The role of the court is the issue

The Senate confirmation hearings on Judge Sonia Sotomayor offer us
the opportunity to see the divide between the ideologies of judicial
activism and judicial restraint.

The NRO editors suggest the hearings ought to be framed by three principles:

The first is the judicial obligation of impartiality,
memorably captured by Chief Justice Roberts’s umpire metaphor. Every
metaphor has its limits, of course, but the umpire metaphor usefully
conveys the principle, central to the rule of law, that judges are to
be neutral and dispassionate.

That’s a principle that President Obama, alas, clearly rejects. In
explaining his 2005 vote against confirming Roberts, then-Senator Obama
declared that it’s proper for justices to resort to their “deepest
values,” their “core concerns,” and “the depth and breadth of [their]
empathy” in deciding what he called the “truly difficult” cases.
Indeed, he claimed, in such cases the critical ingredient is supplied
by “what is in the judge’s heart.”

Actually, in the first morning alone, Chief Justice Robert’s umpire
metaphor came up about six times by as many senators in their opening
statements, leading one of them to remind the committee these hearings
are about Sotomayor. But plan to hear more about Roberts’ baseball
analogy this week.

The second defining principle is that judicial
decision-making is, or at least ought to be, a craft distinct from
policy-making — that it is bounded by traditional interpretive
principles that confine judges to saying what the law is. It’s far from
clear that Sotomayor recognizes any limit on the judicial role. She has
feebly defended wholesale resort to foreign and international law on
the ground that American judges shouldn’t “close their minds to good
ideas.” And her bizarre complaint that “the public fails to appreciate
the importance of indefiniteness in the law” rests on a failure to
recognize that it’s the role of legislatures, not of judges, to adapt
the law to changing circumstances.

Third is the American ideal of colorblindness, the ideal of equal
opportunity for all citizens in a legal regime that does not practice
racial discrimination. That is the standard the Supreme Court adopted
over half a century ago in Brown v. Board of Education, and it is the
standard embraced by the Civil Rights Act of 1964 — before it was
judicially hijacked.

Sotomayor, however, rejects the ideal of colorblindness in favor of
a fervent and crude quota mentality — a mentality that is unpopular
with wide swaths of the American public, including Hispanics.

So that’s the framework.

How did the snapshot of the first morning fit within it? Well, it had some interesting moments.

Despite Republican misgivings, Sen. Lindsey Graham,
R-S.C., told Sotomayor, “Unless you have a complete meltdown, you’re
going to get confirmed.

“And I don’t think you will” have a meltdown, he added quickly as Sotomayor sat listening, her face in a half-smile.

Sotomayor kept that poker face all morning, remarkably. And some
Republican senators took the opportunity while they have it to express
some deep concerns.

Sen. Jeff Sessions of Alabama, the senior Republican,
vowed a “respectful tone” and “maybe some disagreements” when lawmakers
begin questioning Sotomayor on Tuesday.

Moments later, he took aim at Sotomayor’s 2001 statement that her
standing as a “wise Latina woman” would sometimes allow her to reach a
better decision than a white male.

“I will not vote for, and no senator should vote for an individual
nominated by any president who believes it is acceptable for a judge to
allow their own personal background, gender, prejudices or sympathies
to sway their decision,” he said.

“Call it empathy, call it prejudice or call it sympathy, but
whatever it is, it’s not law,” Sessions said. “In truth, it’s more akin
to politics, and politics has no place in the courtroom.”

That will be the theme of the week.


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