Since Judge Sonia Sotomayor was nominated for the Supreme Court
by President Barack Obama, she has received fierce criticism for a
number of her public statements and court opinions that reveal a
troubling judicial philosophy. She has questioned whether judges
can and should set aside personal bias, mocked the idea that judges
do not "make law," and argued that judges of certain ethnicities or
a particular gender will reach superior conclusions possibly due to
"physiological differences" in logic and reasoning.
In addition to concerns about her judicial philosophy, serious
questions have been raised about Sotomayor's respect for judicial
procedure. She has displayed a tendency to completely ignore or
bury arguments she disfavors, treating unsettled statutory and
constitutional questions as frivolous legal claims that merit no
serious discussion. Equally troubling is her approach to
constitutional rights: In several cases she has denied rights that
are specifically protected by the Constitution while giving little
or no justification thereof.
Next week, Senators will begin the "advice and consent" process.
Given these concerns about her judicial philosophy, fairness on the
bench, and fidelity to the Constitution, Senators should ask Judge
Sotomayor the following ten questions.
Question #1: Policy-Making from the
During a Duke University panel discussion in 2005, you made a
statement that raises grave concern as to whether you believe that
the role of a judge is a limited one. In that speech, you stated:
"All of the legal defense funds out there, they're looking for
people with Court of Appeals experience. Because it is--Court of
Appeals is where policy is made. And I know, and I know, that this
is on tape, and I should never say that. Because we don't 'make
Though you claimed that you were not "promoting" or "advocating"
the practice, it is quite clear, based on your flippant tone, which
invoked laughter from the audience, that you were mocking the idea
that judges do not "make law."
Statements from your other speeches support this interpretation.
You have unabashedly embraced the idea that judges should not hold
back when tempted to alter the law in order to address some
perceived societal need: "Our society would be strait-jacketed were
not the courts, with the able assistance of the lawyers, constantly
overhauling the law and adapting it to the realities of
ever-changing social, industrial and political conditions." Your
idea of a "strait-jacketed" society ignores the existence of an
entire branch that is actually constitutionally empowered to change
the law to address society's needs: the legislature.
Do you still believe that judges
should be overhauling the law and making policy? If not, when did
you change your position, and why did you say and write these
things in 2005?
Question #2: Patriotic Bias?
When litigants stand before a judge in a courtroom, they should
be confident that their judge is approaching the case without
harboring any pre-conceived personal bias. Your speeches reveal a
disturbing skepticism as to whether this basic element of the rule
of law is possible--or even desirable. In a 2001 speech at Berkeley
School of Law, you advanced the idea that legal interpretations are
inevitably and unavoidably influenced by one's own experience and
cultural background and that "impartiality" is just an
"aspiration." You stated that you wonder whether the goal of
impartiality is "possible in all or even in most cases."
In the speech, you went even further to suggest that the
impossibility of impartiality is actually somehow a benefit to this
country: "I wonder whether by ignoring our differences as women or
men of color we do a disservice both to the law and society." Under
your theory, it is somehow patriotic to embrace one's own personal
Yet as a judge, you took an oath to "administer justice without
respect to persons, and do equal right to the poor and to the rich,
and [to] faithfully and impartially discharge and perform all the
duties incumbent" on you under the Constitution.
Do you believe that following the
judges' oath of office is a disservice to society? Do you believe
that you are doing a disservice to the law if you impartially
discharge your duties in a completely impartial manner?
Question #3: Respecting Judicial
While your statements about the undesirability of impartial
judging raise concern, what is even more alarming is that you seem
to have put this belief into practice in several cases. In these
cases, you displayed a tendency to give little or no consideration
to serious constitutional and statutory issues, and in one case
doing so in a way that appeared to be calculated to prevent further
review (and subsequent reversal) of the case. This calls into
question your ability to perform one of the most basic duties of a
judge: to respect judicial procedure, and to give a fair and
adequate hearing to all arguments and parties.
In the case of Ricci v. DeStefano, your three-judge
Second Circuit panel addressed a racial discrimination suit brought
by a group of New Haven firefighters who were denied promotions on
account of race. Despite the unsettled constitutional and statutory
issues in this case, your panel stated its conclusion in one
paragraph, doing so in a summary order and then withdrawing it and
issuing yet another one-paragraph opinion, this time a per
On review, the Supreme Court found that your panel wrongly
concluded that Title VII of the Civil Rights Act of 1964 was not
violated when the city of New Haven threw out the results of a
race-neutral firefighter promotional exam due to a low pass rate
Not only did the Supreme Court find fault with the decision your
panel reached in this case, but all nine justices agreed that your
one-paragraph summary order was insufficient.
The Supreme Court justices were not the first to point out this
error. In his dissent from denial of rehearing en banc, Judge Jose
Cabranes, a Clinton appointee on your circuit, explained that your
panel's refusal to address the constitutional issues in the case
was entirely unjustified. He noted that the "core issue presented
by this case ... isnot addressed by any precedent of the
Supreme Court or our Circuit," and "where significant
questions of unsettled law are raised on appeal ... a failure to
address those questions--or even recognize their existence--should
not be the approved modus operandi of the U.S. Court of Appeals."
You displayed a similarly dismissive approach in your opinion in
Maloney v. Cuomo, in which you found that the Second
Amendment does not apply to the states through the Fourteenth
Amendment. In a scant 11 words, which failed to provide even a
scintilla of reasoning for your conclusion, your panel declared
that a state statute restricting possession of weapons does not
implicate a fundamental right.
Do you believe that your treatment of
these cases was appropriate, particularly considering the fact that
the Supreme Court not only found the case important enough to hear
but also reversed you? Why did you refuse to address the serious
legal issues at stake in these cases?
Question #4: The "Empathy"
President Obama has stated several times the importance of
finding a nominee who displays empathy in judging. Legitimate
criticisms have been raised concerning this standard, including
questions as to how a judge should go about deciding which litigant
is deserving of sympathy.
In some cases, all of the parties are sympathetic. In other
cases, none are. In still other cases, the law may be unambiguously
on the side of a party who is less sympathetic. If empathy is the
guiding principle, how is a judge to decide these cases? And how do
we separate empathy from personal bias?
While empathy divorced from law is a dubious way to decide
cases, you were arguably presented with the opportunity to display
your empathy in the case of Ricci v. DeStefano. The
plaintiff in the case, Frank Ricci, is a learning disabled
firefighter who, as you recall, put considerably more time into
preparing for the lieutenant's exam given his disability. Because
of his dyslexia, Ricci had a friend record his exam textbooks into
a tape recorder and spent every spare hour studying. After taking
such great strides to overcome his disadvantage, he ranked sixth in
the competition for eight lieutenant spots but was nonetheless
denied the promotion on account of race.
Do you agree with President Obama
that empathy is a proper way to decide cases? If so, why was Ricci
unworthy of your empathy--or even of a full opinion from your
Question #5: Physiological Differences
and Identity Politics
You have stated that gender and national origin "may and will
make a difference in our judging." You stated that these
differences could be due to cultural experience or because of
"basic differences in logic and reasoning." You further stated your
hope that a Latina woman "with the richness of her experience would
more often than not reach a better conclusion than a white male who
hasn't lived that life."
There has been a great deal of discussion about the so-called
"wise Latina woman" quote, but the defenses to date have been
inaccurate or insufficient. The White House responded that you
misspoke, but this was shown to be false by the fact that the
statement was made in a published speech, and by the subsequent
revelation that you had made that very same speech on at least
seven separate occasions. Later explanations suggest that you did
not mean that the opinion would be superior but that you were
simply lauding a diversity of opinion. However, that is plainly not
what you said, both in print and verbally, again more than seven
Men who have suggested that there may be physiological
differences between genders have received an onslaught of
criticism, in some cases being led to resign from their positions.
For example, when Larry Summers, the current director of the White
House's National Economic Council, suggested that "innate
differences between men and women might be one reason fewer women
succeed in science and math careers," many of those who are
currently defending your statements expressed such outrage that he
was forced to resign his post of dean at Harvard University. Nancy
Hopkins, the MIT biologist who famously walked out of the Summers
talk and remarked, "I would've either blacked out or thrown up,"
praised you in an Editor's Selection comment to a New York
Times article. She wrote that "you deserve all of this success
and more," and that "this is the American dream come true."
Do you believe that there are physiological differences
between ethnicities that affect reasoning? Why should we read the
word better in your description of the decision of a Latina
compared to other sexes and ethnicities--a word that you used
repeatedly in print and verbally--as something other than what it
Question #6: Second Amendment
In Maloney v. Cuomo, you joined a three-judge panel
concluding that the Second Amendment right to bear arms does not
apply to the states through the Fourteenth Amendment. You also
argued that the right to bear arms is not a "fundamental
In your incredibly short opinion, your panel cites Presser v.
Illinois as the basis for its claim that "it is settled law ...
that the Second Amendment applies only to limitations the federal
government seeks to impose on [the right to bear arms]." Your panel
neglects to mention, however, that Presser was decided
before the courts began incorporating the Bill of Rights through
the due process clause of the Fourteenth Amendment, which the
Supreme Court in District of Columbia v. Heller describes as
"the sort of Fourteenth Amendment inquiry required by our
More disturbingly, your panel summarily stated in a scant
11-word conclusion that statutes restricting possession of weapons
do not implicate a fundamental right--something that no court has
done since the Supreme Court affirmed an individual Second
Amendment right in Heller.
Why did you fail to even consider the
sort of inquiry that the Supreme Court said is required by the
Fourteenth Amendment in your decision stripping Second Amendment
protection from citizens in the Second Circuit? Do you believe that
statutes restricting possession of weapons do not even implicate
fundamental rights? How does that view comport with the text of the
Question #7: Legal Realism
Legal realism, the theory responsible for the rise of judicial
activism, is based on the idea that law has no objective meaning
and must constantly evolve with the changing needs of society. The
problem with legal realism is that both society's "needs" and the
seemingly legal solutions to these needs turn out to
be--interestingly enough--in synch with the political or policy
preferences of the judges who advance this theory. Legal realism
mocks the idea that judges simply apply law to cases as mere
subterfuge for what really occurs: the judiciary essentially
functioning as another political branch, judicially amending the
Constitution and other laws as the judges see fit, regardless of
what the American people think.
Your academic work has revealed obvious support for this
corrosive theory. For example, you have stated:
- "Our society would be strait-jacketed were not the courts, with
the able assistance of the lawyers, constantly overhauling the law
and adapting it to the realities of ever-changing social,
industrial and political conditions."
- "Yet law must be more or less impermanent, experimental and
therefore not nicely calculable. Much of the uncertainty of law is
not an unfortunate accident: it is of immense social value."
- "It is our responsibility to explain to the public how an often
unpredictable system of justice is one that serves a productive,
civilized, but always evolving, society."
Do you believe that it is the role of
judges and the courts to change the laws if they believe the law is
outdated or needs changing? What prevents a judge from simply
implementing her policy preferences in the place of legislature,
and what recourse do citizens have when an unelected judge gets the
policy question wrong?
Question #8: Importing Foreign Law
In your April 2009 address to the Puerto Rican chapter of the
American Civil Liberties Union (ACLU), you commented that
"international law and foreign law will be very important in the
discussion of how to think about the unsettled issues in our own
legal system." Though you stated that you do not
advocate the use of international and foreign law in
American courts, you nevertheless endorsed the consideration
of international and foreign law by judges in order to better
inform their decisions. As Heritage Foundation scholar Steven
Groves has explained, there is little, if any, distinction between
these terms, for by considering international and foreign law, one
necessarily uses it. Even though you may advocate its use only
as persuasive authority, this does not substantially clarify your
position, because no judge entertains the notion that foreign law
should be regarded as binding authoritative law in the U.S. legal
system. There is indeed reason for concern if international and
foreign law is used even persuasively, for it could undermine
America's own unique laws and written Constitution, which have been
enacted by its own people.
You also stated in your ACLU of Puerto Rico speech that "unless
American courts are more open to discussing the ideas raised by
foreign cases, by international cases, that we are going to lose
influence in the world." This is troubling, because the
Constitution does not entrust the Supreme Court with influencing
and earning the approval of foreign courts. The duties of
international relations are specifically given by the U.S.
Constitution to the two political branches of the government,
especially the executive. For the judiciary to take on these duties
would be for it to insert itself into the realm of
policymaking--thus divorcing itself further from its role as a
legal institution that interprets and is bound by text.
Apart from treaties that incorporate
foreign law into U.S. domestic law, why do you think it is a good
idea for judges to consider foreign law in deciding domestic law
Question #9: Felon Voting
The Fourteenth Amendment specifically allows the states to
abridge or deny the voting rights of those who partake in
"rebellion, or other crime." In the case of Hayden v.
Pataki--a case that included among it's petitioners a double
cop-killer--the Second Circuit affirmed this view and further
concluded that disenfranchising felons does not violate the Voting
Rights Act (VRA).
In your brief three-paragraph dissent, you dismissed the
majority's detailed analysis of the VRA's textual meaning and
legislative history, arguing that section 2 of the VRA is
"unambiguous" and "subjects felony disenfranchisement and all other
voting qualifications to its coverage." As any law student could
tell you, if indeed the statute were this clear and so clearly
violated the Fourteenth Amendment, it would be void. But it is not
so clear that the VRA is as broad as you say, particularly if one
takes into account specific statements made in the U.S. House of
Representatives and the U.S. Senate Judiciary Committee Reports and
on the Senate floor regarding the VRA, which explicitly recognized
that felon disenfranchisement laws would not be effected by the
Do you believe that the VRA
guarantees the rights of felons to vote? Do you believe that the
VRA supercedes the right of states to deny the vote to criminals,
as it is guaranteed in the Fourteenth Amendment?
Question #10: Death Penalty
As a member of a three-person task force of the Puerto Rican
Legal Defense and Education Fund, you signed a memo objecting to
the reinstatement of the death penalty in New York. The memo
demonstrated hostility to the death penalty, equating it with
racism: "Capital punishment is associated with evident racism in
our society. The number of minorities and the poor executed or
awaiting execution is out of proportion to their numbers in the
Given your clear views against the
death penalty, and your statements suggesting that judges cannot
avoid expressing bias in most cases, why should Americans believe
that you will not express your anti-death penalty bias on the
Questions the American People Deserve
Throughout her career, Judge Sotomayor has made a series of
statements and rendered a number of decisions that raise grave
questions about her ability to be impartial and to decide the law
as it is written. Before she is confirmed to a lifetime appointment
to the Supreme Court, Senators must engage in questions such as the
10 listed above to assure that she will be able to uphold her oath
to impartially decide cases and that she will do so according to
what the law says--rather than how she would seek to change the
law. The American people, and the Constitution, deserve at least
Deborah O'Malley is a Research
Associate in and Robert Alt is Senior Legal Fellow in and Deputy
Director of the Center for Legal and Judicial Studies at The
Heritage Foundation. The authors would like to thank Joseph Petros,
a Center for Legal and Judicial Studies intern, for his
contributions to this paper.