By Dan Froomkin
12:25 PM ET, 05/26/2009
In nominating U.S. Appeals Court Judge Sonia Sotomayor to the Supreme Court, President Obama is asserting his view that real justice is arrived at not through cold-hearted calculations made in a vacuum, but by applying the principles of the founding fathers to the real world.
Obama had already declared that the quality of empathy -- "of understanding and identifying with people's hopes and struggles," as he put it on May 1 -- would be a key litmus test for the nomination. (See my extensive May 13 post, The Empathy War.)
The president took some steps today to inoculate himself against the conservative attack on his empathy requirement. In his announcement, he went out of his way to state that it came in third -- after a "a rigorous intellect, a mastery of the law, an ability to hone in on the key issues and provide clear answers to complex legal questions" and a "recognition of the limits of the judicial role, an understanding that a judge's job is to interpret, not make law, to approach decisions without any particular ideology or agenda, but rather a commitment to impartial justice, a respect for precedent, and a determination to faithfully apply the law to the facts at hand."
Nevertheless, in his pick and his in his words, he made it clear that he is not backing away from his belief that justice is not an abstract concept, but is rooted in a full understanding of the American experience: "For as Supreme Court Justice Oliver Wendell Holmes once said, the life of the law has not been logic, it has been experience; experience being tested by obstacles and barriers, by hardship and misfortune; experience insisting, persisting, and ultimately overcoming those barriers. It is experience that can give a person a common touch and a sense of compassion, an understanding of how the world works and how ordinary people live."
Sotomayor is a moving example of the American dream in action. She would be the first Hispanic on the court, and the third woman. Her remarks today focused on her inspiring rise from a public housing project in the South Bronx to become a respected appeals court judge -- and now a Supreme Court nominee.
As Obama explained in a C-SPAN interview on Friday: "I want a judge not only to be applying the law in front of them, but also to understand that, as a practical matter, a lot of times people have weak bargaining power. Now, in some ways it might cut the other way. I want a judge who has a sense of how regulations might affect the businesses in a practical way...What I want is not just ivory tower learning. I want somebody who has the intellectual fire power, but also a little bit of a common touch and has a practical sense of how the world works."
I don't do sports metaphors very often, but in Sotomayor, Obama has picked a judge who, as he noted, "saved baseball" by decisively ruling against the owners in favor of the players in ending the 1995 baseball strike. She's not, as Chief Justice John Roberts styled himself in his confirmation hearings, just an umpire.
After all, what did Roberts really mean by "umpire"? As Jeffrey Toobin recently wrote in the New Yorker, Roberts's record is "that of a doctrinaire conservative...[Roberts] reflects a view that the Court should almost always defer to the existing power relationships in society. In every major case since he became the nation's seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff."
Barring some sort of vetting catastrophe, Sotomayor's confirmation is considered extremely likely on account of her background, the large Democratic majority in the Senate and the fact that she is ideologically not very different from the man she would replace, Justice David Souter. But that is not to say some people won't be picking fights.
As Charlie Savage recently wrote in the New York Times: "While conservatives say they know they have little chance of defeating Mr. Obama’s choice because Democrats control the Senate, they say they hope to mount a fight that could help refill depleted coffers and galvanize a movement demoralized by Republican electoral defeats."
Tom Goldstein writes in Scotusblog: "The attacks are inevitable and tremendously regrettable, just as they were for Chief Justice Roberts and Justice Alito. A cottage industry – literally an industry, given the sums of money raised and spent – now exists in which the far left and right either brutalize or lionize the President’s nominees. Because the absence of controversy means bankruptcy, it has to be invented by both sides, whatever the cost to the nominee personally and to the integrity of the judiciary nationally."
Goldstein also takes apart the three major accusations made by Sotomayor's critics: The "first claim – likely stated obliquely and only on background – will be that Judge Sotomayor is not smart enough for the job. This is a critical ground for the White House to capture.... The objective evidence is that Sotomayor is in fact extremely intelligent.... Her opinions are thorough, well-reasoned, and clearly written. Nothing suggests she isn’t the match of the other Justices.
"The second claim – and this one will be front and center – will be the classic resort to ideology: that Judge Sotomayor is a liberal ideologue and 'judicial activist.' ... There is no question that Sonia Sotomayor would be on the left of this Supreme Court, just not the radical left. Our surveys of her opinions put her in essentially the same ideological position as Justice Souter....
"The third claim... will be that Judge Sotomayor is unprincipled or dismissive of positions with which she disagrees.... There just isn’t any remotely persuasive evidence that Judge Sotomayor acts lawlessly or anything of the sort."
Here are the fighting words from the right: Wendy E. Long, counsel to the Judicial Confirmation Network called Sotomayor "a liberal judicial activist of the first order who thinks her own personal political agenda is more important that the law as written. She thinks that judges should dictate policy, and that one's sex, race, and ethnicity ought to affect the decisions one renders from the bench."
In reference to a case in which Sotomayor supported the City of New Haven's decision to throw out the results of a firefighter promotion exam because almost no minorities qualified for promotions, Long wrote: "She reads racial preferences and quotas into the Constitution, even to the point of dishonoring those who preserve our public safety. On September 11, America saw firsthand the vital role of America's firefighters in protecting our citizens. They put their lives on the line for her and the other citizens of New York and the nation. But Judge Sotomayor would sacrifice their claims to fair treatment in employment promotions to racial preferences and quotas. The Supreme Court is now reviewing that decision."
Charlie Savage (again) wrote in the New York Times earlier this month about a speech Sotomayor gave in 2001: "In her speech, Judge Sotomayor questioned the famous notion — often invoked by Justice Ruth Bader Ginsburg and her retired Supreme Court colleague, Sandra Day O’Connor — that a wise old man and a wise old woman would reach the same conclusion when deciding cases.
"'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,' said Judge Sotomayor."
Here is Washington Post columnist Charles Krauthammer on Fox News this morning responding to her nomination: "She is a believer in identity politics to the extreme. As we heard in the quote...where she said that she would hope that a Latina woman would be more wise than a white male, it tells her [sic] what her attitude is to race and gender and these categories...Her job on the court is to be an impartial adjudicator. And if she is not, if her empathy and her concern for certain ethnicities overrides the idea of justice and equal justice, I think that is a troubling concern."