Time omitted critical facts in reporting on the lines of attack Republican members of the Senate Judiciary Committee have prepared against Sonia Sotomayor.
In a July 13 Time magazine article, Jay Newton-Small and Sophia Yan reported that Republican members of the Senate Judiciary Committee have prepared "four lines of attack" against Supreme Court nominee Judge Sonia Sotomayor based on the following: her "wise Latina" comments; her decision in Ricci v. DeStefano; her views on foreign law; and her views on the Second Amendment. But in purporting to provide the response to each of these lines of attack, Newton-Small and Yan omitted critical facts.
Newton-Small and Yan wrote:
Sotomayor has used the "wise Latina" phrase repeatedly in speeches dating back to 1994. In one speech in 2001 she tagged on the line "than a white male who hasn't lived that life." Republicans, who prefer judges that claim total impartiality to the law, do not like that Sotomayor's decisions are influenced by her life experience.
While Newton-Small and Yan noted that "Sotomayor defenders ... point to conservative Supreme Court Justices Samuel Alito and Antonin Scalia, both of whom cited at their confirmation hearings their backgrounds as Italian Americans as evidence they understand discrimination and the immigrant experience," they did not note that contrary to the suggestion that Sotomayor was commenting on the general judicial ability of Latinas and white men, in the various speeches in which Sotomayor discussed "wise Latina[s]," Sotomayor was specifically talking about "race and sex discrimination cases."
Ricci v. DeStefano
Newton-Small and Yan wrote that with respect to Ricci v. DeStefano, "Sotomayor's personal perspective may have played a role to the detriment of white defendants, the GOP argues." Newton-Small and Yan later added: "Sotomayor joined with two other Second Circuit justices on the unanimous opinion in the city's favor. The Supreme Court last month overturned that decision, siding with the white firefighters." But Newton-Small and Yan did not note that the Supreme Court's decision was 5-4 with four justices agreeing that -- in the words of Justice Ruth Bader Ginsburg's dissent -- "[W]hat this case does not present is race-based discrimination in violation of Title VII." Justice David Souter -- whose seat Sotomayor is nominated to fill -- joined Ginsburg's dissent.
"This is America"
In a section of their article subheadlined "This is America," Newton-Small and Yan wrote: "Another point of criticism has been Sotomayor's stated interest in foreign laws." Newton-Small and Yan quoted Sen. Jon Kyl's (R-AZ) statement that "[t]he consideration of foreign law by American judges is contrary to the principles of democracy." Newton-Small and Yan also reported that Sotomayor's position "is more representative of the bright line between progressive and conservative judicial philosophies than an actual problem with Sotomayor herself. For example, Supreme Court Justice Ruth Bader Ginsberg [sic: Ginsburg] has spoken about the important impact of foreign law, and her opinions did not prevent her from being confirmed to the bench." But Newton-Small and Yan did not note that Justice Anthony Kennedy -- who is not one of the Supreme Court's progressives -- cited foreign law in opinions he has written.
In Roper v. Simmons, a case dealing with the constitutionality of imposing the death penalty on people who were juveniles when they committed crimes, Kennedy stated in his majority opinion:
It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty, resting in large part on the understanding that the instability and emotional imbalance of young people may often be a factor in the crime.
It does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom.
In Lawrence v. Texas, which struck down a statute that, in Kennedy's words, made it a crime "for two persons of the same sex to engage in certain intimate sexual conduct," Kennedy also cited foreign law in his majority opinion:
To the extent Bowers relied on values we share with a wider civilization, it should be noted that the reasoning and holding in Bowers have been rejected elsewhere. The European Court of Human Rights has followed not Bowers but its own decision in Dudgeon v. United Kingdom. See P.G. & J.H. v. United Kingdom, App. No. 00044787/98, ¶56 (Eur. Ct. H.R., Sept. 25, 2001); Modinos v. Cyprus, 259 Eur. Ct. H.R. (1993); Norris v. Ireland, 142 Eur. Ct. H.R. (1988). Other nations, too, have taken action consistent with an affirmation of the protected right of homosexual adults to engage in intimate, consensual conduct. See Brief for Mary Robinson et al. as Amici Curiae 11-12. The right the petitioners seek in this case has been accepted as an integral part of human freedom in many other countries. There has been no showing that in this country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent.
Newton-Small and Yan reported: "A 2004 opinion Sotomayor joined cited as precedent that 'the right to possess a gun is clearly not a fundamental right.' And in January, Sotomayor joined a Second Circuit decision on Maloney v. Cuomo. In that decision the court found that the Second Amendment does not apply to states and local governments." They later reported: "The rulings have caused alarm among gun-rights groups." However, Newton-Small and Yan did not note that the 7th U.S. Circuit Court of Appeals -- in a decision written by Chief Judge Frank Easterbrook and joined by Judge Richard Posner, both conservatives appointed by President Reagan -- also held on June 2 that the Second Amendment did not apply to the states.