Video: Sotomayor’s “play on words” defense

It didn’t take long on the second day of Sonia Sotomayor’s confirmation hearings for the subject of “wise Latinas” to arise. Patrick Leahy tried a typical defense lawyer’s trick by introducing first to discredit the controversy over Sotomayor’s assertion that a “wise Latina woman with the richness of her experiences would, more often than not, reach a better conclusion” on matters before the appellate bench. Jeff Sessions wasn’t having any of that, though, and pressed Sotomayor on her statement. Sotomayor tried shrugging it off as a bad play on words:

SESSIONS: Well, you — you — you said something similar to that yesterday, that in each case I applied the law to the facts at hand, but you’ve repeatedly made this statement: Quote, I “accept the proposition” — I “accept the proposition that a difference there will be by the presence of women and people of color on the bench, and that my experiences affect the facts I choose to see as a judge.”

First, that’s troubling to me as a lawyer. When I present evidence, I expect the judge to hear and see all the evidence that gets presented. How is it appropriate for a judge ever to say that they will choose to see some facts and not others?

SOTOMAYOR: It’s not a question of choosing to see some facts or another, Senator. I didn’t intend to suggest that. And in the wider context, what I believe I was — the point I was making was that our life experiences do permit us to see some facts and understand them more easily than others.

But in the end, you’re absolutely right. That’s why we have appellate judges that are more than one judge because each of us, from our life experiences, will more easily see different perspectives argued by parties.
But judges do consider all of the arguments of litigants. I have. Most of my opinions, if not all of them, explain to parties by the law requires what it does.

SESSIONS: Do you stand by your statement that my experiences affect the facts I choose to see?

SOTOMAYOR: No, sir. I don’t stand by the understanding of that statement that I will ignore other facts or other experiences because I haven’t had them. I do believe that life experiences are important to the process of judging. They help you to understand and listen but that the law requires a result. And it would command you to the facts that are relevant to the disposition of the case.

SESSIONS: Well, I will just note you made that statement in individual speeches about seven times over a number of years span. And it’s concerning to me. So I would just say to you I believe in Judge Seiderbaum’s (ph) formulation. She said — and you disagreed. And this was really the context of your speech. And you used her — her statement as sort of a beginning of your discussion.

And you said she believes that a judge, no matter what their gender or background, should strive to reach the same conclusion. And she believes that’s possible. You then argued that you don’t think it’s possible in all, maybe even most, cases. You deal with the famous quote of Justice O’Connor in which she says a wise old man should reach the same decision as a wise old woman. And you pushed backed from that. You say you don’t think that’s necessarily accurate. And you doubt the ability to be objective in your analysis.

So how can you reconcile your speeches which repeatedly assert that impartiality is a near aspiration which may not be possible in all or even most cases with your oath that you’ve taken twice which requires impartiality?

SOTOMAYOR: My friend, Judge Seiderbaum (ph) is here this afternoon, and we are good friends. And I believe that we both approach judging in the same way which is looking at the facts of each individual case and applying the law to those facts.

I also, as I explained, was using a rhetorical flourish that fell flat. I knew that Justice O’Connor couldn’t have meant that if judges reached different conclusions — legal conclusions — that one of them wasn’t wise.
That couldn’t have been her meaning, because reasonable judges disagree on legal conclusions in some cases. So I was trying to play on her words. My play was — fell flat.

It was bad, because it left an impression that I believed that life experiences commanded a result in a case, but that’s clearly not what I do as a judge. It’s clearly not what I intended in the context of my broader speech, which was attempting to inspire young Hispanic, Latino students and lawyers to believe that their life experiences added value to the process.

SESSIONS: Well, I can see that, perhaps as a — a layperson’s approach to it. But as a judge who’s taken this oath, I’m very troubled that you had repeatedly, over a decade or more, made statements that consistently — any fair reading of these speeches — consistently argues that this ideal and commitment I believe every judge is committed, must be, to put aside their personal experiences and biases and make sure that that person before them gets a fair day in court.

Sotomayor wants to write it off as a poor rhetorical construct, which would explain it had she said it only once. However, as CQ Politics discovered while researching Sotomayor’s public remarks, she said it a number of times, at least six in total.  That sounds as though she had considered that argument carefully and fully endorsed it — until it made national news, and Sotomayor had a sudden limelight conversion.

Sessions makes note of the fact that this was not a one-off and prosecutes the point well.  Republicans and conservatives had better enjoy this; it will probably be the highlight of the confirmation hearings.  Assuming that Sotomayor does not jump up and declare Puerto Rican independence or tell the committee to pound sand, she will be confirmed by a wide margin.  The GOP has made the best of the opportunity to demonstrate the corrosive nature of identity politics on the judiciary, and even got Sotomayor backpedaling and corroborating the point.  That’s as close to victory as we’ll see in these hearings.

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