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Jewish World Review
May 27, 2009
/ 4 Sivan 5769
Empathy and impartiality
Debra J. Saunders
How will the GOP react to President Obama's pick to replace
Justice David Souter on the U.S. Supreme Court? Who cares? It doesn't matter
what Senate Republicans think of Sonia Sotomayor. The GOP does not have the
votes to stop her. Only Democrats or Sotomayor herself can torpedo the
admission of Sotomayor to the Big Bench.
The fascination with the GOP's response to Sotomayor illustrates
that Democrats are desperate to make Republican criticism, not Sotomayor,
the issue. It's true: Republicans can raise questions about Obama's nominee,
but only Democratic answers will determine her fate. So far, they seem to be
standing by Obama's preference for a justice with "empathy" probably
because voters don't see empathy as a bad thing.
And what's not to like in a compelling against-the-odds personal
success story? Me? Of course, I would rather not see a very liberal judge on
the team, but I also think that a duly elected president has won the power
to pick Supreme Court justices. A nominee with Sotomayor's credentials
should be assumed competent. The Senate should reject only clearly unfit
candidates for this lifetime position.
Now, that's not what Obama thought when he was a senator. "I
would support the filibuster of some" of Bush' picks for the federal bench,"
he wrote in his memoir, "The Audacity of Hope," "if only to signal to the
White House the need to moderate its next selections." And: "It behooves a
president and benefits our democracy to find moderate nominees who can
garner some measure of bipartisan support."
His support for moderation notwithstanding, Obama voted against
Chief Justice John G. Roberts (who won 78 Senate votes) and Justice Samuel
A. Alito Jr. (58 votes). Ditto Sen. Dianne Feinstein, D-San Francisco, who
complained that she did not know where Roberts stood on abortion. Be it
noted that top Democrats have voted against qualified candidates.
Veep Joe Biden wrote in his memoir, "Promises to Keep," that he
felt he could fight the (ultimately failed) nomination of Robert Bork
because, "An ideologically driven nominee who was chosen for his willingness
to overturn settled precedent would invite a divisive and unnecessary
Let the record show that top Democrats recognize the legitimacy
in opposing overly ideological judges on the Big Bench.
In a 2001 speech at the UC Berkeley School of Law, Sotomayor
wondered whether impartiality is achievable and confessed that she hoped
"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
The issue is not that Sotomayor self-identifies as a "wise
Latina woman," but what she meant when she said, "I wonder whether by
ignoring our differences as women or men of color we do a disservice both to
the law and society." Is she simply being honest about personal biases? Or
does she believe that women and minorities the speech included a
gratuitous dig at Justice Clarence Thomas should rule according to their
As for precedent: On Tuesday, the California Supreme Court
upheld Proposition 8 which limited marriage to a man and a woman. Chief
Justice Ronald George wrote that that the court's "role is limited to
interpreting and applying the principles and rules embodied in the
California Constitution, setting aside our own personal beliefs and values."
Justice Carlos Moreno, the lone dissenter, however, cited the
court's "traditional constitutional function of protecting persecuted
minorities from the majority will."
Someone on the Senate Judiciary Committee ought to ask
Sotomayor: Who's right? I want to hear that answer.
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© 2009, Creators Syndicate