Sonia's Story Print
By George J. Marlin   
Tuesday, 16 June 2009



When the U.S. Supreme Court nominations of John Roberts and Samuel Alito were confirmed by the U.S. Senate in 2005, various groups and individuals were apoplectic that five Catholics sat on the nation’s highest court. They complained that a judicial Catholic cabal might impose its religious views, overturn Roe v. Wade, and force millions of women back to America’s dark alleyways to terminate unwanted pre-borns.

This year the liberal establishment does not appear to be upset over the nomination of another Catholic, Judge Sonia Sotomayor. That’s because they view Sotomayor as merely a cultural Catholic, which to me means a Cafeteria Catholic – the familiar person who keeps the doctrines she likes and rejects those she finds inconvenient. Another reason her Catholicism doesn’t matter to the usual opponents: in a recent interview with Senator Dianne Feinstein, she used the pro-Roe v. Wade code phrase – “I respect precedents.”

Readers might recall during the Roberts confirmation hearings, Senator Charles Schumer asking if the nominee thought Roe v. Wade was a “super” precedent because it has been on the books for thirty plus years. Roberts wisely and without hesitation dismissed the inquiry saying he had no idea what the Schumer-created term meant. Think about it. If one accepts Schumer’s position, the 1896 Supreme Court decision Plessy v. Ferguson, which upheld a Louisiana “Jim Crow” law and established the “separate but equal” rule, should have been treated as a “super” precedent and upheld in Brown v. Board of Education (1954) and Bolling v. Sharpe (1954). Instead the court rightly overruled the fifty-six-year-old “separate but equal” doctrine, as it applied to schools.

Sotomayor’s comments on identity – Latina’s just have more wisdom – would be fatal for most potential justices, but have also been overlooked by President Obama and Senate Democrats. Here’s a sampling:

  • “I would hope that a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn’t lived that life.”
  • “I simply do not know exactly what the difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.”
  • “I further accept that our 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.”
  • “I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society.”

Human persons, by their very nature, possess the power to reason as well as various non-rational impulses including passion, sentiment, prejudice, and intuition. Hence, it should not be a surprise that Sotomayor is passionate about her experiences as a Puerto Rican growing up in a poor Bronx neighborhood.

The New York City of Sotomayor’s youth – as I can personally attest – was not a pleasant place to live. Great Society social engineering policies and programs were proving to be a prescription for bankruptcy and disorder. The ever growing problems of crime, drugs, finance, taxation, welfare, and education destroyed neighborhoods, created a permanent underclass, and brought the entire city to its knees.

Sotomayor’s Bronx background and other life experiences, however, should not enter her decision-making any more than a white male’s should. She will swear an oath of office, which requires a judge’s personal feelings to be subordinate to judicial duties. Before Sotomayor can sit with her eight colleagues she must swear to “administer justice without respect to persons, and do equal right to the poor and the rich and impartially discharge all the duties incumbent upon me as a U.S. Supreme Court Justice under the Constitution and laws of the United States.” In other words, Sotomayor must administer justice as defined by the U.S. Constitution and its laws and not by her passions.

U.S. Circuit Court Judge James L. Buckley, a Catholic and brother of the late William F. Buckley, Jr., explained the duties of a Federal Judge this way: “The authority that was vested in me upon taking [the oath of office] is derived exclusively from the Constitution. Thus the justice I am sworn to administer is not justice as I might see it….And if I consciously deviate from that body of law to do justice as I see it, I violate my oath of office and undermine the safeguards embodied in the Separation of Powers. Should I ever be asked to hear a case in which the application of the law might result in my material complicity in an immoral act, I would have to examine my conscience and, if it so dictated, recuse myself. What I may not do is bend the law to suit my conscience.”

That’s the proper definition of judicial temperament. And if Judge Sotomayor embraces it, her personal story will have little to do with her professional life.

George J. Marlin is the author of The American Catholic Voter: Two Hundred Years of Political Impact.

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