Wise Wendy Long & Stuart Taylor v. "wise Latina" Sonia Sotomayor

By Michael Gaynor

Judge Sotomayor is eminent, and her confirmation seems imminent, but will America's best interests be served by elevating a Latina who even as a federal judge denied that Spanish (her native language) has adjectives and confuses eminent and imminent and store and story?

Unless evidence of why the National Council of La Raza and the Association of Community Organizations for Reform Now really are thrilled with the nomination of Judge Sonia Sotomayor to become the next United States Supreme Court Justice surfaces soon, Judge Sotomayor will be confirmed.

Whether that happens depends upon the consciences and courage of potential whistleblowers.

Judicial Confirmation Network Counsel Wendy Long and National Journal's Stuart Taylor never worked for La Raza or ACORN, so they won't be blowing the whistle on Judge Sotomayor.

But Mrs. Long and Mr. Taylor already have explained why Judge Sotomayor should not be confirmed based on what already is known.

Mrs. Long flatly opposes confirmation.

Mr. Taylor has not yet decided, but he's raised so many red flags and highlighted so many disconcerting facts that he may as well have officially opposed confirmation.

Mrs. Long, in a National Review Online Bench Memo titled "Sotomayor: Rhetoric v. Record," warned people not to be fooled by rhetoric or "confirmation hearing conversion."

Mrs. Long:

"...after three hours of questioning, it is absolutely clear that this hearing is all about one thing: Rhetoric vs. Record.

"Judge Sotomayor — obviously at the direction of the White House — has decided to follow the path of not just stonewalling, but of flatly contradicting what is in her record. That record is long — as her boosters note, she has more judicial experience than any Supreme Court nominee in a very long time, and she has speeches and law review articles spanning three decades.

"What she is doing this morning is making statements that are utterly irreconcilable with that record.

"Just an example: She tried to explain away her Duke Law school statements that 'appellate courts make policy' by saying: Oh, no, Senator; courts don't make the same kind of policy that you make in the legislature. What I meant was, district courts find facts, and appellate courts then apply the law.

"But in Ricci, she didn't apply any law at all. She did not grapple with the applicable precedents, either of the Supreme Court or of the Second Circuit. She engaged in zero legal analysis.

"She has tried to erase her long history of statements that a judge's personal background and views can be brought to bear on a case and indeed used to make 'law' and affect 'the facts that I choose to see' by now claiming that all she meant was her background and views just help her to see all sides of a case impartially. If that is what she really meant all these years, she could have said it. It is not what she said.

"Her answers to Senator Hatch about her decision that the 2nd Amendment right to bear arms is not a 'fundamental right' completely ignored the distinction he was asking her about, by which she ignored a century of incorporation doctrine under the Due Process Clause and chose to rely on an irrelevant Privileges and Immunities analysis.

"When senators assess her rhetoric today, as against her record of the last three decades, her record must trump her rhetoric."

In "The Sotomayor Puzzle" written later, Mr. Taylor professed the "trouble figuring out" President Obama's first United States Supreme Court nominee of "one who had hoped for a moderately liberal, intellectually honest nominee and feared the possibility of an unprincipled left-liberal ideologue steeped in identity politics."

As one who warned that President Obama would nominate Judge Sotomayor if he was elected and had no illusions about either the nominator or the nominee, I have not had trouble.

Mr. Taylor, ever the independent centrist, looked at Judge Sotomayor's judicial record and pronounced it "more than 3,000 mostly unremarkable rulings [that] have not been ultra-liberal, have not displayed any broad pattern of bias in race or gender cases, and have closely followed precedent."

Of course, every one of those rulings was subject to review by a higher court, so none of them should have been "ultra-liberal" and none of them should have "displayed...bias in race or gender cases" and all of them should "have closely followed precedent."

Judge Sotomayor's treatment of the appeal in the New Haven firefighters case (Ricci) is sufficient reason NOT to promote her!

Mr. Taylor performed an admirable public service by "juxtapos[ing] excerpts from a typical [Sotomayor] speech — in October 2001, to an audience of Hispanic activists and others at the University of California (Berkeley) — with portions of her testimony on Tuesday and Wednesday.

Mr. Taylor's juxtapositions:

• Berkeley speech: "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."

(Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., purporting at one point to quote this sentence, could not bring himself to quote it correctly. He omitted the words "a better conclusion than a white male" and inserted "wise decisions" in their place.)

• Testimony: "I do not believe that any ethnic, racial, or gender group has an advantage in sound judging.... [I did not intend] to say that we could really make wiser and fairer decisions."

Sotomayor added that the "wise Latina" line had been "a rhetorical flourish that fell flat," one intended to inspire young Latinos by telling them "that our life experiences do permit us to see some facts and understand them more easily than others." Her word choice, Sotomayor added, "was bad because it left an impression that I believe that life experiences commanded a result in a case." She did not explain why she repeated the same rhetorical flourish so many times or why her way of inspiring young Hispanics was to suggest that they are "better" than white males.

• Berkeley speech: "Justice [Sandra Day] 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 ... not so sure that I agree with the statement."

• Testimony: "The words that I used, I used agreeing with the sentiment that Justice Sandra Day O'Connor was attempting to convey. I understood that sentiment to be that both men and women were equally capable of being wise and fair judges."

• Berkeley speech: "Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less than [a colleague], our gender and national origins may and will make a difference in our judging."

• Testimony: "There are in the law — there have been upheld in certain situations that certain job positions have a requirement for a certain amount of strength or other characteristics that maybe ... a person who fits that characteristics and have [sic] that job.... I certainly wasn't intending to suggest that there would be a difference that affected the outcome. I talked about there being a possibility that it could affect the process of judging."

• Berkeley speech: "[The same colleague] believes that judges must transcend their personal sympathies and prejudices.... Although I agree with and attempt to work toward [that] aspiration, I wonder whether achieving that goal is possible in all or even in most cases. And I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society."

• Testimony: "What I was speaking about ... is, life experiences ... can affect what we see or how we feel.... But I wasn't encouraging the belief or attempting to encourage the belief that I thought that that should drive the result." She also said that "as a judge, I don't make law" and "I apply the law to facts, not feelings to facts."

• Berkeley speech: "We who judge must not deny the differences resulting from experiences and heritage but attempt ... continuously to judge when those opinions, sympathies, and prejudices are appropriate [emphasis added]."

• Testimony: "I was talking about the very important goal of the justice system ... to ensure that the personal biases and prejudices of a judge [never] influence the outcome of a case."

Read in full context, the more provocative assertions in Sotomayor's speeches are often hedged, ambiguous, and sometimes internally inconsistent. But taken as a group, they appear — to me, at least — to suggest a leftist agenda that has not so far characterized her judicial record as a whole."

Would we ignore that suggestion if Judge Sotomayor were a white male?

Should we ignore it because she isn't?

Mr. Taylor: "If I can bring myself to believe that the real Sotomayor is the unalarming judge suggested by her testimony and judicial record, I will support her nomination — but without enthusiasm, because of three major misgivings that her testimony did nothing to allay."

What "major misgiving" weigh on Mr. Taylor's mind?

Mr. Taylor:

"The first concerns her dismissive rejection last year of the reverse-discrimination lawsuit by firefighters in New Haven, Conn., who had done well on qualification tests but were denied promotions because blacks had not done well. That — like some of her pre-judicial work — suggests an agenda of extending and perpetuating de facto racial quotas.

"My second misgiving is that from 1980 to 1992 — when Sotomayor was a very active member of the Puerto Rican Legal Defense and Education Fund's board and (for several years) of its litigation committee — the PRLDF's litigation agenda included filing multiple lawsuits challenging job-qualification tests as racially discriminatory; seeking racial gerrymandering of election districts; attacking laws against Medicaid funding of abortions as akin to slavery; and the like. That's too left-activist for my taste.

"My third is that despite her stellar academic record, Sotomayor's judicial opinions, speeches, and confirmation testimony show her to be a highly capable legal mind but less than brilliant."

Princeton professors could make sure that Judge Sotomayor graduated summa cum laude, but they could not take the SAT test for her.

Like President Obama's birth certificate, Judge Sotomayor's SAT scores have not been produced.

Judge Sotomayor admitted they were low and explained that as the result of "cultural bias."

Even the MATH SAT score?

Judge Sotomayor is eminent, and her confirmation seems imminent, but will America's best interests be served by elevating a Latina who even as a federal judge denied that Spanish (her native language) has adjectives and confuses eminent and imminent and store and story?

Mr. Taylor, a white man who also graduated from Princeton, is straining hard to support Judge Sotomayor.

Mr. Taylor: "...pro-quota bias does not, alas, put Sotomayor outside the liberal mainstream. Nor did her work with the PRLDF, which was part of the liberal establishment and often successful in litigation. And she would hardly be the first less-than-brilliant legal mind to sit on the Supreme Court."

But Mr. Taylor still has "doubts about the sincerity of Sotomayor's testimony" and is pondering whether she's "honest enough."

"HONEST ENOUGH"?

Is that an acknowledgement that Mr. Taylor concluded that Judge Sotomayor is only partly honest? If so, how much honesty in a United States Supreme Court Justice is enough and is the partial honest standard the same for males and females, Latinas and non-Latinas, Democrats and Republicans, etc.?

Hint for Mr. Taylor: It would not have "require[d] almost superhuman self-discipline for a judge to spend 17 years hiding her real agenda to give her a better shot at a Supreme Court seat."

Especially for a person who considers herself "a perfect affirmative action baby."

Mr. Taylor quoted astute Ed Whelan of the Ethics and Public Policy Center as follows: "Judge Sotomayor deserves an A+ for brazen doublespeak. She emphatically rejected the lawless 'empathy' standard for judging that President Obama used to select her, but she denied the plain import of her many statements contesting the possibility and desirability of judicial impartiality. She hid behind a ridiculously simplistic caricature of judging that embarrassed and disgusted her most vociferous backers, but she never recognized any meaningful bounds on the role of a Supreme Court justice. She gave a series of confused statements about the use of foreign law that are inconsistent with each other and that contradict a speech that she gave just three months ago."

Is THAT what is acceptable in a United States Supreme Court Justice if also a Latina?

Maureen Dowd of The New York Times, in lamenting some of Judge Sotomayor's confirmation hearing testimony, virtually assured Mr. Taylor that Judge Sotomayor is both clever and not credible.

Ms. Dowd: "The judge's full retreat from the notion that a different life experience is valuable was more than necessary and somewhat disappointing. But, as any clever job applicant knows, you must obscure as well as reveal, so she sidestepped the dreaded empathy questions — even though that's why the president wants her."

About Judge Sotomayor's cleverless and lack of credibility, Ms. Dowd is right.

Mrs. Long is right to oppose confirmation based on Judge Sotomayor's record.

Mr. Taylor should judge Judge Sotomayor the same way that he judged that white male Democrat lawyer who used to be the Durham County, North Carolina's District Attorney, Michael Nifong: without tolerance for dishonesty or obeisance to political correctness.

© Michael Gaynor