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Sotomayor and the Era of Empathy

Sonia Sotomayor’s confirmation hearings for the Supreme Court start this week. Her nomination is an attempt by the Obama Administration to change the role of judges and the courts. President Obama seeks to establish a new standard for judges: empathy.

Empathy is highly subjective and provides little direction for judges. In some cases, all of the parties are sympathetic. In other cases, none are. In still other cases, the law may be unambiguously on the side of a party who is less sympathetic. If empathy is the guiding principle, how is a judge to decide? And is there any way to separate empathy from personal bias?

In choosing nominees, President Obama should seek judges who would apply the Constitution and the laws as they are written and interpret them in a manner consistent with their plain and original meaning. But that is not Sonia Sotomayor’s method of judging.

Bias and Policymaking. Judge Sotomayor has questioned whether judges can be impartial in most cases and has even asserted that such impartiality is undesirable. She describes a judges role as making policy and envisions a judiciary in which judges constantly overhaul the law to address social and political changes in society changes that should be addressed by the American people through their elected representatives. This is not the rule of law, but of activist judges who make up the law according to their own preferences and biases.

Wrong on the Second Amendment. After the Supreme Court confirmed Americans right to gun ownership in the DC v. Heller case, Sotomayor sided with those restricting gun-owners rights in Maloney v. Cuomo. Her three-judge panel ruled that the Second Amendment right to bear arms is not a fundamental right and so does not prevent state and local governments from completely banning gun ownership. Her reasoning? There is none.

Wrong and dismissive of the New Haven firefighters case. Two weeks ago the Supreme Court overturned the decision of Sotomayors Second Circuit panel in Ricci v. DeStefano, a case filed by white and Hispanic firefighters after the city threw out on racial grounds the results of a promotion exam they had passed. All nine justices on the Court even liberals like Justice Ginsburg and Justice Stevens rejected the standard that Sotomayor applied in the case. Even worse, Sotomayor tried to bury the case, releasing a one-paragraph unpublished opinion that only came to light when one of her colleagues (a fellow Clinton appointee) called out her shenanigans. In a case that Sotomayor thought was not important enough to warrant a real opinion, the Supreme Court wrote 89 pages worth of analysis.

Wrong on using Foreign and International Law to Interpret the U.S. Constitution. In April 2009, Sotomayor gave a speech to the Puerto Rican chapter of the American Civil Liberties Union (ACLU) where she argued that U.S Courts were within their right to cite foreign law when making decisions since “international law and foreign law will be very important in the discussion of how to think about the unsettled issues in our own legal system.” But nowhere in the U.S. Constitution is the use of foreign law required or even authorized. As Americans have seen time and time again, when judges cite to foreign law, its usually to support their personal preferences that are not supported by U.S. law. In the process, they throw U.S. sovereignty and our democratic process out the window.

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