Ideology and Ethnicity: The Supreme Court Debate

As the United States Senate undertakes its examination of President Obama's first Supreme Court nominee, issues of ethnicity and ideology on the Court are coming to the fore.

In her opening remarks yesterday to the Senate Judiciary committee considering her nomination to the Supreme Court, Judge Sonia Sotomayor said, "In the past month, many senators have asked me about my judicial philosophy. It is simple: fidelity to the law. The task of a judge is not to make law, it is to apply the law. And it is clear, I believe, that my record ... reflects my rigorous commitment to interpreting the Constitution according to its terms, interpreting statutes according to their terms and Congress's intent and hewing faithfully to precedents established by the Supreme Court and by my Circuit Court. In each case I have heard, I have applied the law to the facts at hand."

Sotomayor said the "process of judging is enhanced when the arguments and concerns of the parties to the litigation are understood and acknowledged."

That, she noted, "is why I generally structure my opinions by setting out what the law requires and then explaining why a contrary position, sympathetic or not, is accepted or rejected. That is how I seek to strengthen both the rule of law and faith in the impartiality of our judicial system.”
Sotomayor argued that her "personal and professional experiences help [her] listen and understand, with the law always commanding the result in every case."

However, those who oppose her nomination have said Sotomayor has often allowed her rulings to be influenced by such factors as ethnicity and race. If confirmed, Sotomayor, a federal appellate judge, would be the first Hispanic and the third woman justice to sit on the nation's highest court.

Just recently the American Bar Association released a “well qualified rating” when reviewing Sotomayor’s record. In his July 9 talk to The Commonwealth Club, the ABA's head, H. Thomas Wells, weighed in on her nomination. He was asked to comment on whether a person’s ethnicity should matter in a candidacy for a judgeship. “Obviously that’s going to be an issue as is the whole question of empathy – the so-called empathy debate. The ABA does not rate candidates on empathy or ethnicity. We rate candidates only on professional competence, integrity and judicial temperament.”

In that same talk, when questioned about whether a candidate’s ideology should be a factor in his/her confirmation, Wells responded, “That’s been a debate, and it’s one of the tensions of the branches of government. It’s not that long ago that the senate judiciary committee didn’t hold hearings on judicial nominees. They simply went in and voted, and usually with no controversy. So it’s a relatively modern phenomenon for the hearings to take on unfortunately the level of spectacle that sometimes we have seen with our recent confirmation issues.”

When asked to evaluate the diversity of the upper rankings of the legal profession – especially lawyers who are partners and judges, Wells replied, “Number one, there has been progress, but not nearly enough progress. We have a long way to go.” He continued, “The legal profession, unfortunately, does not look like the society we are called upon on to serve. We don’t do as well as other professions in terms of promoting diversity. Where we have done the best at least in terms of numbers is with women -- at least half of the lawyers graduating from law schools now are female. … But those women are facing other challenges in terms of rising in the ranks. .. and we are not doing a good enough job in racial and ethnic diversity. It’s more difficult in dealing with lawyers with disabiltiies, sexual orientation and gender identity issues, because of the reluctance of these individuals to self identify -- particularly if the disability happens to be a mental disability. We’ve got a long way to go.”

However, Wells noted that the ABA held a national summit just last month on the next steps for diversity. The conclusions of this meeting are slated to be published in a national report some time early August.

To view the complete Wells program, see the embedded video below. The Wells event was part of The Commonwealth Club’s Charles Geschke Family Series on the U.S. Constitution in the 21st Century.



--Commonwealth Club Media and Public Relations Department