Conservatives have long used the term "results-oriented" in order to describe "activist judges" who rule not according to the law, but according to the result they'd like to see. In the beginning of the Sonia Sotomayor confirmation hearings, Senator Jeff Sessions said that "I fear that this thinking empathy standard is another step down the road to a liberal, activist, results-oriented, relativistic world, where laws lose their fixed meaning, unelected judges set policy, Americans are seen as members of separate groups rather than as simply Americans, where the constitutional limits on government power are ignored when politicians want to buy out private companies.”
Yet this standard is starkly at odds with Republicans' reaction to the Ricci case, in which they contend that Sotomayor somehow "disrespected" the firefighters by delivering the ruling as a per curiam opinion -- essentially arguing that she failed to show sufficient "empathy" towards the plaintiffs in that case. The conservative frustration with Sotomayor over not having reached the decision they wanted by overturning affirmative action -- rather than ruling on the narrower question of whether the city of New Haven had reason to fear a lawsuit based on disparate impact -- is, by definition, results-oriented.
But earlier today, John Kyl dispensed with the pretense, using the word "result" perhaps a dozen times in his questioning of Sotomayor on the Ricci case. Kyl, repeating the Supreme Court's majority view that the law as it existed would have resulted in a "de facto" "racial quota" system, asked to be assured that Sotomayor "would not have rendered this decision if [she] had felt that had been the result." He later repeated himself, asking “you don’t endorse the result that either the Supreme Court or Judge Cabranes said would occur?” before concluding that “I’m sure we can agree that is not a good result.” Sotomayor, for her part, kept trying to explain that “that wasn’t the question we were looking at.”
The conservative double standard on "empathy" has been exposed as hollow given their frustration with Sotomayor's failure to show empathy toward the white firefighters in the Ricci case. But Kyl's exchange with Sotomayor shows that the conservative concern over "results-oriented" judging that favors "separate groups" has more to do with which groups are benefiting than from an opposition to "results-oriented" judging in general.
-- A. Serwer
