A Higher Bar for Sotomayor

Politico | Published on

By Edward Whelan

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The 67 senators who voted in 1998 to confirm President Bill Clinton’s controversial nomination of Sonia Sotomayor to the 2nd Circuit included seven current Republican senators — Bob Bennett of Utah, Thad Cochran of Mississippi, Susan Collins of Maine, Judd Gregg of New Hampshire, Orrin Hatch of Utah, Dick Lugar of Indiana and Olympia Snowe of Maine. Of the 29 senators who voted no, 11 are still in the Senate, including Republican leader Mitch McConnell of Kentucky, Republican Whip Jon Kyl of Arizona, Judiciary Committee ranking member Jeff Sessions of Alabama and John McCain of Arizona.

What bearing, if any, should the positions of these senators in 1998 have on how they approach Sotomayor’s pending Supreme Court nomination? I’ll highlight four considerations.

First, the standard for a Supreme Court nominee is higher than for an appeals court nominee, as senators on both sides of the aisle have routinely recognized. When an appellate judge casts the deciding vote in a case, the ruling is subject to correction both by the en banc court of appeals and by the Supreme Court.

But a decisive vote by a Supreme Court justice provides the final disposition of a case and establishes precedent for the entire judicial system. When that ruling misconstrues a federal statute, it’s not easy to repair the damage. And when it misinterprets the Constitution, the damage is even more severe and difficult to reverse.

Second, the current Supreme Court is sharply divided on many important issues. The person who replaces Justice David Souter may well end up providing the fifth vote to invent a constitutional right to same-sex marriage, to strip “under God” from the Pledge of Allegiance or to dilute constitutional protections of speech and religious liberty to comport with foreign practices. Under these circumstances, it would be a dereliction of duty for any senator not to scrutinize Sotomayor’s nomination with special care.

Third, President Barack Obama’s so-called empathy criterion for Supreme Court justices — his demand for justices who will determine cases “on the basis of one’s deepest values, one’s core concerns … and the depth and breadth of one’s empathy” — poses a radical threat to the rule of law. As the statutory oath of office reflects, justices (and other judges) are obligated to be dispassionate and impartial. They swear to “administer justice without respect to persons and do equal right to the poor and to the rich.”

Fourth, there are ample new data on Sotomayor since 1998 — particularly her rulings and other writings. Those materials are the focus of ongoing intensive review and debate, a process that ought to continue throughout the confirmation process. Sotomayor’s defenders will vigorously try to make the case that the new data should reinforce the judgment of those who voted for Sotomayor’s 2nd Circuit nomination and change the minds of those who didn’t. But there are already many troubling signs that Sotomayor fits Obama’s misguided criterion.

Take, for example, Sotomayor’s shenanigans in trying to bury the claims of white and Hispanic firefighters that they had been discriminated against — shenanigans that fellow Clinton appointee Jose Cabranes exposed in a blistering dissent. (The Supreme Court granted review of the case that Sotomayor treated so dismissively, and the court’s ruling will be issued in the coming weeks.)

Take also Sotomayor’s aggressive willingness to indulge her own values in deciding cases, reflected in her notorious assertion of her “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.” And take Sotomayor’s confused celebration of the “importance of indefiniteness in the law” and of judges who “develop a novel approach” that “pushes the law in a new direction.”

It’s too early to be sure, but my guess is that those senators who supported Sotomayor in 1998 will have ample basis to oppose her Supreme Court nomination.

[As it originally ran in Politico, this piece was mistitled "Senators should oppose Sotomayor."]

– Edward Whelan is president of the Ethics and Public Policy Center and a contributor to National Review Online’s Bench Memos blog on judicial nominations and constitutional law.

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