Obama’s nomination of Sonia Sotomayor as Supreme Court justice is the latest event in an interesting conflict between the President and conservatives. As a candidate, Obama was diplomatic, and as a President, he is adept at articulating and advancing policy without incensing opponents. His thoughts on the role of the Supreme Court, however, were delivered in an unusual, unscheduled appearance at a White House press briefing on May 1, and his position was notably unequivocal. I think it’s one of the most fascinating elements of the Obama presidency thus far:
I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a case book; it is also about how our laws affect the daily realities of people’s lives — whether they can make a living and care for their families; whether they feel safe in their homes and welcome in their own nation.
I view that quality of empathy, of understanding and identifying with people’s hopes and struggles, as an essential ingredient for arriving as just decisions and outcomes. I will seek somebody who is dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role. I will seek somebody who shares my respect for constitutional values on which this nation was founded and who brings a thoughtful understanding of how to apply them in our time.
Remember that Obama was a law professor at the same time that he was rising in politics. In this speech, and in his subsequent nomination of Sotomayor, he’s more legal scholar than politician—he knows what he believes, he has evidence, and he’s not backing down.
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At the time, this Declaration of Empathy was an alarm bell for conservative legal groups, who had been gearing up for the Court vacancy since Obama was elected. “I hope for and I expect a fight,” said Wendy Long of the Judicial Confirmation Network in response to Obama’s distressing notions of fairness. Now that the President has announced his choice, these groups have a fixed target.
Stanley Fish has a nice summary of the argument over empathy in legal interpretation, and a timely profile of Chief Justice John Roberts by Jeffrey Toobin examines Roberts’s judicial-restraint conservatism and the originalist conservatism of Scalia and Thomas. The piece, which appeared in the New Yorker, concludes with the relationship between Roberts and Obama. Their ways of thinking first came head-to-head when the then-Senator Obama voted against Roberts’s confirmation as Chief Justice:
In his Senate speech on that vote, Obama praised Roberts’s intellect and integrity and said that he would trust his judgment in about ninety-five per cent of the cases before the Supreme Court. “In those five per cent of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision,” Obama said. “In those circumstances, your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions . . . the critical ingredient is supplied by what is in the judge’s heart.” Obama did not trust Roberts’s heart. “It is my personal estimation that he has far more often used his formidable skills on behalf of the strong in opposition to the weak,” the Senator said. The first bill that Obama signed as President was known as the Lilly Ledbetter Fair Pay Act; it specifically overturned the interpretation of employment law that Roberts had endorsed in the 2007 case.
Opponents of the “Empathy Doctrine” argue that judges should not be agents of social change; that they should do as little as possible; or that everything we need to know is already in the Constitution. But the belief behind Obama’s philosophy is that no matter how constructionist or originalist or formalist a judge claims to be, he or she necessarily involves his or her specific, biased judgment. Judges, in other words, are human. Moreover, our legal system was created by decades of humans with decades of biases. This is what Wendy Long misses in her stunningly oblivious condemnation of Sotomayor as
“a liberal activist of the first order who thinks…that one’s sex, race and ethnicity ought to affect the decisions one renders from the bench.”
In Long’s world, sex, race, and ethnicity don’t matter. If that’s true, it’s hard to account for her alarm at a female, Latina judge ascending to the Supreme Court. It’s likely, though, that conservatives are more alarmed by Sotomayor’s origins than by her sex and race. A woman who comes from the projects, who’s seen how the law can fail people there, is dangerous.
Critics allege that Sotomayor believes in judicial activism. Activism, judicial or otherwise, has been responsible for such things as the legalization of abortion, the legalization of contraception, the legalization of interracial marriage, the desegregation of American schools, women’s suffrage, and the abolition of slavery. The people who took America from colony to country were activists. If Sotomayor is an activist, give me more of those.