Michael Gaynor
Judge Sotomayor's record should be scrutinized, not whitewashed or ignored
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By Michael Gaynor
July 12, 2009


Is Judge Sotomayor a wise impartial judge dedicated to the rule of law or a passionate, partisan Latina who will use instead of follow the law when the opportunity arises?


Kudos to Wall Street Journal's Naftali Bendavid for "Sotomayor's Defense on 'Wise Latina' Comment Takes Shape."

Mr. Bendavid: " When Judge Sonia Sotomayor faces the Senate Judiciary Committee next week, she will finally get to explain before the cameras her comment that a 'wise Latina' can often reach a better conclusion than a white man. That response could help determine whether her confirmation is smooth or rocky."

Mr. Bendavid's statement presumes confirmation, in accordance with the conventional wisdom.

However, like President Obama's relationship to ACORN, scrutiny of Judge Sotomayor's record is both appropriate for patriotic Americans and anathema to the liberal media establishment.

Whether or not the conventional wisdom is right this time, Judge Sotomayor's membership in the National Council of La Raza and her infamous comment "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" should be scrutinized.

Predictably, Judge Sotomayor's supporters insist that "wise Latina" is not a symptom of a fundamental problem not to be knowingly tolerated in a United States Supreme Court Justice.

For example, Senator Kirsten Gillibrand (D., N.Y.): "I asked her that question...and she was very direct. She just said, '[Latina identity] is something that informs my experience, but I'm always going to look to judicial precedent, I'm always going to follow the rule of law.'"

The initial White House excuse for Judge Sotomayor's "wise Latina" line poor word choice did not work, since Judge Sotomayor had repeated that statement many times.

How plausible is the next excuse, that Judge Sotomayor is a person who will faithfully follow the law instead of make law to suit her personal political agenda?

That videotape of Judge Sotomayor on how federal appellate judges really make law should give United States Senators pause.

When Judge Sotomayor speaks candidly, she reveals herself as a believer in legislating from the bench.

Moreover, the introduction by editors-in-chief Victor Rodriguez and Alegria De La Cruz, obviously Sotomayor admirers, to the issue of the La Raza Law Review in which Judge Sotomayor's 2001 "wise Latina" speech was published suggests that Judge Sotomayor's long-term goal has been to make law as a judge, not follow the rule of law.

"In her comments to the symposium's audience, Judge Sotomayor discussed her many-faceted, multi-layered Latina identity, using food, music, and language to describe how her culture and her experiences as a Latina have impacted her role on the bench. Raising the prototypical American tension between 'the melting pot and the salad bowl' that both attempts to celebrate and yet ignore racial and gender differences among our diverse population, Judge Sotomayor spoke to what it would mean to the American judicial system to have more women and people of color on the bench. Judge Sotomayor wondered whether we do a disservice both to law and society by ignoring our differences as women and men of color. She suggests that as a group, women and men of color can have a dramatic and beneficial effect on the development of law and on the profession of the judiciary.

"Further developing Justice O'Connor's famous statement that a wise old man and a wise old woman will reach the same conclusion in deciding cases, Judge Sotomayor states that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white man who hasn't lived that life. She challenges all of us to begin our own evaluation as to what our identities mean in our lawyering, in our judging, and in our positions of power. In conclusion, Judge Sotomayor asks all of us to continue the struggle for racial and gender parity in our field the fight is important for the attainment of statistically significant numbers so that we can measure the differences that our community will make and is making."

Is Judge Sotomayor a wise impartial judge dedicated to the rule of law or a passionate, partisan Latina who will use instead of follow the law when the opportunity arises?

Senator Gillebrand's blithe acceptance of Judge Sotomayor's assurance that she is always going to look to judicial precedent and follow the rule of law is startling naive.

Manuel Miranda of The Third Branch Conference commented that "the whole race-bias issue" suggested by Judge Sotomayor's 'wise Latina" is "explosive" and "worthwhile."

It IS "explosive."

It will be "worthwhile," IF it is properly pursued.

New York's senior Senator, Democrat Charles Schumer, claims that Judge Sotomayor's judicial record shows no evidence of unfairness or favoring minority groups. Ask the white and Hispanic New Haven firefighters who passed a test for promotion only to have the test resulted ignored because no black firefighters passed.

The record shows that Judge Sotomayor was part of a three-judge appellate panel that used a summary order to deny the appeal of the firefighters who had passed the test.

Not only did those judges decide the appeal wrongly, they added insult to injury by the way they decided the appeal.

As Judge Jose Cabranes (a Latina!) explained in a scathing dissent on a petition for reargument that ultimately led to reversal in the United States Supreme Court (with all nine Justices agreeing that Judge Sotomayor had not used the proper judicial standard), despite the importance of the issues and the unusually long and detailed briefs, arguments, and factual record, the three-judge panel's "perfunctory disposition" oddly contained "no reference whatsoever to the constitutional claims at the core of this case."

It's NOT odd that La Raza and ACORN are eager to have Judge Sotomayor confirmed and her supporters are racing toward confirmation as fast as possible.

Why aren't the Senators scrutinizing the minutes of the National Council of La Raza during all the years that Judge Sotomayor was both a federal judge and a Council board member?

© Michael Gaynor

 

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Michael Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member... (more)

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