Justice Matters:
Senate Should Confirm Judge Sonia Sotomayor
Women and their families are deeply affected by Supreme Court decisions,
which shape many aspects of our lives. These rulings can protect or deny
our right to privacy and reproductive choice. They can help us win equal
pay for equal work, or thwart efforts to stop discrimination. They can
declare sexual harassment to be illegal, or allow it to stand. They can secure
our access to family and medical leave, or let employers deny it – and much
more.
Recognizing the extraordinarily important role that Supreme Court Justices
play in American life, the National Partnership for Women & Families
supports highly qualified nominees who have a demonstrated commitment to
equal justice. Judge Sonia Sotomayor clearly has such qualifications and
commitment, which is why the National Partnership endorses her and asks
the Senate to move quickly to confirm her as the 111th Justice to serve on the
United States Supreme Court.
Judge Sotomayor’s experience as a federal judge, in private practice, and as
a prosecutor leaves no doubt that she is highly intelligent and eminently
qualified for this position. Her decisions demonstrate that she is a jurist who
gives fair and careful consideration to arguments on both sides of a case,
immerses herself in the facts and applicable law, and seeks justice in her
rulings.
In addition to her outstanding legal qualifications, the National Partnership
supports confirmation because it is clear that Judge Sotomayor will bring a
welcome new perspective to the Court: If confirmed, she will be the first
Hispanic ever to serve and only the third woman to sit on the Court. We join
the nation in celebrating this historic nomination and heralding the woman
who was nominated.
1875 connecticut avenue, nw ~ suite 650 ~ washington, dc 20009 ~ phone: 202.986.2600 ~ fax:
202.986.2539
email: [email protected] ~ web: www.nationalpartnership.org
The National Partnership for Women & Families is a national, non-partisan
nonprofit advocacy organization dedicated to promoting fairness in the
workplace, access to quality health care, and policies that help women and
men meet the dual demands of work and family. Founded as the Women’s
Legal Defense Fund some 35 years ago, the organization is a leader in the
fight to promote family-friendly policies, rid workplaces of discrimination,
ensure equal opportunity, provide quality affordable health care to every
person, and improve the lives of all women and their families.
Our criteria for Supreme Court Justices – that nominees be highly qualified
and have a demonstrated commitment to equal justice – are similar to those
set forth by President Obama, who vowed to choose candidates who are
highly intellectual and will approach cases with an open mind.1 The
President also said he would seek candidates who see the law as a means of
leveling the playing field between the strong and the weak,2 and exercise
empathy in decision-making.3 “If we can find people who have life
experience and…understand what it means to be on the outside, what it
means to have the system not work for them, that’s the kind of person I want
on the Supreme Court,” the President said in 2007.4
In Judge Sonia Sotomayor, President Obama has selected a nominee with
vast judicial experience, a keen intellect, and the ability and willingness to
comprehend the real-world effects of court rulings. We are impressed by her
record on civil rights issues, which demonstrates that she considers the facts
exhaustively, applies the law fairly, and supports keeping courthouse doors
open to valid complaints.
While Judge Sotomayor has not ruled directly on issues involving the
Constitutional right to choose abortion, in her testimony before the Senate
Judiciary Committee she said clearly that the Constitution includes a right to
privacy and that she views Roe v. Wade as settled law that is due deference
in future decisions. Her rulings to date demonstrate that she scrupulously
follows applicable precedent. Thus, we are confident that, if faced with a
1
Speech on the nomination of Sonia Sotomayor, May 26, 2009 – online at
http://www.whitehouse.gov/the_press_office/Remarks-by-the-President-in-Nominating-Judge-SoniaSotomayor-to-the-United-States-Supreme-Court/.
2
Floor speech on the nomination of John Roberts, 151 Cong.Rec. S10365, S10366 (Sept. 22, 2005)
3
E.g., Speech to Planned Parenthood Action Fund, July 17, 2007, Transcript online at
http://lauraetch.googlepages.com/barackobamabeforeplannedparenthoodaction.
4
Statement in Democratic Presidential Debate, November 15, 2007, Transcript online at
http://www.nytimes.com/2007/11/15/us/politics/15debate-transcript.html?_r=1.
2
decision regarding privacy and a woman’s right to choose abortion, she will
reaffirm the high court rulings in Griswold v. Connecticut, Roe, and Planned
Parenthood v. Casey.
Education and Legal Experience
After high school, Judge Sotomayor won a scholarship to Princeton
University, where she graduated summa cum laude. She attended Yale Law
School, also on scholarship.
Her first job after law school was as an Assistant District Attorney in the
New York office headed by the legendary Robert Morgenthau. As a
prosecutor, Judge Sotomayor handled a variety of cases, from public
nuisance and misdemeanor charges to serious felonies including murders
and child pornography. She later practiced at Pavia & Harcourt, specializing
in commercial and intellectual property issues. Thus, she has a total of 13
years of active and varied litigation experience.
Throughout her legal career, she participated in other public interest work.
That included serving on the board of directors of the Puerto Rican Legal
Defense and Education Fund (then PRLDEF, now LatinoJustice PRLDEF)
for 12 years, and serving as a member of the Second Circuit Task Force on
Gender, Racial, and Ethnic Fairness in the Courts.
In 1991, President George H.W. Bush nominated Sotomayor to serve as a
federal judge. She was confirmed for that position by unanimous consent of
the Senate, earning the approval of all 43 Republicans in the Senate at that
time. She served on the U.S. District Court for the Southern District of New
York for six years.
In 1997, President Clinton nominated her to serve on the Second Circuit
Court of Appeals. She was confirmed by the Senate in 1998 to that position
by a vote of 68-28. Twenty-six Republicans voted in her favor.
When President Obama nominated her for the U.S. Supreme Court, she had
nearly 17 years of experience on the federal bench.
Rulings in Civil Rights Cases
Judge Sotomayor has authored hundreds of legal decisions and participated
in thousands more. A review of the opinions in civil rights cases that she
3
wrote or joined and her dissents all show her to be a meticulous judge who is
concerned with the facts of cases before her.
She does not use cases to make political statements, nor does she use them to
decide issues not put in play by the case at hand or necessary to the decision.
She has demonstrated an appreciation for how discrimination manifests
itself, and what should qualify as sufficient evidence of sexual or racial
discrimination under the law.
The following are examples of discrimination cases that illustrate Judge
Sotomayor’s thorough analysis in deciding cases and careful application of
precedent.
Examples of Rulings in Civil Rights Cases
Raniola v. Bratton5
Police officer Patricia Raniola brought a sexual harassment claim because,
among other acts, her supervisor routinely denigrated her work and women
in general, her co-workers distributed a sexually suggestive flyer with her
name on it, the word “c-nt” was written near her name on a police
department document, and she and other female officers were singled out for
discipline as well as heavier and more difficult workloads. The lower court
had dismissed Ms. Raniola’s claims, finding that the language she was
forced to endure was typical of the “camaraderie of a precinct house” and
that the differences in workload and discipline did not have a connection to
sexual harassment. In an extensive decision that Judge Sotomayor wrote for
a unanimous panel, she reversed the lower court ruling, allowing the plaintiff
her day in court and finding that the allegations could amount to sexual
harassment, not camaraderie. Moreover, based on the overt hostility
expressed toward women through the language used in the workplace, Judge
Sotomayor’s decision allowed Ms. Raniola to use the differences in
workload and discipline as evidence in her sexual harassment case because
these actions, while not overtly motivated by sex, could be seen as tainted by
sexual discrimination given the other behavior at the workplace.
5
243 F.3d 610 (2d Cir. 2001).
4
Cruz v. Coach Stores, Inc.6
Yvette Cruz had been physically intimidated by her supervisor and had been
both the target of and exposed to numerous racially and sexually offensive
comments by that supervisor, who had said women should be barefoot and
pregnant and that Latinos were only fit to “sweep the floor at McDonalds.”
Writing for a unanimous court, Judge Sotomayor found that a hostile work
environment could be created out of the totality of the various sexually- and
racially-discriminatory comments and actions to which the plaintiff was
subjected and that the supervisor’s “racial harassment exacerbated the effect
of his sexually threatening behavior and vice versa.” Judge Sotomayor did
not require that the plaintiff chose either a sex or race claim. Rather, she
wrote, because Ms. Cruz was a woman of color, the harassment could be on
account of both sex and race and that the cumulative effect of the harassment
was what mattered. Judge Sotomayor also found that Ms. Cruz’ claim could
rely on sexually and racially hostile comments that were not specifically
directed at her, but rather made about women or people of color in general.
While she returned Ms. Cruz’ sexual harassment claim to the lower court,
Judge Sotomayor did not allow Ms. Cruz’ retaliation claim to continue
because Judge Sotomayor concluded that the evidence showed that Ms. Cruz
had been fired because of her involvement in a physical altercation with a
co-worker, not because of her race or sex.
Williams v. Consolidated Edison Corp. of N.Y.7
Dolores Williams was one of only three women employed at her location.
For several years, she endured difficult treatment and conditions. Coworkers called her names like “black b-tch,” sabotaged her equipment, and
commented that women did not belong in her workplace. Management
refused to provide adequate and equal locker room facilities for women.
Ms. Williams sued, arguing that Consolidated Edison (Con Ed) was liable
for failing to address the racially and sexually hostile work environment that
her colleagues created. Despite a wealth of evidence that employees thought
of and treated women and African Americans discriminatorily, the trial court
dismissed the case in favor of Con Ed. Judge Sotomayor joined the
unanimous panel decision reversing the lower court and reinstating the case,
finding that the many sexually- and racially-motivated incidents were
sufficient, under the law, to allow the case to go forward.
6
7
202 F.3d 560 (2d Cir. 2000).
255 Fed.Appx. 546 (2d Cir. 2007).
5
Signer v. Tuffey8
Lauren Signer, a police officer, became the subject of a workplace
investigation relating to her personal life. She complained to the police
chief, directly as well as through her union representative and lawyer, that
the investigation was sexually discriminatory. On the day the last of her
three complaints was filed, Officer Signer was informed that her office was
being relocated to a sub-basement; several months later, she was stripped of
significant job duties. A lower court dismissed her retaliation claim,
refusing to see her complaints to her supervisor as covered by Title VII’s
anti-retaliation provisions. Judge Sotomayor joined the panel opinion
overruling this dismissal, recognizing that complaints made directly to the
police chief clearly put the department on notice that Officer Signer believed
discrimination was occurring and that these complaints could be sufficient
reason for the department to retaliate against her.
Miller v. City of New York9
As a physically slight man with a disability, Gregory Miller did not conform
to gender stereotypes held by his employer. His supervisor repeatedly
accused him of not being a “real man” or a “manly man.” In attempts meant
to “toughen” up Mr. Miller, the supervisor assigned him to tasks that he
could not physically perform. A lower court dismissed all of Mr. Miller’s
employment discrimination claims, describing his supervisor’s actions as
being motivated by animus towards Mr. Miller’s sexual orientation, a nonprotected characteristic. On appeal, however, Judge Sotomayor joined the
panel opinion allowing Mr. Miller to pursue his claims. The Court
recognized that rather than being harassed for his sexual orientation, Mr.
Miller was being discriminated against because of his failure to conform to
the gender stereotypes held by his supervisor – behavior that Title VII of the
Civil Rights Act prohibits.
Deravin v. U.S. Dept. of Justice10
Representing himself, Eric Deravin, a security guard who worked for a
federal government contractor, charged the government with age
discrimination. The lower court dismissed the case because Mr. Deravin had
not met the very short and specific time requirements for federal employees
to lodge a complaint of discrimination. Judge Sotomayor joined the
8
66 Fed.Appx. 232 (2d Cir. 2003).
177 Fed.Appx. 195 (2d Cir. 2006).
10
40 Fed.Appx. 645 (2d Cir. 2002).
9
6
unanimous panel decision reversing the dismissal and allowing Mr. Deravin
his day in court after finding that it was unclear whether Mr. Deravin was a
federal employee, and thus subject to the shorter time limit, or a private
employee, and thus not bound by the rules for federal workers. The Court
also stated that should the lower court find that Mr. Deravin was a federal
employee, it should consider waiving the federal worker time requirements
because the issue of identifying Mr. Deravin’s employer was such a difficult
one.
E.E.O.C. v. J.B. Hunt Transport, Inc.11
The Equal Employment Opportunity Commission (E.E.O.C.), on behalf of
hundreds of unsuccessful job applicants, challenged a trucking company’s
policy of not hiring anyone to be a long-distance truck driver who was
taking a prescription medication with side effects. The central question in
the case was whether the company regarded the applicants as unable to
perform a wide range of jobs, which would then qualify them as “disabled”
under the Americans with Disabilities Act (ADA) and allow them to bring
claims. On appeal, a majority of judges agreed that the applicants’ claims
failed because, in their view, the J.B. Hunt trucking company believed only
that the applicants could not perform one particular job – long-distance truck
driver – rather than a class or broad range of jobs. Relying on the facts,
Judge Sotomayor dissented strongly from this opinion, noting that the
majority ignored substantial evidence that J.B. Hunt would not have hired
the applicants for any truck driving, or indeed any driving positions; that
evidence included comments by hiring officials that certain applicants would
“never drive for anybody.”
Gant v. Wallingford Bd. of Ed.12
Ray Gant, an African American six-year-old, moved with his family to the
town of Wallingford and began to attend Cook Elementary school, a public
school. Gant was in first grade at his prior school and entered Cook in the
first grade as well; he was the only African American student in the first
grade. During his time at Cook, there was evidence that Gant was taunted
because of his race. After two weeks in first grade, he was abruptly
transferred to a kindergarten class because, according to the school, he did
not have the requisite skills for first grade. Judge Sotomayor joined the
panel opinion finding that the race harassment claims in this case did not
11
12
321 F.3d 69 (2d Cir. 2003).
195 F.3d 134 (2d Cir. 1999).
7
meet the very high standard of showing that the school was deliberately
indifferent to Gant’s situation. However, Judge Sotomayor strongly
dissented from the Court’s view that the transfer to kindergarten was not
discriminatory because the evidence showed that he was treated very
differently than white students who struggled academically. Judge
Sotomayor wrote:
I consider the treatment this lone black child encountered during his
brief time in Cook Hill's first grade to have been not merely “arguably
unusual” or “indisputably discretionary,” but unprecedented and
contrary to the school’s established policies… The record indicates
that every other Cook Hill student having academic difficulty received
some form of transitional help, such as compensatory education,
testing, or transitional classes. It further indicates that the school
undertook these measures in consultation with the child’s classroom
teacher and with the consent of his parents. In Ray’s case, however,
Mrs. Cronin [the school principal] adhered to none of those
procedures. Rather, she decided after nine days to transfer him into a
grade he had already completed, over the objections of his parents and
without consulting his teacher.
N.G. v. Connecticut13
Parents of two teenage girls challenged Connecticut’s policy of stripsearching children in state custody whenever they were being admitted or
transferred between facilities, or upon suspicion that they possessed
contraband. A majority of appellate judges agreed with the parents and
struck down the use of all of the challenged searches except the initial strip
search of a child upon entry into state custody. Judge Sotomayor agreed
with majority opinion, except for the majority’s conclusion regarding the
initial searchers. On this point, Judge Sotomayor dissented, writing that she
would find those initial searches unconstitutional as well. She noted that
there was no particular reason to suspect the children of possessing
contraband upon entry; that they had not been charged with any crime; and
that strip-searching an emotionally-troubled adolescent was a severe and
troubling intrusion that could not be justified, absent strong reason to suspect
the child of having hidden something dangerous that could not be found with
a less-intrusive search.
13
382 F.3d 225 (2d Cir. 2004).
8
Ricci v. DeStefano14
Judge Sotomayor joined with two other judges to affirm a lower court ruling
allowing New Haven, Connecticut to set aside the results of an examination
for firefighter promotions that had a discriminatory impact against African
American and Hispanic applicants. After tallying the results of the
promotional test, New Haven officials set it aside in hope of finding a set of
criteria that would better measure job qualifications and that would not
discriminate against African American and Latino firefighters. Judge
Sotomayor and her colleagues found that the city had the right to take such
action to protect itself against future law suits. The opinion in this case,
based on 2nd Circuit law, permitted employers to improve their hiring
practices and decrease the discrimination associated with those practices
without facing the threat of a reverse law suit. The Supreme Court
eventually heard this case as well. On June 29, 2009 the Court reversed the
Second Circuit’s opinion in a razor-thin 5-4 opinion, finding in favor of the
white firefighters.
Several conservative commentators have attacked Judge Sotomayor for her
decision in this case. However, her opinion was clearly supported by
existing circuit precedent — law she was required to follow. The majority
of the judges on the Second Circuit agreed with her. As Senate Judiciary
Committee Chair Patrick Leahy explained, to decide this case in favor of the
white plaintiffs, the five conservative Justices on the Supreme Court
(Roberts, Alito, Scalia, Thomas and Kennedy) had to change established law
and create a completely new standard. In fact, the standard created by the
Supreme Court was not one that any court had applied to this set of facts
previously. On the appellate court, Judge Sotomayor did not have the
authority to create a new legal standard; she was bound to follow the law of
her circuit. Notably, Justice Souter, who Judge Sotomayor will replace if
she is confirmed, voted in the dissent.15
14
530 F.3d 87 (2d Cir. 2008).
15
Giving employers the ability to use less discriminatory examinations is critical to women and people of
color being able to gain entry and progress in the workplace. Therefore, the National Partnership for
Women & Families wrote a brief in support of the City of New Haven for the Ricci case in the Supreme
Court.
9
Position on Reproductive Rights
Judge Sotomayor has not heard any cases throughout her career on the bench
that required her to rule directly on women’s Constitutional right to
reproductive choice.16 She answered several questions regarding the right to
privacy, abortion, and birth control at her hearing. In her answers, she stated
that there is a right to privacy in the Constitution and noted that the Supreme
Court has found the right in the Constitution for many years in many diverse
areas. She had the following exchange with Senator Kohl:
Senator Kohl: Is there a general constitutional right to privacy? And
where is the right to privacy, in your opinion, found in the
Constitution?
Judge Sotomayor: There is a right of privacy. The court has found it
in various places in the Constitution, has recognized rights under
those various provisions of the Constitution. It’s found it in the Fourth
Amendment’s right and prohibition against unreasonable search and
seizures. Most commonly, it’s considered – I shouldn’t say most
commonly, because search and seizure cases are quite frequent before
the court, but it’s also found in the 14th Amendment of the
Constitution when it is considered in the context of the liberty
interests protected by the due process clause of the Constitution.17
16
Judge Sotomayor has rendered decisions in cases that involve some aspects of reproductive rights. In
Center for Reproductive Law and Policy v. Bush, 304 F.3d 183 (2d Cir. 2002), she dismissed the Center’s
challenge to the Bush Administration’s global gag rule policy—a rule that prohibited organizations that
receive federal funds from using their own funds to perform or promote abortion. It is clear from the
decision that prior cases decided by the Second Circuit and Supreme Court had reviewed and rejected
exactly this type of claim, and Judge Sotomayor was bound to follow this precedent. In Amnesty America
v. Town of West Hartford, 361 F.3d 113 (2d Cir. 2004) and 288 F3d 467 (2d Cir. 2002), Judge Sotomayor
reinstated the excessive force claims of anti-choice protesters against the town police. Her opinions
focused on the type of the claim, the evidence presented, and the need for a jury to determine whether the
plaintiffs’ or defendants’ recitation of facts was accurate; there is no indication that she felt sympathy for
plaintiffs’ cause. In United States v. Lynch, 181 F. 3d 330 (2d Cir. 1999), Judge Sotomayor voted in favor
of reviewing en banc a case where the lower court had dismissed the criminal claims against two antichoice activists who had violated a clinic’s protective order. The dissenting opinion that Judge Sotomayor
joined argued that the lower court’s reasoning – essentially that the violation of the protective order should
be excused because of the activists’ religious beliefs – did not comport with the law. Finally, in her
decision in Shi Liang Lin v. U.S. Dept. of Justice, Judge Sotomayor refers to initiating and continuing a
desired pregnancy as a “fundamental right.” 494 F.3d 296, 330 (2d Cir. 2007).
17
Transcript, Hearing: Nomination of Sonia Sotomayor to be Associate Justice of the United States
Supreme Court, July 14, 2009, available at http://www.nytimes.com/2009/07/14/us/politics/14confirmtext.html?pagewanted=all#kohl.
10
She assured the Committee repeatedly that she considers the cases that set
forth the parameters of women’s reproductive rights based on the right to
privacy –Griswold, Roe, and Casey – to be settled law and precedent
deserving of deference in future cases. For example, in response to
questions from Senator Kohl as to whether Roe is settled law, she stated:
“That is the precedent of the court and settled in terms of the holding of the
court.”18
Senator Feinstein asked Judge Sotomayor about the Supreme Court’s most
recent decision on abortion, Gonzales v. Carhart,19 (Carhart II) where the
Court upheld a ban on late term abortion procedures that did not include an
exception for the health of the woman, in contrast to an earlier case,
Stenberg v. Carhart,20 (Carhart I) that struck down a similar ban. Judge
Sotomayor explained that she viewed Carhart II as deciding “a different
question, which was whether there were other means – safer means, and
equally effective means – for a woman to exercise her right than the
procedure at issue in that case.”21 Carhart II was not, Judge Sotomayor
said, a “rejection of its [the Court’s] prior precedents. Its prior precedents
are still the precedents of the court. The health and welfare of a woman
must be – must be a compelling consideration.”22
Based on Judge Sotomayor’s statements at the hearing and her well
established record of following legal precedent, the National Partnership is
confident that she will support the legal principle that a right to privacy
exists in the Constitution and that it protects a woman’s right to make
fundamental decisions about her reproductive health. We believe that she
understands the critical nature of the right to privacy and the importance of
upholding cases that protect a woman’s right to choose, and that she will
respect, give deference to, and uphold established Supreme Court cases that
set the parameters of that right.
18
Transcript, Hearing: Nomination of Sonia Sotomayor to be Associate Justice of the United States
Supreme Court, July 14, 2009, available at http://www.nytimes.com/2009/07/14/us/politics/14confirmtext.html?pagewanted=all#kohl.
19
550 U.S. 124 (2007).
20
530 U.S. 914 (2000).
21
Transcript, Hearing: Nomination of Sonia Sotomayor to be Associate Justice of the United States
Supreme Court, July 14, 2009, available at http://www.nytimes.com/2009/07/14/us/politics/14confirmtext.html?pagewanted=all#feinstein.
22
Transcript, Hearing: Nomination of Sonia Sotomayor to be Associate Justice of the United States
Supreme Court, July 14, 2009, available at http://www.nytimes.com/2009/07/14/us/politics/14confirmtext.html?pagewanted=all#feinstein.
11
Diversity in the Federal Courts
In our nation’s history, 110 individuals have been confirmed as Justices on
the Supreme Court – 106 of them white males. The scant diversity is deeply
troubling. From Sandra Day O’Connor to Ruth Bader Ginsburg to Samuel
Alito, Justices have noted that each brings to a case a specific perspective
based on her or his life history. In July, when interviewed about Judge
Sotomayor’s nomination, Justice Ginsburg said: “Yes, women bring a
different life experience to the table. All of our differences make the
conference better. That I’m a woman, that’s part of it, that I’m Jewish,
that’s part of it, that I grew up in Brooklyn, N.Y., and I went to summer
camp in the Adirondacks, all these things are part of me.”23
Similarly, at his confirmation hearing, Justice Alito noted: “When I get a
case about discrimination, I have to think about people in my own family
who suffered discrimination because of their ethnic background or because
of religion or because of gender. And I do take that into account.”24
Former Justice Sandra Day O’Connor, too, has said,
“Like most of my counterparts who grew up in the Southwest in the
1930s and 1940s…I had no personal sense…of being a minority in a
society that cared primarily for the majority. But as I listened…to
Justice Marshall…my awareness of race-based disparities
deepened…Justice Marshall brought a special perspective…At oral
arguments and conference meetings, in opinions and dissents, Justice
Marshall imparted not only his legal acumen but also his life
experiences, constantly pushing and prodding us to respond not only
to the persuasiveness of legal argument but also to the power of moral
truth.”25
This past term, Justice Ginsburg also sounded this refrain in comments about
a case in which a 13-year-old girl was strip searched by school officials
based on an uncorroborated tip from a troubled student that the girl had
prescription-strength ibuprofen. “[The male justices] have never been a 1323
Emily Bazelon, “The Place of Women on the Court,” New York Times, July 12, 2009.
See Transcript, Hearing: Nomination of Samuel A. Alito to be Associate Justice of the
United States Supreme Court, Jan. 11, 2005, available at http://www.washingtonpost.com/wp-dyn/
content/article/2006/01/11/AR2006011101148.html.
25
Sandra Day O’Connor, A Tribute to Justice Thurgood Marshall, Thurgood Marshall; The Influence of a
Raconteuri, 44 Stan. L. R. 1217 (1992).
24
12
year-old girl. It’s a very sensitive age for a girl. I didn’t think that my
colleagues, some of them, understood” how potentially devastating the
incident was.26
Despite the fact that several Justices with different philosophies and political
supporters have acknowledged that life experience and diversity are part of
what jurists bring to the cases they hear, Senators repeatedly asked Judge
Sotomayor about this at her confirmation hearing. Some attacked her for
comments made during speeches, most often for the comment that, “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.” Judge Sotomayor’s detractors sought to use this quote, out
of context, to portray her as a judge who would give preference to minority
groups or women in deciding a case. That argument is utterly unpersuasive
for two reasons. First, the record tells another story; over the course of
nearly 17 years on the bench, Judge Sotomayor has established herself as a
fair and impartial jurist. Second, Judge Sotomayor clearly explained at the
hearing that she would not choose sides in litigation based on the identities
of the parties.27 Her unique background matters, she explained, because:
I think life experiences generally, whether it’s that I’m a Latina or was
a state prosecutor or have been a commercial litigator or been a trial
judge and an appellate judge, that the mixture of all – of all of those
things, the amalgam of them, help me to listen and understand. But all
of us understand, because that’s the kind of judges we have proven
yourself to be, we rely on the law to command the results in the
case.28
26
Joan Biskupic, “Ginsburg: The court needs another woman”, USA Today, May 6, 2009, at 1A (also 2009
WLNR 8582389).
27
For example, in response to a question about this quote by Senator Leahy, Judge Sotomayor explained “I
believe my 17-year record on the two courts would show that in every case that I render, I first decide what
the law requires under the facts before me, and that what I do is explain to litigants why the law requires a
result, and whether their position is sympathetic or not, I explain why the result is commanded by law.” She
also stated, in regard to the quote “I want to state up front, unequivocally and without doubt, I do not
believe that any ethnic, racial or gender group has an advantage in sound judging. I do believe that every
person has an equal opportunity to be a good and wise judge, regardless of their background or life
experiences.” Transcript, Hearing: Nomination of Sonia Sotomayor to be Associate Justice of the United
States Supreme Court, July 14, 2009 available at
http://www.nytimes.com/2009/07/14/us/politics/14confirm-text.html?pagewanted=all.
28
Transcript, Hearing: Nomination of Sonia Sotomayor to be Associate Justice of the United States
Supreme Court, July 15, 2009, available at http://www.nytimes.com/2009/07/15/us/politics/15confirmtext.html?pagewanted=all#cardin.
13
It is by no means a prerequisite to have lived an experience in order to
understand or empathize; in the strip search case described above, Justice
Ginsburg’s colleagues who she said did not “get it” at oral argument
ultimately ruled that the search at issue should be prohibited.29 Countless
Supreme Court decisions that vindicated key rights of women and their
families, and minorities – including Roe v. Wade and Meritor Savings Bank
v. Vinson (which found sexual harassment to be covered by Title VII’s
prohibition on sex discrimination) – were written by white men and had
white men in the majority.
However, it is also abundantly clear that personal experience is part of what
a Justice brings to the Court, and that our Supreme Court will be enriched by
the inclusion of someone with Judge Sotomayor’s extraordinary background
and experience.
Conclusion
Supreme Court Justices serve for a lifetime. Over the past eight years, our
leaders have appointed Justices who have used their power to severely limit
women’s reproductive rights, weaken equal pay and anti-discrimination
statutes and, more often than not, tilt the playing field even further toward
employers and corporate interests.
In Judge Sotomayor, we have a nominee who has shown a fidelity to
precedent during almost 17 years on the bench – a welcome change from
some of the Justices who in recent years have overruled decisions on
reproductive rights and pay discrimination, and created standards that make
it more difficult to punish and eradicate employment discrimination.
Through her own personal experience, Judge Sotomayor knows that
prejudice exists and the challenges associated with poverty. She also knows
29
Justice Ginsburg dissented in part from the majority’s opinion in this case because, while she and the
majority agreed that the search itself was unconstitutional, she disagreed with the majority’s conclusion that
the right at issue in the case was not “clearly established” at the time the search took place. Whether or not
it should have been clear to the school officials that the search was unconstitutional determined whether or
not they were entitled to qualified immunity from suit. The majority ruled that they were immune, while
Justice Ginsburg would have denied immunity and imposed liability on the officials. As a result, the
teenager in the case that the Supreme Court heard will not be able to proceed against the school officials
who ordered her strip searched, but future teenagers will be. Safford Unified School Dist. No. 1 v. Redding,
129 S.Ct. 2633, 2645-46 (2009) (Ginsburg, J., dissenting in part)
14
– and, indeed, is living proof – of what individuals can overcome and
achieve with dedication, education, opportunity and support.
Judge Sonia Sotomayor is a unique and well qualified candidate whose life
history, work experience, and well reasoned rulings show beyond any doubt
that she is a jurist of great intellect who is well qualified to serve on the
United States Supreme Court. Through her rulings and her commitment to
public service, she has demonstrated a clear commitment to equal justice
under the law. The National Partnership for Women & Families applauds
President Obama for nominating Judge Sotomayor, and urges the full Senate
to move swiftly to confirm her.
15