Lessons Learned

National Review Online | Published on

By Edward Whelan

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In the realm of the courts, the most important lesson from 2009 is the political triumph of judicial conservatism.

When President Obama nominated Sonia Sotomayor to the Supreme Court, all the elements seemed to be in place for an exhilarating triumph for the Left:

  • A charismatic president who trumpeted the role of empathy in judicial decision-making.
  • A “wise Latina” nominee with a genuinely inspiring life story and strong ties to the left-wing “public interest” community.
  • An overwhelming Democratic majority in the Senate.
  • A sympathetic media.

But the confirmation process instead demoralized and disgusted many on the left, as Sotomayor, in close consultation with the White House, tried to disguise herself as a judicial conservative. “The task of a judge is not to make law, it is to apply the law,” she averred. Judges are “like umpires,” she said. She pretended to walk away from her support for freewheeling resort to foreign and international legal materials. And, perhaps most strikingly, she emphatically repudiated Obama's own empathy standard.

The White House politicos advising Sotomayor understood what polling confirms: The American people overwhelmingly embrace the traditional understanding of the judicial role and reject liberal judicial activism.

Edward Whelan is president of the Ethics and Public Policy Center and is a regular contributor to NRO's Bench Memos blog.