Sotomayor’s alleged sins are nothing extraordinary

“I will not vote for, and no senator should vote for an individual nominated by any president who believes it is acceptable for a judge to allow their own personal background, gender, prejudices or sympathies to sway their decision.” Thus said Sen. Jeff Sessions of Alabama, the senior Republican on the Senate Judiciary committee, at the opening of hearings on the confirmation of Sonia Sotomayor, the first Hispanic nominee to the Supreme Court of the United States.

“Call it empathy, call it prejudice or call it sympathy, but whatever it is, it’s not law,” Sessions added.

Sessions apparently felt compelled to draw this line in the sand because Sotomayor has talked about how growing up a Hispanic woman has given her certain sensibilities that might not be shared by a white male.

If such an awareness disqualifies a nominee from sitting on the Supreme Court, one must wonder how Sessions allowed himself to vote for the two nominees of President George W. Bush who came before the committee while Sessions was a member.

He did not rise up in indignation when now-Justice Samuel Alito discussed his empathy for people whose cases had come before him as a judge. During his confirmation hearing in January 2006, Alito said, “When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account.” And referring to immigration cases, he said, “I have to say to myself, and I do say to myself, ‘You know, this could be your grandfather, this could be your grandmother. They were not citizens at one time, and they were people who came to this country’ ...”

Empathy forged in a mill

Four months earlier, John Roberts was undergoing the confirmation process for chief justice. In introducing Roberts to the nation, President Bush made reference to his having worked in the steel mills to save money for college. In introducing Roberts to the members of the Judiciary Committee, Sen. Richard Lugar, R.-Ind., also noted that Roberts worked in a steel mill. And when Sen. Dick Durbin, D-Ill., made reference to Roberts having enjoyed a life of privilege as the son of a steel executive, Roberts referred to his working in the steel mills outside Gary, Ind., during the summers, which, he said, was only part of his exposure to people of a wide variety of backgrounds. He added, “As you look at the Supreme Court, the people on there come from widely different backgrounds and experiences, and I think that’s a healthy thing.”

Frankly, empathy is nothing new to the Supreme Court or its nominees. Justice Clarence Thomas, who seldom speaks during oral arguments before the court, made headlines when he forcefully challenged a lawyer who was arguing that the burning of a cross should be protected by the First Amendment as political speech. The act of cross-burning, Thomas said, carries with it the history of “100 years of lynching in the South.” He added, “this was a reign of terror,” and burning a cross now is “intended to have a virulent effect. It is unlike any other symbol.” No one suggested that Thomas’ feelings were not informed by his growing up poor and black in the rural South.

And for a final example of judicial empathy, we return to Alito, who also said during his confirmation hearing, “When I have cases involving children, I can’t help but think of my own children and think about my children being treated in the way that children may be treated in the case that’s before me.”

Crossing the line

Where her critics say Sotomayor crossed the line was while giving a lecture at the University of California, Berkeley, titled, “A Latina judge’s voice.” After observing that Justice Sandra Day O’Connor was often cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases, Sotomayor said, “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”

She put that statement in context with two following sentences: “Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases [that] upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case.”

Let’s be frank. For the first 133 years of this nation’s existence it was not only assumed that a man — under almost any circumstances — would reach a better verdict than a woman, it was a matter of law. Only in 1920 were women given the right to vote and New York, where Sotomayor grew up, didn’t have a woman judge until 1935.

If the nation could survive that track record, it should be able to survive having Sotomayor on the Supreme Court.

As we said a few years ago in discussing the nominations of Alito and Roberts, who faced opposition from the Democrats, elections have consequences. Just as Republican presidents have shaped the court to their conform to their philosophy, a Democratic president can be expected to nominate justices with whom he is comfortable.

Sotomayor’s confirmation should not even be a close call, given that she would replace David Souter, one of the court’s moderates. Roberts, a conservative who was replacing a conservative chief justice, William Rehnquist, was confirmed 78-22. Alito, a conservative who was replacing a moderate, O’Connor, faced stronger opposition, and was confirmed, 58-42.

Look for Sotomayor’s numbers to be somewhere in between.