Commentary Magazine


If She Isn’t Unbaised, She’ll Have to Fake It

On Fox News Sunday, Brit Hume wryly noted that the Senate shouldn’t launch a “ferocious and unfair attack along the lines of, say, what Senator Kennedy did to Robert Bork.”(Ouch!) But then he argued:

I don’t think the Hispanic constituency in this country is going to be offended if Sonia Sotomayor is engaged in a serious discussion of her views both on racial preferences and on this question of neutral judging. . . she does suggest that she thinks neutral judging is something that we all kind of aspire to but nobody can ever really get there and decide, you know, it’s better to — it’s perfectly fine and even an improvement to introduce your own racial background, and your racial history, and your life story into your judging, which seems to be utterly at war with the idea of neutral judging.

He and Juan Williams then had an exchange which neatly summarizes the differing perspectives of liberals and conservatives:

WILLIAMS: But, Brit, let me just say this. There have been, I believe, more than 100 Supreme Court justices in our history. Only four of them, as I recollect, have been women or blacks — in other words, not white males. For a Hispanic woman to say that there is added value to her experience growing up in the South Bronx, growing up struggling, you know, without a dad, and to bring that experience to bear in the deliberations of the Supreme Court — don’t you think that’s added value?


[. . .]

HUME: No, and that’s — apart from the fact that it’s not quite what she said, it’s also this, Juan. What judges, and especially appellate and Supreme Court judges, are assigned to do is not to concern themselves with the plight of the parties on either side.

What they’re deciding is not so much cases, although cases are obviously involved. They’re deciding issues, legal issues. And what you want is someone with a very keen legal mind and the kind of professional temperament, often gained from years of being a lawyer and then later a judge, where you screen out all those things and take a totally professional and neutral view of what the law is, and I don’t think that has a lot to do with sensibilities that you carry with you from your life – - at least it’s not supposed to.

That is what this will boil down to: does Sotomayor (and by implication, the president) believe in trying to get it right, trying to set an impartial standard of justice for all Americans? Conservatives suspect by word and deed (her perfunctory dismissal of Ricci, for example) on the bench she does not. Whether she does or not, she’ll need to convince the Senate that she does — or face a very rocky road to confirmation. Average Americans, unlike law professors and liberal pundits, like to think “equal justice under the law”  means something and judges aren’t merely surrogates for special interest groups.