05.27.09 6:24 AM ET
Empathy Trumps Excellence
President Obama’s nomination of Judge Sonia Sotomayor shows that empathy has won out over excellence in the White House. Sotomayor has sterling credentials: Princeton, Yale Law School, former prosecutor, and federal trial and appellate judge. But credentials do not an excellent justice make. Justice Souter, whom Sotomayor would replace, had an equally fine c.v., but turned out to be a weak force on the High Court.
Obama had some truly outstanding legal intellectuals and judges to choose from—Cass Sunstein, Elena Kagan, and Diane Wood come immediately to mind. The White House chose a judge distinguished from the other members of that list only by her race. Obama may say he wants to put someone on the court with a rags-to-riches background, but locking in the political support of Hispanics must sit higher in his priorities.
Sotomayor’s record on the bench, at first glance, appears undistinguished. She will not bring to the table the firepower that many liberal academics are asking for. There are no opinions that suggest she would change the direction of constitutional law as have Antonin Scalia and Clarence Thomas on the Supreme Court, or Robert Bork and Richard Posner on the appeals courts. Liberals have missed their chance to put on the court an intellectual leader who will bring about a progressive revolution in the law.
But conservatives should not be pleased simply because Sotomayor is not a threat to the conservative revolution in constitutional law begun under the Reagan administration. Conservatives should defend the Supreme Court as a place where cases are decided by a faithful application of the Constitution, not personal politics, backgrounds, and feelings. Republican senators will have to conduct thorough questioning in the confirmation hearings to make sure that she will not be a results-oriented voter, voting her emotions and politics rather than the law. One worrying sign is Sotomayor’s vote to uphold the affirmative action program in New Haven, Conn., where the city threw out a written test for firefighter promotions when it did not pass the right number of blacks and Hispanics. Senators should ask her whether her vote in that case, which is under challenge right now in the Supreme Court (where I signed an amicus brief for the Claremont Center on Constitutional Jurisprudence), was the product of her “empathy” rather than the correct reading of the Constitution.
John Yoo has been a professor of law at the University of California, Berkeley, School of Law since 1993. He is the author of War by Other Means: An Insider's Account of the War on Terrorand The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11 (University of Chicago Press, 2005). (Atlantic Monthly Press, 2006) and