By Lisa Keen
Sonia Sotomayor
The U.S. Senate confirmed on Aug. 6 the appointment of federal Judge Sonia Sotomayor to the U.S. Supreme Court, with many Democrats emphasizing her credentials as a "moderate" and "mainstream" judge and many Republicans insisting she is "liberal" and "activist."
Although she has had very few gay-related cases before her during her years on the federal bench, national gay political organizations supported Judge Sotomayor's nomination to the court.
At least two senators – Republicans Sam Brownback and Tom Coburn – mentioned gays in opposing Sotomayor's nomination. They quoted President Obama's remark that he wanted to nominate someone with "the empathy to understand what it's like to be poor, or African-American, or gay or disabled or old." Brownback, Coburn, and many other Republicans argued that the president's statement constituted an "empathy standard," and claimed Judge Sotomayor must be inclined to assess her empathy with people before the court in rendering legal decisions.
When asked about this during the confirmation hearing, Judge Sotomayor said she does "try very, very hard to ensure that, in my life, I introduce as much experience with other people's lives as I can." But when it comes to judging, she said, "We apply law to facts. We don't apply feelings to facts."
As expected, Republican opponents of Sotomayor made frequent mention during the confirmation debate of an often-quoted speech Sotomayor made in which she said a "wise Latina woman" judge could come to a better conclusion "than a white male" judge. This, said some, indicates Sotomayor is a "racist."
Sen. Charles Schumer (D-N.Y.) said Thursday that such claims of "bias" and "activism" are now code words for "not hard right."
Sen. Patrick Leahy (D-Vt.), chairman of the Senate Judiciary Committee, quoted Sotomayor's remarks at the Berkeley speech in which she said 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."
The final vote for confirmation was 68 to 31, largely along partisan lines. (Sen. Ted Kennedy was not in the Senate due to illness but expressed support for the nomination.)
She replaces Justice David Souter, who announced his retirement earlier this year. While gay organizations strongly opposed Souter's nomination to the court, his record on gay-related cases turned out to be strongly supportive of equal treatment for LGBT people under the law.
The Human Rights Campaign endorsed Sotomayor, saying it was "encouraged" by her acceptance that the U.S. Constitution provides, implicitly, for a right to privacy. That right to privacy, said HRC, "lays the foundation for recognizing fundamental rights for LGBT people."
Arthur Leonard, a gay legal scholar, wrote in a recent issue of his Lesbian/Gay Law Notes, that he has "looked through those of her published opinions (or cases where she was on a panel) that appeared to have some LGBT connection, and saw nothing that would alarm us."
Leonard noted that, as a member of the Second Circuit U.S. Court of Appeals in 2006, Sotomayor was part of a three-judge panel "that was willing to entertain a hostile environment sexual harassment claim by a gay man under Title VII of the Civil Rights Act using the sexual stereotyping theory.
The case was Miller v. City of New York and, wrote Leonard, "involved a 'small, non-muscular man with a disability' who alleged that his supervisor made his life miserable by claiming he was not a 'real man' or 'manly man' and subjecting him to verbal harassment and discriminatory assignments." The trial court had ruled against the man, saying sexual orientation discrimination was not covered under the federal law. The three-judge panel vacated that decision, citing the 1989 Supreme Court decision in Price Waterhouse v. Hopkins.
He also noted that Sotomayor had been part of a three-judge panel that vacated a lower court ruling that had enabled a New York borough president to pressure a billboard company to take down an anti-gay message which a Staten Island church had sought to post.
Leonard, in a memo to the New York City Bar Association, concluded that Sotomayor demonstrated "evenhandedness and respect for constitutional rights."
Kevin Cathcart, executive director of Lambda Legal Defense and Education Fund, issued a statement even before Sotomayor's confirmation was complete, saying "Lambda Legal applauds the confirmation of Justice Sonia Sotomayor to the Supreme Court of the United States, and congratulates her on an historic appointment. Justice Sotomayor has excellent credentials and a proven record of understanding the law and Constitution, all of which have been recognized and highlighted throughout her confirmation process. When she takes her seat in September, Justice Sotomayor will become the third woman, and first Latina, appointed to the Court."
