President Obama has unveiled his first pick for a lifetime
appointment to the Supreme Court. While we are all caught up in
the empathy, let us try a thought experiment. Perhaps it will
raise our consciousness and add to our understanding.
Imagine the president nominated someone who helped bury the
racial discrimination claims of 20 firefighters who say their
city government tossed aside their promotional exam test results
solely because they had the wrong color of skin. Imagine that a
colleague of this judge — a Hispanic jurist appointed by Bill
Clinton — found this decision a little mystifying.
Arguing for en banc and Supreme Court review of the
above case, Jose Cabranes wrote, “this case presents a
straight-forward question: May a municipal employer disregard the
results of a qualifying examination, which was carefully
constructed to ensure race-neutrality, on the ground that the
results of that examination yielded too many qualified applicants
of one race and not enough of another?”
Imagine further that the nominee in question had suggested that
Hispanic women are hardwired, due to “inherent physiological or
cultural differences,” to perform differently as judges than
white men. In fact, the nominee expected people of one race and
gender to “more often than not reach a better conclusion” than
people of the other race and gender.
National Journal legal columnist Stuart Taylor imagined
a nominee like Samuel Alito going on about how “our gender and
national origins may and will make a difference in our judging”
and ultimately reached a conclusion that doesn’t require much
imagination: “Any prominent white male would be instantly and
properly banished from polite society as a racist and a sexist
for making an analogous claim of ethnic and gender superiority or
inferiority.”
That is the only part of our little thought experiment that was
hypothetical. The rest we don’t have to imagine: it actually
applies to Judge Sonia Sotomayor, President Obama’s choice for
the highest court in the land. Unlike the “more often than not”
inferior judges and a majority of the passed-over firefighters,
Sotomayor is not a white male, prominent or otherwise. That’s
where Taylor’s analogy breaks down.
Fortunately for Sotomayor, she did not share her thoughts about
what kind of people have the “inherent physiological or cultural”
advantages to be better judges with an audience of avowed racists
and sexists. Instead she did so at a “cultural diversity lecture”
on the campus of Berkeley.
Even better for Sotomayor, she did not fail to show empathy for
the alleged victims of a racial discrimination claim supported by
the civil-rights lobby. She gave a cold shoulder to people
who advance the kind of discrimination claim that lobby usually
opposes.
That means Sotomayor can probably get away with saying,”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.” In fact, the
president empathizes with such claims at least to this extent: he
chose Sotomayor because he wanted to diversify the Court and
reach better conclusions, from his perspective, on the issues of
the day.
Although she says she is not “promoting it” or “advocating it,”
Sotomayor believes the Court of Appeals on which she serves —
and the Supreme Court — is “where policy is made.” She promised
to remember the “real-world consequences” of her decisions if
confirmed. This is a confusion about the role of the judicial and
legislative branches of government that is shared by President
Obama, who believes “what is in a judge’s heart” should be a
major concern and complained that Chief Justice John Roberts “has
far more often used his formidable skills on behalf of the strong
in opposition to the weak.”
Notice that protecting the weak from the strong does not extend
to the New Haven firefighter who is protesting the promotion
decisions of his own employer and government. Or the small
business owner threatened by eminent domain or burdened by high
taxes. Or the child in the womb in opposition to the abortionist.
Obama does mean using raw judicial power to pick winners and
losers, however. Empathy is simply a code word for liberalism,
diversity an excuse for identity politics, and the courts are
just engaged in policymaking by other means.
Sonia Sotomayor is likely to be confirmed. She has an impressive
biography. She has won support — and her first federal judicial
nomination — from Republicans in the past. Despite her high
reversal rate, her rhetorical assaults on judicial impartiality
do not reflect the entirety of her record as a judge. Unless the
unexpected occurs, Senate Republicans lack the means and probably
the will to oppose her effectively.
But how about a little empathy for the rule of law?
