Sotomayor: Rebut, then reject

May 31, 11:37 PMLouisville Conservative ExaminerWalt Gilbert

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The now-infamous Thirty-Two Words of Judge Sonia Sotomayor have become the sorely needed rallying point for conservatives in opposition to her confirmation.  For those unfamiliar with the words, here they are:

"I would hope that a wise Latina woman with the richness of her experience would more often than not reach a better conclusion (as a judge) than a white male who hasn't lived that life."

The comments, now being spun by the White House as an unfortunate choice of words, were spoken during a speech she made at Berkeley in 2001, and later reprinted in the Berkeley La Raza Law Journal without qualification or any attempt at clarification.  Granted, it’s not unusual for words to seem relatively innocuous until they become the subject of intense examination in hindsight.  It’s entirely understandable that a political neophyte, unaccustomed to having such gravity attached to her words, might repeat a foolish, embarrassing phrase or sentence until called out on it.

But Sotomayor is no neophyte.  And judges who issue opinions are fully aware of the impact their words have.  Good ones devote a considerable portion of their lives weighing words against one another.

Since hitting the web, Sotomayor’s words have been parsed, discussed, and debated among pundits, bloggers, and just about everyone else with an internet connection and a political opinion.  Are they being lifted out of context?  Is it a racist statement?  Is she being held to a different standard because she’s a Latina?  The answers are, respectively:  No, perhaps, and absolutely.

But, while it is important to know the context in which the nominee spoke these words, to decry racism whether it comes from white men or Hispanic women, and to point out double standards wherever they may be at work, in the purely legal sense, all of these matters are side issues.  Supreme Court justices are confirmed in the Senate, which is subject to public pressure.  And, though decency may compel some to do so, the Constitution is silent as to whether or not nominees’ words are considered fully and solely within the context in which they were written or uttered.  The same goes for racism:  the Constitution doesn’t care if you’re as much a racist as David Duke or Jeremiah Wrigh, so long as that racism doesn’t make its way into legal decisions and opinions – though it’s hard to imagine how that would be possible.  And, there’s no constitutional requirement that senators or their constituents apply a consistent, evenhanded standard to all nominees to the Supreme Court.

Bearing all this in mind, if we’re to believe the White House’s assertion that Sonia Sotomayor is the caliber of judge that merits a seat on the nation’s highest court, we have to believe that she gave due consideration to the way in which her words would be perceived in the future.  As a rule, people who view themselves as future Supreme Court nominees think of little else.  Still, assuming she was duly measured in her choice of words and fully cognizant of the way in which they would be perceived in time, the Senate is still bound by tradition to defer to the president in confirming nominees.

In that sense, the eminent Charles Krauthammer is correct when he states that Sotomayor should be confirmed based on the commonsense grounds that elections have consequences.  And if the consequences were solely that America would end up with a Latina chauvinist on the Supreme Court due to a lack of consistency in the treatment of racially incendiary remarks when made by people of varying ethnic groups, there would be little left to say on the issue as a practical matter.

But, Sotomayor’s words can’t merely be chalked up to a personal attitude, or even an activist judicial philosophy.  They call into question her ability to do justice impartially, which is the very basis of our judicial system and the very reason for the existence of the rule of law itself.  The people turn to the courts for redress for the purpose of having their individual cases held to a single, impartial standard without regard to the race, sex, class, religion, marital status or sexual orientation of the individual.  In other words, if a poor, elderly, atheist, black lesbian is injured by a rich, white, married Baptist minister and father of six, he ought to be held accountable – and vice-versa.  That’s why that statue has a blindfold.

But, having read Judge Sotomayor’s sentiments as expressed in her Berkeley speech, it’s difficult to see how a white male defendant could ever stand before her and feel confident that his case would be given equal consideration to that of the plaintiff, unless the plaintiff were also a white male.  To those who blithely dismiss this concern, ask yourselves this question:  If you were a white man locked in a custody battle with your Latina ex-wife, set to go before Judge Sotomayor, and you saw the video of her speech before you went to court, do you think it might be a good idea to point it out to your attorney?  How about if she ultimately decided in your ex-wife’s favor?