Will Sotomayor Really Be Good for Women?

In her widely circulated Law and Cultural Diversity Lecture [2] at Berkeley Law School in 2001, Judge Sonia Sotomayor demurred from Justice Sandra Day O’Connor’s disingenuous suggestion that a wise man and woman would reach the same decisions. Instead, she said, in the quote that’s everywhere [3] in the coverage of her nomination [4], "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."

Sotomayor cited two studies showing that the outcomes in sex discrimination cases are slightly more favorable to women plaintiffs if there is a woman on the judicial panel. So maybe she is right in general about different experiences. But she herself is not a random judge in a study. And based on her record, we have little reason to believe that Sotomayor would be any more sympathetic to women than a male justice of similar political inclinations. Maybe that’s something senators should ask her about at her confirmation hearing.

We don’t know how Sotomayor would approach women’s issues on the Supreme Court, because her record is scant, what there is of it is mixed, and she did not take the opportunities available to an appellate judge to make her viewpoints known. Sotomayor was never a law professor. She has not set forth the kind of overall approach to women’s rights that academic writing encourages. Her judicial decisions in cases involving women are mixed. From the standpoint of women’s legal rights, unless biology is destiny, the appointment is a leap in the dark.

On abortion, Sotomayor ruled against the interests of abortion providers and recipients in two cases that came her way. She rejected a challenge to the gag rule, which cut off international funding for groups that talked about abortion, and she revived a claim by anti-abortion protesters that the police had violated their civil rights when clearing them away from the clinic. In the area of women’s civil rights, she sustained some claims of sex discrimination, harassment, and retaliation and rejected others. There is no consistent strain in her rulings. And the cases usually include an element of racial discrimination as well as sex discrimination.

Some appellate judges also make a record through what their opinions say—their reasoning as well as their rulings. In recent years, some of Chicago’s Seventh Circuit judges have done this; the best known is Judge Richard Posner. Judge Sotomayor’s opinions do no such thing. With one exception, nothing in her opinions hints at a broad understanding or deep commitments to any particular version of women’s legal status, other than applying the law and precedents to the facts before her.

The exception is a sex and race discrimination claim brought by a Hispanic woman, Yvette Cruz, against Coach Stores [5], after the company fired her. Although Sotomayor and the other two judges on her panel ultimately dismissed most of Cruz’s discrimination claims in a 2000 ruling, they revived Cruz’s action against Coach for subjecting her to a hostile work environment. The standard for succeeding with a hostile work environment suit is high, making these cases hard to sustain. Sotomayor and her panel had to decide whether Cruz’s complaint contained sufficient allegations for a trial. The judge’s opinion opens with an uncharacteristically graphic description of one of Cruz’s last days at work: “On that day, Cruz's co-worker, Herve Heriveaux, approached Cruz during her lunch hour and commented that her ‘nipples [were] erect.’ An argument ensued between Cruz and Heriveaux, during which Heriveaux stepped extremely close to Cruz and called her a "f ing cunt." Cruz then slapped Heriveaux, who responded by placing her in a headlock. The altercation ended when Cruz's supervisor intervened.”

Sotomayor’s opinion also includes Cruz’s description of the behavior of another supervisor who “would move increasingly close to her, ‘so usually if there is a wall I end up against the wall talking to him, and what I'll do is cut the conversation short and leave.’" Sotomayor wrote that, “the physically threatening nature” of the supervisor’s behavior brought “this case over the line separating merely offensive or boorish conduct from actionable sexual harassment.”

This holding is not in and of itself remarkable, but Sotomayor’s vivid presentation of the facts is. Her panel did not explicitly cite the nipple incident in finding that Cruz might be able at trial to prove her hostile work environment claim. But the scene Sotomayor’s opening sets establishes compellingly why the doctrine of a hostile work environment exists and must sometimes be legally punished.

Maybe the Latina wisdom Sotomayor referred to in her speech lies in her ability to more readily recognize how Cruz felt when a physically and socially powerful supervisor verbally abused her or pressed her until her back was against the wall.

One graphic description in one discrimination case is not a lot of information to go on, and life tenure means a mistaken appointment can never be undone. So it’s a gamble. But at least Sotomayor did right by Yvette Cruz.

Photograph of Sonia Sotomayor by The White House/Getty Images.