When Samuel Alito was nominated to the Supreme Court by President Bush in 2005, there was a great and frequently uncivil hoo-rah to the effect that Alito would give the Supremes a “Catholic majority.” In this case, “Catholic” was code for “anti-Roe v. Wade” — and if you doubt that, consider that there was precious little noise out of the folks who fretted about Alito and the Catholic “majority” when President Obama nominated Judge Sonia Sotomayor, of Puerto Rican and Catholic ancestry, to fill the slot on the Court being vacated by Justice David Souter.
From what little was disclosed about Judge Sotomayor’s religious convictions and practice immediately after her nomination, it seems fair to say, at a minimum, that she’s not been particularly ardent in the practice of the faith. But that’s entirely beside the point when considering what her accession to the Court would mean — as it should have been entirely beside the point with Sam Alito, who by all accounts is a seriously practicing Catholic. To grasp what counts, think back to the Winter Olympics during the heyday of the Cold War.
Olympiad after Olympiad, there were bitter protests over the behavior of Soviet and other communist-bloc judges in events — like figure-skating — that were be rule-governed, but in which certain judgments calls were inevitable. No one denied the latter; the problem was that the communist judges always seemed to give higher marks to athletes from their own countries. Everyone knew this was going on. Most people thought it grossly unfair, and a lot were outraged. But the communist judges likely thought they were doing their patriotic duty (or saving their jobs, and perhaps in some cases their scalps) by tilting toward those with whom, by their ideological lights, they were supposed to empathize.
If, however, you thought it bad practice in sports that a rule-governed contest into which judgment calls inevitably intruded had been turned inside-out, such that the rules were regularly bent to subjective considerations, you might want to ponder something Judge Sotomayor said in 2001: “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better [judicial] conclusion than a white male who hasn’t lived that life.”
In a political culture in which “narrative” is now all, there may be an inclination to think that there’s wisdom in that claim. But Justice Clarence Thomas — whose riveting memoir, My Grandfather’s Son, tells a tale of achievement against great odds at least as compelling as Judge Sotomayor’s — would disagree. Why? Because Justice Thomas thinks it his duty to extrude his personal experiences from his judging, and to interpret the law according to his best understanding of what legislators intended. Judge Sotomayor, who once said that “policy is made” by the courts, has a far more expansive idea of the appellate judiciary’s role in our system.
“Empathy” is an admirable quality in a judge in certain legal circumstances — sentencing, for example — but not in determining what the law means. If ours is to remain a system in which the people govern themselves through elected representatives, federal appellate judges and Supreme Court justices cannot act as if they were a Super-Legislature. Judges are not appointed to make law; that’s what state legislators and members of Congress do. No claim to superior “empathy” ought to change that constitutional fact. Indeed, the federal judicial oath itself enjoins a dispassionate commitment to equal justice on all judges.
There’s nothing new about this argument, save that this time it’s likely to be submerged beneath the nominee’s personal story. What might be new, though, and what should certainly be put to Judge Sotomayor in her confirmation hearings, is the question of whether she regards as settled law those elements in the 1992 Casey decision that permit regulation of the abortion industry (by such measures as informed consent and parental notification in the case of a minor seeking an abortion). If she doesn’t, then the door will have opened wider to the de facto enactment of FOCA — the Freedom of Choice Act — through judicial rather than legislative action.