The Rational Hysterics

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 Postcolumnist 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.