The best defense is a good offense. President Obama and Judge Sotomayor have been playing it aggressively.
We can’t say we weren’t warned that this was the type of justice planned for an Obama administration.
His now famous rhetorical skills often mask his real intent, but on this issue, he’s been clear.
Obama says law and precedent should determine rulings in
“95 percent of the cases,” but in the really hard and important cases,
justices should go with their heart. “In those cases, adherence to
precedent and rules of construction and interpretation will only get
you through the 25th mile of the marathon. That last mile can only be
determined on the basis of one’s deepest values, one’s core concerns,
one’s broader perspectives on how the world works, and the depth and
breadth of one’s empathy.”
Now, keep in mind that 5 percent of Supreme Court cases isn’t
everything, but it’s nearly 100 percent of what we argue about as a
country. For the hard cases Americans care most about, Obama says
empathy should rule.
So, what’s wrong with empathy?
Well, nothing. Empathy is a fine thing, and all decent people should employ it, including Supreme Court justices.
But Obama has something specific in mind when he talks about
empathy. He wants the justice’s oath to in effect be rewritten. Judges
must administer justice with respect to persons, they must be partial
to the poor, and so on.
This is a radical departure for judicial philosophy at the highest
levels. Rewriting both the oath and the Constitution, in effect.
Obama and Sotomayor both assume that a firsthand
understanding of the plight of the poor or the African-American or the
gay or the old will automatically result in justices voting a certain
(liberal) way. “I would hope,” Sotomayor said in 2001, “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.” This is not only deeply offensive, it is also nonsense on
stilts. Clarence Thomas understands what it is like to be poor and
black better than any justice who has ever sat on the bench. How’s that
working out for liberals?