Empathy and Impartiality

How will the GOP react to President Obama's pick to replace Justice David Souter on the U.S. Supreme Court? Who cares? It doesn't matter what Senate Republicans think of Sonia Sotomayor. The GOP does not have the votes to stop her. Only Democrats — or Sotomayor herself — can torpedo the admission of Sotomayor to the Big Bench.

The fascination with the GOP's response to Sotomayor illustrates that Democrats are desperate to make Republican criticism, not Sotomayor, the issue. It's true: Republicans can raise questions about Obama's nominee, but only Democratic answers will determine her fate. So far, they seem to be standing by Obama's preference for a justice with "empathy" — probably because voters don't see empathy as a bad thing.

And what's not to like in a compelling against-the-odds personal success story? Me? Of course, I would rather not see a very liberal judge on the team, but I also think that a duly elected president has won the power to pick Supreme Court justices. A nominee with Sotomayor's credentials should be assumed competent. The Senate should reject only clearly unfit candidates for this lifetime position.

Now, that's not what Obama thought when he was a senator. "I would support the filibuster of some" of Bush' picks for the federal bench," he wrote in his memoir, "The Audacity of Hope," "if only to signal to the White House the need to moderate its next selections." And: "It behooves a president — and benefits our democracy — to find moderate nominees who can garner some measure of bipartisan support."

His support for moderation notwithstanding, Obama voted against Chief Justice John G. Roberts (who won 78 Senate votes) and Justice Samuel A. Alito Jr. (58 votes). Ditto Sen. Dianne Feinstein, D-San Francisco, who complained that she did not know where Roberts stood on abortion.

Be it noted that top Democrats have voted against qualified candidates.

Veep Joe Biden wrote in his memoir, "Promises to Keep," that he felt he could fight the (ultimately failed) nomination of Robert Bork because, "An ideologically driven nominee who was chosen for his willingness to overturn settled precedent would invite a divisive and unnecessary fight."

Let the record show that top Democrats recognize the legitimacy in opposing overly ideological judges on the Big Bench.

In a 2001 speech at the UC Berkeley School of Law, Sotomayor wondered whether impartiality is achievable and confessed that she hoped "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."

The issue is not that Sotomayor self-identifies as a "wise Latina woman," but what she meant when she said, "I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society." Is she simply being honest about personal biases? Or does she believe that women and minorities — the speech included a gratuitous dig at Justice Clarence Thomas — should rule according to their demographic?

As for precedent: On Tuesday, the California Supreme Court upheld Proposition 8 — which limited marriage to a man and a woman. Chief Justice Ronald George wrote that that the court's "role is limited to interpreting and applying the principles and rules embodied in the California Constitution, setting aside our own personal beliefs and values."

Justice Carlos Moreno, the lone dissenter, however, cited the court's "traditional constitutional function of protecting persecuted minorities from the majority will."

Someone on the Senate Judiciary Committee ought to ask Sotomayor: Who's right? I want to hear that answer.

E-mail Debra J. Saunders at dsaunders@sfchronicle.com. To find out more about Debra J. Saunders, and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate Web page at www.creators.com.

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