Sen. Mitch McConnell took to the floor with other Republican senators to begin laying out the case against Sotomayor’s confirmation to the Supreme Court. He took issue first with the notion of “empathy,” which he suggested was nothing more than garden-variety bias, an endorsement of identity politics (citing her “wise Latina” remarks as an example), and an abandonment of impartiality. Next up was her long association with and leadership role in PRLDEF:
One of the group’s most important projects was filing lawsuits against the City of New York based on its use of civil service exams. Judge Sotomayor, in fact, has been credited with helping develop the group’s policy of challenging these exams.
In one of these cases, the group sued the New York City Police Department on the grounds that its test for promotion discriminated against certain groups. The suit alleged that too many Caucasian officers were doing well on the exam and not enough Hispanic and African-American officers were performing as well. The city settled the lawsuit by promoting some African-Americans and Hispanics who hadn’t passed the test while passing over some white officers who had.
Well, some of these white police officers turned around and sued the City. They alleged that even though they performed well on the exam, the City discriminated against them based on race under the settlement agreement and refused to promote them because of quotas. Their case reached the Supreme Court, with the High Court splitting 4-4, which allowed the settlement to stand.
From there, he drew a straight line to the analogous New Haven firefighter case, which he noted, was taken up by the Supreme Court as posing a significant Constitutional issue:
Is this what the President means by ‘empathy’— where he says he wants judges to empathize with certain groups, but implicitly, not with others? If so, what if you’re not in one of those groups? What if you’re Frank Ricci?
This is not a partisan issue. It’s not just conservatives or Republicans who have criticized Judge Sotomayor’s handling of the Ricci case. Self-described Democrats and political independents have done so as well. President Clinton’s appointee to the Second Circuit and Judge Sotomayor’s colleague, Jose Cabranes, has criticized the handling of the case. He wrote a stinging dissent, terming the handling of the case ‘perfunctory’ and saying that the way her panel handled the case did a disservice to the weighty issues involved. Washington Post columnist Richard Cohen was similarly offended by the way the matter was handled.
Legal journalist Stuart Taylor with the National Journal has been highly critical of how the case was handled, calling it peculiar. Even the Obama Justice Department has weighed-in. It filed a brief in the Supreme Court arguing that Judge Sotomayor’s panel was wrong to simply dismiss the case.
It is an admirable quality to be a zealous advocate for your clients and the causes in which you believe. But judges are supposed to be passionate advocates for the even-handed reading and fair application of the law, not their own policies and preferences.
In reviewing the Ricci case, I am concerned that Judge Sotomayor may have lost sight of that. As we consider this nomination, I will continue to examine her record to see if personal or political views have influenced her judgment.”
That, in a nutshell, is his case against Sotomayor: this is a biased judge who is not willing or able to put her racial or gender preferences aside. Her agenda, revealed in speeches, advocacy work, and in Ricci, appears grounded in identity politics and bent on furthering racial preferences.
We will see if the rest of the Senate agrees.