A few weeks ago when associate Supreme Court justice David Souter revealed he would soon retire from the court, President Barack Obama announced that he would nominate a replacement who possessed not only a solid understanding of the Constitution, but also the quality of empathy. He wanted to appoint to the court a judge who could understand and identify with the hopes and struggles of the people who come before it. Before he even announced his choice, the president’s right-wing critics began sharpening their teeth. That favored old conservative buzzword “activist judge” was suddenly being uttered by everyone on the right who was paying the least bit of attention.
Now the buzzword has company; a name: Sonia Sotomayor, presently a judge serving on the Court of Appeals for the Second Circuit of New York.
I know very little of Judge Sotomayor, except that she’s the judge that saved Major League Baseball. She issued a ruling in 1995 preventing Major League owners from playing the season with replacement players, forcing them back to the table with the striking Players Association to finally work out a new collective bargaining agreement, ending the work stoppage that had wiped out the final two months of the previous season and the 1994 World Series.
Professional conservatives like Rush Limbaugh, Mark Levin and Glenn Beck aren’t as impressed by her baseball cred. They’ve spent the last two days decrying her as not only a judicial activist, but a bigot. And they’ve ridiculed Obama’s so-called “empathy standard,” suggesting that he wants his appointed judges to disregard the law and rule based solely on their emotions. But what has Obama actually said? Here’s what he told reporters yesterday when he announced the nomination of Judge Sotomayor:
[W]hile there are many qualities that I admire in judges across the spectrum of judicial philosophy, and that I seek in my own nominee, there are a few that stand out that I just want to mention.
First and foremost is 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.
Second is 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.
These two qualities are essential, I believe, for anyone who would sit on our nation’s highest court.
So there. He goes on to say that, while they are essential, those two qualities are not sufficient to qualify a judge to sit on the highest court in the country. There’s a final ingredient needed:
[A]s 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.
Obama never intended, and never said he intended, to appoint a judge who would rule based on her emotional response to a case. He said he wanted to appoint a judge who would incorporate her sense of empathy, based on personal experiences, into her decisions alongside her understanding of the law within her jurisdiction as a member of the judiciary. What is so radical about this? Isn’t this what all judges do anyway?
Those who bitch about judicial activism and claim to want only “strict constructionist” judges act like reaching a decision in a court case is an easy thing, just a matter of checking the Constitution and spitting out a verdict like a credit card receipt at a gas pump. Most of the time it is. President Obama himself has said this, as the insufferable Jonah Goldberg points out today in a column for National Review Online: “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.” Again, that’s not exactly what Obama said; he’s never advocated disregarding things like law and precedent, just incorporating “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” into those toughest decisions.
Seeing as how the Supreme Court is the last resort for virtually every case they consider, the final stop in a long chain of appeals, I think it’s reasonable to expect a few of its cases to be a little difficult. If the case being considered hinged on a cut-and-dry legal question, it wouldn’t have made it anywhere near the Supreme Court. Folks seem to forget that.
Folks also seem to forget that the current president is a smart motherfucker who has done his homework on the Constitution, is a former law professor, and was never going to just appoint some random unqualified lefty because he thought she was a reliable liberal vote. He’s chosen an experienced, qualified jurist to fill the vacancy on the high court — which (and you know how I hate to bring this up after all these years) is more than George W. Bush did when he tried to appoint his former staff secretary Harriet Miers to replace Sandra Day O’Connor before being shamed, mocked, jeered and ridiculed into withdrawing the nomination.
The standard right-wing line since Sotomayor’s nomination was announced yesterday has been that they aren’t against empathy per se, just against empathy that gives rise to their dreaded enemy — that enabler of such horrors as racial integration, the banishment of coerced prayer in public schools, and homosexual equality — judicial activism. Jonah Goldberg, who seems to grow more obtuse with each subsequent sentence, puts it like this: “I, for one, am all for it. I’m for empathy for the party most deserving of justice before the Supreme Court, within the bounds of the law and Constitution.”
Adam Serwer demonstrates far greater honesty and clarity of perception in an article at the American Prospect: “Conservatives want their justices to empathize with the religious, the unborn, and powerful corporate interests. Liberals want their justices to empathize with women and minorities, workers and the downtrodden.”
So take your pick, I guess. I know whose empathies I empathize with.