Yesterday, Sonia Sotomayor tried to explain how empathy could be consistent with good and impartial judging; she tried to explain her "wise Latina" comments; Jeff Sessions wanted to know why Sotomayor didn't vote with another Puerto Rican judge on the court; Republicans tried to hide their race-based approach behind Judge Jose Cabranes' robe; Russ Feingold queried Sotomayor on executive power; and Dianne Feinstein complimented her "temperament." But we really hadn't seen how unflappable Sotomayor could be until we saw Lindsey Graham scold her like a child.
Meanwhile, there's something absurd about everyone pretending that life experience doesn't affect one's perspective on judging. Sure, a judge should strive to uphold the law, but pretending life experience doesn't color one's judging is folly. Sotomayor has had to walk back this fairly banal observation in the interest of reassuring conservatives that there is, indeed, one objective perspective on the law and it is theirs. Nothing explains this better than the double standard being applied to Sotomayor compared to conservative jurists. As Laurence Tribe writes today:
Attending to one's prejudices and doing one's best to set them aside is admirable. Convincing oneself that one can render judgments in a way that makes one's personal experiences and views irrelevant is dangerous self-deception. Why, after all, do the justices so often disagree about what result "the law" commands? What accounts for their different perceptions of the rules of law that govern disputes and of the facts involved in those disputes? Justice Antonin Scalia, among others, has publicly said that his own background and upbringing necessarily influence how he decides cases. How could it be otherwise?
Scalia is entitled to. In the eyes of those who see no inconsistency here: He is a white man, and this is his country. His perspective is the appropriate one. The rest of us are biased.
-- A. Serwer
