Several newspapers recently published opinion pieces on President Obama's nomination of Judge Sonia Sotomayor to the Supreme Court. Summaries appear below.
~ William Kelley, Boston Globe: With Democrats holding the majority of Senate seats, Sotomayor "will almost certainly be the next associate justice;" however, it is "essential for Republicans to assert themselves" and "insist on the time necessary" to vet Obama's nominee, Kelley -- professor at Notre Dame Law School and deputy counsel to former President George W. Bush during the confirmation process for Justices John Roberts and Samuel Alito -- writes. In making a case against Sotomayor, Republican leaders "would be better advised to question President Obama's own standard for what he was looking for in a nominee, which was a judge with 'empathy,'" Kelley writes, adding that Obama's approach is "demonstrably at odds with the rule of law and Republicans should not hesitate to say so." Kelley writes that the GOP "should aggressively make the case that the judge's voice should be the voice of the law, which doesn't depend on the race or sex of the judge," adding that Republican senators "should feel free to vote no if they aren't convinced" that Sotomayor will decide cases "according to the rule of law" (Kelley, Boston Globe, 5/27).
~ David Frum, American Public Media's "Marketplace": Sotomayor "will certainly face questioning about Roe v. Wade ... and other hot-button issues at her confirmation hearings," but senators should focus instead on asking more questions about business, bankruptcy and tax law, Frum, a resident fellow at the American Enterprise Institute, says in a "Marketplace" commentary. He continues that Obama "has talked of his desire for 'empathy' in his nominees. Yet ironically, with this judicial pick, he has confirmed a trend toward judges whose experience of business law is abstract and academic -- who do not know what it means to explain to a client that what was a secured debt yesterday is not a secure debt today." He adds, "A little empathy for the people who make America's economy go. How about that for a change?" (Frum, "Marketplace," American Public Media, 5/27).
~ Linda Greenhouse, New York Times: The Supreme Court "is a dynamic institution whose component parts are always, although not always visibly, in motion," author and former Times Supreme Court correspondent Greenhouse writes, adding that despite Sotomayor's "stirring life story and impressive resume, what we really want to know is how she will fit into this mix of ideology, personality, principle and politics." Greenhouse continues that regardless of whether Sotomayor's decisions "make a difference" in the outcome of court cases, her nomination "comes at a special moment: the first projection of the remarkable 2008 election onto a Supreme Court that has so often in these last few years appeared headed in the opposite direction from the country." Greenhouse concludes that whether Sotomayor "proves to change the way the incumbent justices see the world, it will, at the least, change the way the world sees the Supreme Court" (Greenhouse, New York Times, 5/27).
~ Jonah Goldberg, Tribune/Kansas City Star: Obama's "insistence that the 'quality of empathy, of understanding and identifying with people's hopes and struggles' is the key qualification for a Supreme Court justice" is in conflict with the oath of office that Sotomayor will take if she is confirmed as a Supreme Court justice, Goldberg writes in a Tribune/Star opinion piece. In addition, the White House has been touting "Sotomayor's 'American story' of humble origins," which it claims "best prepares her for the high court because it shows 'she understands that upholding the rule of law means going beyond legal theory to ensure consistent, fair, common-sense application of the law,'" Goldberg writes. He continues, "There's nothing wrong with empathy, but Obama has something specific in mind when he talks about it," which is that "[j]udges must administer justice with respect to persons, they must be partial to the poor, and so on." According to Goldberg, "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," but "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 playing out?" He adds, "Of course, liberals say that if you don't agree with their prescriptions on, say, racial quotas or abortion, it's because you don't care as much as they do about minorities or women." Goldberg continues, "More important, who says conservatives are against judicial empathy? I'm all for empathy for the party most deserving of justice before the Supreme Court, within the bounds of the law and Constitution" (Goldberg, Tribune/Kansas City Star, 5/27).
~ Neomi Rao, Wall Street Journal: Although Sotomayor is unlikely to directly answer questions about "hot-button" issues such as abortion rights during her confirmation hearings, she "should answer questions about her judicial philosophy," Rao -- assistant professor at George Mason School of Law and former nominations counsel to the Senate Judiciary Committee -- writes, adding that the "stakes are high when we give a person life tenure to decide some of the most important issues facing our country." Rao lists five key questions asking Sotomayor about her stance on judicial empathy, constitutional interpretation, precedent, ambiguous laws, and the tension between law and outcomes. According to Rao, although the president and Congress "can choose to implement policies that favor the weak and pull up the disadvantaged," the U.S. political system does not allow the judiciary to "simply duplicate this political process." Therefore, she concludes that the "Senate and the American people should make sure that a nominee to the Supreme Court understands the difference" (Rao, Wall Street Journal, 5/27).
~ Karl Rove, Wall Street Journal: "'Empathy' is the latest code for liberal activism, for treating the Constitution as malleable clay to be kneaded and molded in whatever form justices want," Rove -- who was the senior adviser and deputy chief of staff under former President George W. Bush -- writes a Journal opinion piece. According to Rove, the Sotomayor nomination gives Republicans "some advantages," as they can "stress their support for judges who strictly interpret the Constitution and apply the law as written." He writes that most U.S. residents oppose "liberal activist judges" and want "impartial umpires who apply the rules, regardless of who thereby wins or loses." He also questions the media "story line that Republicans will damage themselves with Hispanics if they oppose" Sotomayor. Rove continues that Sotomayor will likely be "just another reliable liberal vote," rather than providing Obama with a "new leader" on the court or a "consensus builder whose persuasive abilities would allow her to flip a 4-5 decision to a 5-4 decision." He concludes, "Democrats will win the vote, but Republicans can win the argument by making a clear case against the judicial activism she represents" (Rove, Wall Street Journal, 5/28).
~ David Broder, Washington Post: The "main question" surrounding Sotomayor's nomination to the Supreme Court is what "choice it presents to Republicans," who are unlikely to successfully block or delay her confirmation, columnist Broder writes in a Post opinion piece. "If they mount a vigorous effort to challenge her ... they risk doing further damage to their party with the largest minority group in the country -- Hispanics," he notes. "While most of the organizations that purport to speak for the conservative base immediately condemned Sotomayor and called on the GOP to oppose her, I think it's likely that many and perhaps most of the 40 Republicans left in the Senate will acquiesce to her appointment," Broder writes, noting that "[t]heir initial comments were cautious." He concludes that he "believe[s] that many Republican senators will seize the opportunity Obama has provided and prove they are not as narrow-minded as their most extreme backers. And then hope that, like some mirror image of Souter, Sotomayor will surprise the world with some of her votes" (Broder, Washington Post, 5/28).
~ E.J. Dionne, Washington Post: "Republicans would be foolish to fight" Sotomayor's nomination, while Democrats would be "foolish to embrace Sotomayor as one of their own because her record is clearly that of a moderate" and it is "highly unlikely that she will push the court to the left," columnist Dionne writes in a Post opinion piece. He continues that "it's important to separate Obama's reasons for choosing Sotomayor from her actual record," adding that Obama was drawn to Sotomayor because of "the politics of naming the first Latina justice" as well as his view of her as the "precise opposite of Chief Justice John Roberts." Dionne continues that Obama "hopes that Sotomayor will be the anti-Roberts, a person whose experience growing up in the projects of the South Bronx will allow her to see life and the quest for justice in a way Roberts never will." However, Republicans want to "turn Obama's argument on its head and claim that Sotomayor would show bias in favor of those who share her background," Dionne writes, adding, "The problem is that this approach is untrue to who Sotomayor has been and has little relationship to the decisions she has actually rendered as a judge." He notes that she upheld the Bush administration's "global gag rule" ban on federal funding for international groups that provide abortion information or services with their own funds, and as Dan Gilgoff wrote in U.S. News and World Report's "God and Country" blog, her "thin record on abortion is most likely a relief" to antiabortion-rights groups. Dionne writes that "Obama sent another signal that he is serious about seeking common ground on abortion" in selecting Sotomayor. He cautions that liberals "should not take the bait of the right-wingers by allowing the debate over Sotomayor to be premised on the idea that she is a bold ideological choice," adding that "if conservatives succeed in painting this moderate as a radical, they will skew future arguments over the court" (Dionne, Washington Post, 5/28).
~ George Will, Washington Post: "Americans have argued about the [Supreme Court]'s jurisdiction forever," and they "should not stop, especially now that the president has nominated" Sotomayor, columnist Will writes. "Her ethnicity aside, Sotomayor is a conventional choice," Will writes, adding that "like conventional liberals, she embraces identity politics, including the idea of categorical representation: a person is what his or her race, ethnicity, gender or sexual preference is, and members of a particular category can be represented -- understood, empathized with -- only by persons of the same identity." According to Will, Democrats have "compounded confusion by thinking of the court as a representative institution," and such "personalization of the judicial function subverts the rule of law" (Will, Washington Post, 5/26).
~ Gary Bauer, Washington Times: Although some Republican senators might "be tempted to allow Judge Sotomayor to be confirmed without much scrutiny," they "should resist that temptation" because lawmakers "have an obligation to scrutinize the nominee's judicial record and philosophy," Bauer, president of American Values and chair of the Campaign for Working Families, writes. He continues that "confirmation hearings offer Republicans a rare chance to inform the public about what judges are supposed to do and to make the case for judicial restraint," adding that if Sotomayor "believes unborn children do not deserve constitutional recognition, that ought to be made clear." Bauer writes that Obama's preference for judges who act on "empathy" demonstrates that he favors "judges that will legislate from the bench," which is "the very definition of judicial activism." According to Bauer, "Empathy is a virtue, but it should not be a guiding judicial principle" (Bauer, Washington Times, 5/27).
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