Sotomayor in Step With Obama, Not Necessarily the Rule of Law

Justice on a whim? Sotomayor's feelings and experiences have no place on the high court.

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Give Barack Obama points for clarity when it comes to his judicial philosophy. The president has been unambiguous with respect to the types of judges he will appoint to the Supreme Court.

During the presidential campaign, Obama said he favored judges with the "empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old."

And when Justice Souter recently announced his retirement, Obama tipped his hand regarding the type of justice he would appoint to replace Souter by saying justice is about "how our laws affect the daily realities of people's lives, whether they can make a living, and care for their families, whether they feel safe in their homes, and welcome in their own nation. 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," the president said.

Sure enough, we now have in Supreme Court nominee Judge Sonia Sotomayor the personal embodiment of Obama's judicial philosophy, which places a premium on personal feelings. At least at first glance, Judge Sotomayor most certainly appears to be in lock-step with the president.

During a "cultural diversity lecture" at the University of California (Berkeley) School of Law in 2001, Judge Sotomayor said the following: "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion [as a judge] than a white male who hasn't lived that life."

Judge Sotomayor also said she believes it is appropriate for judges to consider their "experiences as women and people of color" in their decision-making, which she believes should "affect our decisions."

This is identity politics at its worst and it has absolutely no business on the bench. For ask yourselves this question: What happens if you enter Judge Sotomayor's court room and you happen to be the "wrong" gender, race, or sexual orientation? Will you be granted a fair hearing?

No litigants should have to ask themselves this question when entering the court, any court.

And if Judge Sotomayor's feelings guide her judicial decisions, justice in her courtroom operates on a constantly shifting landscape, depending day to day, perhaps even moment to moment, on Judge Sotomayor's moods, biases, and personal whims.

How could anyone have confidence that justice will be served under this scenario?

It used to be the ability to completely set aside one's personal feelings was the high mark of impartiality to which all judges aspired. Liberals have cunningly managed to turn impartiality into a weakness so they can use the courts to advance a political agenda that has failed at the ballot box. (This is what we call judicial activism.)

When applying the rule of law there is only one standard: apply it equally and at all times. Judges must ensure that all litigants are given a fair hearing regardless of their personal feelings and biases.

This point seems to be lost on President Obama and his Supreme Court nominee.

And so, here is the question that members of the U.S. Senate must now answer. Will they vote to confirm a justice who will make her decisions based on empathy and her personal feelings about a litigant? Or will they demand a nominee who uses the rule of law as a principal guide, applying the law equally to everyone who comes before the court, regardless of race, gender, or sexual orientation?

If senators care one whit about the U.S. Constitution, the answer is obvious.

Read more about the Sotomayor debate in The Chat Room.

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Tom Fitton is the president of Judicial Watch, a public interest group that investigates and prosecutes government corruption.