Correction to This Article
A previous version of this editorial incorrectly referred to Sonia Sotomayor as the daughter of "immigrant" parents. Her parents were born in Puerto Rico after passage of the 1917 law that automatically conferred U.S. citizenship on island-born residents.

What senators could ask Judge Sonia Sotomayor

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Wednesday, May 27, 2009

THERE IS MUCH to admire in the achievements of Sonia Sotomayor, the New York judge tapped by President Obama to fill a Supreme Court vacancy created by the impending retirement of Justice David H. Souter.

Born to Puerto Rican parents and raised in a housing project in the Bronx, Judge Sotomayor went on to excel at Princeton and earn a law degree from Yale. She worked as a prosecutor and represented corporate interests in private practice before being named to the federal trial court in New York by President George H.W. Bush; she was later elevated to a slot on the New York-based U.S. Court of Appeals for the 2nd Circuit by President Bill Clinton. As a Hispanic woman with such a diversity of legal experience, she would bring a welcome fresh perspective to the bench.

Judge Sotomayor has spoken about how gender, ethnicity and race influence a judge's views, and that should be one subject for her confirmation hearings. In a 2001 speech, she said: "The aspiration to impartiality is just that -- it's an aspiration because it denies the fact that we are by our experiences making different choices than others. . . . Justice [Sandra Day] O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases . . . . I am not so sure that I agree with the statement. First, . . . there can never be a universal definition of wise. Second, 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."

Senators could ask her, then, how, when deciding a case, she balances the quest for objectivity with her personal experiences. They might also ask her views on judicial activism. In a panel discussion in 2005, she said that a "court of appeals is where policy is made." Conservative critics have seized on this statement to argue that she is a judicial activist who believes judges should make, rather than interpret, the law. Yet her statement could just as easily be understood to be explaining correctly that the courts of appeals -- and not the Supreme Court -- are the venues where the vast majority of cases and policies are ultimately decided.

We hope Judge Sotomayor also will discuss her thinking in the case of Ricci v. DeStefano, in which a group of white firefighters sued the city of New Haven for failing to certify promotion tests because no African Americans had scored high enough to qualify for advancement. A trial court ruled against the white firefighters, and on appeal, Judge Sotomayor and two colleagues essentially rubber-stamped the lower court decision without elaboration, even though the case presented important and undecided questions of law. That case is now awaiting a decision by the Supreme Court justices whom Judge Sotomayor soon hopes to join as a colleague.

Senators are right to closely scrutinize Judge Sotomayor's philosophy and qualifications. She has produced a rich record of opinions as an appeals court judge for the Judiciary Committee to discuss. Senators also should remember that Mr. Obama, like any president, is entitled to deference in choosing a justice.


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