Sotomayor’s Newfound Fidelity

by The Rationalist

Monday, July 13, 2009 at 05:30 PM EDT

During a hearing before the Senate Judiciary Committee, Sonia Sotomayor seemingly dispelled many of her critics with her statement regarding her judicial philosophy:

“[It is] simple: fidelity to the law. The task of a judge is not to make law — it is to apply the law. And it is clear, I believe, that my record … reflects my rigorous commitment to interpreting the Constitution according to its terms; interpreting statutes according to their terms and Congress’s intent; and hewing faithfully to precedents established by the Supreme Court and by my Circuit Court. In each case I have heard, I have applied the law to the facts at hand.”

For moderates and conservatives, these are clearly welcome words, especially after the media firestorm surrounding “empathy” and “wise Latina” women. It’s clear, however, that statements at Senate Judiciary Committee hearings are not particularly indicative of future performance on the Court. Justice Alito comes readily to mind:

“…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.”

- Excerpt from Alito’s SJC hearing in 2005.

However, when an attorney reaches the highest court in the land, they have the opportunity (due to life tenure and strenuous impeachment requirements) to operate autonomously and in accordance with their own views. Here is Alito’s closing remark on Ricci, the cause of most of the controversy surrounding Sotomayor; a case based on affirmative action:

“The dissent grants that petitioners’ situation… ‘understandably attract[s] this Court’s sympathy.’ But ’sympathy’ is not what petitioners have a right to demand. What they have a right to demand is evenhanded enforcement of the law…. And that is what, until today’s decision, has been denied them.”

- Alito writing a concurring opinion in Ricci v. DeStefano.

The point is that a political game is played during the confirmation process. Conservatives try to appear more liberal, and liberals try to appear more conservative.

Having looked at Sotomayer’s judicial history, her opinions consistently favor minorities in both affirmative action and discrimination cases, and she seems inclined to often defer to the most disadvantaged party. To suit her purposes now, however, she will paint a fair and balanced picture – but everyone should know that judicial nominees from both sides are guilty of this. Indeed, this is all simply part of the elaborate dance.