June 1, 2009
By Robert Alt
In choosing a Supreme Court justice, President Obama--like any
president--should look for someone who will apply the Constitution
and the laws as written, and interpret them consistent with their
plain and original meaning.
Regrettably, in selecting Sonia Sotomayor, Obama has rejected
this criterion. Instead, he has chosen a judge who has expressed
both openness to judicial policymaking and a belief that judges
probably cannot be, and perhaps should not be, impartial.
Judges' proper roles are limited. Their job is not to choose the
best policy or decide who they would like to win the case, but to
apply the law evenly, as it is written, even if they happen to
disagree with it or have greater affinity for one of the
A majority of Americans agree. A November 2008 survey conducted
by the polling company found 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 says he wants a judge to take personal experiences
into account. He has found just such a jurist in Sotomayor.
In a speech at the University of California at Berkeley law
school, Judge Sotomayor questioned whether it is possible for
judges to overcome personal sympathies or biases "in all or even in
More troubling, she seems to think expressing these biases is a
"I wonder whether by ignoring our differences as women or men of
color we do a disservice both to the law and society," she has
Also troubling, Sotomayor has made several statements which are,
at best, ethnically insensitive. Best, known, perhaps, is her
assertion: "I would hope 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
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 reasoning."
U.S. Civil Rights Commissioner Todd Gaziano cuts to the heart of
the matter: "Make no mistake, however: this 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."
These statements raise serious concerns about Obama's use of
"empathy" as the standard for choosing judges. Empathy is an empty
standard, absent direction by some guiding philosophy, ideology or
If judges are nominated for their willingness to make decisions
based upon empathy, senators must conduct a much more searching
review of nominees.
Questions about personal beliefs, politics and background are
virtually irrelevant for nominees who properly limit their
jurisprudence to what Chief Justice Roberts called the umpire-like
task of deciding cases based on the written law. But they must be
asked if a senator is to understand when and how a judge will
exercise empathy to supersede the law. Given Sotomayor's public
statements about the differences in judges and ethnicities,
searching inquiry will be essential.
Supreme Court justices take an oath to "administer justice
without respect to persons," to "do equal right to the poor and to
the rich" and to "faithfully and impartially discharge" their
duties under the Constitution. Judge Sotomayor has stated
impartiality is not possible in most cases.
The Senate has a duty to thoroughly question Judge Sotomayor to
determine whether she can honestly uphold this oath of office, or
whether she will seek to apply her own personal biases from the
Alt is a senior Legal fellow and deputy director of the
Center for Legal and Judicial Studies at The Heritage Foundation
Moved on the McClatchy News Service
In choosing a Supreme Court justice, President Obama--like any president--should look for someone who will apply the Constitution and the laws as written, and interpret them consistent with their plain and original meaning.
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