The Magazine

Sotomayor v. Obama

A pseudo confirmation conversion.

Jul 27, 2009, Vol. 14, No. 42 • By TERRY EASTLAND
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On the first day of the confirmation hearings for Judge Sonia Sotomayor, the Washington Post led with a story about how the hearings were "not just about" the nominee and the Senate's response to her. They were also about the struggle between the two parties over the direction of our courts. Liberals, reported the article, "hope an overwhelming vote for confirmation will encourage Obama to consider even more progressive [judicial] nominees in the future."

But then the hearings began, and something occurred that neither the Post nor any other news organization had anticipated: Sotomayor dissented from her sponsor's view of what a judge should be.

Over the years Obama has made clear his view that there is a small number of cases--5 percent, he has pegged it at--in which "legal process alone will not lead" a judge to a decision. Instead, to decide those few but clearly important cases--involving affirmative action, abortion, and other highly controversial matters--a judge must rely on his "deepest values," which are "supplied by what is in the judge's heart." Accordingly, "empathy," of a certain unspecified "depth and breadth" though clearly favoring progressive causes, is what Obama has said he wants in a judge. Indeed, in 2005, while still just a senator, Obama voted against the nomination of John Roberts precisely because, as he saw it, the nominee came up short on the empathy measure.

In her opening statement to the Senate Judiciary Committee, Sotomayor described her judicial philosophy as "simple: fidelity to the law." She noted that her personal and professional experiences help her "listen and understand," but that the law commands the result "in every case." Not, you will note, in most cases. In her first exchange with a committee member--Chairman Patrick Leahy--Sotomayor observed that whether she herself finds a party "sympathetic or not," she does "what the law requires."

At this early point in hearings that would last four days, Sotomayor was already separating herself from Obama on the matter of empathy. Inevitably, the difference became explicit. Asked in the first round of questioning by Republican Jon Kyl whether she agreed with the president on the necessity of empathy--"what is in the judge's heart"--in deciding cases, Sotomayor said she didn't agree, adding that "he has to explain what he meant," but as for herself,

I can only explain what I think judges should do, which is [that] judges can't rely on what's in their heart. .  .  . The job of a judge is to apply the law. And so it's not the heart that compels conclusions in cases. It's the law.

Sotomayor would not have made her disagreement with Obama's jurisprudence of empathy so clear without the acquiescence of her White House handlers. In retrospect, it's apparent that Obama and his aides must have decided some weeks ago that his frequent talk of empathy was politically problematic, vulnerable as it has been to obvious and biting criticism. In announcing Sotomayor as his nominee on May 26, Obama did not use the word "empathy" even once, though he did say that in deciding some cases a judge needed "something more" than the law.

While it passed mostly unnoticed in press accounts of the hearings, the Judiciary Committee Democrats went happily along with Sotomayor's rejection of empathy jurisprudence. Where four years ago they were frustrated by Roberts's unwillingness to "go beyond the process of law," as Senator Richard Durbin asked him to do, or disclose his values and even "feelings," as Senator Dianne Feinstein implored him to do, this time the Democrats effectively celebrated the Roberts position.

"Your fidelity is first and foremost to the rule of law," Chuck Schumer told Sotomayor, "because, as you know, in the courtroom of a judge who ruled based on empathy, not law, one would expect that the most sympathetic plaintiffs would always win, but that's clearly not the case in your courtroom." Schumer then proceeded to discuss a series of cases in which Sotomayor had held against parties who had "clearly suffered a profound personal loss and tragedy and were looking to" her for justice. "In your courtroom," he gushed, "the rule of law always triumphs."

Sotomayor not only rejected empathy-based judging, she rejected any judging not based on the law--just as Roberts had. Thus, in an exchange with Republican senator Charles Grassley, Sotomayor said judges should not let "their personal feelings, beliefs, or value systems" influence their judging.