Senators today begin their public confirmation questioning of Judge Sonia Sotomayor, President Obama’s nominee to fill the seat of retiring U.S. Supreme Court Justice David Souter. As a matter of Senate courtesy – to say nothing of political equity – the majority Democrats should allow minority Republicans just as much time to question Sotomayor as they were allowed when they were the opposition party and vetting President Bush’s nominees. More likely, Sen. Pat Leahy, D-VT, will throttle the Senate Judicial Committee’s GOP minority into accepting minimal time for questioning the nominee. This is in part because Leahy and his Senate Democrat colleagues are in no mind to wait – they’ve got a liberal judge and they are determined to get her on the bench, no matter what.
So Republicans would do well not to get lost in the weeds when questioning Sotomayor. The nominee is clearly qualified to be on the nation’s highest court, if previous judicial experience or the ABA’s endorsement were the deciding factors. But they are not. There is only one issue that should determine how senators vote on this nomination – does the nominee believe in and pledge to uphold the Constitution, specifically the 14th Amendment’s clauses providing due process and equal protection under the law. If Sotomayor can credibly make a case for her fealty to the Constitution, then senators should vote for her. The problem is that it seems impossible to reconcile anything she might say with her many statements throughout her career to the contrary. And it is not merely her now-familiar statement about a “wise Latina woman with the richness of her experiences would more often than not reach a better conclusion that a white male who hasn’t lived that life.” In the speech in which that sentence was delivered and on other occasions, Sotomayor has also expressed her belief that “whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging.”
It appears that not only does Sotomayor believe members of some ethnic groups will make “better” decisions, she also seems to believe that this is the result of those “cultural and physiological differences.” Sotomayor must explain precisely what physiological differences she believes make one person a better judge than another person. Is she referring to gender? Ethnicity? There is no qualifier in the 14th Amendment that makes reference to physiological differences. And there is no place on the Supreme Court for a judge who intends to read such a qualifier into the Constitution.
