John R. Lott, Jr.

“Is there anything the Senate or Congress can do if a nominee says one thing seated at that table and does something exactly the opposite once they [are on the Supreme Court]?� Senator Arlen Specter <a href=“http://www.foxnews.com/politics/2009/07/15/day-sotomayor-returns-questions/�>asked</a> Judge Sotomayor yesterday.  When Sotomayor promises her “fidelity� to the rule of law the Senators have to trust that she is telling them the truth.  Unfortunately, there is significant evidence that Sotomayor has been less than honest in private meetings with the Senators.

This last Saturday the <a href=“http://online.wsj.com/article/SB124726143252125053.html�>Wall Street Journal</a> reported a series of interviews that it had done with Senators about their private meetings with Sotomayor.  Yet, all of the reported statements that Senators claimed Sotomayor made to them in private were incorrect.

For instance, shortly after Sotomayor’s nomination, her now infamous Berkeley law school speech started receiving public attention.  Understandably, many Senators asked her about here statement: ““a wise Latina woman with the richness of his experiences would more often than not reach a better conclusion than a white man.�

Sotomayor apparently told Republican Senators in private meetings that those words were “inadvertent� and “inartful,� implying that her statement was an accident.   President Obama himself tried to explain this statement as just a one-time event that she would have done differently if she had the chance to do it again.

But after these meetings it was revealed that Sotomayor had used the equivalent phrases during at least seven different speeches over a period of a decade (<a href=“http://www.foxnews.com/politics/2009/06/04/white-house-delivers-sotomayors-writings-records-senate/�>here</a> and <a href=“http://blogs.cqpolitics.com/legal_beat/2009/06/sotomayor-repeatedly-reference.html�>here</a>).  It is one thing for Obama to explain this as an accidental one-time occurrence; it is something quite different for Sotomayor, especially now that we know that she repeatedly made such statements.

But have her statements to Democrats been any more accurate than those to Republicans?

-- Sen. Kirsten Gillibrand (D., N.Y.) claims: “[Sotomayor] just said, '[Latina identity] is something that informs my experience, but I'm always going to look to judicial precedent, I'm always going to follow the rule of law.'“  Yet, Sotomayor’s Berkeley Law School speech where she makes the “wise Latina woman� claim contradicts this claim.  Consider the <a href http://www.nytimes.com/2009/05/15/us/politics/15judge.text.html?pagewanted=all�>rest of the paragraph</a> for the very same sentence:

<blockquote><span style=“font-style:italic;�>Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O'Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.</span></blockquote>

The Rule of Law states that it is the law, not the judge's personal history, that should determine the verdict.  Yet, Sotomayor disagrees with Justice O’Connor's statement and believes that women and men or Latinos and whites will come to different conclusions, and that Latino women generally come to better conclusions than white men.

-- Sen. Charles Schumer (D., NY.) notes that, in the same speech, she acknowledged that white men can make the right decisions, such as in Brown v. Board of Education, the 1954 Supreme Court decision outlawing segregation in public schools.  Indeed, Schumer claims that Sotomayor is the one who pointed this out to him in private conversations

But that does not change anything for she never alleged that white men could never reach the right decision.  Her claim in the Berkeley speech was that Latino women “would more often than not reach a better conclusion.�  In the various versions of her statement she was saying simply that most women or Latinos or Latino women would make better decisions than men or white men or whites.  The same paragraph  from Sotomayor's Berkeley speech where she says that white men can make the right decision <a href=“http://www.nytimes.com/2009/05/15/us/politics/15judge.text.html?pagewanted=all�>also warns</a>: “Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case.�

-- Schumer makes a second argument in favor of Sotomayor’s nomination, that her judicial record “shows no evidence of unfairness or tilting the scales in favor of minority groups.�  This claim of “no evidence� is easy to disprove.  Sotomayor would not only tilt the scales in favor of minority groups, she would tilt them much farther than any of the liberal justices currently on the Supreme Court.  Take the recently decided Ricci v. DeStefano case where the Supreme Court reversed Sotomayor’s Circuit Court decision.  As Stuart Taylor at the National Journal <a href=“http://ninthjustice.nationaljournal.com/2009/06/justices-reject-sotomayor-posi.php�>put it</a>:

<blockquote><span style=“font-style:italic;�>[the Supreme Court] was unanimous in rejecting the Sotomayor panel's specific holding. Her holding was that New Haven's decision to spurn the test results must be upheld based solely on the fact that highly disproportionate numbers of blacks had done badly on the exam and might file a “disparate-impact� lawsuit -- regardless of whether the exam was valid or the lawsuit could succeed. . . .

Justice Ruth Bader Ginsburg's 39-page dissent for the four more liberal justices unmistakably rejected the Sotomayor-endorsed position that disparate racial results alone justified New Haven's decision to dump the promotional exam without inquiring into whether it was fair and job-related.</span></blockquote>

Democrats seem desperate to defend Sotomayor: some supporters have even been <a href=“http://www.foxnews.com/politics/2009/07/11/sotomayor-supporters-aim-new-haven-firefighter/?test=latestnews�>urging reporters</a> to investigate New Haven firefighter Frank Ricci, the lead firefighter in the lawsuit.  Ricci, a man with learning and reading disabilities, went to great costs and lengths to study for the test – spending his own money to pay someone to read books on to tapes so that he could study them.

There is also Sotomayor's self serving statements regarding her membership in an all woman's club.  Whatever one thinks of all-women or all-men clubs, the club <a href=“http://www.foxnews.com/opinion/2009/06/29/questions-sotomayor-race/�>certainly would have been viewed as discriminatory</a> if she used her standards in the New Haven case.

If Gillibrand, Schumer, and various Republican Senators are quoting Sotomayor accurately, she should have much bigger trouble on her hands than her extreme racial and gender statements -- she may have been dishonest with the Senators.  To mislead Senators when there is a written record disproving her claims is a dangerous game.  For a lifetime appointment, they can only take her at her word when she promises what she will do in the future.  If she has lied to them in person, what can they trust?

The Senators have one more chance of raising these issues this morning. Possibly accusing a nominee of being disingenuous is just to explosive a claim.  Possibly Republicans are just too mild mannered.  But they are issues that should be raised.

*<a href=“http://johnrlott.blogspot.com�>John Lott</a> is the author of <a href=“http://www.amazon.com/dp/B001NXDRKS/ref=nosim/?tag=johnrlotttrip-20�>Freedomnomics</a>.  John Lott's past pieces for Fox News can be found <a href=“http://www.foxnews.com/story/0,2933,487425,00.html�>here</a> and <a href=“http://foxforum.blogs.foxnews.com/author/johnrlottjr/�>here</a>.