Sotomayor seen through filter of ethnicity
WASHINGTON -- President Obama's nomination of Sonia Sotomayor represents another "first" in Supreme Court history, providing a dimension likely to shape the politics of the confirmation process and the reputation Sotomayor could earn on the bench.
When Ronald Reagan broke the pattern of men-only justices in 1981 by naming Sandra Day O'Connor, all eyes were on her as the representation of women.
"It's fine to be the first, but you don't want to be the last," O'Connor said at the time, suggesting that being a "first" in this elite world, where all but four of the 110 justices have been white men, can be an extra burden.
Before O'Connor, Thurgood Marshall in 1967 shattered the color barrier as the first African-American justice. In nominating Appeals Court Judge Sotomayor on Tuesday, Obama highlighted her story as a Puerto Rican from the Bronx and the first Hispanic nominee.
A new and distinct background plays into nomination politics as well as a justice's private and public persona. It can affect perspectives at the justices-only discussions and, ultimately, their rulings. Sotomayor has said being a Latina judge makes a difference — to an extent.
"Our gender and national origins may and will make a difference in our judging," Sotomayor said, speaking broadly in 2001 at the University of California-Berkeley. "Personal experiences affect the facts that judges choose to see. … I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage."
Her appeals court decisions are generally narrow, and do not reveal any pattern reflecting Sotomayor's sex or ethnicity. Backers including Harvard University's Martha Minow say she hews to the facts and law of a case.
Detractors such as Wendy Long, a lawyer with the conservative Judicial Confirmation Network and a former law clerk to Justice Clarence Thomas, has criticized Sotomayor as a judge who believes "one's sex, race and ethnicity ought to affect the decisions one renders."
Georgetown University law professor Susan Low Bloch, who was a law clerk to Justice Marshall, says Sotomayor's background would more likely affect her colleagues' understanding of Hispanic life rather than cause distinctively different rulings.
"Her appointment reminds me of Marshall's in what she would bring to the conference room: stories that would be unfamiliar to the others," says Bloch, who also referred to Marshall's relatively poor childhood.
When Marshall dissented from a 1973 decision upholding a $50 bankruptcy fee, he wrote, "No one who has had close contact with poor people can fail to understand how close to the margin of survival many of them are."
Sotomayor grew up in Bronx housing projects, won a scholarship to Princeton, then went to Yale Law School.
"You cannot go to Yale or to Princeton and not be reminded on a regular basis that you are different and that you are not part of the elite," says Carmen Shepard, who is Puerto Rican and was with Sotomayor at Yale.
Shepard says Sotomayor is likely used to being a "first": " This is not a new burden for her, and as with Justices O'Connor and (Ruth Bader) Ginsburg, she is cognizant that actions can speak … for a larger group."