The most notable development in the Sotomayor hearings yesterday was her rejection of her sponsor's approach to judging. President Obama has made clear over the years that the rule of law, or legal process, is not enough to decide a small percentage of cases, and that in those cases judges have to consult inside themselves, in their hearts, to determine the outcomes.
Yesterday, before she was questioned by Senator John Kyl of Arizona, Judge Sotomayor more or less had indicated that as a judge she found the law sufficient in all cases. It was, in effect, a repudiation of Obama's jurisprudence of empathy. Kyl made sure that he had heard Sotomayor right by pointedly asking her whether she agreed with the president's view of the necessity, in deciding some cases, of repairing to "what's in the judge's heart"? Her answer:
No, sir. That's - I don't - I wouldn't approach the issue of judging in the way the president does. He has to explain what he meant by judging. I can only explain what I think judges should do, which is judges can't rely on what's in their heart. They don't determine the law. Congress makes the laws. The job of a judge is to apply the law. And so it's not the heart that counsels conclusions in cases, it's the law.
It's no wonder that Sen. Lindsey Graham thought he'd been listening to John Roberts, whose rejection of empathy jurisprudence is, of course, what led Senator Barack Obama to vote against his nomination.
Democrats are at risk in losing the debate over judicial philosophy. Have, overnight, Sotomayor's White House handlers decided she should qualify her anti-heart, pro-rule-of-law position? Would she dare try to do that today? Who is the real Judge Sotomayor?