Given the Democratic dominance in the Senate, it’s a safe bet that Judge Sonia Sotomayor will soon become Justice Sotomayor. But that prospect shouldn’t demoralize or intimidate Senate Republicans during this week’s confirmation proceedings. On the contrary, the hearings provide an important opportunity for Senate Republicans to expose Sotomayor’s, and President Obama’s, troubling views about the proper role of the Supreme Court.
Three principles ought to frame the confirmation hearing.
The first is the judicial obligation of impartiality, memorably captured by Chief Justice Roberts’s umpire metaphor. Every metaphor has its limits, of course, but the umpire metaphor usefully conveys the principle, central to the rule of law, that judges are to be neutral and dispassionate.
That’s a principle that President Obama, alas, clearly rejects. In explaining his 2005 vote against confirming Roberts, then-Senator Obama declared that it’s proper for justices to resort to their “deepest values,” their “core concerns,” and “the depth and breadth of [their] empathy” in deciding what he called the “truly difficult” cases. Indeed, he claimed, in such cases the critical ingredient is supplied by “what is in the judge’s heart.”
When running for president, Obama promised that his criterion for selecting justices would be “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.” Never mind the statutory oath of office for justices, which requires them to commit to “administer justice without respect to persons, and to do equal right to the poor and to the rich, and . . . impartially discharge and perform all the duties” of the judicial office.
Unfortunately, Judge Sotomayor gives ample sign of living down to Obama’s promise. As Justice Alito stated in his powerful concurrence in the New Haven firefighters case, Sotomayor failed to accord the plaintiff firefighters “evenhanded enforcement of the law” — presumably because of her “empathy” for hiring by quota. Her notorious “wise Latina woman” speech calls into question both the possibility (“in most cases”) and the desirability of objectivity and impartiality.
The second defining principle is that judicial decision-making is, or at least ought to be, a craft distinct from policy-making — that it is bounded by traditional interpretive principles that confine judges to saying what the law is. It’s far from clear that Sotomayor recognizes any limit on the judicial role. She has feebly defended wholesale resort to foreign and international law on the ground that American judges shouldn’t “close their minds to good ideas.” And her bizarre complaint that “the public fails to appreciate the importance of indefiniteness in the law” rests on a failure to recognize that it’s the role of legislatures, not of judges, to adapt the law to changing circumstances.
Third is the American ideal of colorblindness, the ideal of equal opportunity for all citizens in a legal regime that does not practice racial discrimination. That is the standard the Supreme Court adopted over half a century ago in Brown v. Board of Education, and it is the standard embraced by the Civil Rights Act of 1964 — before it was judicially hijacked.
Sotomayor, however, rejects the ideal of colorblindness in favor of a fervent and crude quota mentality — a mentality that is unpopular with wide swaths of the American public, including Hispanics. Republicans should probe whether she will indulge that mentality to advance racial quotas and other racial preferences, irrespective of the law.
Within the framework defined by these principles, Senate Republicans can profitably pursue various other important issues — national security, abortion, same-sex marriage, campaign-finance restrictions on political speech, gun rights, and property rights, to name a few.
Senate Republicans have a powerful case to make against the Sotomayor nomination. If they make their case vigorously and effectively, they will advance the overall battle over the role of the courts.