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Posted by on May 29, 2009 in At TMV | 10 comments

Attacks on Sotomayor—What’s Good for the Goose…


Karl Rove today in a Wall Street Journal opinion piece,”‘Empathy’ Is Code for Judicial Activism”:

Mr. Obama said he wanted to replace Justice David Souter with someone who had “empathy” and who’d temper the court’s decisions with a concern for the downtrodden, the powerless and the voiceless.

“Empathy” is the latest code word for liberal activism, for treating the Constitution as malleable clay to be kneaded and molded in whatever form justices want. It represents an expansive view of the judiciary in which courts create policy that couldn’t pass the legislative branch or, if it did, would generate voter backlash.

Former President George H. W. Bush in July 1991, in his remarks announcing his selection of Clarence Thomas to the Supreme Court:

I have followed this man’s career for some time. He is a delightful and warm, intelligent person who has great empathy and a wonderful sense of humor.


Senator Pat Roberts, the first Republican Senator who has indicated that he will vote against Sotomayor’s confirmation, during a radio show today:

I voted ‘no’ in 1998. I did not feel she was appropriate on the Appeals Court. Since that time, she has made statements on the role of the Appeals Court that I think is [sic] improper and incorrect.

(The Senator was referring to Sotomayor’s 2005 remarks on policy-making in the Appeal Courts.)

Supreme Court Justice Antonin Scalia, in a majority opinion of a 2002 case, Republican Party of Minnesota v. White:

This complete separation of the judiciary from the enterprise of “representative government” might have some truth in those countries where judges neither make law themselves nor set aside the laws enacted by the legislature. It is not a true picture of the American system. Not only do state-court judges possess the power to “make” common law, but they have the immense power to shape the States’ constitutions as well. [Emphasis added]

In a footnote, Scalia added:

In fact, however, the judges of inferior courts often “make law,” since the precedent of the highest court does not cover every situation, and not every case is reviewed.


Finally, there has been a firestorm by Conservatives (Gingrich, Rove, Limbaugh—to name a few), including Tancredo’s outlandish “racist,” “Latino KKK” accusations, over a Sotomayor 2001 speech at the University of California at Berkeley, where she suggested that her background, life experience and heritage help guide her decision-making:

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.

Supreme Court Justice Samuel Alito during his January 2006 Senate confirmation hearings:

Because when a case comes before me involving, let’s say, someone who is an immigrant — and we get an awful lot of immigration cases and naturalization cases — I can’t help but think of my own ancestors, because it wasn’t that long ago when they were in that position.
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.