My late constitutional law professor once offered the following
hypothetical about a fishing dispute that made its way to court. On
one side were Native Americans; on the other, environmentalists.
After a pregnant pause, he mused: "What's a liberal to do?" Were he
to teach the class today, he might well have asked, "What's an
empathetic judge to do?"
As this hypothetical illustrates, empathy, the factor by which
President Obama claims that he selects his judicial nominees, is
highly subjective, and provides little direction for judges. In
some cases, all of the parties are sympathetic. In other cases,
none are. In still other cases, the law may be unambiguously on the
side of a party who is less sympathetic.
If empathy is the guiding principle, how is a judge to decide
these cases? And how do we separate empathy from personal bias?
Here, then, is a modest proposal: In choosing nominees,
President Obama should seek judges who would apply the Constitution
and the laws as they are written, and interpret them consistent
with their plain and original meaning.
Contrary to the frequent howls from the left, interpreting
statutes and even the Constitution is not so difficult or arcane a
task that judges need resort to tea leaves or to breathe subjective
"life" into documents. Yes, in some cases this will lead to
decisions that the judges personally consider bad policy. In these
cases there is a corrective in the legislature, whose job it
is--with apologies to Judge Sotomayor--to make policy.
Not only is this the correct understanding of a judge's role,
it's the one that resonates best with the American people. A
November 2008 nationwide survey commissioned by the Federalist
Society found that 70 percent of voters want judges who "will
interpret and apply the law as it is written and not take into
account their own viewpoints and experiences" over judges who "will
go beyond interpreting and applying the law as written and take
into account their own viewpoints and experiences."
But Obama said recently that he wants judges whose personal
preferences affect the outcome of their decisions. In a speech
before Planned Parenthood, then-candidate Obama said: "We need
somebody who's got the heart--the empathy--to recognize what it's
like to be a young teenage mom. The empathy to understand what it's
like to be poor or African-American or gay or disabled or old--and
that's the criteria by which I'll be selecting my judges."
President Obama's nominee to the Supreme Court, Judge Sonia
Sotomayor, takes this line of reasoning a step further, questioning
whether it is possible for judges to overcome personal sympathies
or biases "in all or even in most cases." She even seems to think
that ruling based upon these biases is somehow patriotic: "I wonder
whether by ignoring our differences as women or men of color we do
a disservice both to the law and society."
And apparently she finds the differences between ethnicities to
be profound, in a way that most reasonable people will find
profoundly disturbing. She infamously claimed that she "hope[s]
that a wise Latina woman with the richness of her experiences would
more often than not reach a better conclusion [as a judge] than a
white male who hasn't lived that life." She also stated that
physiological differences based on national origins "will make a
difference in our judging," and grants some credence to the idea
that race or ethnicity may lead to "basic differences in logic and
In light of these disturbing quotes, the question must be
asked--and hopefully asked repeatedly by senators--will these
stereotypes and identity politics inform Judge Sotomayor's
"empathy?" As U.S. Civil Rights Commissioner Todd Gaziano,
responding to these claims, has stated: "[T]his is not a potential
example of 'reverse discrimination.' At issue is the same, old,
ugly racial discrimination and stereotypes as before--just in
furtherance of different groups."
Among the images of justice at the Supreme Court is Themis, the
famous statue of lady justice holding a scale while wearing a
blindfold. She represents the role of a judge--someone oath-bound
to impartially "administer justice without respect to persons."
President Obama and Judge Sotomayor's fealty to identity politics
clashes with this proper role.
Senators must question Judge Sotomayor carefully to assess
whether she can genuinely put aside her biases, or, as she seems to
have done in the past, embrace them. The American people deserve to
know whether she will serve the Constitution--or identity
Alt is a senior Legal fellow and deputy director of the
Center for Legal and Judicial Studies at The Heritage Foundation