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Point/Counterpoint: Is Sotomayor fit for U.S. Supreme Court?

BY MICHAEL DAVIS AND JUSTIN SUGG | JULY 17, 2009 7:15 AM

More than 20 UI College of Law faculty members have signed a letter to Senate leaders, urging them to approve Sonia Sotomayor’s appointment to the U.S. Supreme Court. In light of Sotomayor’s confirmation hearings, two DI commentators weigh in on the judge’s qualifications.

Controversy nothing but a sound bite

We state a phrase in our society, and it is repeated for all to hear. No matter what your record says, you are branded with a label. Sonia Sotomayor has fought that battle for the last two months. Still, unless an amazingly egregious screwup happens in her last day of questioning, she will be our newest Supreme Court justice.

Yes, Sotomayor’s “wise Latina” statement was not a prudent move. Her supposed play on words of a Sandra Day O’Connor quotation was misplaced and misguided. But in our frenzied world of politics and news coverage, sound bites rule the day. That is, unless you have a record that speaks for itself.

Sotomayor has such a record as a judge in this country.

In her years on the bench, she has followed the unanimous decision of the court a remarkable 94 percent of time. Now, if I were to agree with any group of people 94 percent of the time on a certain issue, I would find it hard to believe that I could be labeled a judicial activist. Furthermore, Sotomayor has voted with the majority in constitutional cases 98.2 percent of the time. Her record further illustrates an agreement with Republican judges on the court in a vast majority of her rulings.

These statistics show a body of work that depicts a fair and competent judge. Some will point out the New Haven, Conn., firefighter case as a point of concern, and rightfully so. Each controversial decision by a Supreme Court candidate must be scrutinized. But when looking for a judge who must uphold the Constitution of our nation, balance and consistency need to be priorities. Sotomayor has those attributes, and she would become a welcome addition to the high court.

Sotomayor shows lack of depth

Sonia Sotomayor’s “wise Latina” remark is more than just a passing statement. It is a thesis she repeated in numerous speeches. Neither is it the bigoted statement her detractors would portray it as. The remark is a good indicator of how Sotomayor will come to a decision and how it can cloud, as well as enhance, one’s judgment.

Sotomayor said she hoped a “wise Latina woman” with the richness of her heritage and experience would reach a better decision than a white man. Her supporters call this empathy and say it would allow her to look beyond the letter of the law to spirit of what is right and wrong.

The remark is a phrase that needs the context in which she spoke. In each speech, Sotomayor was referring to judgments and opinions in discrimination cases. Let’s examine her empathy in the context of a famous discrimination case, Ricci v. DeStefano: In this case Sotomayor’s empathy did not lead to a better decision than a white man’s, but the same opinion as the white men sitting with her. The decision was apparently better at the time than a wise Latino’s (dissenting Judge Jose Cabranes) opinion, however, who dissented based on the majority’s lack of depth in analysis of the case. The appellate judges ruled on the case with only having read the initial judge’s opinion and not any other evidence presented.

A wise anybody, regardless of sex or heritage or richness of experience, should look at the full details of the case before applying their interpretation of the law or their empathy or experience. That is something Sotomayor failed to do in her Ricci decision. Her paragraph-long opinion on the case failed to grasp the complexities involved. Sotomayor did not act like a wise Latina in her judgment.


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