Justice Brett Kavanaugh is accustomed to unrelenting personal attacks from the left that began with his nomination to the Court. This week, however, the ad hominem insults came not from cable programs but a colleague.
Justice Sonia Sotomayor used an appearance at the University of Kansas School of Law to level a personal dig at Kavanaugh as an out-of-touch elitist.
I have long criticized the growing number of public statements by justices on controversial subjects and cases, including Justice Sotomayor. However, this appearance represented a new low in lashing out at a colleague as effectively blinded by his own privilege.
In her comments, Sotomayor raised Kavanaugh’s concurrence in Noem v. Vasquez Perdomo:
“I had a colleague in that case who wrote, you know, these are only temporary stops. This is from a man whose parents were professionals. And probably doesn’t really know any person who works by the hour… Those hours that they took you away, nobody’s paying that person. And that makes a difference between a meal for him and his kids that night and maybe just cold supper…”
She then referred to her own background as giving her experience and knowledge that is apparently missing in colleagues such as Kavanaugh:
“Life experiences teach you to think more broadly and to see things others may not. And when I have a moment where I can express that on behalf of people who have no other voice, then I’m being given a very rare privilege.”
It was reminiscent of Sotomayor’s reference to being a “wise Latina” on the bench. While on the Second Circuit, then-judge Sotomayor explained that her life experiences offered a “difference” not shared by other colleagues. In a 2001 lecture at Berkeley law school titled “A Latina Judge’s Voice,” she heralded the difference that “our gender and national origins may and will make … in our judging.”
In her latest comments, she is suggesting that her interaction with hourly wage earners allows her to see things that Kavanaugh does not in these cases. The claim that she “sees things that others may not” suggests that the privileged, insulated existence of Kavanaugh blinds him to the true merits of cases before him.
Notably, Justice Sotomayor also told the students and faculty that she has a friendship with most, but apparently not all, of her colleagues:
“I dare say that with virtually all of them, I certainly have a civil relationship. And with many of them, I think I dare say that I have a friendship,”
After this speech, I would not expect a social media friend invite from Kavanaugh.
It is true that Kavanaugh went to elite schools, but so did Sotomayor, who graduated from Princeton and Yale.
Both of Kavanaugh’s parents were indeed lawyers, but it is odd that Sotomayor would miss the compelling story of his mother, Martha. She was a history professor who went to law school while raising a family and eventually became one of the minority of women on the state bench. That would also seem to be “gender origins” that Sotomayor previously cited as key in her view of impactful judging.
However, what was most striking was Sotomayor’s backhanded suggestion that Kavanaugh “doesn’t really know any person who works by the hour.” The suggestion is that he has avoided — and continues to avoid — interactions with people who get paid on an hourly basis — while she is more inclusive in her circle of friends. It is obviously false, but more importantly, petty and unfair.
The attack suggests that, while she is a “wise Latina,” Kavanaugh is a privileged prig on the Court. The fact is that many blue-collar (if not most) workers identify more with aspects of Kavanaugh’s jurisprudence. At a minimum, over half of the country is more likely to embrace his approach than that of Justice Sotomayor, who has been criticized for her comments in oral argument on issues ranging from abortion to puberty blockers to COVID restrictions.
Justice Kavanaugh has distinguished himself in public service, including work with the homeless.
Justice Sotomayor has repeatedly raised eyebrows with her comments off the bench, including seemingly calling on lawyers and students to join in a political campaign to change abortion laws.
In her favor, Justice Sotomayor has also defended colleagues like Justice Clarence Thomas, explained the reasonable disagreements among the justices, and opposed rationales on the left for packing the court. She is not someone who I view as gratuitously rude or cruel. I believe that she values collegiality and the Court as an institution. However, this was another injudicious moment during public events.
There is a wide chasm between the jurisprudence of these two justices. However, that difference is due to fundamental and principled differences in how courts should approach constitutional and statutory interpretation.
Yet, these comments were a disturbing departure from the tradition of collegiality and civility on the court. It was unfair and unwarranted. Hopefully, Justice Sotomayor will take an upcoming occasion during her speaking tour to withdraw the comment.
That would be the “wise” thing to do.
Jonathan Turley is a law professor and the best-selling author of “Rage and the Republic: The Unfinished Story of the American Revolution.”