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'Empathy' Is Code for Judicial Activism
Both President Barack Obama and Republicans get something they want 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.
Mr. Obama's pick also allows him to placate Hispanic groups who'd complained of his failure to appoint more high profile Latinos to his administration. After the Democratic share of the Hispanic vote increased to 67% in 2008 from 53% in 2004, Latino groups felt they were due more cabinet and White House posts.
Mr. Obama also hopes to score political points as GOP senators oppose a Latina. Being able to jam opponents is a favorite Chicago political pastime. Besides, the president has been reluctant to make comprehensive immigration reform an issue, so a high-profile Latina appointment buys him time.
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.
Both Mr. Obama and the Republicans are also are denied things in this nomination. Republicans are denied an easy target. Ms. Sotomayor has a compelling personal story, attractive for cable, celebrity magazines and tabloids.
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.
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 José Cabranes, a respected Clinton appointee.
Mr. Obama won't get a new leader on the Supreme Court. Ms. Sotomayor does not appear to be a consensus builder whose persuasive abilities would allow her to flip a 4-5 decision to a 5-4 decision. She is likely to be just another reliable liberal vote, much as Justice Souter was, only without his gloomy silences and withdrawn nature.
While the next two to four months of maneuverings and hearings may provide more insights into the views of Mr. Obama's pick, barring an unforeseen development -- not unheard of in Supreme Court nominations -- Judge Sotomayor will become the second Hispanic (Benjamin Cardozo was Sephardic) and third woman confirmed to the Supreme Court. Democrats will win the vote, but Republicans can win the argument by making a clear case against the judicial activism she represents.
Mr. Rove is the former senior adviser and deputy chief of staff to President George W. Bush.
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