Judge Sonia Sotomayor has been confirmed (in a vote of 68 to 31) to replace Justice Souter on the U.S. Supreme Court. We can now only hope that like her predecessor (a Bush appointee), she will swing slightly to the opposite side of the political spectrum from the President who appointed her... ah, the audacity of hope! Seriously though, that would be sweet, sweet poetic justice.
Other than hoping for such an outcome, now that the vote is cast there is nothing more we can do but use this as a learning opportunity. Particularly, we need to understand the rhetoric that surrounded Sotomayor's appointment, see what is so critically wrong with it, and stand ready to expose its dangers so that we are prepared to win the ideological battle, if not the political one when it comes time for President Obama to appoint another Supreme Court Justice.
Long before Sotomayor's appointment, the media was trumpeting the call for "someone with empathy" on the Supreme Court. After the appointment CNN quoted a senior White House official who said, "He found all of those things with her, including his goal of selecting someone with the empathy factor -- real-world, practical experience and understanding of how the law affects real people."
As with many other vague bromides parroted by the media and chattering classes, this call for empathy has very little in the way of substance. What exactly do they mean by empathy? No one has made that clear at all. Does it mean that we need a judge who will practice legal favoritism towards someone who has had a difficult life or happens to belong to a demographic minority? I hope not, and I certainly doubt that if pressed, anyone would agree that this is what is meant by empathy.
Then does "empathy" mean a fair application of law that entitles disadvantaged people and minorities to the same legal protection as anyone else gets? We already have a word for that: Justice. Another is "impartiality." I would like to hear people clamor for justice and impartiality, and I grow very nervous when everyone seems to be mouthing the word "empathy" with no clear and explicit definition of that word in this context. If they would rather not be clear about what they mean, we can only assume they mean something terrible.
I submit that what they really mean (though it would never be explicated in this way out loud or possibly even in the privacy of their own minds) is that we need an unchecked oligarch on the Supreme Court who has no trouble making decisions outside the purview of justice grounded in an objective and impartial law, someone who does not mind referring to subjective feelings when making legal rulings from our nation's highest court- and that is the end of justice in our country.
