May 26, 2009 [LINK / comment]

Sotomayor: "empathetic" justice

As expected, President Obama announced today that he will nominate Sonia Sotomayor to be the next Supreme Court justice, replacing David Souter. There is no question that she is qualified for the job, having served as a Federal judge since 1992, and in an appellate court since 1999. She clearly fulfills the President's standard of "empathy," in terms of her ethnicity, gender, and working class origins. For a full biographical background on Judge Sotomayor, see

Conservatives will certainly harp on Sotomayor's unabashed record as a liberal activist. In a panel discussion, she candidly admitted that judges don't just interpret the law but actually make policy: "The Court of Appeals is where policy is made." Then she slyly acknowledged what a controversial declaration that was. See for yourself on Well, I suppose we should give her credit for being honest, at least. The Founding Fathers never intended for the judiciary to initiate policy changes, but that's the way things have been done in this country since the mid-20th Century, and it's hard to turn back.

On ABC's "Nightline" this evening, George Will commented that Sotomayor was a very astute political choice for Obama, because it strengthens his support among Hispanics. That is the fastest-growing ethnic group in America, and the Republicans have been losing their support in recent years, largely because of the immigration issue. Will has a column in Wednesday's Washington Post, noting the obsession with "identity" as the main consideration in selecting personnel these days. As part of a three-judge panel, she affirmed -- without explanation -- a lower court's ruling against the New Haven Police Department, after no black applicants passed the entry exam. Such an uncritical allegiance to the problematic practice of affirmative action is troubling.

Speaking of immigration, Sotomayor's parents came to the United States from Puerto Rico during World War II, when there was a labor shortage. It is certainly healthy to have a Supreme Court justice with such an "outsider's" perspective, but Sotomayor has made some rulings and said some things that suggest that only a woman or a minority member could understand some kinds of problems well enough to make the best decision. She will get a chance to clarify her beliefs when she is questioned in the Senate, but to me that can only be interpreted to mean that justice is not blind, and that impartiality is either not possible or not important. Such an attitude is truly frightening, because it can serve to rationalize arbitrary government decisions that favor one group over another.

The President also brought up Sotomayor's role in ending the 1994-1995 baseball strike, siding with the players' union. She was raised in The Bronx, not far from Yankee Stadium (soon to be torn down!), and has been a lifelong Yankees fan. Well, with those attributes she certainly can't be that bad!

But seriously, Republicans in the Senate need to think carefully about how difficult to make her confirmation process, which is virtually assured. She deserves thorough scrutiny of her positions and decision-making criteria, and there should be no limits on what she is asked. Someone in the Senate is bound to challenge her to defend the Roe v. Wade decision, and I just hope they are smart enough to focus on the constitutional propriety of that ruling, as opposed to the morality of abortion per se. If Republicans come across as narrowly focused on certain "litmus test" criteria, they will suffer a further loss of respect among independent-minded voters.