Paul Nitze: Guest Opinion
July 16, 2009
Senator Cornyn: “Judge Sotomayor, you’ve issued a few hundred opinions in your nearly two decades on the bench, but all of those opinions have been eclipsed by a line from a speech you gave in 2001. Do you stand by your remark that a wise Latina woman would reach better conclusions on the bench than a wise white man?”
Judge Sotomayor: “Well, that remark was presumptuous of me. Truth is, if I were a white man and had said my experiences trumped those of a Latina woman, I wouldn’t have made it to the district court bench, never mind the highest court in the land. But I do stand by it.
The Supreme Court was a white men’s club for nearly 200 years, and many of those justices displayed a remarkable ability to stand in the shoes of others. John Marshall Harlan did it when he dissented in Plessy v. Ferguson. He said that under our Constitution, ‘The humblest is the peer of the most powerful.’
Yet I don’t want a Supreme Court that looks radically different than our country. The tone and tenor of judicial conferences changed when Thurgood Marshall joined the Court, and also when Justice O’Connor was confirmed.
If the charge is that I showed my cards as an advocate of identity politics, then I suppose I plead guilty. But please don’t see it as a push for mechanical representation. Did you ever read the preface to Look Homeward Angel, senator? Think more of Thomas Wolfe’s line about how ‘[e]ach of us is all the sums he has not counted.'”
Senator Coburn: “Roe v. Wade has been the law of the land now for over 30 years. Do you stand by the Court’s holding in Roe? Would you overturn it if given the chance?”
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Judge Sotomayor: “If you love constitutional scholarship, like I do, Roe is not going to make your highlight reel of great Supreme Court decisions. If Roe was a natural extension of the right to privacy articulated in Griswold v. Connecticut, then it’s natural to see a goose hatch a turkey.
I do believe the Constitution protects a woman’s right to an abortion, but I admit that we would all be better off if this one had been duked out in Congress and the state legislatures. Roe has been a scar on this country’s politics for a long, long time, and has been a pillar of your party’s strength since the decision came down.
Don’t expect me to repeal it though. Not a chance. I do believe in stare decisis, and wasn’t it your party’s nominee, Justice O’Connor, who reaffirmed Roe in 1992? Oh, and one other thing – my bet is that whereas Roe used to be a political boon to the GOP, the next couple decades will see it turn into your ball and chain.”
Senator Sessions: “The district court decision in the New Haven Firefighters case, Ricci v. DeStefano, was a door-stopper of an opinion. How could your panel on the 2nd Circuit affirm that decision in an unsigned order only a few pages long?”
Judge Sotomayor: “As I’ve said many times, our hands were tied by Second Circuit precedent in Ricci. That precedent has now been overturned by the Supreme Court decision in the case, but at the time we made our ruling, our precedent was crystal clear. We had to rule in favor of New Haven.
I would have pushed the panel to issue a published decision in the case, but I knew you would use it to attack me at these hearings, so I copped out. If these hearings weren’t so toxic, things would be different.
You of all people should know how this works Senator Sessions, because the Judiciary Committee killed your nomination in 1986. Of course, you had said a bunch of things back then that were far less excusable than anything that’s escaped my mouth. I knew that I was on the shortlist for the Court because the Obama team told me as much during the campaign. So I didn’t want to give you any ammunition with a long opinion in Ricci.”
Senator Graham: “I’ve looked at the reviews written by lawyers who’ve practiced in front of you on the Second Circuit. A lot of them say that you’re short-tempered, impatient, and too quick to cut them off. Would you agree with their assessment?”
Judge Sotomayor: “First off, I am a little short-tempered on the bench, and I’m working on it. Second, you wouldn’t have asked that question of a man. Justice Scalia can peel the skin off of advocates at oral argument and he hasn’t been accused of having an attitude problem. Third, I grew up in the Bronx, which is a long ways from Charleston. We speak frankly where I come from.”
Senator Specter: “The president said he hasn’t imposed any ‘litmus test’ on your nomination. Did you discuss any specific cases when you met with him?”
Judge Sotomayor: “Are you kidding me? He’s a former constitutional law professor. Of course we discussed cases. We discussed every big case that’s come down in the last 50 years, and also what we think is going to be on the docket down the road. We poured ourselves a couple of glasses of wine, went into his study, and talked for hours. But I can’t tell you what I told him – that’s a secret.”