I first learned about President Obama’s choice of Judge Sonia Sotomayor to fill the Supreme Court vacancy from my husband. “Everybody’s saying she was chosen because she’s both a woman and Hispanic,” he said. “Nobody’s mentioning that she went to Princeton, where she graduated Summa cum Laude, and that from there she went to Yale Law, where she made the Law Review.”


Even before Obama announced his choice, some were circling the wagons, working out strategies of attack in order to defeat the nominee, whoever it might be. It’s no surprise that Sotomayor is being assailed. What is surprising— although at this point, I suppose it shouldn’t be—is that criticism is levied without any regard for actual fact. How, for example, can a person who graduated first in her class in high school, then with highest honors from an ivy league college, and finally from an ivy league law school as an editor on the law review, also be “not the brainiest of people” or “maybe not the smartest ever,” as dismissed by the anonymous sources in Jeffrey Rosen’s indictment of Sotomayor in The New Republic?

It has been noted that Sotomayor’s history and that of Justice Alito are occasionally tangential. Both went to Princeton, but only Sotomayor graduated with (highest) honors. She also won the Pyne Prize, Princeton’s highest undergraduate honor. Both went to Yale Law, and both were editors of the Law Journal. Yet Alito’s intellectual prowess was never called into question before his confirmation hearing.

When it became clear that Sotomayor’s intellect couldn’t be the basis for rejection, attention turned to her “temperament.” The New York Times reported that “some lawyers describe her as ‘difficult’ and ‘nasty,’” that she is “sharp-tongued” and “testy,” a “terror on the bench” who “behaves in an out-of-control manner.” (Interestingly, the original title of the article, “Sotomayor’s Sharp Tongue Raises Issue of Temperament,” has been revised. The “sharp tongue” is now a “blunt style.”) In fairness, the Times also cited favorable opinions. Nevertheless, one can’t help but notice how often a forceful woman who is outspoken and unafraid to speak her mind or advocate for a cause she believes in is characterized as “domineering” or “difficult,” but a man with similar qualities is admired as “strong,” “forthright,” “commanding” and so forth.

Take Justice Scalia, whose aggressive questioning—some would say bullying—from the bench is admired in some quarters. Last February a student asked him why the proceedings of the Supreme Court may not be photographed or televised, given that the court publishes transcripts of its sessions, which are open to the public. “Read the next question,” Scalia replied. “That’s a nasty, impolite question.” Scalia’s rudeness hasn’t disqualified him from doling out justice in the highest court.

Cynthia Fuchs Epstein, a City University of New York sociologist who specializes in gender, writes about an English study which showed that women were always seen as either “nice mice” or dragons. “That’s exactly what I found in my study of women lawyers,” Epstein told me, “that women who were assertive were seen as unduly aggressive, and women who were seen as quiet were seen as incompetent to be effective in a courtroom. It’s a no-win situation. In a sense, that’s what’s happening to Sotomayor.” Epstein thinks that since “she’s not a flaming a liberal by any means, they can’t go after her on that score. I think what they’re trying to do is just diminish her, and they’ll use whatever they can. There are some very handy things around in the culture which have to do with what’s considered the proper demeanor of a woman. There are not too many norms for the proper demeanor of a woman on the court.”

G. Gordon Liddy, known to some of us as the Watergate Plumber, evidently believes in the head-on Neanderthal assault. On his radio show Liddy said, “Let’s hope that the key conferences aren’t when she’s menstruating or something, or just before she’s going to menstruate. That would really be bad. Lord knows what we would get then.” That someone would say that today—never mind privately, but on the radio—is appalling. The gratuitous contempt is mind-boggling, and the ignorance of female sexuality (Sotomayor is 55) astounding.

Other critics are focusing on substantive issues which they consider germane to her appointment.  Wendy Long, of the conservative Judicial Confirmation Network, speaks of “her terrible record of reversals by the Supreme Court.” Let’s look at the record: The Supreme Court reviewed five of the 232 opinions Sotomayor wrote in the 11 years she served on the Second Circuit; of those five, it reversed three, a 60 percent rate. To put that in context, the Supreme Court overturns three-quarters of the decisions it decides to review.  Yet by the time Samuel Alito was nominated by George Bush in 2005, the National Law Journal points out, every one of Alito’s decisions on the 3rd Circuit had been reversed, which was “barely noted and did not count against [Alito].”

Some attacks  are just laughable. The Hill reports that Sotomayor’s avowed enjoyment of typical Puerto Rican dishes “has prompted some Republicans to muse privately” that her ethnic culinary preferences “would somehow, in some small way influence her verdicts from the bench.” But others are being taken much more seriously.

Curt Levey, executive director of the conservative legal group Committee for Justice, has called Sotomayor a “wild-eyed judicial activist” because in 2005 at Duke University she said the “Court of Appeals is where policy is made.” Yet Justice Antonin Scalia, the “patron saint of non-activist judges,” as Rachel Maddow calls him, “baked” the same view into an opinion he wrote in 2002 (Republican Party of Minnesota v. White): “Not only do state-court judges possess the power to ‘make’ common law, but they have the immense power to shape the state constitutions as well.” And he added, in a footnote to the same ruling: “…. judges of inferior courts often ‘make law,’ since the precedent of the highest court does not cover every situation.”

Then there’s the line that you may have heard echoed across the political spectrum, usually lifted from its context and cited as prima facie evidence of her bias and “reverse racism,” notably by Rush Limbaugh and Newt Gingrich. “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.”

While Sotomayor has apparently acknowledged to the President that she might have chosen her words more judiciously, the point she was making at Berkeley in 2001 was about the importance of diversity on the Supreme Court.

[O]ur experiences as women and people of color affect our decisions. 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. As recognized by legal scholars, whatever the reason, not one woman or person of color in any one position but as a group we will have an effect on the development of the law and on judging.… The people who argued [seminal decisions in race and sex discrimination] cases before the Supreme Court which changed the legal landscape ultimately were largely people of color and women.

Conversely, Sotomayer argued, “Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society.”

From that reasoned set of observations, we have talk radio, columnists and T-shirts, for all we know, calling Sotomayer a “racist.”

All this is only the beginning.  Some groups are now demanding a filibuster, while Professor Adia Harvey notes that it may be time for a full-court women’s muster along the lines of the 1990 campaign in support of Anita Hill—a campaign that sees the point where racism and sexism converge, and calls it out.

It’s going to be an interesting summer.

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  • The Presidential Blog » Blog Archive » Talking about race June 8, 2009 at 4:51 pm

    […] Now I don’t intend to wade directly into a blog on the candidacy or the vetting of Sotomayor – but ten points to all those who foresaw this turn in this posting when I started citing Dred Scott. The two Supreme Court rulings I detailed stood out for me in the exhibit as particularly egregious, not because there weren’t equally brutal examples of racial injustice on display but because these were opinions of our Supreme Court, where one would hope to see the brightest and the best. Perhaps the authors of these opinions were the brightest and best legal scholars of their eras. If so, one would have to remind oneself yet again that no one can see but with the spectacles and blinders of his or her era. Well, in this case, “his” era. (For a blog that highlights the gendered landscape of the debate about Sotomayor’s candidacy, see the posting by Diane Vacca at https://womensvoicesforchange.org/sotomayor-buzz-week-two-media-sexism-times-ten.htm.) […]

  • [email protected] June 7, 2009 at 9:16 am

    I think women need to let their congresspersons know our feelings about this.

  • WMC News Brief: Twitter, Roeder, Meira Kumar - Majority Post June 3, 2009 at 11:46 am

    […] Sotomayor Buzz, Week Two: Media Sexism Times Ten 6/2/09 Women’s Voices for Change: Everybody’s saying she was chosen because she’s both a woman and Hispanic. Nobody’s mentioning that she went to Princeton, where she graduated Summa cum Laude, and that from there she went to Yale Law, where she made the Law Review. […]