Empathy shmempathy. Senator, it is absolutely wrong for judges to decide cases based on their personal feelings or subjective sense of justice. President Obama’s theory that the law only takes you “25 miles in the marathon and the judge’s heart take you the rest of the way” is hogwash. The judge’s only proper role is to apply “settled” law to the facts of the case.
Racialism? Senator, please! The notion that a “wise Latina” or a wise fill-in-the-racial/ethnic/gender group will make better decisions than judges drawn from other categories of Americans — especially white men — is repulsive. We must heartily agree with Justice Sandra Day O’Connor’s observation that a “wise old man and wise old woman will reach the same conclusion in deciding cases” — even if we’ve spent our professional lives denying that simple truth.
Opposing the death penalty because it “is associated with evident racism in our society,” promoting public funding for abortion, claiming that the denial of such funding to low-income women is tantamount to slavery? Senator, even if briefs making such absurd arguments happen to have been filed by an organization like Puerto Rican Legal Defense and Education Fund while I happen to have been serving, for more than a decade, as a board member and “top policy maker” — in fact, even if filing loopy tantamount-to-slavery briefs is something of a rite of passage for President Obama’s favored lawyers — you can rest assured that I never read them and certainly never encouraged them.
Appellate courts making policy? With due respect, senator, you obviously don’t understand our constitutional system. A judge’s task is to apply the law that exists — not to make new law, much less make social policy. In our republican democracy, it is for the people’s elected representatives in Congress to write the laws and make the policies. If I happen to have told a room full of people that the “court of appeals is where policy is made,” what I clearly meant was that the court of appeals is not where policy is made — and you should remember my more profound statement: “I know this is on tape and I should never say that.”
Use foreign law to interpret the U.S. Constitution? Senator, surely you jest. Quite obviously, “American law does not permit the use of foreign law or international law to interpret the Constitution. That’s a given. . . . There is no debate on that question, there’s no issue about that question.” Let’s not dwell on that unfortunate speech I gave for my hard-left fans from the ACLU of Puerto Rico — the one where I said that courts should refer to foreign or international law to “help us understand what the concepts meant to other countries and . . . whether our understanding of our own constitutional rights fell into the mainstream of human thinking.” I know it was only a few months ago but, you know, I’ve evolved!
In fact, senator, I just want to put my cards on the table here. To prove we are not just enforcing our own biases or making it up as we go along, we judges owe the American people an explanation of “why the law requires what it does.” That’s what I’ve always done in my cases — well, almost always. Sure, there was that time that I tried to bury a case of intentional racial discrimination in an unpublished order — even after my court, which has a reputation for not ducking the tough calls, received unusually lengthy submissions from the parties, amicus briefs, a six-volume, 1,800-page record, and an extraordinarily long oral argument session (in a case the Supreme Court later thought worthy of 93 pages of opinions). And, yes, there was that other time when I deployed all of eleven words — counting “a” — to explain why the Second Amendment’s right to bear arms is not “fundamental.” (And did I mention that I still have a very open mind and that some of my best friends are hunters?) Anyhow, rest assured, I know my job is to apply the law, uphold equal protection of the law, and defend the Bill of Rights.
What to make of all this?
Given the Senate’s numbers, Sonia Sotomayor’s elevation to the Supreme Court is probable. Her disavowals of the views that made her attractive to Democrats in the first place have ruffled feathers among intellectually honest leftists. Democratic senators, however, do not have that problem — they see Judge Sotomayor’s chameleon routine for what it is: doing what she must do to get confirmed, even by a filibuster-proof chamber. Once she’s on the high court, it’ll be business as usual, and the disavowals will be the stuff of dim memory — grist for conservative legal beagles, nothing more.
Or will it? There’s a powerful lesson in the transformation happening before our eyes. America remains a very conservative country. Obama is still personally popular (though the slide is now as perceptible as the jeers — audible through the slightly preponderant cheers — when the president was introduced at Tuesday night’s All-Star Game in St. Louis). But Obama’s policies are not popular. Indeed, they become increasingly unpopular as Americans grasp their real-world impact. Moreover, to get elected, Obama had to conceal who he was — denying his statism, his abortion extremism, his radical ties, his hostility to the concept of American exceptionalism, etc. Just as Judge Sotomayor has figured out that her interests lie in posing as a Borkian originalist who’s never heard of the Puerto Rican Legal Defense and Education Fund.
The lesson matters in these confirmation hearings, but it will matter a lot more in 2010 and 2012. If the Republicans in the Senate want to figure out what went wrong — why there aren’t enough of them to staff a tea party, much less to stage a filibuster — they should be listening to Judge Sotomayor and grasping that the country doesn’t want Democrat-lite — or Democrat, period. Americans are still fiscally and socially conservative. If anything, Obama is making them more so. All we need now is a party that looks more like America and less like the opposition.