How should Sonia Sotomayor be judged in her confirmation hearings?

Sonia Sotomayor will receive a great deal of scrutiny in the next few weeks as the Senate takes up her nomination to the Supreme Court. How should we judge Supreme Court nominees? And what are acceptable grounds to vote against them? These are some questions we’ve both been pondering recently.

I think the foremost question should be qualification. If the Judge in question has demonstrated sterling credentials and good experience, we should be favorably disposed to the nominee.

Second, it is important to ask whether a nominee’s judicial philosophy is reasonable. For example, if a Judge said he would allow poll taxes or grandfather clauses, a Senator would be justified voting against him even if he attended Harvard Law and has good experience.

But no Judge today in either the liberal or conservative judicial mainstreams would allow such a thing. Essentially, Senators should ask whether the view of the constitution is a defensible, plausible one. If it is, the fact that a Senator might disagree with how a Judge will rule on certain cases doesn’t seem to be an acceptable rationale to vote against the nomination.

The last issue in my view should be whether the nominee has some disqualifying character flaw. For example, if a nominee was part of a neo-nazi group a year prior to being nominated, it is acceptable to vote the nominee down even if he has good experience and a plausible view of the constitution. Having such a person on the court would make it difficult for the American people to have faith in the Supreme Court, which is important.

I think Sotomayor should be confirmed by these criteria. She has several years worth of experience on the bench, and she has sterling academic credentials having graduated summa cum laude from Princeton, and having edited the Yale Law Journal. Her credentials and experience are commensurate with those of many a Justice who has sat on the court.

The second question will come out through questions during confirmation hearings and through the paper trail she has left over the years. Aside from the Ricci case, she does not seem to have any controversial decisions. And even with the Ricci case, affirmative action has been upheld by the courts for over 30 years. This particular variant may well not be allowed by the Supreme Court, but at the very least, Sotomayor’s willingness to allow it does not seem outside of judicial mainstream. If there is evidence that Sotomayor holds an unreasonable interpretation of the constitution, I look forward to seeing it.

Last, there is the issue of profound character defect. Sotomayor has gotten herself into some trouble recently for saying 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.” This is indeed a tad disturbing although conservatives who insist on calling her a racist or comparing her to a Klansman as Tom Tandcredo did are wrong. I think what she was going for was that a Latina judge getting a case about say racial discrimination would have experience she could bring to bear on a case which might give her insight that a white man might not. The extent to which a Judge should bring said experience into the case is certainly debatable, but it is a fact that a Latina might well consider a racial discrimination case differently from the way a white male might.

For example, a 2008 paper titled “Untangling the Causal Effects of Sex on Judging,” by Washington University's Christina L. Boyd and Andrew D. Martin and Northwestern School of Law's Lee Epstein found that male judges were 10% more likely than female judges to rule against female litigants suing for sex discrimination during a 10 year period. Paradoxically, men with female justices serving on the bench alongside them were more likely to back the female litigant in these cases. It seems clear that a Judge’s background can and does have an effect on how they see the facts of the case.