UPDATE: Sotomayor discussed her judicial philosophy in her opening statement to the committee. Talking Points Memo posted excerpts from all the senators’ opening statements.
The Senate Judiciary Committee began Judge Sonia Sotomayor’s confirmation hearings today, and Radio Iowa has Senator Chuck Grassley’s opening statement. He gave quite the lecture about “judicial restraint” as opposed to “President Obama’s ‘empathy’ standard.”
An excerpt is after the jump, along with some analysis of Grassley’s selective concern about empathy and so-called activist judges.
The Constitution requires that judges be free from personal politics, feelings and preferences. President Obama’s “empathy” standard appears to encourage judges to make use of their personal politics, feelings and preferences. This is contrary to what most of us understand to be the role of the judiciary.
Judge Sotomayor, President Obama clearly believes you measure up to his “empathy” standard. That worries me. I’ve reviewed your record and have concerns about your judicial philosophy. For example, in one speech, you doubted that a judge could ever be truly impartial. In another speech, you argued it’d be a “disservice both to the law and society” for judges to disregard personal views shaped by one’s “differences as women or men of color.” In yet another speech, you proclaimed that the court of appeals is where “policy is made.” Your “wise Latina” comment starkly contradicts a statement by Justice O’Connor that “a wise old woman and a wise old man would eventually reach the same conclusion in a case.” These statements go directly to your views of how a judge should use his or her background and experiences when deciding cases. Unfortunately, I fear they don’t comport with what I and many others believe is the proper role of a judge or an appropriate judicial method.
Notice how Grassley quotes from Judge Sotomayor’s speeches rather than from the more than 3,000 rulings she has written or joined. That’s typical of Sotomayor’s critics. They refuse to acknowledge, for example, that in nearly 100 race-related cases she has not shown unusual sympathy for litigants claiming discrimination.
I don’t remember Grassley raising similar concern about Justice Sam Alito’s empathy, even though Alito acknowledged during his confirmation hearings that he thinks about his own family’s experiences when considering immigration or discrimination cases:
ALITO: […] Because when a case comes before me involving, let’s say, someone who is an immigrant — and we get an awful lot of immigration cases and naturalization cases — I can’t help but think of my own ancestors, because it wasn’t that long ago when they were in that position.
And so it’s my job to apply the law. It’s not my job to change the law or to bend the law to achieve any result.
But when I look at those cases, I have to say to myself, and I do say to myself, “You know, this could be your grandfather, this could be your grandmother. They were not citizens at one time, and they were people who came to this country.”
When I have cases involving children, I can’t help but think of my own children and think about my children being treated in the way that children may be treated in the case that’s before me.
And that goes down the line. When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account. When I have a case involving someone who’s been subjected to discrimination because of disability, I have to think of people who I’ve known and admire very greatly who’ve had disabilities, and I’ve watched them struggle to overcome the barriers that society puts up often just because it doesn’t think of what it’s doing — the barriers that it puts up to them.
As for Grassley’s concerns about “judicial restraint,” Big Tent Democrat (a constitutional lawyer) shows in this post that the Ricci decision
is an act of judicial restraint. The Second Circuit panel, which included Judge Sonia Sotomayor, deferred to a decision of the elected officials of the City of New Haven. Whether the decision was correct or incorrect, it was decidedly the opposite of judicial activism.
On the contrary, the five conservative Supreme Court judges who overturned the lower court ruling in Ricci were engaging in judicial activism.
I’ll write more on the Sotomayor hearings later this week. Senate Republicans know that they don’t have the votes to keep this highly-qualified, moderate judge off the Supreme Court, but they will try to damage her reputation (and by extension Obama’s). Their phony concern about “activism” and “empathy” should not go unchallenged.