The Hill | May 27, 2009
By Alexander Bolton

Senate Republicans investigating Sonia Sotomayor’s record are zeroing in on a speech she delivered in 2001 in which she stated her hope that a “wise Latina woman with the richness of her experiences,” including appreciation for Latin-American cuisine, “would more often than not reach a better conclusion than a white male who hasn’t lived that life.”

They are also taking a close look at the Supreme Court nominee's skepticism, expressed in the same speech, about whether it is possible for judges to “transcend their personal sympathies and prejudices.”

Sotomayor delivered the Judge Mario G. Olmos Memorial Lecture in 2001 at the University of California at Berkeley School of Law. The Berkeley La Raza Law Journal published the lecture the following year.

Conservative critics have latched onto the speech as evidence that Sotomayor is an “activist judge,” who will rule on the basis of her personal beliefs instead of facts and law.

“Personal experiences affect the facts that judges choose to see,” Sotomayor said. “My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.”

Sotomayor also claimed: “For me, a very special part of my being Latina is the mucho platos de arroz, gandoles y pernir — rice, beans and pork — that I have eaten at countless family holidays and special events.”

This has prompted some Republicans to muse privately about whether Sotomayor is suggesting that distinctive Puerto Rican cuisine such as patitas de cerdo con garbanzo — pigs’ feet with chickpeas — would somehow, in some small way influence her verdicts from the bench.

Curt Levey, the executive director of the Committee for Justice, a conservative-leaning advocacy group, said he wasn’t certain whether Sotomayor had claimed her palate would color her view of legal facts but he said that President Obama’s Supreme Court nominee clearly touts her subjective approach to the law.

“It’s pretty disturbing,” said Levey. “It’s one thing to say that occasionally a judge will despite his or her best efforts to be impartial ... allow occasional biases to cloud impartiality.

"But it’s almost like she’s proud that her biases and personal experiences will cloud her impartiality.

Conservative critics say that a willingness to rule on the basis of personal values instead of the law and legal precedent is at the core of judicial activism. And some Senate Republicans have said a nominee with a clear propensity toward activism would deserve a filibuster.

Levey, who has been in contact with other conservative activists and Republicans on Capitol Hill, predicted that the speech would be raised at Sotomayor’s confirmation hearing.

“I cannot imagine that Sen. Sessions and some of the other Republicans will not bring that up,” he said in reference to Sen. Jeff Sessions (Ala.), the ranking Republican on the Judiciary Committee.

“It’s fine to identify with Latina heritage all she wants, just not in the courtroom,” he said.

The Berkeley La Raza Law Journal did not respond to a request for comment.

In her 2001 speech, after citing legal thinkers who called on jurists to transcend personal biases, Sotomayor questioned whether judges could in fact escape such prejudices.

“While recognizing the potential effect of individual experiences on perception, Judge Cedarbaum nevertheless believes that judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law,” Sotomayor said.

“Although I agree with and attempt to work toward Judge Cedarbaum's aspiration, I wonder whether achieving that goal is possible in all or even in most cases. And I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society.”

Some Republican critics say these statements raise concerns about whether Sotomayor, who was raised under modest circumstances in the Bronx, would serve as a neutral arbiter in a case pitting a wealthy white male against a less wealthy man or woman of color.

In her most controversial decision, Sotomayor ruled against 18 white firefighters, including one Hispanic, in their lawsuit against New Haven, Conn., after city officials scrapped a promotional test that showed the plaintiffs more eligible for advancement within the fire department. The white firefighters scored much better than their African-American peers on the test.

Concerns about Sotomayor’s activist view of the law prompted 29 Republicans to vote against her nomination to the 2nd Circuit Court of Appeals in 1998.

“I think 29 senators voted against her last time,” Sessions said in a CNN interview Wednesday. “I think there was an unease maybe about her background and her tendency to activism. We'll just have to go back and look at the record and see what most people felt.”

Sessions voted against Sotomayor’s nomination.