The Corner

The Judge’s View of Judging

At today’s media availability on Capitol Hill, Sen. Jon Kyl (R, Ariz.) laid out the Republicans’ approach to the Sotomayor nomination.

When President Obama was a senator and he decided to vote against both now-Justice Alito and Justice Roberts, he made a statement on the floor, and he said that in 95 percent of the cases, judges agree, but that last 5 percent, there may not be precedent, there may not be law that dictates the result, and that’s when you have to let your feelings, your — your preconceived notions, your sense of empathy and other factors enter in, including whether you want to help the little guy.

That’s wrong.  His test is wrong…That’s for the legislators in the state legislatures and for the Congress to decide, as a matter of the legislative branch’s jurisdiction…I think what this could boil down to — and we’ll have to examine very carefully all of the evidence — is what this judge’s view of judging is.

Many have noted that this fight is dangerous for the GOP, but this is precisely the careful, thoughtful approach to it that they need, because it is also in line with what the polling data show overwhelmingly:

[R]espondents reject precisely the kind of nominee that President Obama is almost certain to pick. Far from preferring “empathy,” 92 percent of Republicans, 86 percent of Independents, and 84 percent of Democrats said they prefer a nominee who “will interpret the law as it is written and not take into account his or her personal viewpoints and experiences.”

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