A Justice With Empathy
June 4, 2009 by Chip Wood
Let me say it right at the outset: Supreme Court nominee Judge Sonia Sotomayor is a long way from being the sort of strict constructionist I’d like to see on the U.S. Supreme Court. I want someone who respects the U.S. Constitution to the point of revering it.
I want someone who believes the courts should apply the law based on 200 years of legal precedent — not make law, based on the whims of the day or the theories of sociologists.
In other words, I want someone who will follow in the footsteps of the great jurists of the past. I believe several members of the present court meet that standard — most emphatically including that most maligned of all justices, Clarence Thomas.
But it doesn’t matter what I think. I’m not the President of the United States. Barack Obama is. And he thinks "empathy" is more important than a strict adherence to some tired, outdated, musty old laws.
Thus his nomination of Judge Sonia Sotomayor, a proud Latina lady with a long list of impressive accomplishments. And also some very unfortunate missteps.
Let’s begin with the missteps. As anyone who has paid even a moment’s attention knows by now, in a speech at the University of California, Berkeley eight years ago, Judge Sotomayor told the assembled audience,
"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."
When the excerpt came to light, many conservatives were quick to attack. Caustic commentator Pat Buchanan put the shoe on a different foot and asked,
"Imagine if Sam Alito had said at Bob Jones University, ‘I would hope that a wise white male with the richness of his life experience would more often than not reach a better conclusion than a Hispanic woman, who hasn’t lived that life.’"
The Presidential advisor (and two-time candidate himself) concluded bluntly, "Alito would have been toast. No explanation, no apology would have spared him. He would have been branded for life a white bigot."
The comparison may be odious. But is it accurate? The powers that be, in Washington and in the national media, certainly don’t think so. But what do you say?
Newt Gingrich, the former Speaker and the House and one of the most prominent spokesmen from the right was even blunter. He Twittered his 344,000 subscribers that "new racism is no better than old racism." He explained, "Imagine a judicial nominee said, ‘My experience as a white man makes me better than a Latina woman.’" A few moments later, he expanded on the point by Twittering, "White man racist nominee would be forced to withdraw. Latina woman racist should also withdraw."
Newt’s argument was echoed by many others on the right, most notably talk-show host behemoth Rush Limbaugh, who said the remarks proved the judge was a racist. He then qualified his remarks by adding, "You might want to soften that and you might want to say a reverse racist."
Well, of course no one on either side wanted to soften the controversy. Bloggers and Twitterers around the world had the red, juicy meat they’d been hoping for. While many condemned the former speaker for his remarks, more than 1,000 liked what they heard enough to sign up for his electronic broadcasts.
Then the feathers really began to fly. Newt and Rush were attacked by voices from the far left to the near right. So much so that Newt was forced to back-peddle a bit. In a column in Human Events, the conservative Washington news-weekly, he wrote:
"My initial reaction was strong and direct — perhaps too strong and too direct. The sentiment struck me as racist and I said so. Since then, some who want to have an open and honest consideration of Judge Sotomayor’s fitness to serve on the nation’s highest court have been critical of my word choice.
"With these critics who want to have an honest conversation, I agree. The word ‘racist’ should not have been applied to Judge Sotomayor as a person, even if her words themselves are unacceptable (a fact which both President Obama and his Press Secretary, Robert Gibbs, have since admitted)."
Faced with this firestorm of controversy, what should Republicans do? The silliest argument I’ve heard thus far comes from a fund-raising outfit calling itself The Center for Individual Freedom. In a widespread eblast, it wrote,
"Contrary to what you may be hearing from the liberal media, stopping this nomination does not have to be a ‘long shot.’ It would only take a handful of Republicans who have the courage and the backbone to do the right thing."
Who are those "handful of Republicans"? And what are they being asked to do? The Center’s plan is to persuade all seven Republicans on the House Judiciary Committee to refuse to let Sotomayor’s nomination come out of committee.
Yes, you’re reading that right. The group says that if all seven Republicans stonewall the judge’s nomination ("Please send us more money to make this happen"), the full Senate will never have a chance to vote on her nomination.
What are the chances of this happening? Somewhere between nil and zero. I’ve fought some lonely battles in my day — Get the U.S. out of the UN, Impeach Earl Warren, Keep the Panama Canal (well, okay, that one had a lot of allies; just not enough). But I can’t remember when I’ve heard of one as unlikely to succeed — or more likely to bring us disrepute — than this one.
But what if, through some parliamentary trickery, opponents did manage to keep the Senate from voting on Obama’s nominee? Do you think there is any reasonable person anywhere who would applaud what was done?
Let me be perfectly clear, as someone used to say. I believe there are very legitimate grounds to question Judge Sotomayor’s record, including some of her more intemperate remarks.
Frankly, I hope Senate Republicans follow the advice of conservative commentator Charles Kruthammer, who said the first witness they should call at the hearings is Frank Ricci.
In case you’ve never heard of him, Ricci has been a firefighter from New Haven, Connecticut, for several years. He also happens to suffer from a severe case of dyslexia. When an opportunity for promotion came up, he quit his second job, so he could spend as much time as possible studying for the exam. He spent $1,000 on books and hired a tutor to read them to him.
His hard work and determination paid off. He finished sixth on the exam to become a lieutenant. It just so happened, however, that not a single black applicant scored high enough on the test to qualify for advancement. So the politically correct leaders of New Haven tossed out the results and denied advancement to everyone.
Ricci and 19 other firefighters sued the city council to get the promotions they were promised. The case reached the august councils of Judge Sonia Sotomayor and two other members of the Second Court of Appeals. Judge Sotomayor had no "empathy" for Ricci and his colleagues. She voted to side with the city and dismiss the suit.
Even worse, Judge Sotomayor then tried to suppress news of the verdict. She buried it in a single, dismissive, unpublished paragraph. Had a reporter not learned of it, Frank Ricci and his fellow plaintiffs would not have been able to get a hearing before the Supreme Court.
Stuart Taylor, a columnist for the National Journal, and a former Supreme Court reporter for the New York Times, accused Sotomayor of "a process so peculiar as to fan suspicions that some or all of the judges were embarrassed by the ugliness of the actions."
Now there’s a line of questioning the Judiciary Committee should pursue. Here’s another:
In a speech at Duke University four years ago, the Judge told an appreciative crowd, "(The) Court of Appeals is where policy is made. I know this is on tape, and I should never say that, because we don’t make law, I know." The audience appreciated her wink and smile and laughed uproariously.
I know Sonia Sotomayor is being hailed as "a brilliant legal scholar." But her ill-conceived and intemperate public remarks make me wonder. Is it possible she’s not too terribly bright? (There are whispers that some fellow jurists who have actually read her verdicts wonder the same thing.)
Back when she was first appointed to a federal court, Sonia Sotomayor took the following oath: "I do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent on me, according to the best of my abilities and understanding, agreeably to the Constitution, and laws of the United States, so help me God."
Does Judge Sotomayor agree with the oath she took? Does she even understand it? Or does she think it’s more important to be "a wise Latina woman" who has "empathy" for the plaintiffs who come before her — as long as they’re not a white firefighter — no matter how hard-working or how deserving.
Let’s hope Republicans in the Senate ask these hard questions. And that enough of our fellow citizens pay close attention to the answers.