Sotomayor's Unconvincing Backpedaling
WA PO BLOG
By Eva Rodriguez
I'm surprised and disturbed by how many times today Sonia Sotomayor has backed off of or provided less-than-convincing explanations for some of her more controversial speeches about the role of gender and ethnicity in judicial decision-making.
Sotomayor's most quoted comment is, "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." Under often very effective questioning by Sen. Jeff Sessions of Alabama, the ranking Republican on the Senate Judiciary Committee, she essentially disavowed her statement. She explained that she was trying to play off of former Supreme Court Justice Sandra Day O'Connor's assertion that a wise old man and a wise old woman should be able to reach the same conclusion in a case. "My play...fell flat," Sotomayor said in response to Session's question. "It was bad, because it left an impression that I believed that life experiences commanded a result in a case, but that's clearly not what I do as a judge."
A fair reading of Sotomayor's record on the federal trial and appellate courts clearly shows that that is not what she's done thus far. But Sessions' questions were aimed at understanding how she would implement this judicial philosophy if she's confirmed to the Supreme Court, where she would be far less restrained by precedent. I found it hard to believe that Sotomayor has now come to the realization that her words left a wrong impression. After all, she delivered similar lines in roughly half a dozen speeches throughout the years. Her explanation came across as dodgy at best and disingenuous at worst.
Here's another disturbing exchange, in which Sessions asks about another of Sotomayor's assertions in speeches that life experiences may affect a judge's view of the facts in a case:
SOTOMAYOR: "It's not a question of choosing to see some facts or another, Senator. I didn't intend to suggest that. And in the wider context, what I believe I was -- the point I was making was that our life experiences do permit us to see some facts and understand them more easily than others."
SESSIONS: "Do you stand by your statement that my experiences affect the facts I choose to see?"
SOTOMAYOR: "No, sir. I don't stand by the understanding of that statement that I will ignore other facts or other experiences because I haven't had them. I do believe that life experiences are important to the process of judging. They help you to understand and listen but that the law requires a result. And it would command you to the facts that are relevant to the disposition of the case."
Sotomayor's initial response ("what I believe I was – the point I was making") reeks of a nominee who's been prepped exhaustively in how to deflect possibly damaging questions. Most people don't have to recall what they "believe" they meant; they just say it.
As for the second half of her response, I wish Sessions had followed up by asking how a jurist would determine the "relevant" facts in a case in light of Sotomayor's assertion that life experiences can affect how a judge views a case.
On the other hand, Sotomayor was much more convincing when explaining her comment to students at Duke that "the courts of appeals is where policy is made." Her answer was solid and plausible and it reflected accurately the context in which she made it.
I was focusing on what district court judges do and what circuit court judges do. And I noted that district court judges find the facts, and they apply the facts to the individual case. And when they do that, they're holding, they're finding doesn't bind anybody else. Appellate judges, however, establish precedent. They decide what the law says in a particular situation. That precedent has policy ramifications because it binds not just the litigants in that case, it binds all litigants in similar cases, in cases that may be influenced by that precedent.
PostPartisan - Sotomayor's Unconvincing Backpedaling (14 July 2009)
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