Republicans and Democrats both see code in key words.
Amid the posturing by senators on both sides of the aisle, the outlines of a long-running debate over the role of judges in the American legal system emerged on the first day of the confirmation hearing of Judge Sonia Sotomayor.
Whether judges are neutral, “objective” arbiters of the law or biased individuals who impose their own views and life experience on legal interpretation is a debate that dates back to the early 20th century and included such famous justices as Oliver Wendell Holmes and Louis Brandeis, who argued that law is indeterminate and judges are flawed human beings influenced by external factors.
Since then, scholars and judges have taken that idea in various directions. Monday the debate was on display in full force again in the Senate, with the quality of “empathy” that President Obama said he prized being on the one hand defined by Democratic supporters as “humanity” and by Republican critics as “bias.”
As Ranking Republican Jeff Sessions (R-Ala.) put it in his opening statement: “Empathy for one party is always prejudice against another.”
Sen. Tom Coburn (R-Okla.) similarly criticized the notion that “empathy” is a desirable quality for a Supreme Court justice, noting that it suggests that the law can be interpreted in various ways.
“I’m deeply concerned by your assertion that the law is uncertain,” said Coburn, addressing Sotomayor. “We want justice to be predictable. I’m worried that our Constitution may be seen to be malleable and evolving, whereas I, as someone who comes from the heartland, believe, as do the people I represent in Oklahoma, that there is a foundational document and statutes and treaties that should be the rule rather than our opinions.”
Sotomayor, for her part, has never said that her opinions should trump the law or the Constitution. On Monday, she described her judicial philosophy as simply “fidelity to the law.” But she has also acknowledged repeatedly that her background and upbringing may influence her view of a situation. As she described it Monday: “My personal and professional experiences help me listen and understand, with the law always commanding the result in every case.”
In other contexts, however, usually addressing Latino law students, Sotomayor has said, in a statement repeated over and over by Republicans at Monday’s hearing, that “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.”
CNN reports that “that sentence, or a similar one, has appeared in speeches Sotomayor delivered in 1994, 1999, 2002, 2004 and 2001,” and it’s become the basis of Republican objections to her confirmation to the court.
Democratic supporters yesterday defended her “empathy” and denied that it’s the equivalent of bias. “We want a nominee with a sense of compassion,” said Sen. Herb Kohl (D-Wisc). “Compassion does not mean bias or lack of impartiality. It is meant to remind us that the law is more than an intellectual game, and more than a mental exercise.”
Quoting Justice Clarence Thomas from his confirmation hearing, Kohl said it is important that a justice ” ‘can walk in the shoes of the people who are affected by what the Court does.’ I believe this comment embodies what President Obama intended when he said he wanted a nominee with ‘an understanding of how the world works and how ordinary people live.’ ”
Although defending Sotomayor’s “understanding” and “compassion,” Democrats are also aware that some of her past remarks represent her greatest vulnerability, and they’ve tried to keep the focus on Sotomayor’s 17 years’ worth of written judicial opinions. Independent studies from the Congressional Research Service, SCOTUSblog and the Transactional Records Access Clearinghouse have concluded that her decisions reflect neither activism nor liberal bias. But Republican senators at yesterday’s hearing repeatedly argued that her statements outside the courtroom are more telling than her judicial opinions because, as a Supreme Court justice, she would not be bound by precedent nearly as much as she was on the court of appeals.
Sen. Orrin Hatch (R-Utah), for example, warned that on the Supreme Court “Judge Sotomayor will help overturn the very precedents that today bind her” on the court of appeals. “The judicial position she will take on the Supreme Court will be very different than the position she has on the Second Circuit.” Therefore, he argued, her extrajudicial statements – in speeches, in law review articles, in career counseling seminars — ought to be seriously considered. Although “we are urged to ignore her statements and focus only on her judicial decisions,” Hatch said, “We show respect to her by taking her entire record seriously.”
Democrats shot back by criticizing the record of Republican nominees, who they claimed had become, contrary to their initial promises, the most activist justices on the Court. Chief Justice John Roberts, in particular, came in for criticism for, during his confirmation hearing, likening a judge to an “umpire” at a baseball game calling “balls and strikes”; Roberts then ended up playing a far more activist role as a justice.
“The “umpire” analogy is belied by Chief Justice Roberts,” said Sen. Sheldon Whitehouse (D-R.I.). Quoting a recent article in The New Yorker by Jeffrey Toobin, Whitehouse said: “[i]n 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. Some umpire.”
In fact, Whitehouse argued, under Roberts’ leadership in recent years: “the right wing Justices of the Court have a striking record of ignoring precedent, overturning congressional statutes, limiting constitutional protections, and discovering new constitutional rights,” he said, such as “the first limitation on Roe v. Wade that outright disregards the woman’s health and safety” and a decision striking down a gun restriction in Washington, D.C. “discovering a constitutional right to own guns that the Court had not previously noticed in 220 years.”
Whitehouse continued: “The Roberts Court has not lived up to the promises of modesty or humility made when President Bush nominated Justices Roberts and Alito.”
But Whitehouse, like all of the senators yesterday, was not really there to debate judicial philosophy or constitutional history. The senators were talking largely to their own constituents, and not to the other side. Sotomayor is widely expected to be confirmed, but Republicans appear to be voicing objections they expect their conservative constituents to have — about Sotomayor, and about larger social issues.
Republicans remained rigid in their views that Sotomayor’s acknowledgment that different people will have different perspectives on the law was a troubling sign. Sotomayor’s statement that “There is no objective stance but only a series of perspectives, no neutrality, no escape from choice in judging,” said Coburn, is “deeply troubling.” He added: “The fact that it’s subjective implies that it’s not objective. And if we disregard objective consideration of facts, then all rulings are subjective and we lose the glue that binds us together as a nation.”
Of course, Coburn’s ideal of perfect predictability in the law that allows an escape from judgment and perspective would obviate the need for a Supreme Court — and for the Senate’s confirmation hearing.
For better or worse, the majority of senators haven’t gone that far, and Sotomayor’s confirmation hearing continues Tuesday.
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