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No Deference Owed

The Washington Post editors would like senators to start showing deference to the Supreme Court nominee — now, of course. The editors are quite disturbed that Senator Obama and his fellow Democrats opposed and indeed filibustered conservative nominees. But it’s time to let bygones be bygones. This, of course, diminishes the very real concerns senators have about Sotomayor.

There is no deference owed to a nominee who cannot put aside personal biases. There is no deference owed to a judge who preaches ethnic determinism and elevates ethnic loyalty over professional responsibility. There is no deference owed to a nominee who denigrates the notion that judges can and should be impartial. There is no deference owed to a judge who defies court rules and deprives a litigant of a full hearing based on the merits of his claim.

In short, deference, if one believes any is owed to the president, does not trump the senators’ obligation to satisfy themselves on whether Sotomayor can live up to her own words — not make but apply the law, show fidelity to the law, ensure the law (and not her own agenda) is “commanding the result in every case.” If they conclude that she cannot, then they are obligated to vote against her.

And as for deference, that principle runs both ways. When the president pronounces that his central consideration is “empathy,” then the Senate has every reason to suspect something is amiss. If the president shows little appreciation for the difference between legislating and judging, then what basis is there to defer to his judgment in selecting a nominee? He told them he was looking for someone who wouldn’t be hung up on the text or the meaning of the documents that come before a judge. And he made clear that he wants a judge who will bring her life experiences to bear on the cases before her.

Thus, far from deserving deference, Obama and his nominee have given the Senate every reason to be on guard, to conduct an exacting inquiry, and to decide for themselves whether Sotomayor, as her oath requires, can “administer justice without respect to persons, and do equal right to the poor and to the rich, and . . . faithfully and impartially discharge and perform all the duties incumbent upon [her] under the Constitution and laws of the United States.”


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