A Wise Latina's Unwise Words

Even though Sonia Sotomayor’s empathy and background were at the center of her tightly messaged nomination, by Friday the White House was backing away from her statement that a “wise Latina” might be better equipped to dispense justice than a white male.

But not all of Judge Sotomayor’s supporters appear as quick to run from a debate over the role personal feelings and prejudices should play in judicial decisionmaking.

Senator Patrick Leahy, Chairman of the Judiciary Committee, seems ready to defend Sotomayor’s statement, pointing to supposedly similar Republican sentiments. On “Meet the Press,” Leahy referenced a statement of Justice Alito’s from his confirmation hearings.

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.

Leahy mused that Sotomayor’s reflections about the role of personal experience in judging might not be “any different than Judge Alito.”

So expect the following from Leahy and his colleagues.

Republicans support empathy in judging too. It is impossible for judges to put their experiences completely aside when deciding cases, something acknowledged by past Republican nominees. Even the conservative columnist David Brooks recently argued that judges cannot divest themselves of their unique reactions to a particular set of facts, and conservatives, no less than liberals, understand that these personal preferences and individual worldviews are part of a judge’s toolkit for deciding cases.

With this softball set-up, the Democrats will allow Sotomayor to reframe, moderate, and reaffirm her position, at the same time that she disavows her actual comment as imprudent.

Republicans should not accept this explanation at face value, and they should prepare a theoretically and politically serious rejoinder.

Specifically, Republicans need to unpack the types of cases in which Sotomayor and her liberal supporters anticipate she will use personal experience to inform her decisionmaking.

Democrats will argue that it is only in the few “hard cases” that a nominee’s personal experiences will matter. It is in the interpretation of the Constitution’s commitments to liberty, equal protection, and privacy that liberal constitutionalists expect physiological and ethnic difference to play a deciding role. It is in the particular application of broad constitutional principles that Democrats hope Sotomayor’s personal experiences and feelings will contribute to progressive constitutional developments.

Yet, Republicans must argue that it is in precisely these tough cases that judges should set their personal preferences aside.

Where the Constitution’s text is broad, where its commitments are general, where history is little guide, and where the American people disagree, a prudent judge – aware of the moral and institutional limits on her authority in a republican system – should think twice before making legal conclusions based on her own particular worldview.

In these tough cases, an unelected judge, rather than impose on the Constitution’s text a disputed interpretation born of her individual experience, more properly defers to the decisions of popularly elected majorities.

And though the media will frown on it, Republican Senators should take this opportunity to remind the American people of the shallowness of their Democratic colleagues’ commitment to diversity. The history of poverty and segregation experienced by Janice Rogers Brown and Clarence Thomas was of no consequence for Democrats who sought to scuttle their nominations. And when it came to Miguel Estrada, the wise Latino, Democrats tied the Senate in knots to keep him off the bench despite his experience as a Honduran immigrant.

In the end, the Democrats promote Sotomayor’s commitment to judgment by anecdote and personal experience not because of her diverse views but because she promises ideological conformity with the standard theories of liberal constitutionalists. She is the White House’s nominee not primarily because of the color of her skin or her gender, but because she is likely to believe much of what Larry Tribe believes about the American Constitution.

And on the list of liberal legal bromides deserving conservative scrutiny is the contention that in hard cases judges’ personal views should play a role. In fact, it is in those cases that judges should recognize their place in a democracy, put personal views aside, and let the people rule.