As the White House ponders what to do about Sotomayor’s 32 words, others are trying to puzzle what to do about the confirmation hearing. Michael Gerson explains what is at the heart of conservatives’ deep concerns about the nominee:
In elite academic settings, it is commonly asserted that impartiality is not only a myth but also a fraud perpetuated by the privileged. Since all legal standards, in this view, are subjective and culturally determined, the defenders of objectivity are merely disguising their exercise of power. And so the scales of justice — really the scales of power — need to be weighted by judges to favor the “weak” and the “powerless.”
Sotomayor’s decision in the case of Ricci v. DeStefano is disturbing because it seems to affirm this judicial philosophy. The New Haven, Conn., firefighters who studied for and passed a promotion examination (including a Hispanic) were denied a benefit they had earned, entirely because of their skin color. Because they were not part of a group deemed “powerless,” they were rendered powerless as individuals. Empathy turns out to be selective empathy — not for human beings but for social groups. Just imagine the frustration and anger of standing before a federal judge who is predisposed against your claims for racial reasons of any sort. A federal court should be one place where every individual — black or white, pauper or Rockefeller — is exactly equal in rights and dignity.
This, it seems, must be the focus of the inquiry. Now Gerson and others urge “caution” and warn Republicans to tred carefully because of fear of the political backlash (which of course was entirely ignored in the confirmation battles over Clarence Thomas and Miguel Estrada). Well, conservatives needn’t be rude or crass but they do need to be serious and exacting.
We after all are talking about a lifetime appointment to the Supreme Court and are to a large degree setting the ground rules for confirmation hearings for the foreseeable future. If a nominee is not devoted to the impartial administration of justice or thinks the law is simply a reflection of one’s personal preferences and biography, there is every reason to oppose her confirmation.
It is not enough, I think, to simply as Charles Krauthammer suggests “make the case for individual vs. group rights, for justice vs. empathy” but then meekly accept the nomination. If, in fact, we have a nominee who disclaims impartiality, who rejects the principal of equal justice before the law and who has (in the case of Frank Ricci) finagled to deprive litigants of a fair hearing, on what basis would any senator vote to confirm her? (I agree entirely with Matthew Franck’s analysis here.)
These are the issues to be explored in the confirmation hearing — robustly and with intellectual rigor. There is plenty to learn before determining whether the nominee meets the minimal standards for the highest court in the land.