Debating The First Latina Supreme Court Nominee President Obama has nominated U.S. Circuit Court Judge Sonia Sotomayor for the Supreme Court yesterday. If confirmed, she will be only the third woman to be on the Court, and the first Hispanic. Supporters say her ethnicity and gender are positives that will bring vital diversity and balance to the Court. But exactly how would her ethnicity really influence her actions or style?
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Debating The First Latina Supreme Court Nominee

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Debating The First Latina Supreme Court Nominee

Debating The First Latina Supreme Court Nominee

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I'm Lynn Neary, and this is TELL ME MORE from NPR News. Michel Martin is away this week.

Coming up, many thought that Philadelphia, Mississippi's place in history was sealed by the 1964 murders of three civil rights workers there. But now there are hopes that the town has opened a new chapter with the election of its first African-American mayor. I'm going to speak with him in a few minutes.

But first, more on the new nominee for the nation's highest court, U.S. Circuit Court Judge Sonia Sotomayor. She's President Obama's choice to replace retiring Justice David Souter on the Supreme Court. If confirmed by the Senate, Sotomayor will be the first Hispanic and the third woman to become a justice. For her supporters, Sotomayor's background weighs greatly in her favor. Many of them see her ethnicity and gender as bringing a vital diversity and balance to a court historically dominated by white men.

But how does Sotomayor's status as a Latina influence her actions or style on the Supreme Court, and should it really make a difference? To explore these questions, we're joined by Lia Epperson. She is a professor of constitutional law at Santa Clara University and the former director of the Education, Law and Policy Group of the NAACP Legal Defense and Educational fund. Also with us is Ramona Romero, national president of the Hispanic National Bar Association. And we're also joined by Dahlia Lithwick, senior legal correspondent and senior editor at the online magazine Welcome to all of you. Thanks for being here.

Professor LIA EPPERSON (Constitutional law, Santa Clara University): Thank you.

Ms. RAMONA ROMERO (President, Hispanic National Bar Association): Thank you.

Ms. DAHLIA LITHWICK (Senior legal correspondent, Thank you.

NEARY: Let me start with you Ramona Romero. We have a clip from Sotomayor's speech accepting the nomination. We're going to listen to that first.

Judge SONIA SOTOMAYOR (Circuit Court; Nominee, Supreme Court): I am an ordinary person who has been blessed with extraordinary opportunities and experiences. Today is one of those experiences.

NEARY: Ramona, first I want to ask you about yesterday, because it seemed to me that this was an event that was more emotional than - you weren't there?

Ms. ROMERO: I was invited, but I was not able to make it down on time.

NEARY: Did you watch it?

Ms. ROMERO: I did.

NEARY: Did it seem more emotional to you than the usual announcement for a Supreme Court nominee?

Ms. ROMERO: That's hard to judge. Those announcements are always emotional, but obviously, it had special historic significance.

NEARY: Yeah. And also, as she just - we've just heard in that clip, in her acceptance speech, Sotomayor made mention of her background. She talked about growing up in a Bronx Housing project. She described herself as an ordinary person who'd been blessed with extraordinary opportunities. Tell us about her trajectory. How did she end up here, and what does that trajectory tell us about who she is as a person?

Ms. ROMERO: It's enormously difficult, obviously, to grow up in a Bronx housing project and end up at Princeton as a Phi Beta Kappa graduate, end up at Yale as the editor of the Law Review. It requires, I think, a special person, a special degree of commitment and unbelievable work ethic. You're talking about somebody who was not born with a silver spoon in her mouth. And her achievements are a reflection of both her commitment to her work, of her intelligence and of this country's ability to provide opportunities for people of all colors, races.

NEARY: Dahlia Lithwick, what do we know about Sonia Sotomayor as a jurist? What is her judicial philosophy?

Ms. LITHWICK: Well, you know it's an interesting question, Lynn. It's not clear she has a philosophy. We have years and years of cases to look at. I mean, this is not a stealth candidate by any measure. We have hundreds of opinions to wade through in the coming weeks. What I don't find, actually - and I think what some progressives are going to bemoan - is the sort of large, overarching epic judicial philosophy the way, for instance, an Antonin Scalia had when coming onto the bench. She's much more - and I know this word is over-used - modest than that.

What you see is just somebody who's just technically a very, very clear, efficient writer. She's not a spectacular writer. I don't think anyone is going to accuse her of setting the page on fire like some of the justices now in the Supreme Court. She's just a very, very clear, effective, narrow, humble, technical jurist who on case after case after case, goes in, she really looks at every aspect of it. One of the things that's interesting is how comprehensive her legal analysis is. She does I think as little as she needs to do, more often than not. And she gets the case done. But what you don't see is somebody making loud, bold proclamations about the meaning of the Constitution and what it's all about in some large, epic way.

NEARY: Well, it's interesting because when President Obama announced the decision yesterday, he made a connection between Sotomayor's background and the kind of juror she might be, because he suggested that it was a positive step for justice. Let's listen to that clip of tape.

President BARACK OBAMA: When Sonia Sotomayor ascends those marble steps to assume her seat on the highest court of the land, America will have taken another important step towards realizing the ideal that is etched above its entrance: Equal justice under the law.

NEARY: Lia, what do you think the president meant by that? What qualities does he think that she will bring to the court that are not already there?

Prof. EPPERSON: Well, Lynn, I think a lot has been made - and understandably so - about this historic announcement and the fact that she is the first Latina to be nominated to the Supreme Court. Which makes it a historic announcement, I think, in many ways not just for women, not just for people of color, but really for the nation as a whole because this is the embodiment of the American dream. So part of what is quite amazing about her story are what we've talked about in terms of her unique life experiences and her upbringing. But another very important piece of this is that she is an eminently qualified federal trial and appellate judge, and she has a history as a big city prosecutor.

These are experiences that I also think went into the president's calculations in terms of looking for someone who has a close understanding of how the law impacts people on a day-to-day basis. She would be the only, if confirmed, the only sitting Supreme Court justice who has been a trial judge. And as we all know, trial judges have much more daily experience with witnesses, with looking at evidence, close contact with real people. And that's something that is not so much the bread and butter of an appellate judge. And I think that's a particular experience that really allows her to stand out.

NEARY: Grounds her in reality, so to speak.

Prof. EPPERSON: Hmm-hmm. Hmm-hmm.

NEARY: If you're just joining us, you're listening to TELL ME MORE from NPR News. And we're talking about Supreme Court nominee Judge Sonia Sotomayor with legal correspondent Dahlia Lithwick, constitutional law Professor Lia Epperson and Ramona Romero, national president of the Hispanic National Bar Association.

Ramona, as the president of the Hispanic National Bar Association, do you think that there's some kind of inherent value in having a Latina on the bench, on the Supreme Court?

Ms. ROMERO: Absolutely. Part of what a court - I mean, the court's decision impacts the lives of real people every single day. Latinos are part of this country. We've been here for hundreds of years. We are the largest group in the population. And we - the largest ethnic minority in the population. We're the fastest growing. It is very important that we see ourselves reflected in the court, in terms of how our community trusts the legal system. And it is also important that the court reflects us, that it, that its deliberations be informed by the Latino experience. I am not suggesting that Sonia Sotomayor, as a Supreme Court justice, would vote in any particular way that is pro-Latino or pro-woman - just like I don't suggest that Antonin Scalia always votes pro-Italian or pro-Catholic, or that Ruth Bader Ginsburg always votes pro-women.

What she brings to the table is her perspective, so that when the court considers its cases, when the judges are discussing the matters before them, that perspective will inform the decision. It will result in a better jurisprudence, I think.

NEARY: Let me ask about that. Let me follow up with that with you, Lia, because you've written about the intersection of race and law and about Justice Clarence Thomas, who is the only African-American on the court. And, you know, it's not clear that his rulings always reflect the opinions of the African-American, the black community. So how clearly can you draw the line between race and judicial philosophy?

Prof. EPPERSON: It's a good question, and I think like with all individuals, it varies based on one's perspective, one's life experience. What we see with Judge Sotomayor is that she brings a variety of life experiences to the table, and she has not been afraid to clearly say that this impacts how she views the law. She has - obviously, this has been a quote that's been picked up a lot by some of her detractors, and I'm sure that that kind of discussion will continue. But I think that the perspective that she is putting forward is to say we are all a product of our experiences. We are all a product of a our life experiences, and it is important that we take that into account, that we understand that and understand how it affects the lens through which we view the law. And that's what she has said on a number of occasions.

NEARY: Let me get Dahlia into the discussion, and then we'll open it up a little bit, because I know that you all want to participate in this, Ramona.

Dahlia, you've written about the importance of having another woman on the court. What's the evidence that women judges are any different from their male counterparts, and that difference is even good, necessarily?

Ms. LITHWICK: Well, there's not good evidence, actually. It's an interesting problem. For every study that shows that women are different as judges, there's a study that shows women are not different as judges. One of the most interesting studies is a 2008 study that's come out that's shown, perhaps unsurprisingly, that where women and men do differ is on a very, very narrow bandwidth, which is in these gender discrimination cases. Not surprisingly, women tend to be more sympathetic to the woman in that case. The interesting part of that particular study is that when men sit on appellate panels, on three-judge panels with women judges in those cases, they also begin to conform their views to the woman's view.

So it's not simply that women tend to be a little bit more aware of the realities of gender discrimination, a little bit more willing to hear what women say in those cases, but that they're able to persuade their male colleagues. And to me, that's such a profound point because I think what we're talking about here is not simply, oh, we need another X on the court, we need another Y on the court so that the photograph looks a little more representative of America. That's part of it. But I think much more fundamentally, justices need to be able to tell each other the way Thurgood Marshall was able to tell Sandra Day O'Connor, hey, you didn't grow up in the Jim Crow South. Here's what my life looked like. And if you're Sandra Day O'Connor - and she said this very explicitly - you're able to listen and take it in and say, wow. I totally misapprehended what the world was like. Thank you for helping expand my world view. And so I think that it's not just we need a justice who reflects certain experiences, but needs to be able to communicate to their colleagues things that they don't know. And so, to me, that's the most important.

NEARY: We're going to have to take a short break right now. But when we return, we're going to continue our conversation about the nomination of Sonia Sotomayor to the Supreme Court. So stay with us on TELL ME MORE from NPR News. I'm Lynn Neary.

(Soundbite of music)

NEARY: I'm Lynn Neary. This is TELL ME MORE from NPR News. Coming up, a real-life story of survival and redemption from bestselling author and life coach Iyanla Vanzant. That's a moment. But first, we continue our conversation of President Obama's Supreme Court nomination, U.S. Circuit Court Judge Sonia Sotomayor. She's poised to become the first Hispanic and the third woman to serve on the high court, and I'm talking about how having another woman and a Latina could change the Supreme Court.

Dahlia Lithwick is with us. She's the senior legal correspondent and senior editor at the online magazine, and she joins us from the University of Virginia.

Also here in our Washington studio, Lia Epperson, professor of Constitutional Law at Santa Clara University. She's the former director of the Education, Law and Policy Group of the NAACP Legal Defense and Educational Fund - and Ramona Romero, national president of the Hispanic National Bar Association.

And I want to throw a question out to all of you, but I know Ramona, briefly, you wanted to weigh in on something that had been said earlier.

Ms. ROMERO: Well, I just wanted to emphasize Dahlia's point. The - as Justice O'Connor, Sandra Day O'Connor once said, we all bring to our jobs, whatever they happen to be, our values and our combined life experiences. And I think that the ability of Sonia Sotomayor to share those experiences with her colleagues on the high Court and to persuade them as to the significance and the impact of - that their decisions may have on folks with similar experience is precisely what the point is.

NEARY: All right, and here's what I wanted to throw out as a broader question, and that is that President Obama made it very clear that he wanted a judge who is empathetic. And maybe that's part of why he chose Sotomayor, that with the idea that a woman who's also a member of a minority group, might be more likely to fit that bill.

There's also questions about whether empathy always make for good law. An argument against is that empathy could lead a judge who wants a certain outcome to bend the law to get there. First of all, Lia, what do you say about that?

Prof. EPPERSON: Well, I think empathy really means - it's just a way of saying that judges are people, and that as we've all discussed, you bring to the table your own life experiences. Judge Sotomayor's experiences are incredibly varied, and what we have seen through, you know, a review of her resume, looking at her experiences, she has served as a trial judge where she presided over, I think, more than 450 cases. As a Second Circuit judge, she's authored nearly 400 published opinions. She has an incredible breadth of experience, which is comprised of a number of different components.

Part of that is this incredibly compelling life story, you know, working-class upbringing, her mother a single parent, buying the only encyclopedias in her neighborhood. I mean, you know, that's an incredible little fact, and then going on to be high-school valedictorian, to graduate summa cum laude from Princeton. All of these things are a part of her life experiences.

One thing I will say, though, that I think is interesting is that Judge Sotomayor's experience may actually be not so very unfamiliar to many African-American and Latino lawyers like myself, who may have these experiences in their own family or have gone to law school and have classmates and friends and mentors who have had experiences similar to Judge Sotomayor's - that is, perhaps coming from a family where you don't have college graduates or lawyers in your family but then have gone on to these heights. And there's a similarity in there with what people have seen, I think, with the president and First Lady Obama, that for many racial minorities in this country, we know them. But for many other Americans, this is their first opportunity to see someone with these particular set of experiences.

NEARY: Dahlia, let me hear you weigh in on that question of empathy and the law.

Ms. LITHWICK: I just couldn't agree more. I think that empathy has been distorted in the conversation in the last couple of weeks about what it is that Obama wants. I think critics of Obama and Sotomayor take it to mean empathy means you're biased, you're biased for someone who looks like you.

That's not empathy. That's bias. What Obama has said very explicitly, both in "The Audacity of Hope" and time again when he talks about empathy is simply this quality that we've all, I think, agreed on, which is the ability to listen to the other side, to be open to experiences that are different from yours.

I think that's really all it means, and I remember a couple years ago covering a case at the Supreme Court where all the justices were talking about what it would be like to have your bag searched in the baggage compartment of a Greyhound bus, and I almost had tears pouring out of my eyes. It was so funny because one had the sense that none of them had ever been on a Greyhound bus. And it's very, very hard to put yourself in the position of a reasonable passenger on a Greyhound bus having your bag searched if you always take a plane. And so I simply think what we're all agreeing with here is that Sotomayor reflects a whole different upbringing.

You know, she wasn't hydroponically grown to be a machine that imposes the law, and maybe that's a good thing.

NEARY: Ramona, you're smiling. We really only have about 40 seconds left, but if you want to say something very briefly.

Ms. ROMERO: I think it's an excellent point. The law is not made by machines, and we don't want it to be made by machines. We don't want a computer making the decisions that affect people's everyday lives.

NEARY: Okay. Ramona Romero is the national president of the Hispanic National Bar Association. Lia Epperson is the constitutional law professor at Santa Clara University. Both joined us here in our Washington studios. And also, Dahlia Lithwick, legal correspondent for She joined from the University of Virginia in Charlottesville. Thank you all for joining us.

Ms. ROMERO: Thank you.

Prof. EPPERSON: Thank you, Lynn.

Ms. LITHWICK: Thank you.

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