During May 31 edition of Fox Broadcasting Co.'s Fox News Sunday, contributor William Kristol asserted that “the criticism that she is not committed to the judge's oath of impartial judging is the most powerful” criticism of Supreme Court nominee Sonia Sotomayor, adding, “and there's powerful evidence for it.” To support his claim, Kristol went on to baselessly assert that at a 2001 law school symposium, 9th U.S. Circuit Court of Appeals Judge Richard Paez had “basically rebuke[d]” Sotomayor for her speech the previous night, in which she discussed her perspective as a Latina judge. In fact, Paez's comments were largely in agreement with Sotomayor's.

Similarly, on the National Review Online blog The Corner, National Review editor and syndicated columnist Rich Lowry posted without comment an email that included portions of Paez's 2001 speech. The emailer commented that Paez had “rejected” Sotomayor's “relativism,” adding, “Senate Republicans need to bring up Judge Paez's disagreement with Judge Sotomayor as frequently as possible.

Discussing Sotomayor's speech, which she delivered as the keynote address for the symposium, titled “Raising the Bar: Latino and Latina Presence in the Judiciary and the Struggle for Representation,” Kristol stated: “And then she has this speech. They can walk back a statement. This is a speech. There's a text. You can go to The New York Times website and read it. It was a carefully prepared text published in La Raza law journal.” He went on to assert:

She goes so far that the next day, Judge Richard Paez of the 9th Circuit, who is a liberal Clinton appointee, basically rebukes her and makes a big point of saying, “Look, I'm proud to be a Latino. I bring my experiences to the court, but I took an oath to judge. And I really believe we have to judge as impartially, and it can't just be an aspiration.” And he didn't mention her name, but he basically is rebutting her speech the night before that somehow impartial judging is merely an aspiration.

In fact, in the comments Paez made during a forum the day after Sotomayor's speech (published by the Berkeley La Raza Law Journal and available in the Lexis database), Paez stated, “although I am a Latino judge and there is no question about that -- I am viewed as a Latino judge -- as I judge cases, I try to judge them fairly. I try to remain faithful to my oath.” He went on to state that “we look at conflicts from our own life experiences,” but that “when called upon to decide a case, judges have a distinct and clear obligation to apply the law fairly and justly to the parties in the case.” He further stated, “Judges have an obligation to read cases honestly and find facts fairly. I strive to do that at all times” [emphasis added].

In her keynote address the prior night, Sotomayor similarly stated, “Personal experiences affect the facts that judges choose to see,” later adding, “I am reminded each day that I render decisions that affect people concretely and that I owe them constant and complete vigilance in checking my assumptions, presumptions and perspectives and ensuring that to the extent that my limited abilities and capabilities permit me, that I reevaluate them and change as circumstances and cases before me requires.”

As Media Matters for America has noted, while some conservatives in the media have condemned Sotomayor as “racist” for remarks made in her 2001 speech, such conservatives as Justices Samuel Alito and Clarence Thomas have made similar comments.

From Paez's 2001 comments:

The topic for our panel discussion is different voices, different perspectives for 21st-century issues. That is a hard question to answer. I would like to think that I make a difference. As Judge Saucedo said, we are required to apply the law fairly. I do not think that I ever have applied a different standard in judging a case involving a Latino defendant, a black defendant, an Asian defendant, a white defendant, or a multimillion dollar corporation. But, there is something about our own personal life experience that makes each of us different.

I used to tell jurors when they entered the courtroom and took their oaths as jurors, “You walk into the courtroom with a lifetime of experiences, and we don't ask you to suddenly forget all that experience, to ignore that experience.” I asked them if they could judge fairly the case that they were about to hear. I explained, “As jurors, recognize that you might have some bias, or prejudice. Recognize that it exists, and determine whether you can control it so that you can judge the case fairly. Because if you cannot -- if you cannot set aside those prejudices, biases and passions -- then you should not sit on the case.”

The same principle applies to judges. We take an oath of office. At the federal level, it is a very interesting oath. It says, in part, that you promise or swear to do justice to both the poor and the rich. The first time I heard this oath, I was startled by its significance. I have my oath hanging on the wall in my office to remind me of my obligations. And so, although I am a Latino judge and there is no question about that -- I am viewed as a Latino judge -- as I judge cases, I try to judge them fairly. I try to remain faithful to my oath.

I think we look at conflicts from our own life experiences. If you were to look at my life -- at least my professional experience -- and I'll just start with that, I probably have a unique professional experience. If you looked at the federal judiciary and asked how many federal court of appeals judges are there that worked in legal services, as I did for nine years, I doubt that you would find many. I never worked for a law firm, a district attorney's office, a U.S. Attorney's Office, a State Attorney General's office, or the Justice Department. I worked, instead, for legal services for the poor. That was my professional career. And working in that environment, representing individual clients as well as litigating larger cases, sometimes impacts the way one may look at issues or conflicts. You don't shed that experience -- you don't leave it behind. But, when called upon to decide a case, judges have a distinct and clear obligation to apply the law fairly and justly to the parties in the case.

Judges have an obligation to read cases honestly and find facts fairly. I strive to do that at all times. If I had not done so -- if I had not been successful in carrying out my judicial obligations -- I don't think I would have made it as far as I have. I have a suspicion, although no one has asked -- why did it take four years for senate confirmation? I suspect that when some individuals looked at my professional career, it may have caused a few raised eyebrows, maybe, I don't know. Certainly if somebody had told me at the outset of my career that someday I would be appointed to the Ninth Circuit, maybe I would not have chosen the career path that I did. As Judge Sotomayor mentioned last night, I tried to choose a professional route that would be satisfying and rewarding in many ways beyond just being economically rewarding. Working in legal services had little, if any, monetary reward to it, but the work that we did was truly satisfying. We felt good about everything we did. I am sure that working in the Public Defender's office, or any other public office, has a similar sense of fulfillment. Working as a public defender, day in and day out in the courtroom, is one of the most difficult tasks in the criminal justice system. It is probably the most difficult role in the courtroom.

One must look at one's experience and ask, “Has this person made a difference?” Well, I can't answer that question yet. Some of you might take a look at the work of the Latino judges who have been on the bench for maybe 10 or 15 years, and then, attempt to determine whether the judge has made a difference. It would be interesting to see what standards you would use to evaluate the judges. There is one matter though, that I do think makes a difference, and Jessica has alluded to it. As a legal services lawyer, I worked in the San Joaquin Valley, where most of my clients were farmworkers. Then I moved to Los Angeles, and a fair number of my clients were poor African Americans from South Central Los Angeles, Latinos from the east side of town, and clients from the Asian community. I did not appreciate the ramifications of the client population until I joined the criminal justice system as a municipal court judge in Los Angeles. When I first began working at the arraignment court, I was confronted with a sea of brown faces. It was somewhat disturbing because there were so many brown and black faces in the courtroom and holding areas. It was troubling. But I always sensed that I was able to establish a rapport with the defendants. In some small way, I was able to have a dialogue with the defendants -- to relate to the defendants individually. And, as Jessica said, with my background and experience, I was able to understand fully their plight and unfortunate circumstances.

From Sotomayor's keynote address:

In our private conversations, Judge Cedarbaum has pointed out to me that seminal decisions in race and sex discrimination cases have come from Supreme Courts composed exclusively of white males. I agree that this is significant but I also choose to emphasize that the people who argued those cases before the Supreme Court which changed the legal landscape ultimately were largely people of color and women. I recall that Justice Thurgood Marshall, Judge Connie Baker Motley, the first black woman appointed to the federal bench, and others of the NAACP argued Brown v. Board of Education. Similarly, Justice Ginsburg, with other women attorneys, was instrumental in advocating and convincing the Court that equality of work required equality in terms and conditions of employment.

Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O'Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, 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.

Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case. I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown.

However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Other simply do not care. Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.

I also hope that by raising the question today of what difference having more Latinos and Latinas on the bench will make will start your own evaluation. For people of color and women lawyers, what does and should being an ethnic minority mean in your lawyering? For men lawyers, what areas in your experiences and attitudes do you need to work on to make you capable of reaching those great moments of enlightenment which other men in different circumstances have been able to reach. For all of us, how do change the facts that in every task force study of gender and race bias in the courts, women and people of color, lawyers and judges alike, report in significantly higher percentages than white men that their gender and race has shaped their careers, from hiring, retention to promotion and that a statistically significant number of women and minority lawyers and judges, both alike, have experienced bias in the courtroom?

Each day on the bench I learn something new about the judicial process and about being a professional Latina woman in a world that sometimes looks at me with suspicion. I am reminded each day that I render decisions that affect people concretely and that I owe them constant and complete vigilance in checking my assumptions, presumptions and perspectives and ensuring that to the extent that my limited abilities and capabilities permit me, that I reevaluate them and change as circumstances and cases before me requires. I can and do aspire to be greater than the sum total of my experiences but I accept my limitations. I willingly accept that we who judge must not deny the differences resulting from experience and heritage but attempt, as the Supreme Court suggests, continuously to judge when those opinions, sympathies and prejudices are appropriate.

There is always a danger embedded in relative morality, but since judging is a series of choices that we must make, that I am forced to make, I hope that I can make them by informing myself on the questions I must not avoid asking and continuously pondering. We, I mean all of us in this room, must continue individually and in voices united in organizations that have supported this conference, to think about these questions and to figure out how we go about creating the opportunity for there to be more women and people of color on the bench so we can finally have statistically significant numbers to measure the differences we will and are making.

From the May 31 edition of Fox Broadcasting Co.'s Fox News Sunday:

WALLACE: Bill, there seem to be several lines of potential criticism of this judge: that she's too much of a judicial activist; that she's too much a creature of identity politics; that she's too liberal. Which of those do you think represents the most serious problem for her confirmation?

KRISTOL: Well, they overlap, but I think the criticism that she is not committed to the judge's oath of impartial judging is the most powerful, and there's powerful evidence for it.

I think in her behavior in the Ricci case, the New Haven firefighters case, which is on appeal to the Supreme Court -- a decision is likely to come down, I think a decision likely to overrule her curt dismissal of the firefighters' claim at the appellate level, and that's likely to happen in the next month. So, that's going to be a big Supreme Court decision right in the middle of the debate over her confirmation.

And then she has this speech. They can walk back a statement. This is a speech. There's a text. You can go to The New York Times website and read it. It was a carefully prepared text published in La Raza law journal.

WALLACE: This is her 2001 speech --

KRISTOL: Right.

WALLACE: -- at Berkeley Law School.

KRISTOL: At Berkeley Law School, at a symposium, speaking from a text. A total endorsement of, in my view, identity politics, counting by race, a Latina judge's voice.

She goes so far that the next day, Judge Richard Paez of the 9th Circuit, who is a liberal Clinton appointee, basically rebukes her and makes a big point of saying, “Look, I'm proud to be a Latino. I bring my experiences to the court, but I took an oath to judge. And I really believe we have to judge as impartially, and it can't just be an aspiration.” And he didn't mention her name, but he basically is rebutting her speech the night before that somehow impartial judging is merely an aspiration.

So, I think she has to account for this speech, not just for one sentence.