Dr. Herb Titus On Sonia Sotomayor: Measured By The Word Of God And Found Wanting
by Herbert W. Titus, J.D.
On May 11, 2009, President Barack Obama nominated court of appeals Judge Sonia Sotomayor to a seat on the United States Supreme Court. In support of this nomination, the President assured the American people that Judge Sotomayor was a deserving and worthy nominee. Not only would she be an able justice, the President intoned, she would be impartial, and she would have “empathy.” Thus, the President proclaimed that, with the nomination of Judge Sotoamayor, he had fulfilled one of his campaign promises, the one that he made to Planned Parenthood in 2007, that his judicial appointees would have “the heart, the empathy, to recognize what it’s like to be a teen age mom; the empathy to understand what it’s like to be poor, or African-American, or gay, or disabled, or old.”
Within days after this announcement, the President’s glowing endorsement became tarnished by the nominee’s own words. Delivering the Judge Mario G. Olmos Memorial Lecture in 2001 at the University of California, Berkeley, School of Law, Judge Sotomayor asserted her “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 statement not only generated a crescendo of voices accusing Judge Sotomayor of “racism,” but a deep and abiding concern that Judge Sotomayor did not have the judicial temperament that would enable her to judge impartially.
Indeed, in the week before the President’s public announcement of his choice to replace retiring Associate Justice David Souter, Jeffrey Rosen of the New Republic raised questions about Judge Sotomayor’s “judicial temperament,” citing the testimony of various lawyers who found her to be—“a terror on the bench,” “overly aggressive—not very judicial,” “behaves in an out of control manner … makes inappropriate outbursts,” “nasty to lawyers,” and “a bully on the bench.”
In Deuteronomy chapter 1, we learn that God instructed Moses to “take you wise men, and understanding” and appoint them “judges,” charging them to “judge righteously” without “respect of persons in judgment … hear[ing] the small as well as the great, … not … afraid of the face of man; for the judgment is God’s.” (Deut. 1:13, 16-17). Earlier in Leviticus, we learn that God expected judges to “do no unrighteousness in judgment,” neither “respect[ing] the poor, nor honor[ing] the person of the mighty.” (Lev. 19:15).
Tracking this law of Moses, a person appointed to exercise the judicial power vested by Article III of the United States Constitution, is required to take not just one, but two oaths.
First, he must swear or affirm that “I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me … under the Constitution and the laws of the United States. So help me God.”
Second he must swear or affirm that “I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion, and that I will faithfully discharge the duties of the office on which I am about to enter. So help me God.”
In the short time that the American people have had to appraise whether Judge Sotomayor would be true to these oaths, it is becoming increasingly apparent that even her supporters—from the President on down—have backpedaled. In an attempt to soften her statement that a “Latina woman” judge would be superior to a “white male” jurist, President Obama said that “I am sure that she would have restated it.” Others have chimed in, including the President’s press secretary who dismissed the matter as just a mistake in the choice of words.
But, if one takes a closer look, Judge Sotomayor’s self-identification as a “Latina judge” reveals a person who is definitely not qualified to be elevated to the nation’s highest court. Indeed, a closer look reveals that she should be removed from the court of appeals on which she currently sits.
Sotomayor v. Solomon
According to Deuteronomy, the first and foremost qualification for the office of a judge, is that the person be “wise and understanding.” (Deut. 1:13). In her 2001 speech at the Berkeley law school, Judge Sotomayor stated unequivocally that “there can never be a universal definition of wise.” Hence, Judge Sotomayor expressed her conviction that judges have no choice but to draw upon their life’s experiences to resolve disputes between parties in cases and appeals brought to them. Further, she asserted the “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.”
According to the book of Proverbs, however, there is a universal wisdom, established before the foundation of the world “to lead the way of righteousness, in the midst of the path of judgment.” (Prov. 8:20). And this wisdom is universally available to all (Prov. 1:20-23), the only precondition of which is to fear God and to diligently seek it. (Prov. 2:1-10). And, if one heeds this command, he “will increase learning … and … shall attain wise counsels.” (Prov. 1:5). On the other hand, those who “despise wisdom and instruction,” will become “fools.” (Prov. 1:7). Thus, the Bible summarizes the several chapters in Proverbs contrasting the wise and the foolish with this conclusion: “The fear of the Lord is the instruction of wisdom; and before honor is humility.” (Prov. 15:33).
These Biblical truths can best be illustrated by one of the most popular and acclaimed events in the history of Israel. In recognition of his youth and inexperience, King Solomon humbled himself before God, praying for an “understanding heart to judge thy people, that I may discern between good and bad; for who is able to judge this thy so great a people?” 1 Kings 3:9. In response to Solomon’s cry, “God gave [him] wisdom and understanding exceeding much, and largeness of heart … wiser than all men.” (1 Kings 4:29, 31). Then, Solomon displayed that wisdom when he adjudicated the dispute between the two harlots, ordering the dividing of the baby, knowing full well that the mother’s heart even of a harlot would reveal whose child it was. (see 1 Kings 3:16-28).
In Sotomayor’s world, however, Solomon’s “wise judgment” could only be explained as sheer luck. After all, King Solomon was not only not a woman—much less a harlot—but had grown up in luxury, a favored son of King David—born with a “silver spoon” in his mouth. How, then, could Solomon have known that a mother’s love would triumph over a harlot’s spirit? His life’s experience was surely that of a “white male” and, according to Judge Sotomayor, totally unable to administer justice in a dispute between two fallen women—unless perchance the harlots had been represented by women lawyers sympathetic to civilization’s “oldest profession.” After all, as Judge Sotomayor would have us believe, the ruling by nine white men on the U.S. Supreme Court in Brown v. Board of Education (1954) that racially segregated schools violated the constitutional guarantee of equal protection of the laws was made possible only because the children’s advocates were persons of color.
Judge Sotomayor proposes that for more consistent and reliable rulings in favor of minority groups the bench should be populated by “statistically significant numbers” of women, and people of color. Presumably, Judge Sotomayor believes that a judiciary more representative of such demographics will by a combination of their “rich life experiences” more often than not reach better conclusions than a bench over represented by “white males.” While this may have an appearance of wisdom, “the end thereof [would be] the death” of equal protection of the laws. (See Proverbs 14:12). For true wisdom does not come from a multitude of diverse voices, but only from God above. (James 3:13-18).
Sotomayor v. Moses
Judge Sotomayor agrees with her fellow Yale Law School classmate, Professor Martha Minow of the Harvard Law School, that “there is no objective stance but only a series of perspectives—no neutrality, no escape from choice in judging.” Judge Sotomayor goes on to elaborate:
I further accept that our experiences as women and people of color affect our decisions. The aspiration to impartiality is just that—it’s an aspiration because it denies the fact that we are by our experiences making different choices than others. Not all women or people of color, in all or some circumstances … but enough people of color in enough cases, will make a difference in the process of judging.
And Judge Sotomayor finds this color and sex-conscious approach to law and judging should be welcomed, not tempered, much less subordinated, to the rule of law:
Whether born from experience or inherent physiological or cultural differences … our gender and national origins may and will make a difference in our judging…. I willingly accept that we who judge must not deny the differences resulting from our experience and heritage but attempt … continuously to judge when those opinions, sympathies and prejudices are appropriate.
In chapter 18 of the book of Exodus, we are given quite the opposite description of the judicial role, as explained by Moses to his father-in-law, Jethro:
What is this thing that thou doest to the people? Why sittest thou thyself alone and all the people stand by thee from morning into even? And Moses said unto his father-in-law, Because the people come unto me to inquire of God; When they have a matter they come unto me; and I judge between one and another, and I do make them know the statutes of God and his laws. [Exodus 18:14-16.]
First, note that the people on both sides of the dispute voluntarily brought their case to Moses. No one was coerced. And Moses was not assigned at random to the case. Both sides knew that they would get Moses as their judge. Why did they come? Because Moses shared their life’s experiences? To the contrary, Moses had been raised in Pharoah’s house. He had not suffered enslavement, as they had, but had lived his first forty years in luxury. (See Exodus 2:1-10). Furthermore, while the Israelis were making bricks out of straw, Moses lived on the backside of the desert herding sheep. (See Exodus 3:1). And Moses had even married a foreign woman. (See Exodus 2:21; Numbers 12:1).
Surely, there were others more qualified than Moses to “feel their pain.” But the people, who had previously rejected Moses as their judge (see Exodus 1:14) now embraced him. Why? They knew that Moses would judge impartially, that he would “not respect persons in judgment, but [would] hear the small as well as the great.” (See Deuteronomy 1:17). Unlike Judge Sotomayor, Moses did not “aspire” to be impartial; he was impartial, because God commanded it. (See Leviticus 19:15). Unlike Judge Sotomayor, Moses had no choice to behave otherwise. (See Deuteronomy 16:18-20). Neither sympathy, nor opinion, nor prejudice could ever be a touchstone upon which Moses would decide a case.
Second, note that Moses based his decisions on “the statutes of God, and his laws,” not as Judge Sotomayor who would base her decisions on her “perspective” of the law. No. The people did not come to Moses to get his “perspective” on the matter in dispute. They came to get an authoritative resolution, one that would put the contending parties at rest, not leave them wondering that, if they had chosen someone else, they might have gotten a better deal. Judge Sotomayor, however, can offer nothing more than her “perspective,” because she does not believe in the pre-existence of a set of rules by which judges are obliged to make their decisions. Rather, she believes that judges make up their own rules either on the basis of their “experiences,” or on the basis of “inherent physiological or cultural differences.”
In contrast, Moses knew that God, mankind’s creator, had imposed upon His creation a set of rules which bound equally all mankind, male and female, and of every nationality. And it was the judge’s job simply to “make the parties know the statutes of God, and his laws.” Moses put this “common law” system in place even before God had revealed in writing the foundational principles of those laws. After all, not only had Moses been engaged in dispute resolution, but he had appointed others to do likewise, even before God handed down the Ten Commandments. (See Exodus 18:15-16, 19-26). None of is remotely possible in Judge Sotomayor’s world, divided as it is by the “inherent” differences between men and women, and “whites” and “people of color.” According to Sotomayor, there can be no “neutral” principles of law, because there is no legal ground common to both sexes and to all nations. The Bible record is to the contrary. (See Psalm 19; Romans 1:18-20; Galatians 3:28).
Sotomayor v. Deborah
In the book of Judges, we are introduced to Deborah, “a prophetess [who] judged Israel” during one of the numerous times of oppression suffered during the period between Joshua and Samuel. (See Judges 4:4). As had been the case with Israel’s judges from Moses to Ehud, Deborah’s immediate predecessor—and as would be the case with those judges from Deborah’s successor, Gideon to Samuel and beyond—“the children of Israel came up to [Deborah] for judgment.” (Judges 4:5). Clearly, the people did not change their practice of seeking resolution of their disputes just because of Deborah’s sex or her tribal identity. Nor did they expect to be judged by any “sex-based” or “tribal-oriented” standard. Rather, the rule of law that prevailed during Deborah’s judgeship was the same rule that had been applied by Moses and would be applied by all of the judges thereafter. Thus, when Barak was summoned to appear before Deborah, the rule that only males would go to war (Deut. 20:1-9) was not changed, even though Deborah relented to Barak’s plea and accompanied him to battle. (Judges 4:6-9).
According to Judge Sotomayor, however, the rules do change, and such change is based upon the sexual orientation and ethnic background of the judge: “Whether born from experience or inherent physiological or cultural differences … our gender and national origins may and will make a difference in our judging.” Would Judge Sotomayor change the law to accommodate a plea from her “Barak,” President Barack Obama, to accommodate his weakness? Why not? After all, Judge Sotomayor believes that a judge’s life “experiences” is what really counts in the judicial process—that, in reality, law is a reflection of the personal characteristics of those applying it.
If so, then why should we believe Judge Sotomayor when she tells us that her “gender” and her “Latina heritage” are the two most prominent determinants that shape her judicial opinions. She is not just a woman, but she is a divorcee and childless. And she is not just a self-described “Latina,” but she is a “Newyorkrican,” that is a “born and bred New Yorker of Puerto-Rican born parents who came to the states during World War II.” And she is a diabetic, and has been since childhood, and was raised by a single mother and whose father died when she was young. If law is nothing more than a judge’s life’s experiences, then shouldn’t Judge Sotomayor open the entire book of her life, including her failed marriage, to Senate scrutiny? How else would a Senator know how to vote on her confirmation?
As for Deborah, we are told only that she was the “wife of Lapidoth” and that she “dwelt under the palm tree of Deborah between Ramah and Bethel in mount Ephraim.” (See Judges 4:4-5.) Why so short a biography? Because in raising up persons to judge Israel (Judges 2:16), God no doubt adhered to the Mosaic standard revealed in Exodus 18:21: “thou shalt provide out of all the people able men, such as fear God, men of truth, hating covetousness.” That standard did not change just because Deborah was a married woman to a man who was of the tribe of Ephraim.
Sotomayor v. The Bible
How would Judge Sotomayor measure up to the four Exodus standards? In order to be “able” to judge:
The Bible teaches:
A judge must be “wise and understanding.” (Deut. 1:13).
“There can never be a universal definition of wise … 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.”
The Bible teaches:
One must “judge righteously,” not by “appearances,” but by “just judgment.” (Deut.1:16 and 16:18).
”’[T]o judge is an exercise of power’ and because there is no objective stance, but only a series of perspectives—no neutrality, no escape from choice in judging. I further accept that our experiences as women and people of color affect our decisions.”
The Bible teaches:
One must “fear God,” not be “afraid of the face of man; for the judgment is God’s.” (Deut. 1:17).
“Whether born from experience or inherent physiological or cultural differences … our gender and national origins may and will make a difference in our judging.”
The Bible teaches:
One must be a “man of truth,” not a “respect[er] of persons” doing no “unrighteousness in judgment.” Leviticus 19:15.
“The aspiration to impartiality is just that—it’s an aspiration because it denies the fact that we are by our experiences making different choices than others.”
The Bible teaches:
One must “hate covetousness,” for the “tak[ing] [of] a gift … doth blind the eyes of the wise; and pervert the words of the righteous.” Deuteronomy 16:19.
“We … must continue … to figure out how we go about creating the opportunity for there to be more women and people of color on the bench so we can finally have a statistically significant numbers to measure the difference we will and are making.”
Clearly, Judge Sotomayor’s view of herself as a judge, when measured by the Word of God, is found wanting.
Herb Titus is of counsel to the McLean, Virginia law firm of William J. Olson, P.C. His law practice concentrates on promoting limited civil government and protecting individual and family liberties. Representative clients of the firm are the Michael New Action Fund, the Christian Liberty Society, Gun Owners Foundation, and DownsizeDC. Author of the widely used text, “God, Man & Law: The Biblical Principles,” Titus has taught Constitutional law for 30 years. Converted to Christ in 1975 at a church picked out of a newspaper and delivered from 1960’s radical liberalism, Herb and his wife, Marilyn, have four children and 15 grandchildren. They live in Chesapeake, Virginia on 15 acres where they raise geese and turkeys.