Sotomayor as Liberal “Enforcer” on Supreme Court?

Adam Liptak writes today about the quick evolution of Sonia Sotomayor into the liberal bulwark on the Supreme Court. People forget that there was substantial concern on the left that Sotomayor would wind up more of a moderate; those fears may or may not be more likely ascribed to Elena Kagan. But Sotomayor has become what amounts to a liberal on a conservative Court.

Liptak looks in particular at a series of discretionary writings by Sotomayor referring to why the court declined to hear a particular case.

Justice Sotomayor wrote three of the opinions, more than any other justice, and all concerned the rights of criminal defendants or prisoners. The most telling one involved a Louisiana prisoner infected with H.I.V. No other justice chose to join it.

The prisoner, Anthony C. Pitre, had stopped taking his H.I.V. medicine to protest his transfer from one facility to another. Prison officials responded by forcing him to perform hard labor in 100-degree heat. That punishment twice sent Mr. Pitre to the emergency room.

The lower courts had no sympathy for Mr. Pitre’s complaints, saying he had brought his troubles on himself.

Justice Sotomayor saw things differently.

“Pitre’s decision to refuse medication may have been foolish and likely caused a significant part of his pain,” she wrote. “But that decision does not give prison officials license to exacerbate Pitre’s condition further as a means of punishing or coercing him — just as a prisoner’s disruptive conduct does not permit prison officials to punish the prisoner by handcuffing him to a hitching post.”

You’re at least seeing a recognition in her writing of that wrongly-derided concept of empathy; the ability for a judge to understand the circumstances of an individual and apply it to the underlying facts of a case. Liptak posits Sotomayor as the counterpoint to Justice Samuel Alito, with the two almost coming across as “enforcers” for the beliefs of their ideologically aligned colleagues.

Strip away the racial or gender politics of the selection. On the merits, the Sotomayor picked has worked out pretty well for the country, and unlike some other decisions this one will definitely outlast Obama’s Presidency by several decades.

David Dayen

Sotomayor Uses "Undocumented Immigrant" Rather than "Illegal Alien"

T/H to Josh Blackman:
Curiously Justice Sotomayor, who famously used the term “undocumented immigrant,” rather than illegal alien in Mohawk Industries v. Carpenter, used the term “illegal alien” during arguments today, and quickly corrected herself and said “undocumented aliens.”

JUSTICE SOTOMAYOR: “…— just — just focus the question? Because we keep talking about whether the APA-type definition of licensing is what Congress intended or not, but you don’t disagree that Congress at least intended that if someone violated the Federal law and hired illegal aliens of Hispanic — undocumented aliens and was found to have violated it, that the State can revoke their license, correct, to do business?”

Justice Alito and Scalia used the phrase Illegal Alien which is the term used in the statute.

Latina Magazine on Sonia Sotomayor

Her Honor: A Portrait of Justice Sonia Sotomayor

America has never before met a wise Latina like Sonia Sotomayor. Latina contributor and former Editor-in-Chief Sandra Guzmán offers the first glimpse of the woman behind the robe in this exclusive profile of the newly minted Supreme Court justice.

Here is an excerpt from this fascinating story:

I first met Sonia in 1998, after she had been sworn in as a federal judge for the U.S. Court of Appeals for the Second Circuit. I was the Editor-in-Chief of Latina, and a mutual friend, New York attorney Lee Llambelis, suggested that Sotomayor was someone I should meet since I’d probably want to write an article on her (which appeared in our March 1999 issue). Sotomayor’s life story not only inspired readers, but also captivated me.

Since then, we’ve been to each other’s homes for dinner and shared many sweet, honest and confidential conversations. A doting hostess, she puts together cheese platters, makes tasty salads and hooks up a mean churrasco with a tangy lemon marinade. This past spring, she promised to share some of her culinary secrets, so we set a date to fire up the grill in her small yet superb two-bedroom condo in the heart of NYC’s Greenwich Village. Sonia thought things would finally slow down for her by the summer—but that’s when things really started heating up.

During those grueling confirmation hearings in July, Republican senators Lindsey Graham, Jeff Sessions and Jon Kyl dissected her now-famous “wise Latina” phrase, uttered during an inspirational lecture to Latino law students at the University of California, Berkeley’s Boalt Hall School of Law in 2001.

The senators aggressively argued that her remarks proved she would bring bias and a liberal agenda to the bench. But Sotomayor repeatedly explained that her comments were part of a regrettable “rhetorical flourish that fell flat.” “I want to state up front, unequivocally and without doubt: I do not believe that any ethnic, racial or gender group has an advantage in sound judging,” she said. She added that she was simply trying “to inspire young Hispanics, Latino students and lawyers to believe that their life experiences added value to the process.’’

As the new personification of an intellectual rock star, Sotomayor has been inundated with interview requests—from Vogue to Newsweek, El País to Le Monde. But the new justice has yet to agree to a sit-down, aside from one she granted C-Span for a documentary on the Supreme Court. When I asked about a formal interview for this magazine, she told me, “I am not doing interviews and have said no to everyone. I do not want to be seen as having favorites.”

She did, however, agree to have her portrait taken for the cover and inside pages. And she went as far as granting me her blessing: “You will have to write based on our history together.”

And that’s exactly what I’ve done.

Sonia Maria Sotomayor, born in the South Bronx on June 25, 1954, is the oldest child of Celina Baez and Juan Sotomayor, two puertorriqueños who migrated to New York City in the 1940s in search of the American Dream. Reared in the Bronxdale housing projects, she’s a red lipstick–wearing Cancer who loves the Yankees and is credited with saving baseball by putting an end to a 232-day Major League Baseball strike in 1995.

After excelling at Cardinal Spellman High School in the Bronx, she graduated with the highest academic honors (summa cum laude and as a member of Phi Beta Kappa honor society) from Princeton University. She went on to Yale Law School and served as an editor on the prestigious Yale Law Journal. For nearly five years, she worked as a young prosecutor under iconic Manhattan district attorney Robert Morgenthau. She practiced international business law in private practice for another nearly eight years. For the last 17 years, she served on the federal bench, first on the U.S. District Court for the Southern District of New York, and most recently as a judge in the U.S. Court of Appeals for the Second Circuit. She represents many legal firsts, such as being the first person appointed to judicial posts by three U.S. presidents from two different parties (presidents George H.W. Bush, Bill Clinton and Barack Obama)….

One evening this past spring, as we prepared dinner for a group of friends, I asked her for some advice. She listened closely as I relayed my marital problems. I still recall her words, which I carry in my heart to this day. She told me that we have been wrongfully taught the Cinderella fairy tale as a paradigm of what happy relationships are supposed to be. And when we fall short of that, we suffer for it. To find happiness in love, she said, we have to make up our own rules. It’s not easy, but it’s doable. The process may involve unlearning what we have been taught and then figuring out what makes us happy. There are all types of relationships and arrangements to choose from. Of course, the trick is finding a companion who shares those values.

Love is not the only area where Justice Sotomayor has faced her fears and worked her way through them. Even as recently as April, she had doubts about her potential rise to the Supreme Court. She had been on President Clinton’s Supreme Court short list, but no seats became vacant. When Obama won the White House, the legal world hedged their bets on the brilliant judge with the impeccable résumé. But weeks before Obama made public his pick to replace Souter, Sotomayor called her confidante and good friend Llambelis, telling her that she wanted to pull her name from consideration.

“You have to understand that Sonia is a very private person,” Llambelis explains. “She didn’t want to go through another public vetting process and a potential public dressing-down by those on the Republican right who opposed her nomination. Sonia was happy being a Federal Appeals judge, loved her life in New York and felt fulfilled. She worried about having less time to spend with her mother, family and friends, particularly given her mom’s age and potential health complications.” Llambelis recalls listening to her friend, whose “I can” mantra was being drowned out by last-minute uncertainty. She told her to think beyond herself. “At this point, this is not about you,” Llambelis said to her. “It’s about little girls and boys, brown and black, who live in the projects and in poor communities around our nation, who can dream bigger if you are in the Supreme Court. You cannot back down now.” Sotomayor promised to think about it overnight. And in the morning, she woke up with a lighter heart and a bigger purpose.

In her short tenure so far on the court, the justice we have witnessed is no shrinking violet. She asks tough questions and is not intimidated by her rookie status. Sotomayor’s charm and confidence surprise very few people who know her, including the man who nominated her. While President Obama’s staff was preparing Sotomayor for the confirmation hearings in a White House office called the War Room, the team covered all the potentially explosive questions and briefed her on every minute detail, including how to dress for the cameras. They even advised her to keep her nails a neutral shade, which she did. But on the day of the White House reception celebrating her appointment, Sotomayor asked the president to look at her freshly manicured nails, holding up her hands to show off her favorite fire engine–red hue. The president chuckled, saying that she had been warned against that color.

She sure had, but Sotomayor was not finished. She then pulled her hair back behind her ears, exposing her red and black semi-hoop earrings, a beloved accessory among Latinas across America—from the South Bronx to Houston to East Los Angeles.

Obama joked that she had been briefed on the size of the earrings as well. Without skipping a beat, Sotomayor replied: “Mr. President, you have no idea what you’ve unleashed.” He responded, “Justice: I know and remember it’s a lifetime appointment. And I and no one can take it back.” And that, as they say, is the final verdict.

To read the rest of this story, pick up the December/January issue of Latina, on newsstands Nov. 17.

from Latina by Shani Saxon-Parrish, “Her Honor: A Portrait of Justice Sonia Sotomayor”

Is Sonia Sotomayor Lucy and Sen. Coborn Ricky Ricardo?

Lázaro Lima

In a hypothetical conversation about gun-control, Tom Coburn (R-Okla) said to Sonia Sotomayor, “You’ll have a lot of ‘splainin’ to do,” in an imitation Cuban accented quip à la Ricky Ricardo about a hypothetical scenario where Sotomayor might attack him. Huh? Can anyone imagine a Senator using, say, a black vernacular accent in any public context much less in a Supreme Court confirmation hearing? His tin ear speaks volumes about unexamined ignorance surrounding Latinos writ large, and the profound ignorance and conflation relating to various forms of U.S. Latinidades. Tom Coburn represents part of the dying ancien regime that will be caught with their proverbial pants down — several GOP old boys have already been literally caught with their trousers on the floor — as the face of the “largest minority population” of the U.S. retorts with a forceful, “We don’t. But you do.”

Sonia Sotomayor, Roe v. Wade Redux, and Political Theater

Lázaro Lima

Political theater, black minstrelsy, and vitriol converged on Washington, D.C. yesterday as Norma McCorvey (“Jane Roe”) joined forces with anti-abortion activist Randall Terry to oppose Sonia Sotomayor’s nomination to the supreme court on the grounds that she is but a pawn, they contend, in Obama’s campaign against unborn children. In yet another collapse of Latino ethnic symbology (remember the piñata incident?), the Virgin of Guadalupe also made an appearance to remind baffled onlookers that Obama “didn’t claw his way to the top” to appoint someone who would side with the unborn.

Over on the FOX Network, Jeff Sessions (R-AL) added is own brand of theater to the circus by calling Sonia Sotomayor’s past legal decisions as “flabbergasting.” All of this has been groundwork for today’s confirmation hearings where less than 20 minutes into the conversation “wise Latina” entered the conversation. Not surprisingly, Sessions warned of a “brave new world” of jurisprudence in which judges vote with their biases. He talked of a justice system “further corrupted” by Obama’s view that empathy is a quality prized on the bench. Theater indeed.

The Education of Sonia Sotomayor

Peter Winn writes about Sonia Sotomayor while she was a student at Princeton in today’s Washington Post.

Jeff Sessions Attacks Sonia Sotomayor

Lázaro Lima

Alabama senator Jeff Sessions (R-AL) has a long history of racist rants, and “hate speech.” So much so that his nomination to the federal bench was rejected by the Senate in 1986 because of his record of outright bigotry that included: bringing racially-motivated prosecutions, belittling African-American attorneys, and describing the NAACP as an “un-American” and “Communist-inspired” organization that “forced civil rights down the throats of people.” Sessions hasn’t changed one bit. More recently, he has begun attacking Sonia Sotomayor by discrediting her work with the Puerto Rican Legal Defense and Education Fund (now, Latino Justice PRLDEF) and referring to the organization in terms previously reserved for the NAACP. So much for the GOP’s scramble to win thew Latino vote in 2010 and 2012.

The Hispanic National Bar Association (HNBA) responded to Session’s attack this week with an attack of their own. HNBA wrote, “Attacks on Latino advocacy and civil rights organizations are not new – we have seen figures in the media mischaracterize and slander our good works, using provocative terms that fan the flames of ethnic animosity. We expect and are entitled to better from a sitting member of the United States Senate.”

Losing Sonia Sotomayor

Lázaro Lima

Writing in the New York Times Frank Rich observed not too long that “Gay people… aren’t the surefire scapegoats they once were. Hence the rise of a jucier target: Hispanics. They are the new gays, the foremost political piñata.” Rich’s observation took on literalist meaning this week when Creators Syndicate’s Chip Bok depicted Supreme Court nominee Sonia Sotomayor hanging from a rope and strung up like a piñata along with a Mariachi sombrero-wearing President Obama handing out bats to Republican Congressmen.

Recall, for example, how the “lynching” that Supreme Court Justice Clarence Thomas said he indignantly “suffered” when Anita Hill accused him of sexual harassment during his confirmation hearings years ago drew ire for obvious though ironic reasons. After all, the conservative Thomas, who wouldn’t have been able to marry his Anglo American wife in the state of Virginia, where he lived, until Loving vs. Virginia (1968) made it legal for Blacks to marry whites, used the proverbial race card when all through his career he had eschewed the “racisim” inherent to affirmative action policies that, for him, discriminated against whites. So suddenly, from his race-free worldview, he was being lynched by, not inconsequentially, a black woman.

Fast-forward to our present and now Sotomayor, of Puerto Rican descent, and hanging, ahem, presumably from a tree, is a stand-in for all Latinos in the U.S. as the upcoming cover of Time Magazine suggests. Puerto Ricans, who are U.S. citizens by birth, are somehow like Mariachi sombrero-wearing and presumably piñata loving Mexicans in the public imagination though the they are routinely discriminated against with a fervor and hate that makes politicians spend billions on paper-walls to keep “them” out though they’ve been “in” the U.S. for longer than current political and historical memory can account for. Political piñatas indeed. And thus the problem with representative personhood for “Latinos” as it is understood in the public imagination.

Political enfranchisement through appeals to pan-Latinidad leaves an empty space where our old political selves use to be. And, what’s more, it leaves too many Latino stripes missing in action. Central Americans, Brazilians, all sorts of homies form the Global South in the U.S. run the risk of being read the same way in the public sphere; not to mention the history that is evacuated every time “Latinos” are seen merely as a recent intrusion onto the national fold, or presumed have the same educational opportunities the nominee herself had. “See,” the media implores, “if she can do it, so can you.” A reverse salvo of the “¡Sí se puede!” that so many of us have been fighting for so long runs the risk of leaving us unable to make clear why an appeal for political enfranchisement under the rubric of a collective identity (“Latinos” writ large) binds us to a history of representative personhood incapable of addressing how our differences, and contributions, need to be made intelligible in the public sphere. The prospect of having to do so on the horizon might require our losing Sonia Sotomayor. Not the person, of course, or the judiciary record she brings that must be as scrutinized as that of any other nominee (especially as it relates to abortion freedoms for all women), but the belief in the benevolence of the state to embrace us as the “Latinos” the state thinks we are.

Refusing such a gesture, the belief that we’re in an inclusive U.S., on a level playing field and alike in some fundamental way—like the belief in benevolence of the state—allows us to awaken from the elusive embrace of a national fantasy incapable of reciprocating our possibilities for self-making and the deep historical accounting required in order to make it so. Such are the limits and responsibilities of becoming political subjects, forsaking representative personhood, in order to awaken from the elusive, albeit seductive, dream of inclusion.