Douglas W. Kmiec

Sotomayor as a Student: Her Experience Illuminates Her Views on Race

By DOUGLAS W. KMIEC


Friday, June 5, 2009

As a law student at Yale, Sonia Sotomayor collaborated with a young general counsel for the University on a law review submission to the University of Pennsylvania. The general counsel, a mentor to her, was Jose Cabranes, who today is Judge Sotomayor's respected colleague on the Court of Appeals. The article on which they worked together identifies the conflicting noble and ignoble aspects of America's role in foreign affairs.

Published under Cabranes's name, the article's first footnote singles out a small handful of students, notably Sotomayor, for assistance. Insofar as the article gives special focus to the treatment of Puerto Ricans' citizenship-- a subject matter substantially overlapping with Sotomayor's family experience and her Princeton undergraduate studies -- it may provide an unguarded perspective upon what Judge Sotomayor today means by the enhanced discernment of a Latina woman.

Sotomayor's Studies Suggest She May Well Have Learned to Value Judicial Checks on the Executive

Few Americans probably remember much about the Spanish-American War. This "splendid little war," as an American ambassador called it at the time in a letter to Teddy Roosevelt, reflected the late 19th century quest by McKinley and others for an American empire. As with the Iraqi occupation of late, we flattered ourselves by thinking we were simply motivated by the spirit that "favors the brave," in helping a subjugated people get free of their foreign occupiers. Yet soon, Spanish colonialism would give way to American imperialism among the island people of the once Spanish Empire in the Caribbean and the Pacific: Cuba, Puerto Rico, the Philippines, and Guam.

The pages of history that would have been turned by Sotomayor as a student reveal valuable lessons regarding the scope of executive power, and what results when Congress – whether or not Speaker Pelosi was fully briefed -- is swept too readily into its thrall. In removing one occupying force, then and now, we sometimes neglect to contemplate how the occupied will view those who remain. From this history, taking notes upon her student's yellow pad, Sotomayor might well have derived lessons about the importance of a judicial check even in matters military.

President McKinley, a Republican, persuaded Congress to allow his military intervention, but the Democrats made him promise to let Cuba go free. How fitting, then, is the promise of Sotomayor's nominator, President Obama, to lift the economic denials of that freedom. Also off limits for annexation was the Philippines by virtue of a Filipino insurrection in late 1898. Foreshadowing Guantanamo, American forces had to resort to the same concentration-camp method that the Spanish had used to combat the so-called guerrillas. Even the usage of the terminology "guerrillas" would be instructive to our Yalie destined for judicial distinction. Less than a decade later, during Sotomayor's life in private practice, Oliver North would rationalize ignoring Congressionally-imposed limits on the executive in part by redefining local rebels in Nicaragua as "freedom fighters."

Sotomayor, as a student, was consequently well-schooled in the history of executive disingenuousness, well before the newer epithet of "unlawful detainee" would be invented and cover phrases like "aggressive interrogation" hid the torture of human beings in obscure memoranda.

Sotomayor and Parallels Between Iraq and Puerto Rico

In another ironic parallel to Iraq, Sotomayor's student research would have also revealed how Puerto Rico at first welcomed occupation. The Puerto Rican military assisted their island neighbors toward independence, but did not ask the same for themselves. The Puerto Rican political leadership was a pragmatic lot, and they had, without war or insurrection, secured their own form of local self-government with Spain and contemplated equally satisfactory relations with the U.S. What was received, however, was less than satisfactory: Enjoying neither independence nor statehood, Puerto Ricans were collectively granted a form of U.S. citizenship by Congress in 1917 which has formed the basis for a perplexing relationship ever since. Described variously as a commonwealth or an associated free state, Puerto Rico is today governed by the territorial powers of Congress within which its representatives lack full voting rights. Puerto Ricans can vote for President while resident in the U.S., but not otherwise.

Sotomayor and Fidelity to Honest History and Common Humanity

What else does this student research possibly tell us about Sotomayor, the Supreme Court applicant? First, that from her earliest moments of law study, her love of history would have been great, but clear-eyed. The history that would have been of interest to Sotomayor is that based in fact and reality, not that of an airbrushed, celluloid revision, or even the manipulations of "office history" as the liberally-minded members of the Court deem Scalian originalism and its support of historically-dubious gun rights against opposing constitutional text.

Sotomayor's inquiry into her ancestors' Puerto Rico could not help but remind her that the magnificent – and, dare it be said, international or even universal -- vision of the founding generation for our Constitution was to grant the most fundamental rights to persons, not just citizens. Sadly, the inescapable truth that student Sotomayor would also painfully unearth in her research would reveal how her far less visionary predecessors on the Court to which she aspires not only placed citizenship above our common humanity, but selectively elevated favored citizens as well.

In assessing the less-than-full citizenship accorded her deceased father and mother and other émigrés from Puerto Rico, Sotomayor, as a student, necessarily confronted the opinion of Roger Taney in the Dred Scott Case. For Taney, rights and privileges under the Constitution were accorded to white citizens, and not to "a negro of African descent, whose ancestors were of pure African blood, and who were brought to this country and sold as slaves." The consequences of that exclusion, of course, included a civil war that would only be nominally remedied by a 14th amendment declaring "all persons born or naturalized in the United States" to be citizens. Sotomayor, as a student, would no doubt have relished this eloquent declaration, and the ultimate sacrifices that underlie it.

How Sotomayor's Student Years May Have Affected Her Perspective in the Controversial Case About Race and Firefighters' Promotions

It invites no specious allegation of judicial activism to suggest that a working, felt familiarity with this history enlarges the relevant context of the Ricci case – which involves the relative promotability of New Haven's black and white firefighters in light of highly-skewed test results. The far right opposition to Sotomayor has telegraphed that Sotomayor's appellate handling of Ricci, in which she found that an employment test that consistently imposed disadvantage on the basis of race was against the law as Congress drafted it, will be where the right will make its stand against her nomination.

The Ricci case awaits disposition before the high court now, and the betting is that the usual 5-4 divide may reverse Sotomayor, finding it beyond Congress' power to rectify such testing imbalances without the remedy, in turn, becoming its own discriminatory act. One can hear in the corridors of the political opposition already, anticipated delight in such a ruling, which would reject Sotomayor's result.

It is worth noting that Sotomayor affirmed the ruling of the trial judge in Ricci who, after the closest look at the factual record, had also found the test to be contrary to the civil rights protection Congress had long provided. Yet despite the case's posture, it may well be that given the particulars of the present case, Sotomayor's nomination simply cannot avoid triggering the tripwire dividing an acceptable remedy for racial bias from an unconstitutional preference. President Obama's election has supplied the nation a much-welcomed intellectual safe passage around this intractable constitutional hazard, but with the Court's own Chief Justice proclaiming that the "way to get beyond race is not to use race," the harmony of rising above the meanness and meaninglessness of skin color still gives people of good will the ability to reach different answers.

Before conceding that unhappy division of the public mind, however, one would hope we might all appreciate anew, as Sotomayor during her student years must have, the historical depth of the exclusion that Taney had cobbled onto the constitutional framework. However skeptical serious scholars of the Constitution have become of the overstated claims for Originalism, it is surely necessary to recall the judicial activism that betrayed the self-evident claim of created equality in the Declaration of Independence in order to truly evaluate whether the Equal Protection promised by the 14th Amendment should now chasten Congress' desire to remedy the disparate impact of municipal testing and decision-making.

The Real Issue with Ricci: The Lack of a Full Opinion

With that said, Ricci is nevertheless a weak point in Sotomayor's judicial resume. Not for the racially- and culturally-divisive reasons Newt Gingrich's or other ideological radio rants propagate – but because Judge Sotomayor's panel resolved the matter with summary disposition. This lack of full explanation distressed Sotomayor's colleague Judge Cabranes. As the law review author who once relied upon student Sotomayor's research years earlier, Cabranes likely regretted that the brief, per curiam opinion produced by Sotomayor and her panel on this occasion lacked all display of that erudition. It is a fair criticism, especially since what is only scholarly display in the pages of a law journal is the architecture of the law in a judicial opinion.

The explanation Judge Sotomayor was more than capable of giving, as her student work suggests, will no doubt be demanded now across the green-felted confirmation table. Yet, Sotomayor's student lessons may prove valuable well beyond the narrow issue of what does and does not amount to racial preference.

Sotomayor's Student Work – Revealing Why The "Latina" Remark is Not Racist or Even Infelicitous

What student Sotomayor discovered in Yale's library stacks supplied better explanation for what she witnessed on the New York streets adjoining the Bronx housing project she called home: Puerto Rican immigrants being part of a class of persons owing allegiance to the United States, but with less than full rights. The Supreme Court is presently considering whether Congress properly exercised its authority to extend the Voting Rights Act into the future. For those whose citizenship has always meant an unimpeded access to the ballot, the Act may well seem to be surplusage. For a "Latina" daughter and student, the significance of the Act would be far greater. Indeed, in good part, it was the Congress's desire to address the barriers to the voting rights of Puerto Rican "citizens" that gave rise to the Act.

Would not Sotomayor's knowledge and experience of that history – were she on the Court today – be relevant? Why might a well-known radio talk deejay in the Midwest choose to understand those experiences as "racist"? Doesn't that characterization look through the wrong end of history's lens, if it is bothering to look at all?

Of course, Judge Sotomayor will appropriately decline to opine on how the existing membership of the Court will dispose of these present cases, and it is not for me to speculate how she might vote if on the Court. Nonetheless, in the evaluation of civil liberties cases, is it not far more prudent to enlist the judgment of someone wise enough to know that what is written in the law has not always been fulfilled in application? Puerto Ricans were given U.S. citizenship, yes, but the citizenship granted was not complete; it was never intended to confer on Puerto Ricans "any rights that the American people [did] not want them to have," said Senator Foraker whose name adorns the qualified citizenship grant early in the 20th century.

Law review article author Jose Cabranes, now Judge Cabranes, concluded in the essay law student Sonia Sotomayor helped him prepare that "the creation of a second-class citizenship for a community of persons that was given no expectation of equality under the American system had the effect of perpetuating the colonial status of Puerto Rico." Whether accomplished overtly, or more often with disingenuous subtlety, such denials of human right generally have insidious subordinating effect. Elevating to greater responsibility the now judicially-tested mind that researched the method and implications of these deprivations of civil right thirty years ago is surely part of the explanatory calculus of President Obama's nomination.

In sum, scratching the surface of student Sotomayor's footnotes indicates why the Senate may find Judge Sotomayor to be uniquely qualified to apply these hard, but candidly principled, lessons of experience to the habeas rights of detainees, the statehood possibilities of the District of Columbia, and more than likely, the constitutional status of same-sex couples who have just been told in California that they are entitled to full equality, save for where a majority has decided that they do not want them to have equality. Now where have we heard that before?

Each of these knotty, sensitive disputes calls for judicial resolution unbiased by the personal characteristics of the parties, but with all due respect to the agitated man on the radio, it is all right to be fully biased – yes, even empathetic – toward a commitment to giving meaning to equality in more than name alone.


Douglas W. Kmiec, Chair and professor of constitutional law at Pepperdine University met Barack Obama in spring 2008, campaigned widely at the candidate's request thereafter and authored "Can a Catholic Support Him? Asking the Big Question about Barack Obama" (Overlook Press/Penquin). Each year, Professor Kmiec teaches in the program for law clerks who have accepted positions with federal judges (The Judge Matthew Byrne Judicial Clerkship Institute at Pepperdine). Participating judges and law faculty, including this year Judge Sotomayor, volunteer their time for this longstanding and valuable program preparing law clerks in the essentials of federal judicial practice. Somewhat prophetically, this year's Institute included an extra-curricular symposium on the Judicial Confirmation process chaired by Professor Kmiec with Dean Kenneth Starr, Jan Crawford Greenburg of ABC News, Dr. Christopher Eisengruber, the Provost of Princeton, and Yale's Akhil Reed Amar. Judge Sotomayor was not on this panel. A video link to the discussion from March 2009 can be found at http://law.pepperdine.edu/jci/jciconfirmation.html.

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