July/August 2009 Church & State | Featured

When President Barack Obama announced Sonia Sotomayor as his nominee to replace Justice David Souter on the U.S. Supreme Court, he sold his choice to Americans by telling her compelling life story.

Rising from a childhood of poverty in the Bronx, Sotomayor graduated with honors from Princeton. After Yale Law School (where she was editor of the law journal), she became the first Hispanic federal judge in New York state.

Said Obama, “Along the way, she’s faced down barriers, overcome the odds, lived out the American Dream that brought her parents here so long ago. And even as she has accomplished so much in her life, she has never forgotten where she began, never lost touch with the community that supported her.

“What Sonia will bring to the Court, then,” Obama continued, “is not only the knowledge and experience acquired over a course of a brilliant legal career, but the wisdom accumulated from an inspiring life’s journey.”

Currently a judge on the 2nd U.S. Circuit Court of Appeals, Sotomayor will make history as the first Hispanic and the third woman on the high court if she is confirmed by the U.S. Senate.

The Sotomayor nomination has sparked a large amount of comment, much of it divided along ideological and partisan lines.

Many progressive groups have praised her for her accomplishments. At the same time, Religious Right organizations are rallying against her appointment, charging that she is a “liberal activist” judge. 

TV preacher and Christian Coalition founder Pat Robertson told Fox News commentator Sean Hannity, “I think Obama has reached out to one of the most left-wing judges that there is in the United States. I think it’s an outrage.”

Family Research Council President Tony Perkins echoed the same sentiment.

“Judge Sotomayor appears to subscribe to a very liberal judicial philosophy that considers it appropriate for judges to impose their personal views from the bench,” he said. “President Obama promised us a jurist committed to the ‘rule of law,’ but, instead, he appears to have nominated a legislator to the Supreme Court.”

Bruce Hausknecht, a judicial analyst for James Dobson’s Focus on the Family Action, also expressed concerns that Sotomayor is a judicial activist.

“From what we know about her, though, Judge Sotomayor considers policy-making to be among a judge’s roles, no matter what the law says,” he charged. “She disregards the notion of judicial impartiality, even stating that as a Latina woman with her life experience she should ‘more often than not’ reach a better conclusion than a ‘white male who hasn’t lived that life.’”

Unlike those on the right, many progressive groups are pleased with Sotomayor’s personal story, cultural background and her educational credentials.

“The president is making history by nominating the first Latina to the Supreme Court,” said Nan Aron, president of the Alliance for Justice. “Judge Sotomayor has more federal judicial experience than any justice nominated to the Supreme Court in the past 100 years.

“This nomination,” she continued, “shows that President Obama is appointing judges who understand that the role of the courts is to give everyone a chance to be heard, to stand up for their rights, and get justice.”

The Leadership Conference on Civil Rights called Sotomayor “a uniquely well-qualified Supreme Court nominee, someone with a sharp and independent mind, and a record of excellence and integrity.

“Besides her superb intellectual ability and a distinguished three-decade judicial career,” the Conference said, “she brings a quality of common sense understanding of how laws affect the realities of people’s daily lives.” 

Sotomayor grew up in the projects in New York City, where it was well-known in her neighborhood that her household had an Encyclopedia Britannica set. As a kid, she loved Nancy Drew mystery books and “Perry Mason.” From watching that television show, she reportedly realized that “the judge was the important player in the room.”

Sotomayor attended Catholic elementary and high schools, and if confirmed, she will become the sixth Catholic currently sitting on the high court.

But unlike Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas, Samuel A. Alito Jr. and Anthony M. Kennedy, who attend mass regularly, Sotomayor “is more like the majority of American Catholics,” The New York Times reported on May 31. She was raised in the faith, but does not attend mass frequently and is not particularly active in religious life.

Observers are curious because mass attendance is sometimes a bellwether of stands of controversial issues. A Gallup study released in March showed that 52 percent of Catholics who do not attend church regularly say abortion is morally acceptable, and that 61 percent of non-churchgoing Catholics found same-sex relationships morally acceptable.

At the same time, studies show that Hispanic Catholics tend to be more liberal than non-Hispanic white Catholics on social and economic issues, such as immigration, but are more conservative on homosexuality and abortion.

The Times learned fromconducting interviews with more than a dozen of Sotomayor’s friends that she rarely attends mass and does not belong to a parish. Her friends, from both childhood and her professional life, said they never heard her talk about her faith.

According to the White House, she “attends church with family and friends for important occasions.”

Sotomayor’s relationship with the church may be complicated by her divorce. Unless granted an annulment, Catholics who divorce and remarry are barred by the church hierarchy from receiving communion. Sotomayor has remained single since her 1983 divorce.

The Rev. Joseph O’Hare, a Jesuit priest and the retired president of Fordham University who served with Sotomayor on a New York City campaign finance review council, told Catholic News Service that he knew the high court nominee in the late 1980s. She was indeed a practicing Catholic, he said, adding that he has no reason to think that has changed.

In 1991, Sotomayor was nominated by President George H.W. Bush to be a federal district judge in the Southern District of New York, and in 1998, she was tapped by President Bill Clinton for the 2nd Circuit Court of Appeals. On the appellate bench, she has heard more than 3,000 cases and written 380 majority opinions over the past 11 years.

But despite her heavy caseload, her record on “culture war” issues such as church-state separation, reproductive choice and gay rights, is exceedingly thin.

It is difficult to assess her views on religious liberty, said Barry W. Lynn, Americans United executive director. (See “Church, State and Sotomayor.” )

In researching her opinions and public statements, Americans United has found few comments on church-state concerns, and they speak little to where she stands in this important area of the law.

Robert Tuttle, a church-state expert and professor at George Washington University Law School, told the Associated Baptist Press that Sotomayor’s “free exercise cases are about right down the middle of the bell curve.”

Anthony Picarello, general counsel for the U.S. Conference of Catholic Bishops, told the Catholic News Service that “on first blush, her religious freedom decisions are encouraging. But there are other fundamental, court-driven issues – especially abortion and marriage – where we’ll need to take a closer look at the record.”

This puts an obligation on the Senate Judiciary Committee to ascertain her views in the coming weeks, AU’s Lynn said.

Lynn said the AU Legislative Department is working with the Judiciary Committee to draft a series of questions for Sotomayor, hoping the answers will shed more light on her views on important religious liberty issues.

“We hope Judge Sotomayor turns out to be in the mold of retiring Justice David H. Souter – a strong champion of separation of church and state,” Lynn said. “The American people deserve no less.”