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Sotomayor's Affirmative-Action Dissent

In her 58-page dissent regarding the Supreme Court’s decision on race preferences, Justice Sonia Sotomayor wrote that “educational diversity … cannot reasonably be accomplished through race-neutral measures.”

SONIA SOTOMAYOR, Associate Justice, U.S. Supreme Court

Sonia Sotomayor in SCOTUS robeSonia Maria Sotomayor is the Court's 111th justice of the Supreme Court of the United States, serving since August 2009. Sotomayor , its first Hispanic justice, and its third female justice.
  • Former Board of Directors member of the Puerto Rican Legal Defense and Education Fund
  • Former judge on the U.S. District Court for the Southern District of New York
  • Was nominated by President Bill Clinton to serve as a federal judge on the U.S. Court of Appeals for the Second Circuit in 1997
  • Supports affirmative action
  • Views America as a nation rife with discrimination against nonwhite minorities
  • Nominated for the Supreme Court by President Barack Obama in May 2009; was sworn in as Associate Justice on August 8, 2009

Born in June 1954 to Puerto Rican parents who resided in the Bronx, New York, Sonia Sotomayor earned a bachelor’s degree from Princeton University in 1976. During her years at Princeton, she joined two campus organizations whose efforts were devoted chiefly to the celebration of nonwhite ethnic identities. She reminisces: “The Puerto Rican group on campus, Acción Puertorriqueña, and the Third World Center provided me with an anchor I needed to ground myself in that new and different world.” In April 1974, during her sophomore year, Sotomayor co-chaired Accion Puertorriquena.

Years later, in 1994, Acción Puertorriqueña, which remains active to this day, lobbied against Proposition 187, a ballot initiative designed to deny social-welfare benefits to illegal aliens in California; it also sponsored a 2003 event focusing on the alleged “inequality” that suppressed Latinos’ “access to higher education … throughout our nation”; and it currently supports increased rights and privileges for illegal immigrants.

The other group to which Sotomayor belonged, Princeton’s Third World Center, was established in 1971 to provide "a social, cultural and political environment that reflects the needs and concerns of students of color at the University”; to remedy the fact that “the University’s cultural and social organizations have largely been shaped by students from families nurtured in the Anglo-American and European traditions”; to acknowledge that “it has not always been easy for students from different backgrounds to enter the mainstream of campus life”; and to teach minority students to “become more sensitive to the consequences of a long history of prejudice and discrimination.”

TWC's constitution and founding documents were steeped in anti-American and anti-white rhetoric. A 1976 TWC document titled “Oppression breeds resistance,” stated: “The history of the peoples of the Third World, who have suffered from U.S. Imperialism, and of the oppressed nationalities within the United States—Afro-Americans, Puerto Ricans, Chicanos, Asians, and Native Americans, has been a history of oppression and resistance.” On one occasion in 1973, TWC brought the Puerto Rican Nationalist and Socialist, Manuel Maldonado-Denis to campus as a guest speaker. “I have come from a colonized country, submitted to cultural assimilation and cultural aggression,” he told the students at TWC. He accused the United States of “dominating,” “fleecing” and “exploiting” Puerto Rico, and said “the only solution” to the problem was “the establishment of national liberation and the establishment of socialism.”

Years later, in November 1984, TWC's board maintained that nonwhite students should have the right to bar whites from its meetings on campus and from its meetings with school administrators. At that time, future First Lady Michelle Obama was a member of the TWC board. The group’s 1984 constitution stated:

“We define the term ‘Third World’ as those nations and people who have fallen victim to the oppression and exploitation of the world economic order. This definition includes the peoples of color in the United States, as they too are victims of a brutal and racist socio-economic structure perpetuated by those who still exploit such groups as Asians, Blacks, and Latinos and who still occupy the homelands of the Puerto Rican, Mexican, Native American, and Alaskan peoples. Therefore, we must seek to understand the historical and contemporary ramifications of oppression we are to liberate ourselves from economic and social chains which bind us.”

During Sotomayor's years at Princeton, she denounced the university's “institutional pattern of discrimination.” Moreover, she filed a complaint with the Department of Health, Education, and Welfare's New York office demanding that Princeton increase its recruitment of Latino administrators, faculty, and students. She also delivered to the university's president two letters demanding explicit quotas and timetables for such recruitment.

In the May 10, 1974 edition of Princeton's student newspaper, The Daily Princetonian, Sotomayor wrote that her university was guilty of "an institutional pattern of discrimination" against Chicanos and Puerto Ricans. She added:

"The facts imply and reflect the total absence of regard, concern and respect for an entire people and their culture. In effect, they reflect an attempt -- a successful attempt so far -- to relegate an important cultural sector of the population to oblivion.... There is not one Puerto Rican or Chicano administrator or faculty member in the university;... [T]here were only 111 Chicano applicants and 27 students on campus this year; Not one permanent course in this university now deals in any notable detail with the Puerto Rican or Chicano cultures."

In her 1976 Princeton yearbook, Sotomayor selected, as her special quotation, the following statement of Norman Thomas, who ran for U.S. president six times on the Socialist Party ticket: "I am not a champion of lost causes, but of causes not yet won."

After graduating from Princeton, Sotomayor earned a Juris Doctor at Yale Law School in 1979. She then took a job as an Assistant District Attorney under New York County DA Robert Morgenthau.

In 1980 Sotomayor became a Board of Directors member of the Puerto Rican Legal Defense and Education Fund (currently known as LatinoJustice PRLDF), a post she would hold for 12 years. In 1981 Sotomayor was part of a three-person panel that urged PRLDF to oppose the reinstitution of the death penalty in New York State. “Capital punishment is associated with evident racism in our society,” the panel wrote. “It creates inhuman psychological burdens for the offender and his/her family.”

In 1984 Sotomayor left her job at the DA office and launched a private legal practice, subsequently becoming a partner at the commercial litigation firm of Pavia & Harcourt, where she specialized in intellectual-property cases.

In November 1991, President George H.W. Bush nominated Sotomayor, on the recommendation of Democrat Senator Daniel Patrick Moynihan, to a seat on the U.S. District Court for the Southern District of New York. She was confirmed by the Senate in August 1992.

In one of the more high-profile cases over which Sotomayor presided, she issued an order allowing the Wall Street Journal to publish the July 1993 suicide note of Deputy White House Counsel Vince Foster. In another much-publicized case, in March 1995 she issued the preliminary injunction preventing Major League Baseball from unilaterally implementing a new Collective Bargaining Agreement and using replacement players, thereby bringing the 1994 baseball strike to a close.

In the early 1990s, Sotomayor spoke publicly about the role that affirmative action played in her educational background:

"I am a product of affirmative action. I am the perfect affirmative action baby. I am Puerto Rican, born and raised in the south Bronx, and from what is traditionally described as a socio-economically poor background. My test scores were not comparable to that of my colleagues at Princeton or Yale. Not so far off the mark that I wasn't able to succeed at those institutions.... [I]f we had gone through the traditional numbers route of those institutions, it would have been highly questionable whether I would have been accepted with my academic achievement in high school. I was accepted rather readily at Princeton, and equally as fast at Yale. But my test scores were not comparable to that of my classmates, and that's been shown by statistics, there are reasons for that. There are cultural biases built into testing, and that was one of the motivations for the concept of affirmative action, to try to balance out those effects."

On November 7, 1996 Sotomayor delivered a speech to the Third World Center (TWC) titled “The Genesis and Needs of an Ethnic Identity.” Among her remarks to this organization (of which she had been a member during her college years) were the following: “At Princeton, I began a lifelong commitment to identifying myself as a Latina, taking pride in being Hispanic, and in recognizing my obligation to help my community reach its fullest potential in this society. Accion Puertorriquena, the Puerto Rican group on campus then, and the Third World Center … provided me with the anchor I needed to ground myself in this new and different world.” Sotomayor further praised TWC for having “demonstrated and taken over University buildings” as part of their activism.

On June 25, 1997, Sotomayor was nominated by President Bill Clinton to serve as a federal judge on the U.S. Court of Appeals for the Second Circuit, a seat she would hold until May 2009.

From 1998 to 2007, Sotomayor was an adjunct professor at New York University School of Law. She also was a lecturer at Columbia Law School from 1999 to 2009, and she served as a member of Princeton University’s Board of Trustees.

Sotomayor was formerly a Board of Directors member of the Maternity Center Association (now called Childbirth Connection), an organization that “uses research, education and advocacy to improve maternity care for all women and their families.” Childbirth Connection generally views maternity care as the financial responsibility of taxpayer-funded programs dedicated to such objectives as: “establishing early standards for prenatal care and education; fostering the development of childbirth education in the United States; developing and distributing pioneering educational resources for prenatal, childbirth and parent education; and establishing the country’s first nurse-midwifery education program and first urban out-of-hospital birth center providing woman- and family-centered maternity care.”

In 1998 the Family Research Council named Sotomayor as the recipient of its Court Jester Award, mocking her decision to extend the application of the Americans With Disabilities Act to a woman who had cited her own inability to read as the “handicap” that caused her to fail the New York State bar exam several times.

In 2001 Sotomayor gave a speech at UC Berkeley, during which she suggested, approvingly, that making the federal bench more “diverse”—in terms of ethnicity, race, gender, or sexual orientation—“will have an effect on the development of the law and on judging.” Refuting the notion that judges should not permit the foregoing personal traits to influence their legal decisions, she 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.” “Whether born from experience or inherent physiological or cultural differences,” she elaborated, “our gender and national origins may and will make a difference in our judging…. Personal experiences affect the facts that judges choose to see.” Questioning whether it is “possible in all, or even, in most, cases” for judges to be absolutely impartial, she pondered: “I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society.” She also expressed agreement with law professors who maintain that “to judge is an exercise of power,” and that “there is no objective stance but only a series of perspectives.” At another point in the speech, she said, "We [Latinos] have only 10 out of 147 active circuit court judges and 30 out of 587 active district court judges. Those numbers are grossly below our proportion of the population."

According to a July 2009 Congressional Quarterly report:

“Supreme Court nominee Sonia Sotomayor delivered multiple speeches between 1994 and 2003 in which she suggested ‘a wise Latina woman’ or ‘wise woman’ judge might ‘reach a better conclusion’ than a male judge. Those speeches … suggest her widely quoted 2001 speech in which she indicated a ‘wise Latina’ judge might make a better decision was far from a single isolated instance.”

Perhaps the most noteworthy court case over which Sotomayor has presided was a 2004 lawsuit filed by Frank Ricci, a white New Haven, Connecticut firefighter who, the previous year, had scored very well on the test which his local fire department administered in order to determine who should be promoted to such positions as lieutenant and captain. But when it was revealed that black firefighters, on average, had performed quite poorly on that test, the city of New Haven, reasoning that the exam itself must have been racially biased, mandated that the test results be discarded and that no promotions be granted that year to anyone. In response, Ricci and 17 fellow firefighters (16 whites and 1 Hispanic) filed a federal civil-rights lawsuit -- which was argued before a three-judge panel of the U.S. Court of Appeals for the 2nd Circuit -- contending that they had been wrongfully denied promotions they deserved. That panel, which included Sotomayor, upheld New Haven’s decision to dismiss the test results.

Four years later, all 13 members (including Sotomayor) of the same Appeals Court presided over a retrial of the Ricci case. They likewise agreed, this time by a 7-6 margin, that the firefighters' test was invalid. Six of the seven judges to rule that way were, like Sotomayor, Bill Clinton appointees.

On both a personal and professional level, Sotomayor has long placed a great emphasis on ethnic identity (and on the presumed victim status of nonwhite minorities). By her own telling, she has never fully shed her personal sense of being an outsider looking in on American society:

  • “The differences from the larger society and the problems I faced as a Latina woman didn't disappear when I left Princeton. I have spent my years since Princeton, while at law school and in my various professional jobs, not feeling completely a part of any of the worlds I inhabit.”

  • “As accomplished as I have been in my professional settings, I am always looking over my shoulder wondering if I measure up and am always concerned that I have to work harder to succeed.”

A member of the National Council of La Raza, Sotomayor describes Latinos as one of America’s “economically deprived populations” which, like “all minority and women’s groups,” are filled with people “who don’t make it in our society at all.” Attributing those failures to inequities inherent in American life, she affirms her commitment to “serving the underprivileged of our society” by promoting affirmative action and other policies designed to help those who “face enormous challenges.” Moreover, she identifies “human rights” and “civil liberties” as topics that need to “permeate our societal discussions.”

Sotomayor penned the Foreword to the 2007 bookThe International Judge, where she said that American judges should try to “learn from foreign law and the international community when interpreting our Constitution.” She also stressed the importance of having judges “learn from international courts and from their male and female judges about the process of judging and the factors outside of the law that influence our decisions.” According to the journal Foreign Policy, Sotomayor believes that judges should make an effort to consider foreign case law whenever applicable to their rulings.

The Traditional Values Coalition (TVC) reports that Sotomayor is an advocate of Legal Realism, “a judicial philosophy that permits judges to ignore the U.S. Constitution and laws in their rulings,” and which is “diametrically opposed to the concept of strict construction/originalism as advocated by conservative legal thinkers and judges.” Adds TVC:

“Legal Realism is a philosophy developed by Judge Jerome Frank in his 1930 book, Law And The Modern Mind.

“Frank taught that the law changes along with the circumstances and the concerns of the judges applying it. He argued that judges should do more than interpret the law or look to the original intent of the writers of the law or the Constitution. Judges should bring in outside influences from social sciences, psychology and politics, plus their own views, to craft the law….

“Judge Sotomayor drank deeply from his philosophy. She described Legal Realism in her 1996 lecture at Suffolk University Law School. She stated that the public wrongly expects ‘the law to be static and predictable,’ but points out that courts and lawyers are ‘constantly overhauling the laws and adapting it to the realities of ever-changing social, industrial and political conditions.’”

In a 2008 case known as Doe v. Mukasey, Sotomayor ruled that FBI "national-security letters" asking electronic-communications service providers to furnish the Bureau with the records of a criminal or terrorist suspect, violated the First Amendment.

In a January 2009 Second Circuit case known as Maloney v. Cuomo, Sotomayor ruled that states are not required to obey the Second Amendment’s mandate that the right to keep and bear arms shall not be infringed. The opinion which she signed stated that "the Second Amendment ... is a limitation only upon the power of Congress and the national government, and not upon that of the state.”

In May 2009 a video surfaced of Sotomayor speaking at a 2005 panel discussion for law students. In that video, she said that a “court of appeals is where policy is made”—a candid rejection of the notion that a judge's proper role is to interpret the law rather than to create it. Then, remembering that the event was being recorded, Sotomayor added immediately: “And I know — I know this is on tape, and I should never say that because we don’t make law. I know. O.K. I know. I’m not promoting it. I’m not advocating it. I’m — you know.”

On May 26, 2009, a few weeks after Supreme Court Justice David Souter had announced that he would soon retire, President Barack Obama nominated Sotomayor to replace Souter.

According to a CNS News report, Sotomayor, during her Senate confirmation hearings in July 2009, had the following exchange with Republican Senator Tom Coburn of Oklahoma:

When [Coburn] asked ... whether citizens have a right to self-defense, ... Sotomayor told the Senate Judiciary Committee, “I don’t know.” 
 
Coburn had asked, “As a citizen of this country, do you believe innately in my ability to have self-defense of myself – personal self-defense? Do I have a right to personal self-defense?”
 
In reply, Sotomayor said that, “I’m trying to think if I remember a case where the Supreme Court has addressed that particular question. Is there a constitutional right to self-defense? And I can’t think of one. I could be wrong, but I can’t think of one.” She then went on to explain that self-defense rights are usually defined by state law.
 
Unsatisfied, Coburn continued, “But do you have an opinion, of whether or not in this country I personally, as an individual citizen, have a right to self-defense?”
 
Sotomayor responded, “I -- as I said, I don’t know.” 
 
Later in the exchange, Coburn said, “I wasn’t asking about the legal question. I’m asking your personal opinion.” 
 
“But that is an abstract question with no particular meaning to me,” Sotomayor replied.

Sotomayor was confirmed by the Senate Judiciary Committee on July 28, 2009; was confirmed by the full Senate (by a 68-31 vote, with 9 Republicans voting in favor) on August 6, 2009; and was sworn in as Associate Justice of the Supreme Court on August 8, 2009.

On January 21, 2010, the Supreme Court (in a 5-4 decision) overturmed this aspect of McCain-Feigold in a case called Citizens United v. Federal Election Commission. The Court ruling overturned two precedents: Austin v. Michigan Chamber of Commerce, a 1990 decision that upheld restrictions on corporate spending to support or oppose political candidates, and McConnell v. Federal Election Commission, a 2003 decision that upheld the portion of McCain-Feingold that restricted campaign spending by corporations and unions. Sotomayor voted with the minority in the 2010 case.

In February 2013, Sotomayor lamented what she described as "a deep and sorry vein of racial prejudice that has run through the history of criminal justice in our nation."

During a talk she gave at Yale Law School in February 2014, Sotomayor was asked about her use of the term “undocumented immigrants” to describe those who are sometimes called "illegal aliens." Asserting that the labeling of some immigrants as criminals seemed insulting to her, Sotomayor said: “I think people then paint those individuals as something less than worthy human beings and it changes the conversation.”

On April 22, 2014, the U.S. Supreme Court issued a 6-2 decision upholding a Michigan constitutional amendment banning affirmative action in admissions to the state’s public universities. Sotomayor, who along with Ruth Bader Ginsburg voted in the minority, wrote an impassioned 58-page dissent wherein she elected not to use the term “affirmative action” because of its connotation of “intentional preferential treatment”; rather, she called it a system of “race-sensitive admissions policies.” Some excerpts from Sotomayor's dissent include the following:

  • "Race matters to a young person addressed by a stranger in a foreign language, which he does not understand because only English was spoken at home."

  • "Race matters in part because of the long history of racial minorities’ being denied access to the political process."

  • "Race also matters because of persistent racial inequality in society—inequality that cannot be ignored and that has produced stark socioeconomic disparities."

  • "And race matters for reasons that really are only skin deep, that cannot be discussed any other way, and that cannot be wished away. Race matters to a young man’s view of society when he spends his teenage years watching others tense up as he passes, no matter the neighborhood where he grew up. Race matters to a young woman’s sense of self when she states her hometown, and then is pressed, 'No, where are you really from?', regardless of how many generations her family has been in the country.    Race matters to a young person addressed by a stranger in a foreign language, which he does not understand because only English was spoken at home. Race matters because of the slights, the snickers, the silent judgments that reinforce that most crippling of thoughts: 'I do not belong here.'"

  • "In my colleagues’ view, examining the racial impact of legislation only perpetuates racial discrimination. This refusal to accept the stark reality that race matters is regrettable. The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination. As members of the judiciary tasked with intervening to carry out the guarantee of equal protection, we ought not sit back and wish away, rather than confront, the racial inequality that exists in our society. It is this view that works harm, by perpetuating the facile notion that what makes race matter is acknowledging the simple truth that race does matter."

  • "[The Constitution] guarantees that the majority may not win by stacking the political process against minority groups permanently, forcing the minority alone to surmount unique obstacles in pursuit of its goals — here, educational diversity that cannot reasonably be accomplished through race-neutral measures."

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