Bench Memos

Sotomayor Quote of the Day: Bias

As described here, each day during the confirmation hearing I will feature an activist case and a troubling quote from Judge Sotomayor.  Today’s quote comes from her 2001 speech at the University of California, Berkeley, School of Law, where Judge Sotomayor made the following troubling statement regarding judicial impartiality: 

Judge Cedarbaum nevertheless believes that 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. Although I agree with and attempt to work toward Judge Cedarbaum’s aspiration, I wonder whether achieving that goal is possible in all or even in most cases. And I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society. (emphasis added)

Compare her quote with the federal judicial oath of office:

I do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me under the Constitution and laws of the United States. So help me God.

Juxtaposing Judge Sotomayor’s statement with the judicial oath raises serious questions as to whether she believes complying with the impartiality requirement of the oath is achievable, or even desirable.  She dismisses its promise of impartiality as merely an aspiration, labeling it as contrary to reality and offering, in its place, her own theory of judicial decision-making.  The oath, however, is not merely an aspiration or a routine symbolic gesture—it is a requirement for judicial office.  If Judge Sotomayor is confirmed as a justice of the Supreme Court, it is of utmost significance that she be able to honestly take and fulfill this oath.  Her remarks on this issue should therefore be of primary concern to each senator that questions her during confirmation hearings for a lifetime (or, if you prefer, good behavior) seat on the highest court in the land.

Robert Alt is the president and chief executive officer of The Buckeye Institute.