Judging while Latina

By Jenny Rivera, July 30, 2009

Don’t believe the caricatures of Judge Sonia Sotomayor, some of which continued to surface again this week during the Senate Judiciary Committee’s vote in favor of her nomination. As a former law clerk, I know firsthand that she is brilliant and fair. She will make an excellent Supreme Court justice.

Throughout Sotomayor’s nomination and confirmation hearings, we were subjected to ethnic and gender stereotypes, plus a litany of questions concerning her jurisprudence and her intellect.

Some Republican members of the Senate Judiciary Committee worked feverishly to make the case that she was an intellectual lightweight, intemperate, biased and racist. The evidence against her was the pride she took in her ethnic heritage, her style during oral argument and her prior involvement with a nonprofit civil-rights organization known then as the Puerto Rican Legal Defense and Education Fund. Though the attacks did not undercut the case for the nominee, they revealed a new version of ethnic profiling: judging while Latina.

Looking at Sotomayor, some are blind to all but her ethnicity and perhaps her gender. However, the support for her confirmation from people and groups across racial, ethnic and political spectrums is proof that the excitement over this nominee is not merely because she would be the first Latina on the Supreme Court.

While the historic significance of her nomination is immense, Sotomayor is an example of how intelligence, hard work and tenacity can overcome tremendous challenges. At the same time, her story is also the saga of community struggle for equality and access. She worked hard, studied, developed strong critical thinking skills and outdid her classmates. She held up when others buckled. Along the way, she maintained her identity as a woman and as a Latina.

Her judicial record shows that she is not a dangerous radical who has some “splainin’ to do,” as Sen. Tom Coburn, R-Okla., channeling Ricky Ricardo, suggested. Coburn’s now-infamous remark reveals the underlying, sometimes implicit, vision of what people see — race, ethnicity and gender — to the exclusion of all else.

If Sotomayor had been a white male raised by a single mother living in humble beginnings, who graduated with top honors from Princeton University and Yale Law School, began his legal career in a renowned state prosecutor’s office, was fast-tracked to partner in a law firm, successfully represented international clients, and was nominated by President George H.W. Bush to the federal bench and then appointed to the 2nd Circuit Court of Appeals, his credentials and accomplishments would have gone unchallenged. He would have been lauded for pulling himself up by his bootstraps. No one would question whether ethnicity or race trumped excellence, or whether being a white male helped along the way. Instead people would just assume he was a “wise” man.

The fear-mongering and claims of bias that have been lodged against Sotomayor are unfounded. The record shows that Sotomayor is not an extreme ideologue and does not bring an agenda to her cases. In a telling example of her view of the role of a judge, she stated in Hayden v. Pataki: “The duty of the judge is to follow the law, not to question its plain terms. I do not believe that Congress wishes us to disregard the plain language of any statute or to invent exceptions to the statutes it has created. But even if Congress had doubts … I trust that Congress would prefer to make any needed changes itself, rather than have courts do so for it.”

These are the words of a judge who takes seriously her role and respects the role of Congress. If that is radical, then so were those who wrote the Constitution.

Jenny Rivera is professor of law and director of the Center on Latino and Latina Rights and Equality at City University of New York School of Law, and was law clerk to Sotomayor on the district court, 1993-94. She can be reached at pmproj [at] progressive [dot] org.

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