Sotoamayor Disguises Her Beliefs

As several commentators on the Sotomayor hearings have noticed, Judge Sotomayor is clearly mischaracterizing and disguising what she really meant in her many speeches. Matthew Franck has a good summary of the two main points where the Republicans gave her some trouble. First there is the attempt by her and her Democratic defenders to totally mischaracterize her "wise Latina" speech. And remember that she made almost that exact same comment in several different speeches over a course of years; it wasn't some inartful comment made off the cuff, but part of written speeches that were then published in a journal.

Sotomayor's tactics for putting this problem away--abetted by committee Democrats--have been threefold. First, she says that "in context" she didn't mean what is seen by nearly every reader of these speeches, and that "wise Latina" was a "rhetorical flourish" that "fell flat" and in retrospect "was bad." Second, she claims that, to the contrary, all judges should do is "apply the law to facts" and that's it, notwithstanding her speeches appearing to claim that such an approach is simplistic and probably impossible. And third, she seeks to divert attention to her judicial record of 17 years on the bench, where, she says, she has lived up consistently to that "apply law to facts" model of judging, without letting her personal views get in the way of the job. Several committee Democrats have particularly hammered this third point, urging that we ignore these speeches.

These tactics aren't working well. Senators Sessions and Kyl, especially, put her statements fully into their context in those speeches, and they sound worse, not better. Even Sotomayor's allies have trouble swallowing the "just apply law to facts" model as she enunciates it (more on that later). And the speeches are what they are, regardless of her record on the bench: they are Sotomayor speaking when liberated from the constraints of a lower-court judge. And boy, are Supreme Court justices liberated, on the job as well as after hours!

Next there were questions about another one of her speeches in which she explicitly endorsed the use of international law in judicial decision making. Again, she tried to evade the clear meaning of her speech.

The next rough patch concerns another speech, quite recent--an April 2009 speech to the ACLU of Puerto Rico on the role of foreign law. Here too Judge Sotomayor has run away from what she transparently said. And this time the flight from her text took place under questioning by her home state senator, Charles Schumer of New York. Asked to deal with that recent speech, the judge perfectly mischaracterized it, saying it was really all about those instances in which our own law tells judges they must consult foreign law (as when treaties govern a case). But since in the speech she explicitly referenced with approval the use of foreign law in the death penalty case of Roper v. Simmons and the homosexual sodomy case of Lawrence v. Texas, this new spin on what she said is not credible.

So she denied once again that she meant what she had clearly meant. Of course, she had to also defend her actions in dismissing the Ricci case in a summary judgment and disregarding the serious constitutional issues that, at the very least as all nine justices made clear, deserved a hearing.

The question that arises is why would she and the Democrats on the committee try to disguise what she really meant by her strong, repeated affirmation of the value of having a "wise Latina" judge or referring to international law. This is something that they all clearly believe. President Obama definitely believes that a minority judge would have a different and welcome approach, an empathetic approach, to decision making. But instead of defending their beliefs and laying forth the liberal position on these two questions, she sought to obfuscate her beliefs. After all, she knows and they know that she will be confirmed to the Supreme Court. Wouldn't this have been the perfect opportunity for liberals to lay before the American people the logic of their arguments. Could it be that liberals realize that they are the ones who are out of the mainstream and that American public opinion don't agree with them on these two questions?

One liberal supporter, Professor Louis Michael Seidman of Georgetown has already left the team.

I was completely disgusted by Judge Sotomayor's testimony today. If she was not perjuring herself, she is intellectually unqualified to be on the Supreme Court. If she was perjuring herself, she is morally unqualified. How could someone who has been on the bench for seventeen years possibly believe that judging in hard cases involves no more than applying the law to the facts?

Of course, they know and we know that, once she gets on the bench, we'll see the real Sotomayor and that won't resemble the modest, impartial, almost conservative-leaning judge that we are seeing this week.