Sotomayor Wrong for Supreme Court


By: Craig Chamberlain

Give it to President Obama, when he said that empathy would be his greatest qualification for a federal judge he meant it. His first nominee to the United States Supreme Court, Sonia Sotomayor, doesn’t exactly have the greatest reputation as a legal mind. But, keeping up with identity politics, and empathy, she’s a perfect fit. She’s not only a woman, she’s a hispanic woman, that’s two constituents appeased with one pick. Beyond that though, you can’t think of anything that actually qualifies her for the nation’s highest court.

First appointed to the federal bench by former President George H. W. Bush(at the recommendation of former Senator Daniel Patrick Moynihan, that’ll teach him to trust a Democrat) she’s done little to distinguish herself as a jurist. It was he ethnicity and gender that got President Clinton to promote her to the 2nd circuit court of appeals, and it’s the same thing that has led President Obama to nominate her to the Supreme Court.

She has a reputation for judicial activism, badgering and belittling lawyers she doesn’t agree with, for focusing on minor details while being oblivious to the larger legal or constitutional questions, while thinking that ethnicity and gender should give you an advantage before the law. Well, so much for justice being blind. But she’s got empathy, and that’s all we need to know.

We need to ask an important question though: What does empathy have to do with the law? Here’s a purely hypothetical situation. A landlord issues a notice of eviction on a tenant that hasn’t paid her rent for three months. She sues to stay in her apartment and it goes before a judge. If the judge is following the law, he will uphold the notice of eviction because the tenant signed a lease in which she agreed to pay so much a month in order to live in the apartment, by not paying her rent she’s in breach of contract and must get out. If, however, the judge is motivated by empathy and not the law, he’ll listen to the tenants story of woe about how she’s out of work and is a single mom of three kids and it would be just cruel to force her, and her children, out on the street.

A good judge, while personally feeling sorry for her, will still uphold the law. A judge guided by empathy, or by the ethnicity or gender of the defendant or plaintiff, will say that the tenant has an inalienable right to stay in her apartment whether she pays her rent or not. And if it’s a minority(or some other privileged class) suing a white guy then you come down on the white guy hard. The landlord is reduced from being a landlord to being a provider of free housing, and he’ll still have to pay the maintenance costs and taxes on his property, which will be pretty hard if the judge says that tenants don’t have to pay rent. After all paying rent might be a hard burden for a minority, unemployed, single mom.

While the above case might be hypothetical, the judicial philosophy of Judge Sotomayor is not hypothetical. We know where she stands. Plaintiffs over defendants, she believes that policy should be made by the Appellate courts, and that minorities- especially hispanic women- have more rights before the law than other people. Whatever happened to justice for all?

While Judge Sotomayor isn’t qualified to be on the Supreme Court there isn’t anything that can be done to stop her confirmation. Even if some Republican Senator tried to carry out a filibuster, there wouldn’t be the votes to keep it going. The Republiucans simply don’t have the votes to stop her. The GOP should save their fight for a more important battle. Judge Sotomayor isn’t going to change the ideological balance on the court. She’s replacing Justice Souter, a solid liberal, judicial activist, who believed that international law should be more important than the U.S. constitution. Judge Sotomayor, basically believes the same thing. So ther court will still be four conservative, four liberals and one swing vote.

So, while it would have been heartening for President Obama to pick someone more qualified, instead of picking someone because she fills an ethnic quota, it shouldn’t surprise anyone that President Obama made the pick he did. He made no secret about the type of judges he prefers. It’s unlikely that she’ll be a good justice, but what can you expect when you trump empathy over the law?

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