Liberal bloggers and Keith Olbermann all pointed out the parallels with the above scene and what happened at the hearings yesterday. Kieran Healy, Daily Kos, and Josh Marshall.
The liveblogs for today:
Doug Kendall at HuffPo
Bench Memos at NRO
Andrew Pincus at TPM
A small sample of commentary so far on the hearings. Dahlia Lithwick in Slate:
Consider, for example, the questioning about Judge Sotomayor’s judicial record. There isn’t much of it. That’s partly because the Republicans think her record tells us nothing about her, since her speeches (or, rather, a single line in one speech) reveal her true judicial temperament. But even when Sotomayor is being questioned about her judicial record, the focus isn’t on her legal approach or process but on the outcomes. So when she talks about her Ricci decision, Jeff Sessions asks her why she didn’t apply affirmative action precedents that had no bearing in a case that was not an affirmative action case. When she speaks about Didden, her eminent domain case, Republican Chuck Grassley asks why she didn’t analyze the Kelo precedent in a case about timely filing. Nobody wants to hear how she got to a result. They want to know why she didn’t get to their result. Time and again she is hectored for deciding the narrow issues before her. It’s like a judicial-activism pep rally in here.
Senate Democrats are almost as confused. About half of them insist that she is a narrow, mechanical, pro-prosecution judge—the perfectly neutral umpire, John Roberts in sensible pumps. The other half utterly reject the balls-and-strikes talk, saying she’s empathetic, dammit, and that’s a good thing. Consider Sen. Sheldon Whitehouse, who said in his opening statement yesterday: “If your wide experience brings life to a sense of the difficult circumstances faced by the less powerful among us—the woman shunted around the bank from voicemail to voicemail as she tries to avoid foreclosure for her family; the family struggling to get by in the neighborhood where the police only come with raid jackets on; the couple up late at the kitchen table after the kids are in bed sweating out how to make ends meet that month; the man who believes a little differently, or looks a little different, or thinks things should be different—if you have empathy for those people in this job, you are doing nothing wrong.” As Doug Kendall observed this morning, Democrats need to pick a horse and ride it. The alternative is Judge Sotomayor offering up a vision of herself as the world’s most empathetic umpire, someone who feels deeply for everyone before coldly finding the objectively correct legal answer.
Paul Mirengoff at Powerline:
In any event, her record in those capacities isn’t all that revealing either way. When she ruled against, and attempted to bury, the claims of the Ricci plaintiffs, Sotomayor did not say she was doing this based on her life experiences as a Latina. But that doesn’t mean that these experiences weren’t in play. Indeed, Sotomayor continues to acknowledge that bias can enter the decisionmaking process subconsciously.
To be sure, as Sotomayor pointed out, two other judges agreed with the way she elected to treat the Ricci plaintiffs, and neither was a Latina. But this doesn’t mean that, in Sotomayor’s case, her inner Latina was not at work. All we can say for sure is that (1) Sotomayor got the decision wrong (not one Supreme Court Justice agreed with her disposition of the case), (2) Sotomayor’s treatment of the plaintiffs and the issue they raised was shabby (her mentor, Judge Cabranes, basically said as much), and (3) if her handling of the case was influenced by her gender and ethnicity, to Sotomayor that is fine, according to her speeches.
A similar analysis applies to Sotomayor’s overall voting record. A Washington Post study showed that she is more liberal than the average judge appointed by a Democratic president. But other judges, by definition, also fit this description and, given the demographics of the bench ,few of them can be Latina. But again, we can’t know whether Sotomayor’s ethicity and gender helped push her into this particularly liberal cohort.
My sense, for what it’s worth, is that liberalism has internalized identity politics to the point that most liberals consistently see the world as Latinas do, at least for purposes of deciding cases. For example, most white liberals believe as ardently Latina liberals that women of color continue to get a raw deal from white males. Accordingly, as judges they filter the facts before them through that lens to just about the same degree as their Latina counterparts on the bench.
The empathy war has its roots in a statement Barack Obama made back in 2007, when he described the kinds of jurists he planned to appoint: “We need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom,” he said. “The empathy to understand what it’s like to be poor or African American or gay or disabled or old.” Obama’s statement contained one big mistake: using the word “heart” in conjunction with empathy. This made empathy sound mainly emotional and therefore suspect. Of course empathy can be emotional, but, in a constitutional democracy, it is much more than that. One of the primary roles of the constitution is to hedge against the possibility of majoritarian tyranny by protecting the rights of unpopular groups. This is not a matter of sentiment or good will; it is a fundamental matter of morality and the underpinning of a free, liberal order. We insist on these rights for others largely because of the human capacity to put ourselves in someone else’s shoes–to imagine what it would be like if the natural lottery had placed us in circumstances different from our own. Without empathy, neither our constitution nor the body of legal interpretation that has sprung up around it over the past two centuries could possibly exist in anything like its present form.
But this afternoon the Senate Judiciary Committee managed to reduce empathy to a caricature of its true meaning. Here was one of Republican Senator Jon Kyl’s questions to Sotomayor: “Have you always been able to have a legal basis for the decisions that you have rendered–and not have to rely upon some extra-legal concept, such as empathy or some other concept other than a legal interpretation or precedent?” Sotomayor must have known that Kyl had set up a ridiculous dichotomy–just minutes before, in response to a question from Russ Feingold, she had actually issued a rather passionate defense of empathy in judging–but still she played along, responding, “We apply law to facts. We don’t apply feelings to facts.” Both the question and the answer were absurd. Empathy is not the opposite of law, nor is it a simple matter of feeling or emotion; it’s a cornerstone of both human reasoning and the constitutional principles we call on Supreme Court justices to interpret. But during this exchange, Kyl and Sotomayor effectively collaborated to render the concept a sort of legal slur.
Byron York in the Washington Examiner:
After a night of studying Sotomayor’s testimony, Republicans will have more questions about what they view as her misrepresentation of her record. GOP senators know that Democrats are committed to confirming Sotomayor, and, with a 12-to-7 advantage in the committee and 60 votes in the full Senate, they don’t need any Republican support to get it done. But they are troubled by her answers, by her attempts to deny the clear meaning of her words from the past. And that could result in growing, rather than diminishing, Republican opposition. “We heard a lot of things that were not factually buttoned down,” the senior GOP aide said. “If that’s because she and the White House think she has the votes and doesn’t have to answer, then some Republicans are going to be troubled by that.”