Legal News

Senate Sermons: The Philosophy of Judging

By Nathan Koppel

Morning 1 of the Sonia Sotomayor hearings could have been titled "The Philosophy of Judging," with Republicans and Democrats offering contrasting views about how narrowly Supreme Court justices should define their roles.

Republican senators argued that President Obama has created a whole new jurisprudential paradigm — the "empathy standard" – that Sotomayor is eager to embrace. They focused on comments Obama made as a Senator, during the confirmation hearing for John Roberts, that 5% of Supreme Court cases really are not governed by established legal precedent. In those difficult cases, then Senator Obama said, the critical ingredient is "supplied by what is in a judge's heart."

Republican Senator Lindsey Graham of South Carolina tried to warn Sotomayor about following matters of the heart. "I have no way of knowing what is in your heart any more than you have any idea of what is in my heart," he said.

Sen. John Kyl of Arizona seemed to express an almost visceral distaste to the idea that judges should follow their hearts and guts. In his 20-plus years as a lawyer, he said, "never once did I hear a lawyer argue that he had no legal basis to sustain his client's position, so that he had to ask the judge to go with his 'gut.'"

Republicans on the judiciary committee predictably hit on Sotomayor's famous "wise Latina" comment to suggest she is all too willing to allow her personal experiences, and possibly biases, to guide her.

Democratic senators, meanwhile, almost embraced the empathy concept. The Supreme Court, they said, does not get easy cases and thus justices must inevitably rely on wisdom and judgment, not just precedent. Wisconsin Dem Russ Feingold argued that conservatives had so overused the phrase "judicial activism" that it had lost all meaning, becoming simply shorthand by conservatives for all rulings they disliked.

In order to build skepticism about the idea that justices are ever truly impartial, Democrats focused a surprising amount of attention on Justice Roberts, contrasting his supposed conservative record on the court with his promise, during his confirmation hearing, to be an umpire who mere "calls balls and strikes."

Tom Coburn, the Republican senator of Oklahoma, at one point told Sotomayor: "I thought this was your hearing, not judge Roberts's hearing?"

After summarizing Roberts's record on the court, Democratic Senator Sheldon Whitehouse of Rhode Island concluded: "Some umpire.” In fact, he said, if Supreme Court judging were merely as easy as calling balls and strikes, "we wouldn't need 9 justices," Whitehouse said.

Photo: Reuters

Full post as published by Law Blog - WSJ.com on July 13, 2009 (boomark / email).