Thursday, May 28, 2009


We knew that not-yet-Justice Sotomayor wasn't saying anything outrageous when she said that policy is made in the courts of appeals.

We knew that background and life experience counted and that the background of all judges and Justices is relevant to the decisions they made before she said it.

And, of course, we knew that having empathy is a good thing before Obama said he was looking for that in the person he nominated to replace Justice Souter.

But the harumphers said "Nay." Sotomayor's a wild-eyed, ultra-liberal activist; she's a racist, she'll decide cases based on her history and her empathy rather than on the law.

A moment of fair reflection. Thanks to The Huffington Post (here),
we now have ready access to the statements by Justice Scalia on how high court justices and lower court judges make policy, by Justice Alito on how his life experience and background influence his votes, and from George H.W. Bush on how empathy is a particularly important characteristic of Justice Thomas.

And now the simple truth: There ain't no such thing as a value-free judgment, and everyone looks at the world through the prism of background and experience. It can't be helped. Which of the underlying facts matter? How do we balance the interests? Which competing interpretation of that word should be used here? The answers don't sit there waiting to be discovered by pure logic. The answers are what we find based on who we are and were and what we see and value.

Sonia Sotomayor may turn out to be one of the great Supreme Court Justices, one of the worst, or a mediocre cypher. But no less than John Roberts and John Marshall are (were) what they are because of who they were, she'll be the Justice she'll be in part - not in whole, but in part - because of who she is and from where she came.

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