Dionne on Sotomayor Nomination

Obama's Anti-Roberts, by E.J. Dionne in the Washington Post, May 28, 2009.

Excerpts:

"Republicans would be foolish to fight the nomination of Judge Sonia Sotomayor to the U.S. Supreme Court because she is the most conservative choice that President Obama could have made.

"And even though they should support her confirmation, liberals would be foolish to embrace Sotomayor as one of their own because her record is clearly that of a moderate.

"In this battle, it's important to separate Obama's reasons for choosing Sotomayor from her actual record. He was drawn to her not simply because the politics of naming the first Latina justice were irresistible, but also because he saw her as the precise opposite of Chief Justice John Roberts.

"In his September 2005 speech explaining his vote against Roberts, Obama argued that 95 percent of court cases are easily settled on the basis of the law and precedent. But in 'those 5 percent of hard cases,' Obama said, the 'legal process alone will not lead you to a rule of decision' and 'the critical ingredient is supplied by what is in the judge's heart.' "

My Commentary, posted on 5/29/2009 at 9:08:42 PM

Zemack wrote:
The crucial issue here is not whether Ms. Sotomayor is a liberal, conservative, or Hispanic or a woman. The real issue is President Obama’s judicial philosophy, which is an assault on a key founding principle of the United States and the foundation of justice. On May 1, 2009, the president said:

“... [J]ustice isn't about some abstract legal theory or footnote in a case book.

“I view that quality of empathy, of understanding and identifying with people's hopes and struggles as an essential ingredient for arriving at just decisions and outcomes.”

His nominee, Sonia Sotomayor, said the following in a 2001 California Berkeley School of Law
speech:

“…“[T]he aspiration to impartiality is just that–it’s an aspiration…

“There is no objective stance but only a series of perspectives,”

What this means is that a judge may, on any subjective whim, side-step the objective reliance on law and facts and substitute his own emotions in rendering a decision. What America since its founding has been guided by [is] the principle of “a government of laws and not of men”. President Obama’s historic precedent is to say, “not anymore”.

Never mind that “only” the most complex 5% of the cases will be affected. Once the arbitrary supplants the objective, the whole judicial system becomes an emotional crapshoot. How do the antagonists in a court case decide when to settle out of court when the only valid frame of reference, the law and the facts, can be rendered meaningless at any time by some judge’s “perspectives”? How does one prepare to enter a court of law governed by judges who can act at any time – not as an impartial arbiter of objective facts and law – but on what happens to just “feel right”? How can one ever know whether he will be a part of some imaginary 95%, or the other 5%? How can one ever know if he as an objective shot at justice? What’s the point of having courts at all, if impartiality is “just an aspiration” rather than a solemn pledge?

If Obama believes that the “disadvantaged” deserving of “empathy” would somehow benefit from the breakdown of objective law and equal, blind justice, he should think again. “A government of men” is tyranny, and the greatest victims of tyranny throughout history have always been the average citizen. America, the “government of laws”, has always been a place of achievement for the “little guy”, precisely because of the equal protection under the law that he can count on.

If Obama’s judicial philosophy takes hold, it can no more be contained to just 5% of the judiciary than cancer cells can be contained in the body. The road to tyranny begins with small first steps. President Obama has taken a scary first step down that ancient road of the rule of men rather than laws.

This issue transcends the liberal-conservative, democrat-republican divide. A judge has a legal, professional, and, especially, a moral duty to make the utmost effort to prevent personal feelings from impinging upon the rigorous adherence to facts and law…no matter how complex the case. Judge Sotomayor’s rejection of objectivity and impartiality renders her unfit for the Supreme Court. And President Obama must be sent a strong message by congress: The dignity of the judicial process must be preserved. The future of America depends on it.

When justice is transformed from an objective absolute into a ball of putty, there is no justice at all. Sonia Sotomayor should not be confirmed.