Bench Memos

Biden on Sotomayor’s Supposed Empathy for Police

Politico reports that, at a White House event yesterday in support of Judge Sotomayor’s nomination, Vice President Biden assured police, “As you do your job, know that Judge Sotomayor has your back as well.”  His assurance drew sound criticism.  For example:

“I think what Biden said was foolish,” said Stephen Gillers, a law professor at New York University who is a prominent legal ethicist. “She’s not there to ‘have their back.’ She’s there to interpret the law as she sees fit….

“It’ll be embarrassing to her when she learns of it,” Gillers said. “Biden crosses the line when he starts representing to interest groups that she would be voting in their favor.”

Unfortunately, when President Obama commits to use his misguided and lawless “empathy” standard as his criterion for picking Supreme Court justices, it’s only natural that some folks will want assurances that they will be beneficiaries of his nominee’s selective empathy—especially when that nominee’s actual record raises serious questions whether she has a sound understanding of how the law ought actually to apply to police and others who risk their lives to protect the public.

More generally, I suspect that there is growing bipartisan agreement that the proposition “I think what Biden said was foolish” always has a high probability of being accurate.