Confirmation hearings are inevitably an invitation to behave badly. Something about the bright lights of the Senate Judiciary Committee brings out the worst in people. Legal thinkers who are otherwise reasonable and intelligent somehow become great big puddles of snarling, hateful id. I think Democrats made a mistake when they accused Chief Justice John Roberts and Justice Samuel Alito of being misogynists and racists at their confirmation hearings. And Republicans are poised to make the same mistake when they attack Obama's Supreme Court nominee, Sonia Sotomayor, as a "liberal judicial activist of the first order who thinks her own personal political agenda is more important that the law as written," as Wendy Long, of the Judicial Confirmation Network, did today. (Don't those phrases ever get old? Don't these people own a thesaurus?)
Undaunted by the hyperbole that festers beneath her hyperbole, Long then went on to condemn Sotomayor for somehow aiding and abetting the 9/11 attackers with her decision in the controversial New Haven firefighters case: "On September 11, America saw firsthand the vital role of America's firefighters in protecting our citizens. They put their lives on the line for her and the other citizens of New York and the nation. But Judge Sotomayor would sacrifice their claims to fair treatment in employment promotions to racial preferences and quotas." So just to get this straight: Sotomayor isn't just a far-left activist, she's also out to destroy firefighting?
The case against Sotomayor—to the extent it's being made, is that her life is such a tumultuous blend of personal hardship and deep feeling, that she cannot separate the law from her own agenda. In short, she feels too much.
Washington Post columnist Charles Krauthamer was also quick to condemn Sotomayor on Fox news today, warning that her "concern for certain ethnicities overrides justice." And even though Sotomayor has decided only a single abortion case (against the abortion-rights side) Charmaine Yoest, president of Americans United for Life, rushed to describe her as "a radical pick" who "believes the role of the court is to set policy which is exactly the philosophy that led to the Supreme Court turning into the National Abortion Control Board."
If the Republican attack on Sotomayor is really going to consist of scattershot claims that she is too female and ethnic to be truly fair or impartial, it will be a losing demographic battle. Recall that 67 percent of Hispanics and 58 percent of women voted for Obama in 2008, along with 96 percent of blacks. Folks across the political spectrum may wish that Obama hadn't opened the door to discussions of the complicated connection between privilege and judicial "empathy." But now that we are there, it simply has to be a mistake for her opponents to attack Sotomayor as someone who is just too darn human to sit on a court.
For one thing, such outbursts tend to offend other humans.
Moreover, the case against Sotomayor on this front is so ideologically loaded, and selective, that it quickly starts to look hypocritical. Why did Republicans treat Samuel Alito's blue collar upbringing as a great humanizing factor in his confirmation hearings? Why did they deem Clarence Thomas' childhood poverty an advantage, whereas they now cast Sotomayor's as a handicap?
Instead of wading into a bruising identity politics war they cannot possibly win, conservatives— even the angriest conservatives—should wade into Sotomayor's vast legal writings. There are hundreds of cases for them to read, and parse and quote out of context. Let's have this confirmation battle on the merits, rather than in the sinkhole of identity politics. The real problem for Sotomayor's opponents is that anyone who has closely read her opinions won't find much to build a case on. As the indefatigable team at SCOTUSblog has chronicled here and here, on the appeals court Judge Sotomayor has taken a fairly moderate, text-based approach to the cases before her, placing her much closer to retiring Justice David Souter than to the late Justice William Brennan on the judicial activism spectrum.
She has been overturned twice at the Supreme Court, and may well be again soon. But she was also a federal prosecutor, a corporate lawyer, and a Bush I appointee to the federal bench. As the White House points out in its talking points today, "In cases where Sotomayor and at least one judge appointed by a Republican president were on the three-judge panel, Sotomayor and the Republican appointee(s) agreed on the outcome 95% of the time."
What evidence does anyone, anywhere, have that Sotomayor has spent her career departing from the letter of the law to impose her personal preferences? Her participation in the (poorly handled) decision in the New Haven firefighters case was anything but judicial activism, much as it will be spun as symbolic of her lifelong hatred of white men. On a conference call with reporters today, a senior administration official noted that in the New Haven case, Judge Sotomayor did nothing more than apply the case law. "You can't say she's a judicial activist and then criticize her for applying Second Circuit precedent." Her judicial record reveals a lot more humility than hubris.
Sotomayor will also draw heat in the coming weeks for a speech she made in 2002 at the University of California at Berkeley. Talking about the effect of race and gender on judicial decision-making, Sotomayor said, "I would 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." She also said that "the aspiration to impartiality is just that--it's an aspiration because it denies the fact that we are by our experiences making different choices than others. Not all women or people of color, in all or some circumstances or indeed in any particular case or circumstance but enough people of color in enough cases, will make a difference in the process of judging." That seems a particularly thoughtful observation, in the context of a long and thoughtful meditation on the role of personal experiences in judicial thinking. Sotomayor never pretends to know better than white men, and she doesn't purport to speak for all Latinos or all women. She merely believes that different judges make a difference in judging. And if you strip away all the rage of the identity politics wars, that point is irrefutable.
The angry screeching from the right that Judge Sotomayor is too emotional to fairly apply the law is already starting to sound, well, hysterical. And the fun is only just beginning.