Couldn’t Have Said it Better Myself (seriously)

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.



  1. Gail B says:

    Aside from the negative things I’ve read about Sotomayor, I would be against her confirmation simply because of who nominated her!

    I do pray that the Senate can strike her name down as a candidate.

  2. D.A.Gust says:

    Unfortunatly I beleive you are right…there is little the Republicans can do to stop the process without alienating the latino voter, and looking like froth at the mouth racists.

    What can be done?
    Ricci v. DeStefano is a good start, this case is comming up before the supreme court. (Hee Hee)
    I expect this case to throw a bit of light on her personal chioces.

    They can also show all of the other rulings where her personal views superseded constitutional law.

    The Repubs will have to focus on, and continue to point out, how Sotomeyer has admitted to how she forms her opinions through her fellings, personal views, and political leanings.

    This will more than probubly be a loss, but with a win developing inside of it, leading up to the 2010 elections, this ridiculous appointment just may turn into a valuable prying tool for Republicans.

    We will see the “they are racists” yellers and much, much more as the media runs this over, under, and around us.

  3. Lilly says:

    I sincerely hope that you write all representatives, including BO, like you write here. Well said.

  4. Rix says:

    “I win”, BO said. He won, and he will be dictating how the country lives, acts, and draws breath for the next four (and possibly eight) years. And there is an extremely important lesson to be learned from it, once that conservatives will likely fail to absorb: TRYING TO BE NOBLER THAN YOUR ENEMY MEANS CONCEDING THE FIGHT.

    For a sweet moment, imagine a reverse situation: a solidly conservative President in the White House and Republican Congress supermajority. Will voting-grease “equality” laws be repealed? Will the legislators smash the hold SEIU and NEA have on American politics? Will there be openly-partisan appointments of qualified but unapologetically conservative, pro-life, pro-death penalty judges? The reason why the nation is saddled with King Obama with Botox Nancy and Sleek Harry for sidekicks while the abovementioned situation remains hypothetical is that no prominent Republican politician (with possible exception of Sarah Palin) is ready to answer “aye” to all these questions.

  5. Anonymous says:

    I certainly admire Judge Sotomayor for her accomplishments but a judge is supposed to rule based on the law…that’s what I would expect if I had to go before a judge. What if her empathy was for the other party involved in a dispute even though the law supported my position? Yesterday, Rush Limbaugh made a good point about this being a “teachable” moment when conservatives could contrast our views with the liberals even though she will likely be confirmed. This is an opportunity to focus on Obama’s ideas of judicial qualifications as they relate to the rule of law. As Rush said, we need to applaud Judge Sotomayor’s parents for their hard work and accomplishments in coming to this country and rearing successful children without the aid of governmental social programs but thru hard work and responsibility. We need to point out that Judge Sotomayor’s success illustrates the opportunity that exists for all in this country who are willing to WORK for it! Mr. Obama should be reminded that MAYBE this country is not as racially biased as he and his wife would have us believe. They certainly have been able to succeed along with Judge Sotomayor although her accomplishments are more admirable because she did it thru determination and with the support of her parents who obviously instilled in her the idea that she could reach her goals on her own without the influence and assistance of questionable individuals who would have ulterior motives for her success. I hope Republicans will use this as an opportunity, not to attack, but to illustrate the differences in views regarding the law with the liberals.

  6. Uncle Rick says:

    “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.”

    This implies that there is a spectrum of possible conclusions, ranging from idiotic to genius. This might be true, but we believe — and hope — that there is only one best conclusion in any case, and it can be reached by application of reason to the facts and circumstances.

    Why would a person of one ethnic background be better able to do that than a person from another? I scares me that one who embraces such deeply flawed logic may sit on the the highest court in the land. There have been too many of those already.

  7. Uncle Rick says:

    D.A. Guest . . .
    “there is little the Republicans can do to stop the process without alienating the latino voter”

    So what? How many of them vote GOP anyway? What would it take to get them to vote GOP? What percent of the total is that?

    Those who have the sense God gave a rubber duck are already way beyond groupthink and ethnic politics anyway.

  8. Anonymous says:

    “you can’t fix stupid” – Ron White

    and it’s the public’s fault.

  9. Ian Thorpe says:

    So one of the first great achievements of Barry’s Presidency will be to abandon the founding principal of justice in western democracies since the ancient Greeks were dominant.

    A British comedian in the 1980s used to talk about Margaet Thasthcher’s law and order policy based on what he called the IDLYF law: I don’t like your face therefore you must be guilty.

    Sound like that principle has reached America.

    (for the record Jeff, Mrs Thatcher, far from being the friend of freedom she is reputed to be, presided over the most centralising, high spending government we had had ’til then. The spending cuts she claimed were achieved by Enron accounting; shut down a government department that did a job fot £10 million and contract the work out to a private enterprise company that charged £15 million. Thus you have reduced “direct public spending” by £10 million.

  10. Anonymous says:

    I agree with Uncle Rick, we should not be afraid to investigate Judge Sotomayor’s views on the basis of possibly alienating Latinos. ANY nominee should be questioned rigorously with respect to past judgements and beliefs with respect to the role of The Supreme Court. It would be hypocrital and dishonest of conservatives to avoid a thorough review of her qualifications,etc. We don’t have the Latino vote anyway although Bush appointed several Hispanics and they were assaulted by the Liberals as was Clarence Thomas so why should this nominee be any different? We should go back and find the transcripts of some of those confirmation hearings and review the criticisms leveled at them by the liberal dimwits.

  11. Anonymous says:

    Jeff, there is an excellent article on American Thinker “Supreme Contortions” by Sally Zelikovsky and an interesting comment by Adina from Israel concerning Jewish and American judicial systems.

  12. Anonymous says:

    He found someone who will overlook his legal problems with the Constitution.

    It’s a new form of political corruption, instead of pay to play it’s lie to play.

    In the vetting process, if the Republicans don’t ask her how she will handle the constitutional corruption charges against Obama, I will cancel my membership in the Republican party and I will never vote for another Republican.

  13. D.A.Gust says:

    Uncle Rick,

    Latinos are the fastest growing voter group in America. They already vote majority Democrat.

    Where I live Latinos make up 37% of the population.

    Should the Republicans be even trying to woo the Latinos in thier direction? – or – Should the Republicans release the attack dogs and hammer Sotomayor during the process, futher pushing the Latino group away? – and – She will get the seat anyway.

    Allowing yourself to be stuck on my words of caution, can’t be helping you form and decide your opinion.

    The Repubs are reeling and stumbling about like a punch drunk fighter. I am in no way saying throw in the towel! Yes the fight must continue, but there must be guide lines and rules of engagement followed, or it will all play into the Dems hands. For the future of the party, failure, because of anger at this time is not an option.

    In my opinion, this is not the time to fix bayonets and charge, without a thorough plan in place. Politics, like a chess match, ones own moves must be thought through, or doom is certain.

    quack quack… maybe you are totally right, and I do have half a rubber duck brain?

    Nulla Vestigia Retrorsum

  14. Uncle Rick says:

    Reply to D.A. Guest. . .

    No arguments from me on your facts. I grew up in Texas and currently live in Austin. I speak a fair amount of Spanish.

    I’m not recommending fixed bayonets, either, and when I referred to rubber ducks, I meant Latinos who pay attention and vote issues and candidates, not color and ethnic origins.

    Ultimately we must have the courage to address any issue and any candidate on merits alone, and ignore ethnicity and color. Ironically, it is the GOP that can do that, the Dems base much of their politics on these things, so they can hardly disregard them.

    Republicans should indeed court black and Latino votes, even though it seems, right now, to be a lost cause. Appeal to them on issues regarding which we share common ground. It may not reap much in the way of rewards at first, but it shows that we are not ignoring them or giving up without a fight.

    Someone needs to remind them that the Dems have them in their back pocket and don’t really need to do anything to get their votes. Why should Dems care about them if they don’t have to work for their votes?

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