Sonia Sotomayor's Background Will Affect Her Judicial Decisions -- and That's a Good Thing

By Jill Filipovic, Comment Is Free. Posted May 26, 2009.

Let's get this out of the way first: Sonia Sotomayor is not a perfect liberal judge. She is not astoundingly progressive or notably feminist. She isn't a tireless champion of civil rights or a first amendment absolutist. She is, however, a highly intelligent, fair-minded and experienced judge who will make a fine addition to the US Supreme Court, and who progressives should fully support.

Much has been made of Sotomayor's life story, and it is impressive. Born and raised into a Puerto Rican family living in a housing project in the South Bronx, Sotomayor earned a scholarship to Princeton University, where she graduated summa cum laude. She went on to Yale Law School, where she was editor of the Yale Law Journal, and after graduating worked in the New York district attorney's office. She was nominated to the federal district court by George HW Bush and elevated to the second circuit court of appeals by Bill Clinton. In both cases, her confirmation went smoothly.

Republicans and conservatives will argue that her nomination is an exercise in affirmative action, and that Barack Obama has effectively posted a "White males need not apply" sign on the doors of the Supreme Court – a funny complaint about an institution that is almost entirely white and male. Democrats and liberals will predictably trip over themselves arguing that Sotomayor's race and gender don't matter, even while race and gender matter.

The reality, of course, is that every Supreme Court justice comes in with a set of life experiences that are shaped not only by race and gender, but by experiences both professional and personal – it's just that few people consider that whiteness and maleness are not neutral identities and may shape one's perspectives and legal opinions just as much as femaleness or non-whiteness. Sotomayor herself has said: "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." And she's right.

While that quote is sure to be brought up as evidence that she's a "liberal activist", it's more indicative of the kind of self-awareness and reflection we want in a Supreme Court justice.

Judges have a marked historical tendency to move left over their Supreme Court tenures. There remains quite a bit of debate over why there's such a pronounced liberal shift, and it is no doubt a complex phenomenon. But I suspect it has to do in part with a slow realization that the law has a real impact on peoples' lives, and that the law school classroom model of the law as a near-science and justice as consistency is fundamentally flawed and entirely unrealistic. "The law" as an academic exercise is certainly interesting, but one's view is bound to shift when, as Supreme Court justice Anthony Kennedy put it, "suddenly, there's a real person there."

Sotomayor is reflective and honest enough to recognize that her experiences – as a woman of color, as a prosecutor, as member of a working-class family, as a judge – inform her understanding of and her empathy toward whichever real person is standing before her. While other judges may downplay the role that their race, gender and experience play in their legal work, those things do exert influence. Sit on the bench long enough and it must eventually become clear that rigidly interpreting language, deferring to precedent and valuing consistency above all else often result in thoroughly unjust outcomes.

So far, Sotomayor has been the picture of moderation (albeit left-leaning moderation). She has had good first amendment decisions and one particularly bad one (Doninger v Niehoff, where her panel affirmed the right of a school to disqualify a student from running for senior class secretary after the student posted vulgar and misleading school-related comments on her personal website).

She is deferential to law enforcement, leading to decisions like United States v Howard, where she held that state troopers could lure suspects away from their vehicle in order to search it for drugs.

And the decision she wrote in Center for Reproductive Law and Policy v Bush, which held that a Bush-era law limiting reproductive healthcare aid to developing nations did not violate the first amendment, due process or equal protection rights, certainly did not please any reproductive justice advocates.

But those are hardly reflective of her entire body of work as a judge. She's very plaintiff-friendly in discrimination cases. She wrote a dissent arguing that the Voting Rights Act should apply when evaluating state felon disenfranchisement laws. She stood up for first amendment rights in a case where the protected speech/expression was bigoted and presumably not easy to defend. She supported the right of an inmate to bring a case against a private corporation for redress of constitutional violations (a position that was narrowly reversed by the Supreme Court in an opinion written by Rehnquist).

She has written particularly progressive opinions in the area of disability discrimination. She has sustained claims of a hostile work environment in cases where female employees were subjected to sexual harassment and gender discrimination.

It's also worth noting that she is filling the seat of a moderate justice, and that if this confirmation fails, it will be because conservatives succeed in their smear campaign – not because she's unqualified and certainly not because she's too liberal. That means that Obama's next pick would likely be even more middle-of-the-road, and undoubtedly less appealing to feminists and progressives.

Sotomayor is far from a perfect progressive, and even further from the rightwing caricature of her as a liberal activist judge. But her breadth of experience, both professional and personal, make her a highly qualified jurist, and would lend the court much-needed diversity of perspective. She is smart, inquisitive and concerned with justice above all else. And that is precisely what a Supreme Court justice should be.

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Jill Filipovic is a lawyer in Manhattan who formerly served as the Gender and Reproductive Justice editor at AlterNet. More of her writing is available online at her blog, Feministe.

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