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.
Republicans were frustrated with Sotomayor inasmuch as they agreed with her rhetoric about judging but worried whether she actually believed what she was saying. They were mostly unable to find cases in which she had participated during her 17-year tenure as a federal judge that might call into question her declared approach to judging. One case they did query her on, persistently, was Ricci v. DeStefano, the now well-known New Haven case in which the city, acting on the basis of race, threw out test results that had they been certified would have led to promotions for high-scoring firefighters all but one of whom are white. Sotomayor sat on the three-judge panel that upheld the district court's summary judgment for the city, but the Supreme Court (just three weeks ago) reversed the panel, finding New Haven in violation of federal antidiscrimination law. If Sotomayor was siding with the city for reasons other than what she thought was a correct reading of the law, however, the Republicans could not prove that. They concluded that her record as a judge was "in the mainstream" (Senator John Cornyn) or at least "not . . . radical" (Senator Lindsey Graham).
A problem for Republican senators was that there seem to be two Sotomayors--not just the judge, but also a writer and speechmaker. And her writings and speeches, as Kyl put it, "appear to fit into what the president has described as this group of cases in which the legal process or the law simply doesn't give you the answer," and other grounds for decision may be used. When Republicans pressed Sotomayor about some of her off-the-bench statements, invariably she directed them back to her judicial record as the evidence showing she based her decisions only on the law.
The statement that most concerned Republicans was one she made not just once but on numerous occasions, in varying formulations. Here is how she put it in a 2001 lecture at the University of California Law School: "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life." Within days of her nomination Sotomayor's advocates, including President Obama, were saying that it was "a poor choice of words." It was inevitable that Sotomayor, who spent 12 years on the board of the Puerto Rican Legal Defense and Educational Fund, would have to address that remark during the hearings. And she did, calling it "a rhetorical flourish that fell flat," a "play" on words that failed, and just plain "bad." Bad, she said; "it left an impression that I believed life experiences commanded a result in a case, but that's clearly not what I do as a judge."
It also left another impression, which she sought to erase in an exchange with Senator Leahy: "I want to state up front, unequivocally, and without doubt, I do not believe that any ethnic, racial, or gender group has an advantage in sound judging," adding, "I do believe that every person has an equal opportunity to be a good and wise judge regardless of their background or life experiences."
By the end of the hearings, though, it was apparent that Sotomayor remains committed to the advancement of certain groups. Rejecting "identity politics" as a description of some of her activities off the bench, she said her speeches have "embrace[d] the concept" of helping to promote the "interests" of certain groups (most of all, females and Americans of Puerto Rican descent). Here, in exchanges with Senator Graham, Sotomayor was conceding her own political involvements, which, not surprisingly--she is a Democrat after all--are to the left. She maintained that her work as a judge was different, a point that Graham accepted. "I thank you," she told Graham, "for recognizing that my decisions have not shown me to be an advocate on behalf of any group. That's a . . . a dramatically different question [from] whether I follow the law."
Doubtless the Senate will confirm Sotomayor. She is the first nominee of a popular president in his first year on the job, and the Senate is overwhelmingly of the president's party. These are optimal conditions for Senate approval. On the Court, she will join its liberal wing, but because she is replacing one of the liberals she will not change the Court's ideological composition. And the questions largely unprobed in the hearings--just what she understands law to be; how the Constitution is to be interpreted and applied; what, if any, role legislative history should have in the interpretation of statutes--will be answered case by case.
Judging by not just her hearings but her years on the lower courts and her often confounding speeches and writings, it doesn't appear that Sotomayor will be a compelling exponent of judicial liberalism. A vote for it certainly, but nothing more. Meanwhile, the Sotomayor hearings have made it politically harder for Obama to advance via his nominees a judicial philosophy that goes "beyond the process of law" and embraces some new "constitutional vision," one that seeks to address what he described during his campaign as the country's "empathy [that word again] deficit." However wise it was tactically to pick Sotomayor--the first or second Hispanic named to the Court, depending on how you regard Benjamin Cardozo--the choice weakens Obama's ability to select "even more progressive" nominees. A small consolation for conservatives, I know, but, in this era of united Democratic government, one to be taken nonetheless.
Terry Eastland is the publisher of
THE WEEKLY STANDARD.