The Democrats on the Senate Judiciary Committee are making a major effort to show that empathy is no part of Sonia Sotomayor’s judicial decisionmaking. Senator Schumer, in particular, made this the centerpiece of his questioning. He flagged certain cases in which sympathetic litigants did not receive a favorable ruling from Sotomayor. One set of such litigants cited by Schumer was the Ricci plaintiffs, but that assumes Sotomayor had empathy for them, which is doubtful. Schumer also noted that Sotomayor rules in favor of immigrants exactly as often as her court does, on average.
But if Schumer is right, what are we to make of President Obama’s statement that empathy in decisionmaking would be an important quality in deciding his Supreme Court nominee? If we take the president at his word, he must have found some evidence of this quality in Sotomayor — in her opinions, in her writings, and/or in their private interview — before nominating her. Did Sotomayor con the president?
The answer, I suspect, is that Sotomayor does possess the selective empathy — i.e., sympathy for litigants who, in the liberal narrative, are sympathetic or represent sympathetic causes — Obama was looking for. That’s why, in the close or interesting cases, she votes “liberal” more consistently than the average judge nominated by a Democratic president.
The question for non-liberal Senators is whether to vote in favor of confirming someone who couples that degree of liberalism with a long history of writings and speeches that cannot easily be reconciled with the impartial administration of justice.
UPDATE by JOHN: It’s worth noting that Sotomayor threw Obama under the bus on the “empathy” question:
KYL: Let me ask you about what the president said — and I talked about it in my opening statement — whether you agree with him. He used two different analogies. He talked once about the 25 miles — the first 25 miles of a 26-mile marathon. And then he also said, in 95 percent of the cases, the law will give you the answer, and the last 5 percent legal process will not lead you to the rule of decision. The critical ingredient in those cases is supplied by what is in the judge’s heart. Do you agree with him that the law only takes you the first 25 miles of the marathon and that that last mile has to be decided by what’s in the judge’s heart?
SOTOMAYOR: No, sir. That’s — I don’t — I wouldn’t approach the issue of judging in the way the president does. He has to explain what he meant by judging. I can only explain what I think judges should do, which is judges can’t rely on what’s in their heart. They don’t determine the law. Congress makes the laws. The job of a judge is to apply the law. And so it’s not the heart that compels conclusions in cases. It’s the law. The judge applies the law to the facts before that judge.
Whether that disclaimer is sincere, of course, is another matter. My own suspicion is that the issue isn’t one of “heart” or “empathy” so much as one of political influence.
PAUL adds: Exactly. When Obama talked about empathy, he meant the selective empathy that produces liberal results. Sotomayor has that.