Judge Sotomayor’s Code of Conduct Violations

Judge Sotomayor’s statement that “inherent physiological and cultural differences” will result in different judicial outcomes is racist on its face. In another racist comment, Judge Sotomayor states that the “gender and national origins” of judges “may and will make a difference in our judging.” In addition, for Judge Sotomayor to “hope” that a “wise Latina 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” is also racist and sexist.

This comment (and the speech in its entirety) is in violation of various canons of the Code of Conduct. It violates Canon 1, which mandates that judges “uphold the integrity and independence of the judiciary.” By suggesting that race, gender, and national origin can and do influence the decision making of judges, Judge Sotomayor’s statement undermines “public confidence in the integrity and independence” of the entire judiciary. Her comments also suggest that a litigant before the court may receive disparate treatment based on the litigant’s background, race, gender, and national origin. And Judge Sotomayor’s attack on the judicial decision making of “white males” clearly tends to undermine the public’s confidence in their courts. Accordingly, these comments also violate Canon 2, which states that “A Judge Should Avoid Impropriety and the Appearance of Impropriety in All Activities.” Canon 2 requires judges to “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” By embracing race/gender/national origin-conscious judicial decision-making, and by denigrating the decision-making of “white male” judges, Judge Sotomayor has undermined public confidence in “the impartiality of the judiciary.”

Indeed, the Code of Conduct’s commentary for Canon 3A (3) states:
The duty under Canon 2 to act in a manner that promotes public
confidence in the integrity and impartiality of the judiciary applies to all
the judge's activities, including the discharge of the judge's adjudicative
and administrative responsibilities. The duty to be respectful includes the
responsibility to avoid comment or behavior that could reasonably be
interpreted as harassment, prejudice or bias. The 2001 speech is part of a pattern of improper activity by Judge Sotomayor with respect to prejudicial and racist comments. Judge Sotomayor made similar comments in other speeches through the years.
On March 17, 1994, Judge Sotomayor gave a speech to a panel on “Women in the Judiciary” at Revisa Juridicia de la Univesidad Interamericana de Puerto Rico. In this speech she said: Justice O'Connor has often been cited as saying that “a wise old man and a wise old woman reach the same conclusion” in deciding cases. . . . I am not so sure that I agree with the statement. First, if Professor Martha Minnow is correct, there can never be a universal definition of “wise.” Second, I would hope that a wise woman with the richness of her experiences would, more often than not, reach a better conclusion.

Judge Sotomayor made this exact point again in April 30, 1999, to the Women's BarAssociation and in October 22, 2003, at Seton Hall School of Law. The questionnaire responses Judge Sotomayor filed with the U.S. Senate’s Judiciary Committee show that she made similar remarks about race and judging at least
three more times in 1999 and 2000 (Yale Law Women and The Collective on Women of Color in the Law, September 27, 1999; CUNY School of Law, March 22, 2000; Yale University Law School on April 28-30, 2000).

Membership in an Organization That Practices “Invidious Discrimination” Based on Sex.

In her Senate questionnaire, Judge Sotomayor also discloses she has been a member of a group called the Belizean Grove, “a private organization of female professionals from the profit, non-profit and social sectors.” (Sotomayor Senate Questionnaire, See p.11.) Question 11 (b) of the questionnaire reads:
The American Bar Association's Commentary to its Code of Judicial Conduct states that it is inappropriate for a judge to hold membership in any organization that invidiously discriminates on the basis of race, sex, religion, or national origin.
Indicate whether any of these organizations…currently discriminates or formerly
discriminated on the basis of race, sex, religion, or national origin either through
formal membership requirements or the practical implementation of membership
policies. If so, describe any action you have taken to change these policies and
practices. (Sotomayor Senate Questionnaire, See p. 14.)

Judge Sotomayor’s response was as follows:

None of the above organizations, other than the Belizean Grove, discriminates on the basis of race, sex, religion, or national origin. The Belizean Grove is a private
organization of female professionals from the profit, non-profit and social sectors, but I do not consider the Belizean Grove to invidiously discriminate on the basis of sex in violation of the Code of Judicial Conduct. (Sotomayor Senate Questionnaire,
See p. 15.) However, many believe that Judge Sotomayor’s membership in the Belizean Grove was, in fact, a violation of Canon 2 (c), which states that “a judge should not hold membership in any organization that practices invidious discrimination on the basis of race, sex, religion, or national origin.”The front page of the BelizeanGrove’s Internet site states the following: Having observed the power of the Bohemian Grove, a 130-year-old, elite old boys' network of former Presidents, businessmen, military, musicians, academics, and nonprofit leaders, and realizing that women didn't have a similar organization, Susan Stautberg and 26 other founding members created the Belizean Grove, a constellation of influential women who are key decision makers in the profit, non-profit and social sectors; who build long term mutually beneficial relationships in order to both take charge of their own destinies and help others to do the same. The reference to the group being a counterweight to the “old boys’ network” suggests that men are not welcome and that the group practices invidious discrimination on the basis of sex. Indeed, reports suggest that men are not welcome at the group’s retreats and that no male is a member of the group. The Politico quotes founder Susan Stautberg as saying “that male ‘spouses, partners and adult children’ are permitted to go on the optional post-retreat expeditions (last year’s was to Machu Picchu and the Sacred Valley) and said that even though ‘no man has ever applied to be a member. . . . If they did, we would certainly vote on it.’” In an obvious acknowledgement of the impropriety of her participation in the group, Judge Sotomayor recently resigned her membership.

Improper Political Activity

On April 17, 2009, Judge Sotomayor made a political and race-conscious speech to the Black, Latino, Asian Pacific American Law Alumni Association. During this speech she made the following statements: “The power of working together was, this past November, resoundingly proven. The wide coalition of groups that joined forces to elect America’s first Afro-American President was awe inspiring in both the passion the members of the coalition exhibited in their efforts and the discipline they showed in the execution of their goals. On November 4, we saw past our ethnic, religious and gender differences.”

“What is our challenge today: Our challenge as lawyers and court related
professionals and staff, as citizens of the world is to keep the spirit of the common
joy we shared on November 4 alive in our everyday existence. It is the message of service that President Obama is trying to trumpet and it is a clarion call we are obligated to heed.”

Canon 5 plainly states that “A judge should refrain from political activity.” Canon 5 (a) (2) states that a judge should not “publicly endorse or oppose a candidate for public office.” Her obviously partisan support and excitement for the election of President Obama in this speech seems a clear violation of Canon 5.10 The speech also violates Canon 1 and Canon 2, as it tends to undermine the independence, integrity and impartiality of the judiciary.

In 2005, in a similar matter, the Judicial Council for the Second Circuit sanctioned a judge for making partisan comments concerning the election of President George W. Bush.

In another improper political comment, in an article published in the Suffolk University Law Review, Judge Sotomayor co-authored the following the statement:
“The response that can give the public confidence in our profession is our own
leadership in weeding out the fraudulent and wrongful conduct that the public
rightly condemns at the same time as we challenge overreactions that undermine
the principles of our judicial system. For example, legislators have introduced
bills that place arbitrary limits on jury verdicts in personal injury cases. But to do
this is inconsistent with the premise of the jury system.” The footnotes show that Judge Sotomayor is specifically criticizing a then-pending piece of tort reform legislation. The relevant footnote (51) reads: “See Common Sense Product
Liability Legal Reform Act of 1996, H.R. 481, 104th Cong. (limiting punitive damages in certain cases.”