Assigned Reading: The ‘Empathy’ Nominee
(FROM: The Wall Street Journal)
This isn’t a jurisprudence that the Founders would recognize, but it is the creative view that has dominated the law schools since the 1970s and from which both the President and Judge Sotomayor emerged. In the President’s now-famous word, judging should be shaped by “empathy” as much or more than by reason. In this sense, Judge Sotomayor would be a thoroughly modern Justice, one for whom the law is a voyage of personal identity.
Perhaps that’s what the liberal pundits mean when they say, as they continue to do despite evidence to the contrary, that Sonia Sotomayor is eminently qualified to serve on the bench at the United States Supreme Court. Her unique upbringing, and the empathy it fosters, drowns out any question as to her actual judicial competence. She’s qualified, it seems, because she is that quintessential “thoroughly modern Justice.” Anything else, such as someone who looks to answer questions of law with interpretation of American law, is deemed an “ultra,” “hardline” conservative relic.
In a speech published in the Berkeley La Raza Law Journal in 2002, Judge Sotomayor offered her own interpretation of this jurisprudence. “Justice [Sandra Day] 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,” she declared. “I am . . . not so sure that I agree with the statement. First, . . . 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.”
We quote at such length because, even more than her opinions, these words are a guide to Ms. Sotomayor’s likely behavior on the High Court. She is a judge steeped in the legal school of identity politics. This is not the same as taking justifiable pride in being the first Puerto Rican-American nominated to the Court, as both she and the President did yesterday. Her personal and family stories are admirable. Italian-Americans also swelled at the achievement of Justice Antonin Scalia, as Jewish-Americans did at the nomination of Benjamin Cardozo.
But these men saw themselves as judges first and ethnic representatives second. Judge Sotomayor’s belief is that a “Latina woman” is by definition a superior judge to a “white male” because she has had more “richness” in her struggle. The danger inherent in this judicial view is that the law isn’t what the Constitution says but whatever the judge in the “richness” of her experience comes to believe it should be.
I guess that’s essentially what I was trying to get at in the two Sotomayor-related pieces yesterday. The Journal, of course, said it better than I could. “[J]udges first and ethnic representatives second” is about as straightforward as it gets. Furthermore, imagine if it were a older white appellate court judge who remarked that a white male would likely make better decisions than a female, Hispanic judge — can you spell “impeachment?” At the very least, it would pay for a couple new pinstriped suits for Al Sharpton.
Listen, it seems apparent that, barring some unforeseen event, the Republicans will not be able to stop Sonia Sotomayor’s ascension to the Supreme Court. This, however, does not mean that the GOP should somehow give up — fighting against the Sotomayor confirmation, considering that she is the posterchild for identity politics and judicial activism, could put on stark display the equally stark difference between the perceived role of the judiciary among Republicans and Obama’s Democrats.