Karl Rove maintains that both President Obama and the Republicans get something from the Supreme Court nomination of Sonia Sotomayor:
Mr. Obama said he wanted to replace Justice David Souter with someone who had "empathy" and who'd temper the court's decisions with a concern for the downtrodden, the powerless and the voiceless.
"Empathy" is the latest code word for liberal activism, for treating the Constitution as malleable clay to be kneaded and molded in whatever form justices want. It represents an expansive view of the judiciary in which courts create policy that couldn't pass the legislative branch or, if it did, would generate voter backlash.
There is a certain irony in a president who routinely praises America's commitment to "the rule of law" but who picks Supreme Court nominees for their readiness to discard the rule of law whenever emotion moves them.
Rove is correct to point out the irony. Liberal judicial philosophy is not about determining what the law says but about enacting into policy what they wish it said. A judge who rules on the basis of empathy is a judge who is derelict in her responsibility. An impartial judge should not allow personal feelings to obtrude into her interpretation of the law. If she does then she'll be showing a favoritism or bias toward one or the other of the parties who appear before her. That this is improper is the whole point of the symbol of justice as a blind-folded woman.
The Sotomayor nomination also provides Republicans with some advantages. They can stress their support for judges who strictly interpret the Constitution and apply the law as written. A majority of the public is with the GOP on opposing liberal activist judges. There is something in our political DNA that wants impartial umpires who apply the rules, regardless of who thereby wins or loses.
Mr. Obama understands the danger of heralding Judge Sotomayor as the liberal activist she is, so his spinners are intent on selling her as a moderate. The problem is that she described herself as liberal before becoming a judge, and fair-minded observers find her on the left of the federal bench.
Republicans also get a nominee who likes showing off and whose YouTube moments and Google insights cause people to wince. There are likely to be more revelations like Stuart Taylor's find last Saturday of this Sotomayor gem in a speech at Berkeley: "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion [as a judge] than a white male who hasn't lived that life." Invert the placement of "Latina woman" and "white male" and have a conservative say it: A career would be finished.
Few revelations in recent weeks show the media's total abandonment of their traditional role as neutral watchdogs of the political power players than the revelation to which Rove refers. If, mutatis mutandis, this fatuous remark had been made by a white male, especially a conservative white male, he'd have been keel-hauled by the media and the left. The President would have yanked his nomination within hours, but the same comment from a Hispanic woman elicits nothing more from our media guardians than a few tut-tuts before they commence stomping upon any hapless Republican who might suggest that just maybe Ms Sotomayor is a bit of a bigot.
The media has also quickly adopted the story line that Republicans will damage themselves with Hispanics if they oppose Ms. Sotomayor. But what damage did Democrats suffer when they viciously attacked Miguel Estrada's nomination by President George W. Bush to the D.C. Circuit Court of Appeals, the nation's second-highest court? New York Sen. Chuck Schumer was particularly ugly, labeling Mr. Estrada a right-wing "stealth missile" who was "way out of the mainstream" and openly questioning Mr. Estrada's truthfulness.
Democrats can get away with this because both Hispanics and African-Americans, like drug-dependent women living with abusive boyfriends, are perfectly willing to suffer the indignities heaped upon them by the party overseers as long as those "boyfriends" keep promising them more "candy."
Nonetheless, Republicans must treat her with far more care than Democrats treated John Roberts or Samuel Alito and avoid angry speeches like Sen. Ted Kennedy's tirade against Robert Bork. The GOP must make measured arguments against her views and philosophy, using her own words and actions.
The Ricci case is an example: Whites were denied fire department promotions because of a clear racial quota. Ms. Sotomayor's refusal to hear their arguments won her stinging criticism from fellow Second Court of Appeals judge Jos� Cabranes, a respected Clinton appointee.
The Ricci case is right now before the Supreme Court and knowledgeable observers predict that it's going to be overturned. Perhaps Ms Sotomayor should have had a little empathy for the firefighters in this case who worked very hard (overcoming dyslexia in the case of Mr. Ricci) to prepare for the test and pass it. According to NPR:
Frank Ricci, the lead plaintiff in this case, is not a naturally gifted test taker. In an affidavit, he said he has dyslexia, that he studied as much as 13 hours a day for the firefighter promotional exam, that he paid someone to read the textbooks onto audiotapes, prepared flashcards and worked with a study group. And he passed.
Ms Sotomayor disdained the test results because all the people who passed were white (one Hispanic). Her empathy evidently does not extend to such as Mr. Ricci who, due to an unfortunate accident of birth, is a white male.
Anyway, unless the Republicans block her in committee she'll be the next Supreme Court Justice, and she'll have ample opportunity to demonstrate how a Latina judge is better situated than those doofus white men on the Court to interpret the Constitution. I can't wait.
RLC