Sonia Sotomayor: A Personal Story That's Important

It was a historic day Tuesday when President Obama, the first African-American president, nominated Judge Sonia Sotomayor to become the first Hispanic-American Supreme Court justice.

Despite her outstanding education and wealth of experience as a prosecutor, private lawyer, federal district judge and federal appeals court judge, the battle over her nomination will be fought on other grounds. It seems to be centering on whether, because of her compelling personal story, she will have a sense of empathy and allow her personal experiences growing up a daughter of poor Puerto Rican immigrants to influence her decision-making.

For Obama, all other factors being equal, that sense of empathy with ordinary people was important in his selection of Sotomayor. But conservative critics contend, some in strong language, that a judge cannot let her personal experiences affect how she rules. Judges, they say, must interpret the law, not make it, as if all judges are automatons who can simply blank out everything that has happened in their prior lives. The point is that a judge must be fair and consider all the facts in a case.

Rush Limbaugh and Newt Gingrich, who pass for spokespeople for the Republican Party these days, went so far as to call Sotomayor a "racist." They based that comment on this one line from a lengthy talk at a 2001 law symposium at the University of California: "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." Sotomayor was trying to explain to the students and others that it is impossible to separate your life's experiences from your work as a judge.

What Limbaugh and Gingrich and the others didn't quote was this comment:

"Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what the difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage….I am reminded each day that I render decisions that affect people concretely and that I owe them constant and complete vigilance in checking my assumptions, presumptions and perspectives and ensuring that to the extent that my limited abilities and capabilities permit me, that I reevaluate them and change as circumstances and cases before me requires."

Those are not the words of a racist, but someone who has thought about her role on the bench and how her life experiences and those of her colleagues affect the people who come to court for justice. It is also an honest assessment.

Of course, judges should make decisions based on the law. But the law is elastic. Judges have been interpreting it and arguing about legislative intent since the beginning of the country. In different eras, judges can come to very different conclusions. Thus the Supreme Court outlawed school segregation and the "separate but equal" doctrine that an earlier court had approved.

In the years since I wrote about the courts, women and people of color have assumed prominent roles in the court system. The first woman U.S. Supreme Court justice was appointed in 1981 and the second a decade later. And now Sotomayor would become the first Hispanic woman on the high court. The court system is finally starting to reflect what the rest of America looks like.

Limbaugh and Gingrich and the other conservatives can continue to attack her and make outrageous comments. But barring a skeleton in her closet, she is likely to be confirmed by the Senate because she is well-educated and experienced and has a compelling personal story that gives her a perspective often missing in the judicial system and the high court. The conservatives' attacks show how out of touch they are. They also run the risk of alienating many Hispanics, the nation's fastest-growing group of voters and one that voted against the Republicans in 2008.