Legal News

Sotomayor Disavows Obama?s Follow-the-Heart Principle

By Nathan Koppel

We have a clear winner for the strangest exchange yet in the confirmation hearings.

Saying that he thought empathy is an important quality for judges, Senator Russ Feingold of Wisconsin, a Democrat, asked Sonia Sotomayor whether, as a New Yorker, she could empathize with many of his constituents, who live in rural communities and root for the Packers and Brewers.

While conceding that New York City, her home, is like no other place, Sotomayor said she had visited a lot of different states and had lived on a farm, before correcting herself to say she had actually only visited farms. She continued by saying that when she travels someplace new, she prides herself on staying with friends. "It's not because I can't afford to stay at a hotel. Usually, the people inviting me would be willing to pay" for a hotel, she said. (Huh? What kind of friends does she have?) Anyway, her point was that she tries "to stay connected" to different types of people and different types of experiences

Arizona Republican Jon Kyl (right) did the deepest dive yet into a Sotomayor speech, this one to Seton Hall law students, where Sotomayor again talked about what impact gender and race have on decisions. Kyl noted that Sotomayor first discussed academic studies and a particular case ruling in Minnesota that seemed to illustrate that male and female judges tend to reach different results in cases. While that's an acceptable observation, Kyl said, Sotomayor seemed to celebrate that fact. He noted one line of the speech in which she suggested that if there enough women and minorities became judges then "we'll make a difference."

Sotomayor tried to explain away the speech, but just seemed to dig a deeper hole for herself, before finally conceding again that her choice of words was bad.

Kyl also scored a point for future confirmation hearings as he got Sotomayor to critique an observation by Obama that judges must "follow their heart" in difficult cases, when there is no clear legal precedent. "Judges can't rely on what is in their heart," Sotomayor said, grimacing as if she had smelled rotten garbage. "I apply the law to facts, not feelings to facts," she said. So much for President Obama’s follow-the-heart principle.

Full post as published by Law Blog - WSJ.com on July 14, 2009 (boomark / email).