Judiciary

Sotomayor Hit on ‘Wise Latina’ and Bias

If there is one thing that has become clear during the Senate Judiciary Committee confirmation hearings for Supreme Court nominee Sonia Sotomayor, it is that Democrats from the White House to the Senate fully understand the American people’s disdain for left-wing, radical justices. And they’re doing their damnedest to mislead and distort exactly what the nominee believes, what she has done in the past and will do in the future if confirmed on the Court.

Americans wonder how we get such radical decisions out of our federal court system.  This is it, folks.

During questioning from Sen. Lindsey Graham (R-S.C.), Sotomayor made an assertion that during her 12 years at the Puerto Rican Legal Defense and Education (PRLDEF), serving in a variety of leadership roles including as a member of the Board of Directors, Vice President of Board of Directors and even as Chair of the Litigation Committee, she never read briefs filed in their litigation. Here are a few excerpts:

SEN. LINDSEY GRAHAM: Let’s talk about your time as a lawyer. The Puerto Rican Legal Defense Fund… How long were you a member of that organization?

JUDGE SONIA SOTOMAYOR: Nearly 12 years… if not 12 years.

GRAHAM:  During that time, you were involved in litigation matters, is that correct?

SOTOMAYOR: The fund was involved in litigations, I was a board member of the fund.

GRAHAM: Are you familiar with the position that the fund took regarding taxpayer-funded abortion? The briefs they filed?

SOTOMAYOR:  No, I never reviewed those briefs…In a small organization as the Puerto Rican Legal Defense Fund was back then, it wasn’t the size of other legal defense funds, like the NAACP Legal Defense Fund, or the Mexican-American Legal Defense Fund, which are organizations that undertook very similar work to PRLDF…In an organization like PRLDF, a board member’s main responsible is to fundraise. And I’m sure that a review of the board meetings would show that that’s what we spent most of our time on. To the extent that we looked at the organization’s legal work, it was to ensure that it was consistent with the broad mission statement of the fund.

PRLDEF is a radical organization whose briefs were often co-signed with kindred groups including the World Workers Party, a leading communist organization, and the National Center for Lesbian Rights.  

Documents delivered by PRLDEF to the Senate Judiciary Committee confirm that Sotomayor was intimately involved in the group’s controversial work.

Sen. Pat Leahy (D-Vt.), at the opening of questioning, misquoted the nominee’s “wise Latina” statement as a means to assert that she didn’t say what she said.

“You said that, quote, you ‘would hope that a wise Latina woman with the richness of her experiences would reach wise decisions,”’ Leahy said.  Not quite, Sen. Leahy.

In her own responses, Sotomayor relied on claims of a “rhetorical flourish that fell flat” to try to explain away her infamous “wise Latina” statement.  She further stated in her testimony, “The words I used, I used agreeing with the sentiment that Justice Sandra Day O’Connor was attempting to convey.”

In point of fact, it is Sotomayor’s attempt at deflection that falls flat.  What Sotomayor actually said in her remarks:  “Justice O’Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. … I am also not so sure that I agree with the statement. … 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.”

When asked if she believes that the right to keep and bear arms is a fundamental right that not only applies to the federal government restrictions but also the states, Sotomayor proclaimed, “I understand that how important the right to bear arms is to many, many Americans. In fact, one of my godchildren is a member of the NRA. And I have friends who hunt. I understand the individual right fully that the Supreme Court recognized in [D.C. v.] Heller.”

Not a very comforting sidestep for those who honor the fundamental rights articulated in the Bill of Rights, which, of course, includes the Second Amendment.

Sen. Jeff Sessions (R-Ala.), the ranking Republican on the Senate Judiciary Committee, questioned Sotomayor at length on her repeated prior statements that she not only believed that prejudices and biases were appropriate, but that “I accept the proposition that a difference there will be by the presence of women and people of color on the bench, and that my experiences affect the facts I choose to see as a judge.”

Sotomayor responded, “It’s not a question of choosing to see some facts or another, Senator. I didn’t intend to suggest that. And in the wider context… the point I was making was that our life experiences do permit us to see some facts and understand them more easily than others.”

Sessions posed tough questions on Ricci v. DeStefano, the controversial New Haven firefighters’ discrimination case that was recently overturned by the Supreme Court. Here are some excerpts from that exchange.

SEN. JEFF SESSIONS:  This is what the Supreme Court held: The New Haven officials were careful to ensure broad racial participation in the design of the test and its administration. The process was open and fair. There was no genuine dispute that the examinations were job-related and consistent with business purposes, business necessity.

After the city saw the results of the exam, it threw out those results, because, quote, “not enough of one group did well enough on the test.”

The Supreme Court then found that the city, and I quote, “rejected the test results solely because the higher scoring candidates were white. After the tests were completed, the raw racial results became the predominant rationale for the city’s refusal to certify the results,” close quote.

So you stated that your background affects the facts that you choose to see. Was the fact that the New Haven firefighters had been subject to discrimination one of the facts you chose not to see in this case?

JUDGE SONIA SOTOMAYOR: No, sir. The panel was composed of me and two other judges. … In a very similar case, the 6th Circuit approached a very similar issue in the same way. So a variety of different judges on the appellate court were looking at the case in light of established Supreme Court and 2nd Circuit precedent and determined that the city facing potential liability under Title VII could choose not to certify the test if it believed an equally good test could be made with a different impact on affected groups.

The Supreme Court, as it is its prerogative in looking at a challenge, established a new consideration or a different standard for the city to apply. And that is was there substantial evidence that they would be held liable under the law. That was a new consideration.

Our panel didn’t look at that issue that way because it wasn’t argued to us in the case before us and because the case before us was based on existing precedent. So it’s a different test.

SESSIONS: Judge, there was apparently, unease within your panel. I was really disappointed. And I think a lot of people have been that the opinion was so short. It was per curiam. It did not discuss the serious legal issues that the case raised. And I believe that’s legitimate criticism of what you did.

But it appears… that Judge Cabranes was concerned about the outcome of the case, was not aware of it because it was a pro curiam unpublished opinion. But it began to raise the question of whether a rehearing should be granted.

You say you’re bound by the superior authority. But the fact is when the question of rehearing that 2nd Circuit authority that you say covered the case — some say it didn’t cover so clearly — but that was up for debate. And the circuit voted, and you voted not to reconsider the prior case. You voted to stay with the decision of the circuit.

And, in fact, your vote was the key vote. Had you voted with Judge Cabranes, himself of Puerto Rican ancestry, had you voted with him, you could have changed that case.

So in truth you weren’t bound by that case had you seen it in a different way. You must have agreed with it and agreed with the opinion and stayed with it until it was reversed by the Court.

Sen. Jon Kyl (R-Ariz.) cited quote after quote from Sotomayor speeches championing more women and minorities on the bench to change legal outcomes.  Sotomayor made claims that her speeches were intended to inspire the women and minorities in audience.  But that didn’t hold true when excerpts from the rest of her stump speech was read at the hearing.

SEN. JON KYL:  The question though is whether you leave them with the impression that it’s good to make different decisions because of their ethnicity or gender. And it strikes me to you could have easily said in here now, of course, blind lady justice doesn’t permit us to base decisions in cases on our ethnicity or gender. We should strive very hard to set those aside when we can.

I found only one rather oblique reference in your speech that could be read to say that you warned against that. All of the other statements seemed to embrace it or, certainly, to recognize it and almost seem as if you’re powerless to do anything about it. I accept that this will happen, you said. So while I appreciate what you’re saying, it still doesn’t answer to me the question of whether you think that these — that ethnicity or gender should be making a difference.

JUDGE SONIA SOTOMAYOR: I — there are two different, I believe, issues to address and to look at because various statements are being looked at and being tied together. But the speech, as its structured, didn’t intend to do that and didn’t do that.

Much of the speech about what differences there will be in judging was in the context of my saying or addressing an academic question. All the studies that you reference I cited in my — in my speech were just that, studies. They were suggesting that there could be a difference. They were raising reasons why. I was inviting the students to think about that question.

Most of the quotes that you had and reference say that. We have to ask this question. Does it make a difference? And if it does, how? And the study about differences in outcomes was in that context.

That was a case in which three women judges went one way and two men went the other, but I didn’t suggest that that was driven by their gender. You can’t make that judgment until you see what the law actually said.

And I wasn’t talking about what law they were interpreting in that case. I was just talking about the academic question that one should ask.

KYL:  If I could just interrupt, I think you just contradicted your speech because you said in the line before that, enough women and people of color in enough cases will make a difference in the process of judging.

Next comment, the Minnesota Supreme Court has given us an example of that. So you did cite that as an example of gender making a difference in judging. …The fault I have with your speech is that you not only don’t let these students know that you need to set it aside; you don’t say that that’s what you need this information for. But you’re almost celebrating. You think — you say, if there are enough of us, we will make a difference, inferring that it is a good thing if we begin deciding cases differently.

In one of the toughest rounds of questioning of the day, Sen. Graham in a line of questioning about the liberal “the Constitution is a living, breathing document” mantra, he pulled an admission out of Sotomayor to being simpatico with the very views that undergird judicial activism.

SEN. LINDSEY GRAHAM: Is there anything in the [Constitution] written about abortion?

JUDGE SONIA SOTOMAYOR: The word “abortion” is not used in the Constitution, but the Constitution does have a broad provision concerning a liberty provision under the due process…

GRAHAM: And that gets us to the speeches. That broad provision of the Constitution that’s taken us from no written prohibition protecting the unborn, no written statement that you can’t voluntarily pray in school, and on and on and on and on, and that’s what drives us here, quite frankly. That’s my concern.

The first round of questioning continues this morning at 9:30 am.

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