Edward Fitzpatrick

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Edward Fitzpatrick: Judge Sonia Sotomayor deserves a seat on the Supreme Court

01:00 AM EDT on Sunday, June 7, 2009

True, Judge Sonia Sotomayor has an impressive array of legal experience, having served as a prosecutor, a private lawyer, a trial judge and a federal appellate court judge.

And true, her personal story is compelling. The daughter of Puerto Rican parents, she was born in the Bronx, grew up in a public housing project and went on to earn scholarships to Princeton University and to Yale Law School. If confirmed, she’d be the first Hispanic and the third woman to serve on the Supreme Court.

But I think President Obama’s administration is overlooking one crucial, damning fact: Sotomayor is a New York Yankees fan.

To be sure, this fact has lost some of its sting since the Yankees haven’t won a World Series in nine years. And she might have an excuse, having grown up within walking distance of Yankee Stadium. But I hope U.S. Sen. Sheldon Whitehouse, the Rhode Island Democrat on the Senate Judiciary Committee, will pursue that line of questioning during her confirmation hearings.

Of course, that would be only slightly more ridiculous than the charge that Sotomayor is a racist. Rush Limbaugh, Ann Coulter and former House Speaker Newt Gingrich — dubbed the “GOP Holy Trinity” by the New York Daily News — played the racist card in reference to comments Sotomayor made during a University of California-Berkeley speech in 2001. “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,” Sotomayor said.

Obama has said Sotomayor regrets her choice of words. “I’m sure she would have restated it,” he said. But he said that if you look at “the entire sweep of the essay that she wrote, what’s clear is that she was simply saying that her life experiences will give her information about the struggles and hardships that people are going through.”

Since the initial uproar, Gingrich has said he shouldn’t have called Sotomayor a racist and that her rulings have “shown more caution and moderation” than her speeches and writings.

Alabama Sen. Jeff Sessions, the ranking Republican on the Judiciary Committee, has distanced himself from the racist rants, saying “I will not use that kind of language” and noting that those making such charges are “not party officials.”

Indeed, the top party official, GOP National Committee Chairman Michael Steele, has said that instead of “slammin’ and rammin’ ” on Sotomayor, Republicans should be embracing the “historic aspect” of her nomination while making a “cogent, articulate argument” against her.

Of course, Limbaugh continued to sound off, comparing Sotomayor to former Ku Klux Klan leader David Duke. And that nuanced discourse continued when Duke took offense, saying, “Limbaugh, a recent addict to illegal drugs, has no business making personal attacks against me for my past.” (In a cage match between Limbaugh and Duke, it’s hard to know who to root for.)

But it’s not hard to see why a new national poll by the independent Quinnipiac University found Americans approve, 54 percent to 24 percent, of Sotomayor’s nomination.

David A. Logan, dean of the Roger Williams University School of Law, makes the most relevant point: “She is unusually well qualified,” he said. “It’s sort of hard to imagine a candidate with a better resumé.”

In introducing his nominee, Obama said, “Walking in the door she would bring more experience on the bench, and more varied experience on the bench, than anyone currently serving on the United States Supreme Court had when they were appointed,” he said.

Logan noted the Supreme Court reviews the work of trial judges, and Sotomayor would replace Justice David H. Souter as the only justice with experience as a trial judge.

Logan noted that during a February lecture at the University of Arizona law school, Chief Justice of the United States John G. Roberts Jr. said having justices come to the court with trial experience would be a good thing. “The one gaping hole in the background of legal experience is trial experience, the trial judge,” Roberts was quoted as saying in the Tuscon Citizen.

Sotomayor was an assistant district attorney in Manhattan from 1979-1984, trying dozens of criminal cases. And from 1984-1992, she practiced international business law at a New York-based law firm, focusing on intellectual property law — which Logan said is becoming more significant as the American economy changes.

Also, Logan noted Sotomayor has been on the 2nd U.S. Circuit Court of Appeals, based in New York City, since 1998, and he explained that the circuit courts in Washington, D.C., and New York City are considered “the most plum assignments.”

Aside from her resumé, there is her life story. Her parents moved from Puerto Rico to New York City during World War II. Her father was a factory worker with a third-grade education who didn’t speak English. He died when she was 9, a year after she was diagnosed with diabetes. Her mother raised her and her brother on a nurse’s salary while managing to send them to Catholic schools.

“This was a child against whom every possible disadvantage was arrayed and by sheer force of will and intellect she was able to achieve at the very highest level of academics, and then law, and now the judiciary,” Whitehouse said. “To me, it’s a moving story.”

You can argue about how much personal stories matter when it comes to judges, as opposed to politicians. But with well-off white guys in tasseled loafers making up so much of the power structure, I see value in adding Sotomayor’s Bronx tale to the mix.

Jeffrey Toobin just wrote a New Yorker article, “No More Mr. Nice Guy,” about Chief Justice Roberts. Toobin says that after four years on the high court, “Roberts’ record is not that of a humble moderate but, rather, that of a doctrinaire conservative. The kind of humility that Roberts favors reflects a view that the court should almost always defer to the existing power relationships in society. In every major case since he became the nation’s 17th Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff.”

Sotomayor might provide a liberal counterweight to Roberts in those regards. But that remains to be seen. As Logan said, “There are two conflicting parts of her biography.” While her rags-to-riches story might indicate she will support the underdog, she was also a prosecutor and she worked in a big law firm that represented big corporations, he said.

“She is very comfortable associating with the powerful and is not going to automatically, reflexively choose the little guy,” Logan said. “People are pulling apart her decisions, and my impression from the early returns is that she is a moderate liberal. She is not riding off on her own coming up with new theories of the law.”

In pulling apart her decisions, critics are scrutinizing the position that Sotomayor took in a 2008 affirmative action case. In the case of Ricci v. DeStefano, she was part of a three-judge panel that sided with the City of New Haven, Conn., which threw out the results of a test used to promote firefighters because no blacks achieved a score high enough to merit promotion.

The Supreme Court is expected to overturn that 2nd Circuit ruling before Sotomayor has a chance to join the high court. During oral arguments, Chief Justice Roberts sharply questioned a lawyer defending New Haven, saying, “Now, why is this not intentional discrimination?”

A Quinnipiac Poll found Americans, 71 percent to 19 percent, think the Supreme Court should reverse Sotomayor’s ruling in that case. And her nomination is prompting a renewed discussion about affirmative action and whether, as Roberts seems to believe, the time has now passed when the Supreme Court should allow systemic remedies for racial discrimination.

Critics are also focusing on Sotomayor’s 2001 speech, titled “A Latina Judge’s Voice.” Whitehouse said he and Sotomayor talked a bit about that speech when they met at his Senate office on Wednesday morning. “Frankly, I’m not very concerned about it because I read it in context — that her life experience would bring value to the legal debate in certain cases,” he said.

Whitehouse said he found her comments no different from those made by Supreme Court Justice Samuel A. Alito, who during his confirmation hearings said: “When a case comes before me involving, let’s say, someone who is an immigrant — and we get an awful lot of immigration cases and naturalization cases — I can’t help but think of my own ancestors, because it wasn’t that long ago when they were in that position.”

I think there are both differences and similarities in what Sotomayor and Alito said. But in judging Sotomayor, I think you have to look at the whole 2001 speech, which thoughtfully analyzed how background, ethnicity and gender come into play in judicial decision-making. And you have to look at her 17-year judicial record. That one sentence does not make her a racist.

Roger Williams University law Prof. Jorge O. Elorza noted Obama wanted the next Supreme Court justice to have empathy. “He wants the next justice to be able to relate to what everyday Americans are going through,” he said. “And when you look at the projected growth of the Latino community, it will comprise 30 percent of the population by 2050.”

Elorza — who was raised in Providence by Guatemalan-immigrant parents and who is now co-chairman of the new Latino Policy Institute at Roger Williams University — said, “That is a sizeable chunk of the population with different perspectives and beliefs — not entirely separate, but distinct — and it’s important to have a Supreme Court justice that understands those attitudes and beliefs in a very substantive way. It doesn’t come from her merely being a Latina, but from her being a woman, having a rags-to-riches story and growing up in an urban community.”

Aggressively opposing Sotomayor poses political risks for the Republican Party, Elorza said. “If you look at the base of the Republican Party, it’s becoming progressively white and old, while the overall electorate is becoming less of each of those,” he said. “The Republican Party has to be very careful about alienating Latino voters coming online in future elections.”

Elorza said Sotomayor’s nomination is a source of great pride in the Latino community. “Symbolically, I think it’s extremely important,” he said.

But Sotomayor is more than a symbol. “She is a person of sharp intellect and deep analytical rigor,” Elorza said. “She will be a very capable Supreme Court justice.”

efitzpat@projo.com

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