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Immigration Advocates Call ‘Wise Latina’ Attack Dog Whistle Politics

Last updated: July 31, 2020 | July 24, 2009 | Susan Murillo
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Image has not been found. URL: /wp-content/uploads/2009/07/sotomayor-immigration.jpgSonia Sotomayor at her confirmation hearing on July 14 (WDCpix)

During her four-day confirmation hearing, Supreme Court nominee Sonia Sotomayor was grilled for having said she would naturally be influenced by her ethnicity and gender, just as other judges would be influenced by theirs. Because she is Latina, however, the debate over whether personal background ought to influence one’s judgment took on a particular cast, with the assumption made, largely by white male senators, that Sotomayor would be particularly sympathetic to minorities, women and immigrants.

As Sen. Jeff Sessions (R-Ala.) said earlier this month on CBS’s “Face the Nation:” “She has advocated a view that suggests that your personal experiences, even prejudices — she uses that word — it’s expected that they would influence a decision you make, which is a blow, I think, at the very ideal of American justice.”

Illustration by: Matt Mahurin Illustration by: Matt Mahurin

The subject of immigration was barely raised during the confirmation the hearing, but some immigrants’ rights advocates say it wasn’t completely absent. These advocates claim it’s no coincidence that the same senators who attacked her past remarks that a “wise Latina judge” would reach better decisions in some cases than a white male judge were also senators — such as Sessions and Sen. John Cornyn (R-Texas) — who’ve expressed grave concerns about the immigration of foreigners into the United States. They have voted against the last immigration reform bill and, in some cases, have won praise from anti-immigration extremist groups.

“They’re trying to leverage the fact that there’s a level of unease and frustration over the broken immigration system and seeing if they can use that to try to block her confirmation even though the two are not related,” said Clarissa Martinez, director of Immigration and National Campaigns for the National Council of La Raza.

Technically, Sotomayor is not an immigrant – she was born in Puerto Rico, which is a U.S. territory. But she has referred to herself as a child of immigrants and portrayed her story as one that reflects the dreams of many new immigrants to the United States.

“They know that Puerto Rico’s part of the U.S. but they do have this fear of Latinos,” said Joan Friedland, policy director at the National Immigration Law Center, referring to some of Sotomayor’s most vehement critics. “I don’t think it’s in terms of cases that would come before the Supreme Court. I think it’s in term of their underlying fear of Latino voters. Immigration is a charged issue. She makes them think about that by her very existence.”

Indeed, anti-immigration advocates and restrictionist organizations have been quick to use Sotomayor’s ties to Latino civil rights groups to suggest she would be overly empathetic to immigrants in cases that reach the Supreme Court. Tom Tancredo, for example, the former Colorado congressman and anti-immigration activist, claimed on CNN that Sotomayor’s affiliation with the National Council of La Raza, a Latino civil rights group, was equivalent to being a member of the Ku Klux Klan.

And the immigration-obsessed Lou Dobbs on CNN called Sotomayor a “racist” and her nomination “pure pandering to the Hispanics.”

Meanwhile, the restrictionist Center for Immigration Studies recently purported to undertake an analysis of Sotomayor’s immigration opinions, and wrote that she “has repudiated over a century of Supreme Court jurisprudence aimed at limiting judicial involvement in immigration matters.”

“A simple analysis of Sotomayor’s post-2000 immigration-related holdings shows that she has ruled against the government – and for the alien – over 60 percent of the time,” writes Jon Feere, a senior research fellow for CIS.

In a telephone conversation earlier this week, Feere acknowledged that he examined only the 38 cases he found where Sotomayor wrote the opinion and ignored the cases where she joined an opinion written by another judge. He also acknowledged that in the cases before 2001, she ruled in favor of the immigrant less than ten percent of the time – in only one out of 11 opinions she authored.

In fact, a far more comprehensive analysis by Sen. Charles Schumer’s (D-N.Y.) office analyzing Sotomayor’s entire record on immigration as a district court and court of appeals judge reveals that she ruled for the immigrant petitioner in cases before her only 8 percent of the time. In asylum cases, she ruled for the asylum applicant 17 percent of the time – which is the average rate for asylum cases in the Second Circuit Court of Appeals. Schumer’s office examined 955 rulings from Sotomayor’s 17 years on the federal bench.

“These findings should put to rest any doubts about Judge Sotomayor’s fidelity to the rule of law,” Schumer said in a statement accompanying the release of his study in June. “Even in immigration cases, which would most test the so-called ‘empathy factor,’ Judge Sotomayor’s record is well within the judicial mainstream.”

Indeed, some on the left have criticized Sotomayor for being too conservative on immigration cases. In a recent piece in Mother Jones, “The Progressive Case Against Sotomayor,” James Ridgeway noted that her record in immigration matters is nothing for progressives to cheer about. Ridgeway ridiculed Schumer for boasting that Sotomayor had ruled against asylum petitioners claiming they’d be persecuted back home 83 percent of the time.

“In other words,” wrote Ridgeway, “being a Latina doesn’t make Sotomayor any more compassionate toward immigrants who face torture and death when we ship them back home.”

But for the most part, Sotomayor’s conservative record in immigration cases has been largely ignored by her biggest supporters – including those ordinarily concerned with justice for Latinos, who have generally focused more on the symbolism of her nomination than the substance of her opinions.

Janet Murguia, president and CEO of the National Council of La Raza, for example, enthusiastically endorsed Sotomayor, calling her nomination “uniquely historic for our community and for the country.” Yet when contacted this week, her organization said it was not familiar with Sotomayor’s record on immigration cases.

Similarly, Henry Solano, interim president and general counsel of the Mexican American Legal Defense Fund, has said: “The Latino community is bursting with pride and excitement over the pending confirmation hearings of Judge Sotomayor. She has an impeccable record of accomplishment and possesses all of the credentials and experience that make her worthy of serving on the nation’s highest court.” Yet MALDEF, which calls itself “the nation’s leading nonprofit Latino legal organization” and “the law firm of the Latino community” similarly had not studied and could not comment on her immigration opinions.

For the most part, independent experts on immigration describe Sotomayor’s rulings on immigration as “careful” and “mainstream.”

“I think that she follows the precedent closely in deferring to the BIA [Board of Immigration Appeals],” said Kevin Johnson, professor of law and Chicano studies at University of California, Davis and editor of ImmigrationProf Blog. In general, conservatives argue for more deference to the rulings of immigration judges (although there are significant exceptions), whereas liberals argue for closer scrutiny of immigration courts’ opinions by the federal court of appeals. “She is a careful judge in the mainstream of appellate court judges in immigration matters,” said Johnson. Asked whether she too easily defers to the BIA’s decisions, he said in an e-mail: “I cannot say that she is ‘too deferential’ even though I would be less deferential.”

An ACLU report on the Sotomayor nomination has similarly found that as a judge in immigration cases, Sotomayor “has taken an even-handed approach, applying caselaw and other authorities with care and holding courts and administrative agencies to proper legal standards and procedures.” That’s the same sort of evaluation Sotomayor has received for her rulings in other areas of law.

“Her asylum opinions reflect a deep and pragmatic understanding of trial-level proceedings, no doubt reflecting her years on the district court,” the ACLU report continues. Still, “[a]s a Second Circuit judge, she has generally sided with the government, opting for a broad reading of criminal statutes even where the statutory text or legislative history permitted a narrower construction.”

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