Fanning the Flames: The Freedom Project Blog


Sotomayor Soundoff

By Shawn Healy
Six days after President Barack Obama nominated Sonia Sotomayor to fill Justice Souter's soon-to-be-vacated seat, the political world continues to echo with reverberations from the former law professor's first chance to mold the Court in his self-described "empathetic" fashion. Few question the legal credentials of a woman with 17 years on the federal district and appellate benches, not to mention her Ivy League educational background. Instead, the controversy centers on a couple of comments she made nearly a decade ago, a lineage of cases overturned by the High Court, and her pre-judicial life as a civil rights activist.

In a YouTube video filmed during an appearance at Duke University Law School, Sotomayor said, "All of the legal defense funds out there, they're looking for people with court of appeals experience" because "the court of appeals is where policy is made." The accuracy of her statement aside, it can be construed as code words for jurisprudence conservatives abhor: judicial activism.

Her second and more inflammatory remarks arose during a 2001 speech at the University of California-Berkeley. Sotomayor's racially-tinged remarks included the following: "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." This confronts the standard assumption that justice is colorblind, but President Obama suggested she misspoke, and his press secretary said this quote was taken out of context. Conservative firebrands Rush Limbaugh and Newt Gingrich respectively called her a "racist" and accused her of "new racism."

The latter remarks are emboldened by Sotomayor's role in a case presently before the Supreme Court, Ricci v. DeStefano. She was part of a 3-0 decision by the Second District Court of Appeals that denied a New Haven fireman's claim that he was subjected to reverse discrimination. Given the current complexion of the Court, one would expect the 5-4 conservative majority to reverse.

According to Fox News, "Sotomayor has a record of being rebuffed by the high court. Of the six decisions she was a part of that came before the high court, five were reversed. In the sixth, the court disagreed with Sotomayor's reasoning."

This fiery rhetoric and track record considered, Sotomayor is all but a shoe in to become the first Latina on the Supreme Court (there is some controversy over whether she is the first Hispanic). The popular president's party, the Democrats, control 57 of the seats in the Senate (charged with "advice and consent" in the confirmation process), and two independents (Sanders and Lieberman) caucus with them. While this is one vote shy of a filibuster-proof majority, Republicans appear more likely to bloody Sotomayor and vote in opposition than to stymie the process altogether.

Moreover, the moderate-to-liberal Sotomayor would replace a justice with a similar ideological disposition in Souter, meaning the fragile conservative majority will remain. Expect more bruising battles should swing vote Justice Kennedy or conservative stallion Justice Scalia step down during the remaining years of the Obama presidency.

Additional analysis of the Sotomayor nomination will follow here in the ensuing weeks and months, but an under-the-radar detail has received scant press notice to date. She is Roman Catholic by denomination, and her confirmation would bolster the Court's Catholic majority to six. Justice Stevens would stand as the lone Protestant on a bench they long dominated, while Justices Breyer and Ginsburg are Jewish (also rare, Justice Brandeis aside).

Religious denomination need not dictate decisions, but it is interesting to note that the five current Catholics comprise the conservative majority (Roberts, Scalia, Kennedy, Thomas, and Alito). Bellwether issues like abortion, gay marriage and the death penalty will test this coalition, especially by adding the divergent Sotomayor to the mix.


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Managing Director

McCormick Freedom Project

Shawn is responsible for overseeing and managing the operations associated with the McCormick Freedom Project. Additionally, he serves as the in house content expert and voice of museum through public speaking and original scholarship. Before joining the Freedom Project, he taught American Government, Economics, American History, and Chicago History at Community High School in West Chicago, IL and Sheboygan North High School in Wisconsin.

Shawn is a doctoral candidate within the Political Science Department at the University of Illinois at Chicago where he received his MA in Political Science. He is a 2001 James Madison Fellow from the State of Wisconsin and holds a bachelor's degree in Political Science, History, and Secondary Education from the University of Wisconsin at Madison.

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About Fanning the Flames and the McCormick Freedom Project

Fanning the Flames is a blog of the McCormick Freedom Project, which was started in 2006 by museum managing director Shawn Healy. The blog highlights the news of the day, in hopes of engaging readers in dialogue about freedom issues. Any views or opinions expressed on this blog represent those of the writers alone and do not represent an official opinion of the McCormick Freedom Project.

Founded in 2005, the McCormick Freedom Project is part of the McCormick Foundation. The Freedom Project’s mission is to enable informed and engaged participation in our democracy by demonstrating the relevance of the First Amendment and the role it plays in the ongoing struggle to define and defend freedom. The museum offers programs and resources for teachers, students, and the general public.

First Amendment journalism initiative

The Freedom Project recently launched a new reporting initiative with professional journalists Tim McNulty and Jamie Loo. The goal is to expand and promote the benefits of lifelong civic engagement among citizens of all ages, through original reporting, commentary and news aggregation on First Amendment and freedom issues. Please visit the McCormick Freedom Project's news Web site, The Post-Exchange at

Dave Anderson
Vice President of Civic Programs
McCormick Foundation

Tim McNulty
Senior Journalist
McCormick Freedom Project

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