Of the thousands of cases Sonia Sotomayor has heard during nearly 17 years on the federal bench, the one likely to raise the toughest questions during her Supreme Court confirmation hearings, which begin on July 13, involves affirmative action. In 2007 Sotomayor, as a member of the Second Circuit Court of Appeals, heard arguments in the case of Ricci v. DeStefano. In that case, white firefighters in New Haven, Conn., challenged the city's decision to ignore the results of a promotion test after there were no black firefighters among the top scorers. One of 20 white firefighters who brought the case, Frank Ricci, is dyslexic and paid an acquaintance more than $1,000 to read study guides for the test onto audiotapes. Ricci scored sixth out of 77 — high enough to merit the promotion. But the city, fearing that it could be sued for discrimination, decided to promote no one.
During the oral argument for the case, Sotomayor was an active questioner, but the decision eventually released by her three-judge panel was a brief, unsigned order. With little explanation, it affirmed the lower-court decision dismissing the firefighters' claim that the city discriminated against the white firefighters by throwing out the test. In a subsequent opinion, one of Sotomayor's colleagues and longtime mentors, Judge José Cabranes, criticized the panel for disposing in such a cursory way issues that were "indisputably complex and far from well-settled." Ricci and the others appealed the panel's ruling, and the case is now before the Supreme Court. (See pictures of Judge Sonia Sotomayor.)
Republican critics of Sotomayor are planning to use the Ricci decision as Exhibit A in what they hope will be confirmation hearings focused on her views about race. Exhibit B is a speech she delivered in 2001 that included the following 32 words: "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." Since President Barack Obama nominated Sotomayor to the court on May 26, that remark has become the main source of conservative attacks. Former Speaker of the House Newt Gingrich told his followers on Twitter that Sotomayor was a "Latina woman racist" who should withdraw. (He later apologized.) Sotomayor expressed regret about her word choice to Senator Dianne Feinstein. But after the Senate Judiciary Committee released Sotomayor's complete list of speeches, it emerged that she had delivered many versions of the same stump speech — seven by one count — between 1994 and 2003. In all of them, she suggested that a judge who was a "wise woman" or a "wise Latina woman" would issue a better opinion than a male or a white male judge.
Sotomayor's defenders say that those words were taken out of context and that her appellate opinions are hardly radical on race. Tom Goldstein of SCOTUS Blog has estimated that of the 96 race-related cases other than Ricci she heard on the Court of Appeals, "Judge Sotomayor rejected discrimination-related claims by a [ratio] of roughly 8 to 1." (See the top 10 Supreme Court nomination battles.)
So, what does she actually believe? An examination of Sotomayor's career supports the idea that on the bench, she has been a racial moderate, not a radical. At the same time, her opinions and speeches suggest that her views about race, multiculturalism and identity politics are more nuanced, complex and provocative than either her critics or her supporters have allowed. And for that reason, if confirmed, she could influence the racially charged issues the Supreme Court will confront over the next few decades in unexpected ways.
The Richness of Experience
The first speech in which Sotomayor introduced the "wise Latina" theme was delivered in Puerto Rico in 1994 and focused not on race but on gender. Sotomayor was responding to an article written by a colleague, Miriam Goldman Cedarbaum, a federal judge in New York. Cedarbaum, like Justice Sandra Day O'Connor and Justice Ruth Bader Ginsburg, was an "equal treatment" feminist, who had expressed concern about the premise that women judges necessarily approach cases differently than men do. "Generalizations about the way women or men are," Ginsburg famously said, "cannot guide me reliably in making decisions about particular individuals."
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Sotomayor, in her speech, takes a very different view from Ginsburg's and O'Connor's. She sympathizes with "difference feminists" and then says she is not sure she agrees with O'Connor's reputed statement that "a wise old man and a wise old woman reach the same conclusion in deciding cases." Sotomayor concludes, "I would hope that a wise woman with the richness of her experience, would, more often than not, reach a better conclusion" — and then defines "better" as a "more compassionate, and caring conclusion." She also recommends a 1993 article in Judicature, a legal journal, that found that women judges reached different conclusions from men in employment-discrimination cases but not in obscenity or criminal cases. The claim that gender makes a difference in some categories of cases is widely accepted today, but academic theorizing about women's essential differences still remains hotly debated.
When Sotomayor gave her speech in 2001 at California's Berkeley School of Law, "A Latina Judge's Voice," she added "people of color" to the earlier passages that focused on gender. "I wonder whether by ignoring our differences as women or men of color we do a disservice to the law and society," she wrote in a 2002 article based on the talk. And yet it is hard to portray her speeches as those of someone committed to the view that all women and minority judges have essentially different perspectives than white male judges. "No one person, judge or nominee will speak in a female or people-of-color voice," Sotomayor said in her "wise Latina woman" speech, citing Justice Clarence Thomas as representing a "part but not the whole of the African-American thought on many subjects." In other speeches, she has emphasized that her view of justice requires understanding the different perspectives of the clashing parties rather than imposing her individual perspective. In a public-service dinner at Columbia Law School in 1999, she said, "I am learning that to begin thinking about justice, you must constantly step out of the role you are in and not just listen to your adversaries but learn to respect and appreciate their perspectives." She added that prosecutors, defense attorneys and civil attorneys should appreciate one another's roles and practice in a fair and procedurally correct way.
Sotomayor does not appear to be a crusader for radical change. She has always sought change from within the system rather than fundamentally challenging its premises. As a student at Princeton, she co-chaired a Puerto Rican student organization and filed a complaint with the Equal Employment Opportunity Commission about Princeton's affirmative-action failures, leading to the hiring of the first Hispanic dean of students. But she acted in such a constructive way that William Bowen, then university president, helped select her for the Pyne Prize, the highest honor Princeton bestows on undergraduates. Sotomayor's experiences as an outsider in an Ivy League world seem to have made her pragmatic rather than rigid, leading her to thrive within the Establishment even as she sought to improve it.
Moderate on the Bench
Although Sotomayor's speeches raise legitimate questions about her views on essential race and gender differences, the best evidence that she is no radical multiculturalist in the courtroom is found in her judicial opinions. Here she appears to be an incrementalist rather than a radical of any stripe. In a survey of Sotomayor's 226 majority opinions, Stefanie Lindquist, a law professor at the University of Texas at Austin, found that only 38% could clearly be characterized as liberal, while 49% could clearly be considered conservative. When the criminal cases (in which appellate judges are encouraged by Supreme Court precedent to be relatively pro-prosecution) are taken out of the mix, Sotomayor's record looks about 46% liberal and 36% conservative.
On civil rights cases — including race, gender and immigration appeals — Sotomayor tilts more to the left; Lindquist characterized her majority opinions as 54% liberal and 46% conservative. But when you break out the seven majority opinions involving race, only three rule in favor of the discrimination plaintiffs. It's in the immigration and gender cases that Sotomayor shows clearer signs of liberal leanings: out of 28 majority opinions in immigration cases, Sotomayor decided in favor of the immigrant in 17, or 61%. And in four gender cases, involving sex discrimination and sexual harassment, she decided in favor of the plaintiff all four times.
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But it's in dissents rather than in majority opinions that appellate judges often reveal their true feelings. Of Sotomayor's 19 published dissents, only three dealt clearly with racial issues, and they pointed in different directions. In a 1999 case, Gant v. Wallingford Board of Education, Sotomayor would have allowed a 6-year-old African-American student to challenge as racial discrimination his school's decision to demote him from first grade to kindergarten. In Pappas v. Giuliani (2002), Sotomayor would have held that the New York City police department may have violated the First Amendment when it fired a police officer for his racist, anonymous speech. And in Hayden v. Pataki (2006), Sotomayor said that a New York State law barring felons from voting violated the federal Voting Rights Act. Sotomayor does not appear to be an outlier in race cases, although she seems to have no overarching theory about how to decide them. For that reason, she seems unlikely, in the short term, to affect the balance on the Roberts Court in cases involving race. At the moment, the court is divided among four color-blind conservatives who are suspicious of affirmative action, four liberals who are sympathetic to it, and Anthony Kennedy, who is skeptical of racial classifications but reluctant to strike all of them down, in the middle. On most cases, Sotomayor can be expected to assume David Souter's current spot as the fourth member of the liberal bloc.
Future Fault Lines
But Sotomayor's unique background and views about race and gender are likely to become more important over time. In coming years, there may well be challenges to the death penalty, for example, on the grounds that it is imposed in a racially discriminatory way. The court rejected that claim in 1987, but Sotomayor might be sympathetic to it. In 1981, as a member of the board of directors of the Puerto Rican Legal Defense and Education Fund, she was part of a committee that recommended that the fund oppose the reinstatement of the death penalty in New York State on the grounds that "capital punishment is associated with evident racism in our society."
Sotomayor's more liberal inclinations in immigration cases may also make a difference on a court that will increasingly have to wrestle with legal distinctions in the U.S. between citizens and aliens. As Obama disappoints civil libertarians by reaffirming aspects of President Bush's antiterrorism policies — including the claim that terrorism detainees held by U.S. forces in Afghanistan have no legal right to challenge their detention in U.S. courts — some of these policies may reach the Supreme Court. Sotomayor could prove skeptical of the claim often made by the government that the rights of aliens differ sharply from the rights of citizens in the war on terrorism and in other cases.
If Sotomayor is confirmed, as expected, the only thing one can confidently predict is that the cases involving race and diversity that she will confront are very different from the ones we are thinking about today. In that sense, the evolution of Sotomayor's thinking in the years ahead may be more consequential than what she has said in her past.
Rosen, a law professor at George Washington University, is the author of The Supreme Court: The Personalities and Rivalries
