Courtesy White House
Supporters and opponents of Supreme Court nominee Sonia Sotomayor, seen here in a 2009 image provided by the White House, are taking their competing views of her judicial history to the airwaves and Web.
Supporters and opponents of Supreme Court nominee Sonia Sotomayor, seen here in a 2009 image provided by the White House, are taking their competing views of her judicial history to the airwaves and Web. Courtesy White House
The Senate Judiciary Committee on Wednesday released the questionnaire it has asked Sotomayor to fill out. Once the nominee fills in and returns the form, it will be posted online.
Read The Questionnaire (PDF)
Conservatives have charged that in a 2005 panel discussion at Duke University, Sonia Sotomayor advocated making policy from the bench. But supporters note that her comments characterized the role of different courts, from trial and district to appeals and the high court.
The panel discussion was for law school students interested in pursuing court clerkships.
Her comments, in context, appear below:
"The saw is that if you're going into academia, you're going to teach, or as Judge Lucero just said, public interest law, all of the legal defense funds out there, they're looking for people with court of appeals experience, because it is — court of appeals is where policy is made. And I know — and I know this is on tape and I should never say that because we don't make law, I know. OK, I know. I'm not promoting it, and I'm not advocating it, I'm — you know. OK.
"Having said that, the court of appeals is where, before the Supreme Court makes the final decision, the law is percolating — its interpretation, its application. And Judge Lucero is right.
"I often explain to people, when you're on the district court, you're looking to do justice in the individual case. So you are looking much more to the facts of the case than you are to the application of the law because the application of the law is nonprecedential, so the facts control. On the court of appeals, you are looking to how the law is developing, so that it will then be applied to a broad class of cases. And so you're always thinking about the ramifications of this ruling on the next step in the development of the law. You can make a choice and say, 'I don't care about the next step,' and sometimes we do. Or sometimes we say, 'We'll worry about that when we get to it' — look at what the Supreme Court just did.
'But the point is that that's the differences — the practical differences in the two experiences are [that] the district court is controlled chaos and not so controlled most of the time."
Moments after President Obama nominated Judge Sonia Sotomayor to the Supreme Court, the expected partisan scripts kicked in.
Competing ads have been launched on Web sites and television touting competing versions of Sotomayor's judicial history.
Masses of e-mails and press releases and talking heads have sold at-odds assessments of everything from the Princeton- and Yale-educated judge's intellect to whether her gender and ethnicity would color her high court deliberations.
The White House even weighed in again Wednesday, continuing its highly orchestrated rollout by offering up on a press call a half-dozen legal experts to sell Sotomayor's judicial record, philosophy and temperament.
And while taking questions during his daily press briefing, White House press secretary Robert Gibbs cautioned conservatives and others to "be exceedingly careful" about how they describe the confirmation process involving the nation's first Hispanic nominee.
Gibbs was responding to comments by some conservatives — including former Republican House Speaker Newt Gingrich and talk radio personality Rush Limbaugh — who have called Sotomayor a racist and a reverse racist for a 2001 speech in which she suggested that the gender and ethnicity of judges could lead them to different conclusions in race and sex discrimination cases. Conservatives have also attacked her concurrence in a recent court decision of a controversial discrimination case.
Gibbs' admonition echoed that of Republican Party Chairman Michael Steele, who on Tuesday advised his own party members to be careful with Sotomayor.
As voices become louder in the lead-up to Sotomayor's Senate Judiciary Committee hearing, which is expected in July, the conservative lines of attack against the 54-year-old appeals court judge, and the aggressive White House push-back, have already emerged.
Identity Politics And Empathy
Sotomayor's comments in that 2001 speech, sponsored by the Berkeley La Raza Law Journal, have become the main focus of attacks by many conservative groups and influential voices from the right, including Limbaugh.
In the speech, Sotomayor referred to former Justice Sandra Day O'Connor's assertion that a "wise old man and wise old woman will reach the same conclusion," and said, in part:
"I am also not so sure that I agree with the statement. First, as professor Martha Minow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life. Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society."
Some conservatives say the comments suggest racial prejudice that could infect her rulings from the bench. The White House has countered that the comments, in the context of her overall speech, suggest the "common sense" view that every person brings different life experiences to the court.
As evidence of her alleged judicial activism, conservatives have also seized on comments Sotomayor made in 2005 in which she said that the "court of appeals is where policy is made." But supporters note that her comments characterized the role of different courts — from trial and district to appeals and the high court. (See Sotomayor's full quote in the inset box.) Sotomayor's comments were made in response to a question from a student about how clerking for a district court would differ from an appeals court clerkship.
Controversial Opinion Before The Supreme Court
A decision by Sotomayor and her fellow 2nd Circuit Court judges to reject a discrimination claim by 18 white New Haven, Conn., firefighters against the city over an invalidated promotion test has drawn the most scrutiny.
The firefighters' appeal to the Supreme Court will be decided soon; predictions, based on questions the justices raised at oral arguments, are that the high court will overturn the circuit court's decision.
The deeply divided lower court had ultimately sided with the City of New Haven, which argued that it was forced under civil rights law to invalidate a promotional test because no minority candidates scored well enough to qualify for consideration for a higher rank.
Sotomayor has been criticized for joining two fellow judges in issuing a brief, unsigned decision that did not lay out the constitutional issues at stake in the case and how they informed the decision.
Conservatives like Limbaugh have referred to the decision as a case of "reverse discrimination."
Sotomayor's supporters say that she and the court were bound by legal precedent — including decisions by the circuit in two previous discrimination cases — to reject the firefighters' claim.
The White House has argued that the controversial decision provided an example of Sotomayor's "judicial restraint."
A Question Of Temperament
An emerging theme from conservatives has been to question Sotomayor's temperament and to use the analysis of mainstream legal writers to do so.
In a blog post Wednesday, Curt Levey, director of the Committee for Justice, said that former colleagues of Sotomayor's — from law clerks to federal prosecutors — have expressed "questions about her temperament, her judicial craftsmanship, and, most of all, her ability to provide an intellectual counterweight to the conservative justices."
Conservatives have also seized on critical anonymous comments, included in Sotomayor's profile in the Almanac of the Federal Judiciary and reported in an article by New Republic writer Jeffrey Rosen.
The anonymous criticisms that Sotomayor can be exacting and abrasive have been labeled sexist — and potentially racist — by her supporters. Such comments cause Sotomayor's former Yale Law School classmate Minow, now a Harvard Law School professor, to bristle.
"There are comments that she's tough on the bench," said Minow. She describes the 2nd Circuit, where Sotomayor serves, as a "hot bench" — one where judges, including the nominee, engage actively with lawyers and each other.
"If someone would prefer to have a passive bench, they're not going to get that from her," Minow said.
Said lawyer Kevin Russell, who, like Minow, was on the White House call: "I understand that she has the reputation for being tough and doesn't suffer fools gladly.
"I understand some of those fools may not be happy about that."
In his press briefing Wednesday, White House spokesman Gibbs said the administration hasn't created a "war room" to manage Sotomayor's nomination, because "to have a war room denotes that we think there's some coming war. We don't think that."
And despite the jousting that is now playing out, the lines of attack appear, at this point, to provide little to dispute his conclusion.