Judging Judge Sotomayor

By Jenny Rivera, Director, Center on Latino and Latina Rights and Equality, on 07/13/2009 @ 09:15 PM

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