for distortion and bombast hopefully past, then, it is worth engaging in a more nuanced and thoughtful national discussion about the roles of emotion, empathy, and personal background in judicial decision-making. A partisan confirmation hearing is not the ideal setting for such a discussion. Still, it is possible to pull out of Sotomayor’s testimony the fundamental issues about which we should be talking.
Sotomayor articulated a good ground rule when she stated that no “racial, ethnic, or gender group has an advantage in sound judging” and that all have an “equal opportunity” to mature into a “good and wise judge.” She was under tremendous pressure to walk away from academic musings that in some situations “a wise Latina woman” might reach “better” judicial decisions because of the “richness of her experience”; to some degree she did, characterizing her word choice as a “rhetorical flourish” that “fell flat.” But Sotomayor did not walk away from the core idea, nor should she have. If being Latina, female, or from a poor urban background were irrelevant, it’s hard to imagine why virtually every Senator saw fit on Day One to laud those aspects of Sotomayor’s life story. She correctly pointed out that diverse “life experiences enrich the judicial system,” partly because they influence the ease with which a judge will perceive relevant facts. It’s not a matter, as she made clear, of judges of different background “choosing” which facts to see and which to ignore. It’s less conscious. For example, a woman will more easily imagine the impact on a female plaintiff of being taunted as a “bitch” by male co-workers. An African-American is likely to have a vivid perspective on what it would feel like to see a burning cross. Measuring such impact does not decide cases, but cases can’t be decided without it. The presence of female and African-American judges can enhance the empathic capacity of open-minded others by educating them about different possible ways to view the world. As Sotomayor today suggested, the real danger stems not from judges who recognize, articulate, and analyze the impact of their unique perspective but from those who assume that theirs is the only one. The critical bound, which Sotomayor also articulated today, is that such considerations do not drive or dictate outcomes; they are simply among the many legitimate inputs into the judicial process.
A similar point pertains to judicial emotion. Sotomayor was clear that sympathy alone—for example, for victims of an aircraft disaster—could not dictate a result or override clear law. In response to a question about post-9/11 legal measures she also asserted that judges should rule not based on “fear.” But neither should emotion be disregarded. Sotomayor spoke, for example, about how witnessing the anguish suffered by families of homicide victims helped her fully appreciate the impact of crime and fed her passion for being the best prosecutor she could be. That passion unquestionably has influenced her rulings in criminal cases, though she also has taken care to attend to the rights of defendants. Judicial emotions have a role: they sometimes form important part of decision-making, they sometimes do not, and we are better off having that discussion openly than falling back on a simplistic, inaccurate dichotomy between emotion and reason.
Judges are affected by their emotions and backgrounds. It is better to acknowledge this reality than to pretend it is not so. On this critical Day Two, Judge Sotomayor revealed herself to be not just a good judge but also, in supporting such openness, a good armchair Freudian.
Sotomayor: "We're not robots."
By on 07/14/2009 @ 06:25 PM
From Think Progress:
To view this video, you will need to install the Flash Player and turn Javascript on.
SOTOMAYOR: Never their prejudices. I was talking about the very important goal of the justice system is to ensure that the personal biases and prejudices of a judge do not influence the outcome of a case. What I was talking about was the obligation of judges to examine what they’re feeling as they’re adjudicating a case and to ensure that it’s not influencing the outcome. Life experiences have to influence you. We’re not robots to listen to evidence and not have feelings. We have to recognize those feelings and put them aside. … But there are situations in which some experiences are important in the process of judging because the law asks us to use those experiences.
SESSIONS: Well, I understand that. [...]
SOTOMAYOR: I think the system is strengthened when judges don’t presume they’re impartial, but when judges test themselves to identify when their emotions are driving a result, or their experiences are driving a result, and the law is not.
Quotes from Sotomayor U.S. Confirmation Hearing
By MALDEF on 07/13/2009 @ 11:42 PM
July 13 - Senator Arlen Specter talks with U.S. Supreme Court nominee Judge Sonia Sotomayor and her mother Celina, at the U.S. Senate Judiciary Committee confirmation hearings in Washington.
Copyright © (REUTERS/Kevin Lamarque)
Senators began questioning President Barack Obama's Supreme Court nominee Sonia Sotomayor on Monday, launching hearings expected to end with her winning endorsement for a seat on the top U.S. court as its first Hispanic justice.
Here are some quotes from the first day of hearings before the Senate Judiciary Committee.
Democratic Senator Arlen Specter
"I compliment the president for nominating an Hispanic woman. I think it was wrong for America to wait until 1967 to have an African-American justice, Thurgood Marshall, on the court. We waited too long - until 1981 - to have the first woman justice, Sandra Day O'Connor. I think, as a diverse nation, diversity is very, very important."
"You bring excellent credentials, academically and professionally, with your service on the court."
Republican Senator Lindsay Graham
"Unless you have a complete meltdown you're going to get confirmed."
"I don't know how I'm going to vote, but my inclination is that elections matter. ... President Obama won the election and I will respect that."
Democratic Senator Dianne Feinstein
"Supreme Court justices are much more than umpires calling balls and strikes, and the word 'activist' is often used to describe opinion on only one side."
Republican Senator Charles Grassley
"An impressive legal record and superior intellect are not the only criteria that we on this committee have to consider. ... We want to be absolutely certain that the nominee will faithfully interpret the law and the Constitution without bias and prejudice. This is the most critical qualification of a Supreme Court justice."
Democratic Senator Sheldon Whitehouse
"These calls for restraint and modesty and complaints about activist judges are often code words seeking a particular kind of judge who will deliver a particular set of political outcomes.
"The pretense that Republican nominees embody modesty and restraint or that Democratic nominees must be activist runs starkly counter to recent history."
Republican Senator Jeff Sessions, Ranking Republican
(Referring to comments by Obama that he wanted to nominate someone to the court who could bring empathy and a common touch:)
"I fear this 'empathy standard' is another step down the road to a liberal activist, results-oriented and relativistic world where laws lose their fixed meaning, unelected judges set policy, Americans are seen as members of separate groups rather than simply Americans, and where the constitutional limits on government power are ignored when politicians want to buy out private companies."
"So, we have reached a fork in the road. And there are stark differences between the two paths."
Democratic Senator Patrick Leahy, The Committee Chairman
"I trust that all members of this committee here today will reject the efforts of partisans and outside pressure groups that have sought to create a caricature of Judge Sotomayor while belittling her record, her achievements and her intelligence. Let no one demean this extraordinary woman, her success or her understanding of the constitutional duties she has faithfully performed for the last 17 years."
Republican Senator Tom Coburn
"Judge Sotomayor, you must prove to the Senate that you will adhere to the proper role of a judge. You must demonstrate that you will strictly interpret the Constitution and our laws and will not be swayed by your personal biases or political preferences."
Judging Judge Sotomayor
By Jenny Rivera, Director, Center on Latino and Latina Rights and Equality, on 07/13/2009 @ 09:15 PM
Supreme Court nominee Judge Sonia Sotomayor is sworn in by committee chairman Sen. Patrick Leahy (D-VT) during her confirmation hearing before the Senate Judiciary Committee July 13, 2009 in Washington, DC. Sotomayor, an appeals court judge and U.S. President Barack Obama's first Supreme Court nominee, will become the first Hispanic justice on the Supreme Court if confirmed.
Copyright © Photo by Alex Wong/Getty Images North America
The long awaited Senate confirmation hearings for Judge Sonia Sotomayor began today. In the weeks leading up to this moment her supporters and her critics have painted us with two different portraits of “Judge Sotomayor”. One is the moderate jurist, measured in her approach, who is committed to the rule of law and who adheres to precedent. The other is a radical judicial activist, with a political agenda who is biased and rules based on ethnic affinity. The confirmation process provides the country with the opportunity to observe and hear the Judge. Given her record and her statements today about her commitment to the rule of law, the Republicans have left themselves without a persuasive basis to oppose her confirmation.
The party lines were drawn immediately during the committee members’ opening remarks. The republican senators emphasized that they needed assurances that Judge Sotomayor was committed to an impartial judiciary and unbiased decision making. They chastised her for what they described as her statements about how judges should decide based on their ethnicity and experiences. They portrayed themselves as the guardians of a tradition of impartial and neutral judicial decision making.
Listening to this description of Judge Sotomayor you would think that her decisions are based on her personal feelings, wholly untethered from reasoning and rational analysis. You would also believe that republicans measure judicial nominees solely by their record and not their personal convictions. It is time to start separating myth from reality. Judge Sotomayor’s record establishes that she follows the letter of the law. Several reports on her judicial record have concluded that she is a moderate judge, who rules with her Circuit colleagues a majority of the time. Several bar associations have found her exceptionally qualified to serve. Despite the republican line on Judge Sotomayor, she is in the mainstream. As for labeling Judge Sotomayor a “judicial activist,” as Senator Feingold (D. Wisconsin) noted today, “[t]hat term really has lost all usefulness, particularly since so many rulings of the conservative majority on the Supreme Court can fairly be described as 'activist' in their disregard for precedent and their willingness to ignore or override the intent of Congress. At this point, perhaps we should all accept that the best definition of a 'judicial activist' is a judge who decides a case in a way you don't like.” With respect to republican protectionism of neutrality, past confirmation hearings have shown that republicans have been most concerned with judges whose decisions are in line with their own positions, not those who apply the law based on precedent.
For their part, the democratic senators focused on Judge Sotomayor’s record of moderate decisions and emphasized her years of federal judicial experience. There were many who noted her inspiring personal story and how it illustrated this country’s promise of fairness for all. However, several went beyond the expected praise of the Judge’s stellar credentials and moving life story and indicated that they looked forward to hearing the Judge answer some tough questions about issues that were important to the American people. By focusing on the Judge’s record and on substantive issues, the democrats positioned themselves as the party of reasonableness, fairness and evenhandedness, and one that is in touch with the majority of the public.
Throughout these opening remarks, some glowing some not so generous, Judge Sotomayor sat, listening attentively, respectful of the process and those individuals duty bound to vote on her nomination. From the beginning there was a sense of history (or perhaps in this case herstory) in the air. Already some republicans feel an inevitable pull towards confirmation. Even before the conclusion of today’s hearings Republican Lindsey Graham (S. Carolina) said he expects her to be confirmed, “unless there is a meltdown.”
When the moment arrived for Judge Sotomayor to testify she calmly and confidently addressed the Committee and the American people. After giving a special thanks to her mother, she spoke of her career and her commitment to judicial impartiality. She spoke about the hundreds of decisions she had issued and how those decisions were made to serve the larger interest of impartial justice. She emphasized that her philosophy is fidelity to the law, and that the role of a judge is not to make law but to apply the law. She made clear that she believed the decision making process is enhanced when the position of the parties are generally understood, that her personal and professional experiences have helped her to listen and understand, and that the law has always ruled in every case.
Her statements took the wind out of the republican sails. Judge Sotomayor without reservation stated her commitment to ruling based on the law. Without flinching and without a hint of doubt in her voice, she resoundingly stated how her life on the bench has been one committed to the impartial application of the rule of law. She knows that a judge’s role is to apply the law fairly—and that is exactly how she has been calling it in her cases ever since she was appointed to the federal bench.
As the hearings continue to unfold, the nation will hear more about her and from Judge Sotomayor. Throughout the states and in Puerto Rico, people of all ages from different backgrounds and political affiliations are watching. This is also a moment when Latinos are participating in the confirmation process perhaps as never before, filled with a sense of possibility and pride, and the promise of equality and access. In the coming days the people can judge Judge Sotomayor for themselves—not based on political rhetoric or unfounded allegations, but on the Judge’s record and her own words.
Jenny Rivera
Professor of Law
Director, Center on Latino and Latina Rights and Equality
City University School of Law
Clerked for Judge Sotomayor on the Southern District of New York
Latino Celebrities Producers PSA
By MALDEF on 07/13/2009 @ 05:04 PM
Latino celebrities and producers join forces to launch on-line public service campaign in support of Judge Sonia Sotomayor's historic supreme court nomination.
In support of Judge Sonia Sotomayor's historic Supreme Court nomination, renowned artists including Lin-Manuel Miranda (Tony award-winning playwright, "In the Heights"), Olga Merediz (acclaimed Broadway, Film & TV actress), Miriam Colon (founder, Puerto Rican Traveling Theater) and Sonia Manzano ("Maria from Sesame Street") invite all Latinos--a growing and vital demographic in the U.S.--to become a more engaged and informed citizenry.
Links to PSA's:
PSA featuring Lin-Manuel Miranda: http://www.youtube.com/watch?v=6L7-IR-VE_8
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