Commentary Magazine


Contentions

“We Don’t Apply Feelings”. . . But. . .

After wasting endless time on a recusal issue (and misunderstanding the standard for judges to remove themselves from a “matter” which they previously heard), Sen. Jon Kyl asks if she agrees with the president’s view that the law only takes you “25 miles in the marathon and the judge’s heart take you the rest of the way.” She answers: “No, sir.” She says that “isn’t what judges do.” Well, that’s something. Kyl probes further, inartfully, asking in effect whether the “law ever runs out,” as some liberal jurists and scholars often ask. She is sticking to the script. “We apply the law to the facts; we don’t apply feelings.”

This isn’t very helpful in getting at her specific views. Kyl then migrates to the issue of her speeches and holds up the Seton Hall address. She says she was being “inspirational,” but wasn’t she really getting at the influence of ethnicity on the law? He recites the comments in which she seemed to take issue with impartiality. He also reminds her of her argument that women and ethnic minorities will reach different outcomes. And he picks up on the point we and others made earlier –she didn’t agree with O’Connor, she took issue with O’Connor’s view. It would lead one to believe, he says, that you “seem to embrace” the view that women and ethnic minorities will reach different outcomes.

She doesn’t respond. She says look at her record of seventeen years. (But then what did she mean? Why was she saying these things?) She really doesn’t defend the speeches because there is no defense. Then why did she say these things over and over again? She sticks to her message of “inspiration.” But why inspire them to believe in bias or repudiate impartiality? This remains a mystery.