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Issues Sotomayor Must Address at Confirmation Hearings

I do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me under the Constitution and laws of the United States. So help me God.
-- The Judicial Oath, USC Title 28, Section 453.

Whether born from experience or inherent physiological or cultural differences … our gender and national origins may and will make a difference in our judging. 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.
-- Supreme Court nominee Sonia Sotomayor, Spring 2002 issue of Berkeley La Raza Law Journal.

The Senate Judiciary Committee begins their confirmation hearings today for President Barack Obama’s first Supreme Court nominee, Judge Sonia Sotomayor. Pressed to square Sotomayor’s assault on judicial impartiality quoted above, the White House first tried to claim that Sotomayor “misspoke.” But this claim has been thoroughly refuted by the fact Sotomayor has delivered similar prepared remarks on at least seven separate occasions. As troubling as these repeated statements are, they are just the tip of the iceberg of Sotomayor’s judicial and extra-judicial record. Senators must press Sotomayor to explain what exact “physiological differences” between ethnicities and genders leads her to believe that some people make better judges than others. Other important areas of inquiry include:

Policy Making from the Bench:
At a 2005 Duke University panel discussion, Sotomayor said: “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, that this is on tape, and I should never say that. Because we don’t make law.” The American people deserve to know: Does Sotomayor still believe that judges should be overhauling the law and making policy? If not, when did she change her position, and why did she say and write these things in 2005?

Overcoming Bias: In the same 2001 speech cited above, Sotomayor wondered “whether by ignoring our differences as women or men of color we do a disservice both to the law and society.” Does Sotomayor believe that following the judges’ oath of office is a disservice to society? Does she believe that she is doing a disservice to the law if she impartially discharges her duties in a completely impartial manner?

Respecting Judicial Procedure: In Ricci vs DeStefano, Sotomayor signed a one paragraph opinion dismissing a racial discrimination case brought by a group of New Haven firefighters. President Clinton appointee Judge Jose Cabranes flagged that decision for an en banc hearing writing that the “core issue presented by this case … is not addressed by any precedent of the Supreme Court or our Circuit.”The Supreme Court then ruled, 9-0, that Sotomayor’s one-paragraph summary order was insufficient.Does Sotomayor believe that her treatment of these cases was appropriate, particularly considering the fact that the Supreme Court not only found the case important enough to hear but also reversed her?

The Empathy Standard: Defending his vote against Chief Justice John Roberts, President Barack Obama said: “While adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a court … what matters on the Supreme Court is those 5 percent of cases that are truly difficult. … That last mile can only be determined on the basis of one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.” Does Sotomayor agree with President Obama that empathy is a proper way to decide cases?

Legal Realism: In a 1996 Suffolk University Law Review article, Sotomayor wrote: “Yet law must be more or less impermanent, experimental and therefore not nicely calculable. Much of the uncertainty of law is not an unfortunate accident: it is of immense social value.” Does Sotomayor believe that it is the role of judges and the courts to change the laws if they believe the law is outdated or needs changing? What prevents a judge from simply implementing her policy preferences in the place of legislature, and what recourse do citizens have when an unelected judge gets the policy question wrong?

Importing Foreign Law: In an April 2009 address to the American Civil Liberties Union, Sotomayor stated: “unless American courts are more open to discussing the ideas raised by foreign cases, by international cases, that we are going to lose influence in the world.” Apart from treaties that incorporate foreign law into U.S. domestic law, why does Sotomayor think it is a good idea for judges to consider foreign law in deciding domestic law cases?

Sotomayor has also issued troubling decisions and memos on the Second Amendment, Felon Voting, and the Death Penalty. Before she is confirmed to a lifetime appointment to the Supreme Court, Senators must engage in questions like the ones above to assure that she will be able to uphold her oath to impartially decide cases and that she will do so according to what the law says–rather than how she would seek to change the law. The American people, and the Constitution, deserve at least this much. Please join President Reagan’s Attorney General, Edwin Meese, chairman of the Heritage Foundation’s Center for Legal and Judicial Studies for a live Tele-Town Hall tomorrow night with Senator Jim DeMint (R-SC) where they will share their thoughts on the Sotomayor confirmation hearings and the proper role of a Supreme Court Justice.?


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