Adam Liptak’s article – “Sotomayor Finds Her Voice Among Justices” – in Wednesday’s NewYork Times is the latest paean for Justice Sonia Sotomayor’s dissent two weeks ago froma Supreme Court decision upholding a Michigan ballot initiative’s ban on racial preferencesin admissions.
Her dissenting opinion in Schuette v. BAMN, which she summarized fromthe bench “in emphatic and impassioned tones,” reports Liptak, makes the case that “racematters” in America. In fact, she repeats the phrase a dozen times in her dissent, while citing herexperiences growing up Puerto Rican in New York City.
Though clearly coming from the heart, Sotomayor’s dissent falls short on legal reasoning as shestruggles to reconcile her embrace of identity group politics with the color blindness suggestedby the Constitution’s Equal Protection Clause. In that sense, her dissent is very much like hernomination, where President Obama “present[ed] Sotomayor’s race and gender as credentialsin themselves,” in the words of the Boston Globe, while simultaneously denying that she was chosen for anyreason other than merit.
Though laudatory, Liptak’s piece is fair, quoting Sotomayor’s critics on and off the Court andfeaturing the observation of Yale law professor Cristina Rodriguez that the Justice’s “willingnessto talk about how biography informs judgments challenges a lot of people’s notions about whatthe law is supposed to do.” Referring to this deviation from the objective model of judging,Liptak writes approvingly that something has changed since Sotomayor’s statement that “I am alawyer’s judge. I write very technically.”
The thrust of Liptak’s piece is to celebrate her as “a kind of folk hero” who some call “thepeople’s justice.” In particular, Liptak salutes Sotomayor for finding her voice on the importanceof race five years after she was forced to disavow, at least for confirmation purposes, a race-based theory of judging epitomized by her infamous “wise Latina” statement.
In several speeches before her nomination to the Supreme Court, Sotomayor opined that “awise Latina woman with the richness of her experiences would more often than not reach abetter conclusion [as a judge] than a white male,” adding her “accept[ance] that our experiencesas women and people of color affect our decisions [as judges].” Fortunately for Sotomayor, thejudges of color “may have different perspectives” might include “basic differences in logic andreasoning” and “inherent physiological or cultural differences.”
Though celebrating the return of the wise Latina, Liptak’s article is about more than race. Hewrites about Justice Sotomayor finding her voice not just for minorities and “undocumentedimmigrants,” but also for criminal defendants and the victims of corporations committing humanrights abuses abroad.
This broader vision of “the people’s justice” fighting for society’s victims mirrors preciselywhat Barack Obama said he was looking for in judicial nominees during his first presidentialcampaign. Obama raised eyebrows with his promise to appoint judges with “the empathy, torecognize what it’s like to be a young teenage mom [or] poor, or African-American, or gay, ordisabled, or old” and his similar call for judges who rule from the heart:
[Difficult cases] can only be determined on the basis of one’sdeepest values, one’s core concerns, one’s broader perspectiveson how the world works, and the depth and breadth of one’sempathy. … [T]he critical ingredient is supplied by what is inthe judge’s heart.
Following the negative reaction to those statements, Obama has been careful to use lesscontroversial language. That, combined with Sotomayor’s disavowal of her remarks, signaled thatsuch frank endorsements of race-based and results-oriented judging are no longer advisable,at least by people hoping to be elected or confirmed. Nonetheless, this activist view of a judge’srole retains its seductive appeal as evidenced by Liptak’s article and other admiring descriptionsof Justice Sotomayor post-Schuette.
Precisely because of its appeal, it is important to remind ourselves why the Obama-Sotomayorvision of judging is so pernicious. No matter how much you dress it up with feel-good words,it amounts to tipping the scales of justice for groups of people deemed deserving of empathy.That is the antithesis of the rule of law and a violation of the oath that every federal judge takesto “administer justice without respect to persons, and do equal right to the poor and to the rich.”
At the end of the day, Obama’s lofty language about “one’s deepest values, one’s coreconcerns, one’s broader perspectives… and the depth and breadth of one’s empathy” is alicense for judges to put their personal policy preferences above the law. Value, perspective, andempathy are all important considerations, but it is the job of our popularly elected legislators totake those factors into account when crafting our laws. It is not the job of judges to serve assuper-legislators who second guess those determinations.
Even in its most apolitical form, the Obama-Sotomayor model of judging gives the judiciaryunbridled discretion and virtually limitless power. In practice, calls for empathy-based judgingare often nothing more than code for preferring judges who will favor the outcomes desiredby liberals. If it were otherwise, President Obama’s judicial nominees would include peoplewith empathy for unborn babies and sympathy for poor white kids victimized by race-basedadmissions policies.
Mr. Levey is a constitutional law attorney and president of the Committee for Justice. Followhim on Twitter at @Curt_Levey.