Supreme Court Nominee Sotomayor:
What role for experience & heritage?

By Alan Shapiro

To the Teacher:

President Obama's nomination of Judge Sonia Sotomayor to the Supreme Court has, predictably, generated controversy. One source of it is her remark that she would hope that a "wise Latina" judge would reach a better conclusion than a white male judge. The context for that comment is provided in the first student reading below. The second reading sketches her background, including work for a Latino organization on a controversial case, and comments about her from Republicans on the Senate Judiciary Committee. The third reading focuses on a New Haven firefighter case, Ricci v. DeStefano, which is probably the most controversial appeals court case she has participated in.

Discussion questions for the class and small groups, a case study, and writing assignments follow. Given the controversial nature of the readings and student activities, teachers might find helpful "Teaching Controversial Issues" in the high school section of www.teachablemoment.org.

Student Reading 1:
"Wise Latina" vs. "white male"

"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," said Sonia Sotomayor, a federal appeals court judge, in a 2001 speech at the University of California, Berkeley, School of Law.

Eight years later, President Obama nominated Sotomayor to the Supreme Court. If approved, she would become the first Latina and the third woman to be a Supreme Court justice. A number of commentators focused immediately on the words above, arguing that they should disqualify her for the position:

Newt Gingrich, former Republican Speaker of the House of Representatives, called Sotomayor a "Latina woman racist," and said she should withdraw her nomination. After criticism for this remark, he amended it, saying, "The word 'racist' should not have been applied to Judge Sotomayor as a person, even if her words themselves are unacceptable."

Conservative radio talk show host Rush Limbaugh labeled Sotomayor a "reverse racist" and compared her to Ku Klux Klan leader David Duke.

Critics of Sotomayor did not quote or comment on what she said in 2001 following the sentence they found offensive:

"Let us not forget that wise men like Oliver Wendell Holmes and Justice [Benjamin] Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case. I…believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable… Nine white men on the Supreme Court in the past have done so on many occasions and on many issues, including Brown [the 1954 case on which the Court voted 9-0 to end school segregation].

"However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Others simply do not care. Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see.

"I am reminded each day that I render decisions that affect people concretely and that I owe them constant and complete vigilance in checking my assumptions, presumptions and perspectives and ensuring that to the extent that my limited abilities and capabilities permit me, that I reevaluate them and change as circumstances and cases before me requires. I can and do aspire to be greater than the sum total of my experiences but I accept my limitations. I willingly accept that we who judge must not deny the differences resulting from experience and heritage but attempt, as the Supreme Court suggests, continuously to judge when those opinions, sympathies and prejudices are appropriate."

For discussion

1. What questions do students have about the reading? How might they be answered?

2. Why does Judge Sotomayor point out that "wise men" on the Supreme Court "upheld both sex and race discrimination in our society" and that until 1972 did not uphold "the claim of a woman in a gender discrimination case"?

3. Why, then, does she also point out "nine white men" voted to end school segregation in 1954?

4. What does she do before rendering decisions? Define "assumptions," "presumptions," and "perspectives." Is it important for a justice to consider these personal matters before deciding on a verdict? Why or why not?

5. How, according to Judge Sotomayor, should a judge deal with his or her background of experience in making decisions?

6. How then are we to understand what she meant by her opening sentence about "a wise Latina woman"? Why do you think some commentators criticized her as "a racist" or "a reverse racist"? Do you agree with them? Why or why not?

7. Judge Sotomayor said, "I willingly accept that we who judge must not deny the differences resulting from experience and heritage…." Do you agree that judges should not deny differences resulting from experience and heritage?

Student Reading 2:
An "activist judge"?

Sonia Sotomayor was born in 1954 and grew up in a Bronx housing project. Her parents had moved from Puerto Rico to New York during World War II. Her mother served in the Woman's Army Corps during the war. Her father, who left school after the third grade and did not speak English, died when she was nine. Her mother became a nurse, and "instilled in Sotomayor and her brother a belief in the power of education." (www.whitehouse.gov/the_press_office/)

Despite a diagnosis of juvenile diabetes, which causes serious health problems, she graduated as valedictorian of her class at Cardinal Spellman High School, won a scholarship to Princeton University, graduating summa cum laude, and Phi Beta Kappa, and went on to Yale Law School, where she became editor of the Yale Law Journal.

Included in videos she made available after her nomination, Sotomayor calls herself "an affirmative action baby." She explains that "If we had gone through the traditional numbers route of those institutions [Princeton and Yale], it would have been highly questionable if I would have been accepted." She said: "My test scores were not comparable to that of my classmates….There are cultural biases built into testing, and that was one of the motivations for the concept of affirmative action to try to balance out those effects."

Her work after graduation from Yale included private law practice and corporate legal work. In the 1980s she was an active, involved board member of the Puerto Rican Legal Defense and Education Fund, which recently changed its name to LatinoJustice PRLDEF. One of the organization's best-known efforts was a suit against the New York City Police Department charging that it used promotion exams that discriminated against Latinos and African-Americans.

The result was "a settlement with the city that produced greater numbers of promotions to sergeant for Latino and African-American officers. Some white officers, however, felt that the settlement was unfair," according to the New York Times, arguing that many white officers did better on the tests but were not promoted "because of quotas." The Supreme Court heard the case in 1988 and voted 4-4 vote not to overturn the settlement. ("Nominee's Links with Advocates Fuel Her Critics, New York Times, 5/29/09).

In 1992 Sotomayor was named as a district court judge by Republican President George H.W. Bush. In 1998, after nomination by Democratic President Bill Clinton, she became a federal appeals court judge.

After Supreme Court Justice David Souter announced his retirement from the Supreme Court, President Obama said that for a replacement, he was looking for a person with "that quality of empathy, of understanding and identifying with people's hopes and struggles, as an essential ingredient." And when he announced his choice of Sonia Sotomayor, he declared she has "lived the American dream."

After nomination, Judge Sotomayor said, "I strive never to forget the real-world consequences of my decisions on individuals, businesses and government."

The Senate Judiciary Committee will hold a confirmation hearing on the Sotomayor nomination in July, then make a recommendation to the Senate. She can count on Democratic support, but Republican members of the committee said they would study her record and had concerns that she might be "an activist judge" and one who made decisions based on private views. Senator Jeff Sessions of Alabama, a ranking minority party member on the committee, said, "I think there was an unease, maybe, about her background and her tendency to activism." Senator Orrin Hatch of Utah said she might be "an activist judge." Senator Tom Coburn of Oklahoma said, "The American people need judges who will interpret the Constitution, not rewrite it based on ideology or personal opinion."

The phrase "activist judge" is often used negatively, even insultingly. But such a judge may also be described more positively as one who follows, more or less, what Supreme Court Justice William Brennan wrote 25 years ago--that "the genius of the Constitution rests not on any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs."

Those who criticize "activist judges" often regard themselves as "strict constructionists," meaning that they follow "a jurisprudence of original intention," according to Edward Meese III, attorney general under President Ronald Reagan. That is, they support court rulings that hold to what they determine was the "original intention" of the Constitution's framers.

For discussion

1. What questions do students have about the reading? How might they be answered?

2. President Obama has been criticized for making "empathy" one of his criteria in seeking a replacement for Justice Souter. What do you suppose that critics say and why?

3. What do you think he meant by declaring that Judge Sotomayor has "lived the American dream"?

4. What is "affirmative action"? What are "cultural biases built into testing"? If you can't answer these questions, how might you get information about them?

5. If you were to become a judge, would you be an "activist"? A "strict constructionist"? Something else? Why?

Student Reading 3:
The case of the New Haven firefighters

While Judge Sotomayor's complete judicial record is under scrutiny, 96 cases involving racial issues are receiving special attention. Of these, one involving New Haven, CT, firefighters, Ricci v. DeStefano, has generated the most discussion and is similar in some respects to the 1998 New York City Police Department court case.

In 2003 more than 118 New Haven firefighters took a multiple choice exam to determine promotion to eight lieutenant and seven captain positions. The city's agreement with the firefighters' union was that the test count for 60 percent of a promotional decision.

Test results showed that perhaps one Hispanic candidate could be promoted, but no African-American. Although several in the two groups passed the exam, they did not score as highly as the whites. All, or almost all, of the 15 positions would go to white firefighters.

City officials then decided to throw out the test, not promote anyone, and consider whether there were better ways to achieve the goal of a racially diverse leadership for the fire department. The officials said they did not want to violate Title VII of the Civil Rights Act of 1964, which makes it illegal for employers to use exams that have a racially "discriminatory effect." That effect is presumed when tests produce basically different results for individuals of different racial and ethnic groups. New Haven had hired a consultant to create a test that would not put African Americans or Latinos at a disadvantage. But exam questions have not been made public for examination. City officials feared a lawsuit by African-American firefighters.

Instead, Frank Ricci, an 11-year white New Haven firefighter, became the lead plaintiff in a suit against the city, making Mayor John DeStefano the defendant. Ricci has dyslexia. Before the test he had paid an acquaintance $1,000 to read firefighter texts onto audiotapes and had worked with a study group to prepare for the exam. He placed 6th among 77 people who took the lieutenant's exam.

The federal district court turned down the suit. The plaintiffs appealed their case to the U.S. 2nd Circuit Court of Appeals, on which Judge Sotomayor serves. In that court's ruling, Sotomayor and the white members of that court favored the New Haven decision to throw out the exam.

The Washington-based firm, Akin Gump Strauss Hauer & Feld LLP, has published "an analysis of every race-related decision made by appellate judge Sonia Sotomayor, finding that she rarely disagreed with her colleagues on cases involving claims of discrimination." Of 96 cases, "Judge Sotomayor and the panel rejected the claim of discrimination roughly 78 times and agreed with the claim of discrimination 10 times…Of the 10 cases favoring claims of discrimination, 9 were unanimous." She "disagreed with her colleagues…4 times." ("Court Watch: An Analysis of Sotomayor's Decisions on Race-Related Cases," www.washingtonpost.com, 5/30/09)

On June 29, 2009, the Supreme Court voted 5-4 in favor of Frank Ricci and other white firefighters who had sued New Haven over its decision to throw out the exam.

In a decision supported by the majority, Justice Anthony Kennedy wrote, "The city rejected the test results solely because the higher scoring candidates were white." There was "little if any evidence" that the exam had a discriminatory effect. "Fear of litigation alone cannot justify an employer's reliance on race to the detriment of individuals who passed the examination."

The majority did not declare that Article VII of the Civil Rights Act was unconstitutional..Employers may consider the racial impact of a test as it is being designed or show that "less discriminatory tests were available."

Writing for the four dissenters from this decision, Justice Ruth Bader Ginsburg declared that the majority "ignores substantial evidence of multiple flaws in the tests New Haven used. The court similarly fails to acknowledge the better tests used in other cities, which have yielded less racially skewed outcomes." She also wrote, "Congress endeavored to promote equal opportunity in fact, and not only in form. The damage today's decision does to that objective is untold."

The Constitution does not explain itself; it only states basic principles. The 14th amendment declares, for example, that no state can "deny to any person within its jurisdiction the equal protection of the law."

Would Latinos and African-Americans have been denied the "equal protection of the law" if New Haven officials had not decided that they may have used a "discriminatory" exam and were on the verge of violating Title VII of the Civil Rights Act?

Or has Frank Ricci been denied the "equal protection of the law" because New Haven officials produced a "discriminatory effect" against a white man by trashing an exam he passed well enough to earn a lieutenant's position?

For discussion

1. What questions do you have about the reading? How might they be answered?

2. What are the pros and con arguments in the Ricci case?

3. What does Title VII of the Civil Rights Act have to do with "affirmative action"?

4. If you were a Supreme Court justice, how would you decide the Ricci case? Why?

5. What conclusions do you reach about Judge Sotomayor's record on
discrimination cases? Does she appear to be a jurist who is likely to make
decisions based on what Senator Coburn calls "ideology or personal opinion"?
Why or why not?

A case study

Consider the following question by a senator and answer by a nominee to the Supreme Court in a confirmation hearing not long ago, with names omitted.

Senator: "Can you comment just about [you, the nominee], and what he cares about, and let us see a little bit of your heart and what's important to you in life?"

Nominee: "I don't come from an affluent background or a privileged background. My parents were both quite poor when they were growing up….When a case comes before me involving, let's say, someone who is an immigrant…I can't help but think of my own ancestors, because it wasn't that long ago when they were in that position.

"And so it's my job to apply the law. It's not my job to change the law or to bend the law to achieve any result. But when I look at those cases, I have to say to myself…,'You know this could be your grandfather, this could be your grandmother. They were not citizens at one time, and they were people who came to this country….

"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."

Senator: "Thank you."

Question:
Do you think that John Doe will become an "activist judge," a strict constructionist," or something else?

Republican Senator Tom Coburn is the questioner. The nominee is Samuel Alito, who was nominated to the Supreme Court by President George W. Bush and confirmed in 2006. Like Judge Sotomayor, he had been an appeals court judge. He usually votes with the "strict constructionist," or conservative group on the court.

For further discussion:
How would you explain why Senator Coburn asked Alito the question he did? How similar and/or different are Sotomayor's comments after her "wise Latino woman" remark? Do you think that the senator will ask Sotomayor the kind of question he asked Alito? Why or why not?

For writing

You are a senator. Based on what you know about Judge Sotomayor or any additional information you obtain, write a paper in which you state whether or not she should be confirmed as a Supreme Court justice and why.

You are a Supreme Court justice: Based on what you know about Ricci v. DeStefano or any additional information you obtain, write a paper in which you state your decision and the reasons for it.

For small group discussion

Divide the class into groups of three or four students. Ask each student to read his or her paper to the others, followed by brief group discussion, including any clarifying questions. After all students have read their papers, ask the group to choose the one it regards as the best for reading to the class.

For class discussion

Ask students to read the chosen papers, then have a class discussion that examines the pros and cons of the effectiveness of each paper.

This lesson was written for TeachableMoment.Org, a project of Morningside Center for Teaching Social Responsibility. We welcome your comments. Please email them to: lmcclure@morningsidecenter.org.

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