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The Sotomayor Confirmation, So Far

JURIST Contributing Editor Michael A. Olivas of the University of Houston Law Center says that the nomination and expected confirmation of Judge Sonia Sotomayor, a Latina, shows how far Latino lawyers and the Latino community in the United States have come, even if anti-immigrant discourse and discrimination show how far they have yet to go...

In a recent editorial I was asked to write on Judge Sonia Sotomayor's confirmation hearings, I noted how thrilled I was at her candidacy, but I also voiced apprehension at the sure-to-be-bruising nomination process. I wrote:
The search for a justice with "empathy" is no less coded than is the traditional search for "judicial temperament" and a person who will "judge, not legislate." All nominees have the requisite merit badges, as does Judge Sotomayor. And to make their way to such a short list, all have the combination of personal and professional lives that warrant their consideration. What Sonia Sotomayor will have, as few other candidates, is the additional weight of historical expectations and the hopes of Latinos. In today's culture, Latinos are marginalized and demonized and feared. ...The racial rhetoric against Latinos has been tolerated for too long on cable television news and in political and polite discourse. I will be carefully watching the confirmation hearings for the coded political messages, knowing that Justice-elect Sotomayor's many merits will ultimately win her confirmation.
(The editorial and the resultant hate mail can be read here.)

Well, I have gotten what I expected, and more. And less. As the Senate questioning winds down before her certain confirmation, I can report that no one has landed a full-square punch, and all the roundhouses thrown at her have glanced off. She retreated somewhat from her "wise Latina woman" remarks, which I wish she had not, but at some point the boxing metaphors have to give way to Kabuki theater, with heavily-stylized movements and music. She explained her short affirmation of the Ricci case, and it was left to less-than-a week-old Senator Al Franken to raise the issue of Republican appointee judicial activism, especially in Voting Rights Acts and affirmative action cases. I was surprised at the patronizing tone of Sen. Lindsey Graham, who called her out on the reviews she has received in judicial polls, and was reassured that those of us who opposed Jeff Sessions in his confirmation to the federal bench a decade ago had done the right thing. The specter or these old white men calling her out on her racial views was starkly evident for voters to remember.

But I honestly would not have expected the ghost of Miguel Estrada to arise (a trope for Republican efforts to advance Latino representation on the bench, as if), as it did several times, or for Judge Jose Cabranes to be reconstituted to appear as her foil. Judge Cabranes is a good and wise man, and as young Sotomayor's mentor and sponsor, he now inexplicably finds himself in the odd position of having his views on the Ricci case and his Puerto Rican-ness used as evidence that she was out of touch with the mainstream and even, God forbid, this other Puerto Rican judge. No one has noticed (yet) that Yale Law School professor Kate Stith, Cabranes' wife, will be testifying on Judge Sotomayor's behalf, and fewer yet have noted the exquisite irony that a Puerto Rican's demurrer on this particular case, a case which at the Supreme Court level is an example of conservative judicial activism, is being touted as the norm. Surely this is a first, even if the right hand took the cultural authority away by employing the old Ricky Ricardo punchline that Judge Sotomayor would have "some 'splainin' to do." It makes one wonder, as I have more than once, what would have happened if President Clinton had done the right thing many years ago and named Cabranes to the Supreme Court when he had the chance.

I have never had the opportunity to watch confirmation hearings on television, although I have taken great pains to follow the last few in the print media and through the evening news. I have even assisted in preparing testimony for various testifiers over the years, for different bar associations and through my membership on the board of the Mexican American Legal Defense and Education Fund (MALDEF). This time was different, however, as Judge Sotomayor was the first Latina nominated, so like countless others in the larger Latino community or even in the smaller Latino legal world, I have been riveted. It is hard for many Anglos to appreciate the extent to which this is a matter of pride for us. I attended the Berkeley conference several years ago in which Judge Sotomayor made her "wise Latina woman" remarks, and I was struck then, and again upon reading the actual article that contained her remarks, at how thoughtful and nuanced she was. Taking any one sentence out of context is easy pickings, and the Republicans and the right wing media have had to resort to this tactic, as her judicial record (so extensive the Senate minority wanted more time to prepare and analyze it) gave them no real traction. Indeed, my own reading of her record in the area of immigration and other areas that I care about reveal her to be a moderate. It is the Puerto Rican-ness of this woman that so scares the conservatives: her outing the law firm that asked discriminatory questions, her youthful activities as a student, her serving on the PRLDEF Board. (The right wing, which has lionized Judge Cabranes, apparently does not know that he helped found PRLDEF.) It is hard to imagine a principled Latina of her stature and of her time NOT being involved in Latino pro bono and professional activities. It was his failure to do these kinds of services that so aligned Latinos against Miguel Estrada.

As a MALDEF Board member, I have been widely involved in the various depredations that Judge Sotomayor has been accused of--leaning against power, defending unpopular causes (at least the PRLDEF of her time did not have extensive involvement in undocumented immigration issues, and she has managed to dodge this tar baby), and doing the unglamorous fundraising and time-consuming advocacy work that PRLDEF (now LatinoJustice-PRLDEF) and MALDEF must do. If we did not do this work, someone would have to invent us. To be honest, it never occurred to me that doing this kind of work, which I am honored and proud to be in a position to undertake, would be seen as disqualifying. On my watch, such as it is a watch, we have prevailed in several important Supreme Court cases and generally done the Lord's work for a group that by definition (in the undocumented context) is powerless to effect change.

In 2006, I buried one of the lawyers who took up the first case ever in the U.S. Supreme Court argued by Mexican American lawyers, Hernandez v. Texas. Judge James DeAnda, the second Mexican American federal judge, was a close friend and mentor. This 1954 case, long hidden by its being the case decided immediately before Brown v. Board of Education, was a significant event in Latino legal history. In 2006, MALDEF lawyer Nina Perales (the daughter of PRLDEF founder and president Cesar Perales) successfully argued a Voting Rights Act case in the Supreme Court, where the Texas defense was argued by the State's Solicitor Teodoro Cruz. It was the first time that both sides of a Supreme Court case were argued by Latino lawyers. This October, the first Latina will sit on the bench. This has all happened in my lifetime, and it shows how far Latinos have come, even if anti-immigrant discourse and "beaner-hunting" show how far we have to go.

But, in many respects, my life has been her life, at least in the spores of our loyalties and organizational commitments. Of course, she chose a different path, and has done and will do an extraordinary amount of service as a judge and justice. indeed, no one can present her record of accomplishment, certainly no one since Thurgood Marshall. But this is the first time one of my own has advanced to this level, and it is hard to explain to others not similarly-situated how life-affirming this has been for me and for other Latino lawyers (and even more so for Latina lawyers). If Alberto Gonzales was the agony of defeat, Sonia Sotomayor is my triumph as well.

Michael A. Olivas is the William B. Bates Distinguished Chair in Law, University of Houston, and the author of "Colored Men" and "Hombres Aqui": Hernandez v. Texas and the Emergence of Mexican American Lawyering (Arte Publico Press, 2006).

July 16, 2009

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