That’s the title of my new Confirmation Tales post, which begins:
Sonia Sotomayor’s most infamous case as a Second Circuit judge intertwined with her nomination to the Supreme Court. Ricci v. DeStefano exposed the ugly underside of Barack Obama’s “empathy” standard for judging: A judge’s empathy for some litigants in interpreting and applying the law entails antipathy against other litigants.
The case likewise revealed the danger of Sotomayor’s belief that a “wise Latina” judge should draw on the “richness of her experiences” to “reach a better conclusion than a white male who hasn’t lived that life.” Sotomayor, a self-regarding “wise Latina,” drew on the richness of her own experiences to trample the rights of whites not to be victimized by racial discrimination.
As it happens, Second Circuit judge José Cabranes, Sotomayor’s onetime mentor and fellow Puerto Rican, would expose Sotomayor’s shenanigans in an extraordinary dissent from denial of rehearing en banc.