Inigo Sotomayor: Those words do not mean what you think they mean.
Supreme Court nominee spent most of the morning trying to convince the Senate Judiciary Committee that she harbors no racial or sex-based animosity and that men and women can judge the law equally. This is problematic given the following statement:
“Justice O’Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases . . . .I am also not so sure that I agree with the statement . . . Second, 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.”
Judge Sotomayor has tried to explain to the Judiciary Committee that what she actually meant was, that she, in fact agreed with Justice O’Connor’s statement and that her words, repeated several times in different venues over many years, were misinterpreted. This is nonsense. More importantly, it should disqualify her for the position for which she is being nominated; not due to some racial, sexist or empathetic bias, but because someone who cannot make themselves clear has no business being a judge.
I am a lawyer. Lawyers pride themselves on mastery of language. Not all of us are good at it, but it is a skill that is required in our profession. Words have a particular meaning and should be chosen with care. I am not infrequently asked to explain the difference between subtle phrasings in a contract that could mean the difference between my company receiving millions of dollars or nothing, or worse, paying millions of dollars.
Judging has a far wider impact. When a judge authors an opinion, that opinion may be analyzed for decades or centuries. Law professors will agonize over the placement of a comma or semicolon. Whole treatise sections will be written on footnotes of major opinions.
This may seem like the folly of hoity-toity law professors in ivory towers, but it is not. The legal opinions handed down from the Supreme Court set out the respective rights and obligations in society. Lawyers will advise their clients based on those decisions, and clients will make business decisions based on that legal advice.
Take, for example, the Ricci case. The Court held in Ricci that an employer must show a strong basis in evidence that a potential plaintiff could prevail in a discriminatory claim in order for that employer to throw out its personnel system. A lawyer now advising a client in a racially charged hiring environment will now change their best practices based on that opinion. In fact, I would be willing to bet that most new promotion exams will be modelled after the City of New Haven Fire Department’s test.
If Sonia Sotomayor had written that opinion, by her own admission, she could not be trusted to reliably convey what the opinion of the Court was. Attorneys, businessmen and future litigants would be left to guess and expose themselves to endless lawsuits while they picked their way through the morass of “misunderstood” opinions of Justice Sotomayor.
This is why the Senate has the responsibility to provide advice and consent on judicial appointments. It should live up to that responsibility and reject President Obama’s nomination of Judge Sotomayor.