She will not protect the Constitution — or even live up to Sen. Durbin’s standard.
Absent a miracle, Judge Sonia Sotomayor will take a seat on the U.S. Supreme Court. Nevertheless, the Republican minority still has an opportunity to use her nomination to educate the American people about the dangers of politicizing the judiciary.
President Barack Obama made a politically astute pick. Sonia Sotomayor is a competent jurist who symbolizes hard work, personal achievement, and ethnic diversity.
However, as Sen. Dick Durbin (D-Ill.) argued during the hearing on John Roberts, “the burden of proof for a Supreme Court justice is on the nominee.” Judge Sotomayor has not met that burden.
While talking up her background, Sotomayor’s advocates have emphasized her moderate record on the 2nd Circuit Court of Appeals. However, Circuit Court judges remain constrained by the possibility of Supreme Court review — and the hope of advancing to the high court. Judge Sotomayor’s testimony was useless, as intended, in assessing her judicial philosophy. Writing in Slate, Dahlia Lithwick concluded: Sotomayor “dodges, hedges, and evades her way through softball and hardball questions alike.” Sen. Jon Kyl (R-AZ) put it more harshly: the Judge was “evasive, lacking in substance and, in several instances, incredibly misleading.”
In trying to assess how Justice Sotomayor would behave, we should consider the president’s expectations. Then-Sen. Obama, who voted against both John Roberts and Samuel Alito, emphasized the “quality of empathy.” While most cases can be decided on the basis of case law and precedent, said Sen. Obama, there remain five percent which “can only be determined on the basis of one’s deepest values, one’s core concerns, one’s broader perspectives on how the world words, and the depth and breadth of one’s empathy.” Alas, this latter category, however few in number, accounts for most of the important issues about which we most care and which most divide us.
Sonia Sotomayor’s rhetoric and background suggests that she shares the president’s general perspective. For instance, she has been involved in ethnic identity activism and politics throughout her college and professional life. She spent 12 years as a board member of the Puerto Rican Legal Defense and Education Fund, which promoted the usual ethnic agenda of coerced diversity and multiculturalism as well as the usual liberal agenda including support for abortion and opposition to capital punishment.
Moreover, her rhetoric reflects an extreme judicial vision. Perhaps Sotomayor’s most famous comment, repeated in substance on at least seven occasions, came in the Berkeley La Raza Law Journal: “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.” Six years ago in a speech at Seton Hall she declared: “Whether born from experience or inherent physiological or cultural differences, … our gender and national origins may and will make a difference in our judging.”
She returned to this theme many times: “My experiences will affect the facts that I choose to see as a judge.” Moreover, “there is no objective stance, but only a series of perspectives — no neutrality, no escape from choice in judging.” Indeed, “our experiences as women and people of color affect our decisions. The aspiration to impartiality is just that.”
There’s more, however. She also believes that judges are to change the law. For instance, she complained: “The public expects the law to be static and unpredictable. The law, however, is uncertain and responds to changing circumstances.” Of course, changing the law cannot be left to legislators: “Our society would be straightjacketed were not the courts, with the able assistance of the lawyers, constantly overhauling the law and adapting it to the realities of ever-changing social, industrial, and political conditions.”
Indeed, “A given judge (or judges) may develop a novel approach to a specific set of facts or legal framework that pushes the law in a new direction.”
After all, she contends: “change — sometimes radical change — can and does occur in a legal system that serves a society whose social policy itself changes. It is our responsibility to explain to the public how an often unpredictable system of justice is one that serves a productive civilized but always evolving society.” As she declared in a videotaped talk, the “Court of Appeals is where policy is made” and where “the law is percolating.”
One need not have an idealized vision of the law to find these sentiments profoundly disturbing.
Empathy has its place — perhaps in a trial judge understanding a defendant’s motivations, and passing sentence. However, empathy is a dubious guide to statutory and constitutional interpretation. Some of the most important cases either revolve around a party with whom empathy is impossible or involve multiple parties who all deserve empathy.
Diversity has value, but Sotomayor did not argue diversity would improve collective decision-making. She said that her ethnicity and gender would improve her decision-making.
Moreover, stereotypes can be seriously misleading. Nine white men delivered the death blow to racial segregation in Brown v. Board of Education. One of the New Haven firefighters who challenged the city’s “pro-minority” employment policy in Ricci v. Destefano was Hispanic Ben Vargas.
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