We are at precisely the halfway point between the official announcement of Judge Sonia Sotomayor’s Supreme Court nomination and the scheduled opening of her Senate Judiciary Committee hearing. So what do we know about her so far?
Judge Sotomayor’s success is an inspirational story, and she has shown an admirable commitment to serving her community. The record also shows her to be a bad judge.
It bears noting in advance that what makes a judge good or bad isn’t the political result of any case. The Washington Times has analyzed the legal reasoning offered behind some highly questionable results in Judge Sotomayor’s jurisprudence. That analysis indicates that the results are, indeed, evidence of a highly flawed approach to the constitutional job of a federal judgeship.
So far, the legitimate concerns involve the following issues:
c Judicial temperament. Plenty of judges are brusque or imperious; by itself, temperament is not a disqualifying factor for a judgeship. But when the Almanac of the Federal Judiciary cites lawyers calling her “a terror on the bench,” “nasty,” “overly aggressive” and a “bully,” that begins to raise some of the same reservations that Democrats in 1987 expressed about Judge Robert Bork when they blocked his promotion to the Supreme Court.
c Lack of impartiality. The judicial oath requires a judge to swear to “administer justice without respect to persons, and do equal right to the poor and to the rich, and … faithfully and impartially discharge and perform all the duties incumbent upon me.” In formal speeches, Judge Sotomayor has endorsed the view that “there is no objective stance” and has argued that “the aspiration to impartiality is just that - it’s an aspiration because it denies the fact that we are by our experiences making different choices than others.”
c Denial of the need for stable laws. It is a “public myth that law can be certain and stable,” she wrote for the Suffolk University Law Review in 1996. Without legislative guidance, she wrote, judges have a right and even a duty to “develop a novel approach … that pushes the law in a new direction.”
c Ethnic grievance-mongering. Judge Sotomayor on seven different occasions said almost identical variants of the statement that “inherent physiological or cultural differences” may lead “a wise Latina … [to] more often than not reach a better conclusion than a white male who hasn’t lived that life.”
c Race discrimination. By now the case in infamous: Judge Sotomayor ruled in Ricci v. DeStefano that white firefighters, even one with a handicap, can be denied a promotion they had earned merely because on that occasion no black colleague earned the same promotion.
c Property rights. Judge Sotomayor ruled in Didden v. Village of Port Chester that a town can, without a public hearing, seize private property (for a fee) from an unwilling seller and use it for the same purpose the seller intended. In this case, the force of law was used to block a CVS and replace it with a Walgreens.
c The right to bear arms. In U.S. v. Sanchez-Villar, Judge Sotomayor ruled “that the right to possess a gun is clearly not a fundamental right.” Judge Sotomayor ruled in Maloney v. Cuomo that a state can prohibit private ownership of martial-arts sticks.
c Jailbird voting. Against hundreds of years of tradition, Judge Sotomayor ruled in Hayden v. Pataki that currently imprisoned felons have a right to vote if a disproportionate number of them is black or Latino.
Each of these issues is disturbing. Together, they should disqualify Judge Sotomayor from the Supreme Court.