12:00 | Roger Pilon - As a political matter, President Obama’s nomination of Judge Sotomayor appears to be perfect. First, it reflects his own affinity for the “identity politics” that has dominated the legal academy for decades, a politics she shares. Second, that is the politics of his base, which has been unhappy with a number of his recent decisions, especially regarding the War on Terror. And finally, Judge Sotomayor helps cement the Democratic Party’s hold on the Hispanic vote.
As a legal matter, however, identity politics and the “judicial empathy” both the president and Judge Sotomayor laud raise serious questions. Law is supposed to create a neutral framework within which individuals and organizations find the freedom to live and prosper. It is not supposed to be a tool through which groups, including political majorities, are able manipulate government power against others for their own ends. Yet that’s what we’ve come to in so many ways, and there are signs that Judge Sotomayer would only further those developments. She was restrained as a lower court judge. On the Supreme Court she will not be similarly constrained, which is why her off-court statements loom so large to so many of us. They reflect her judicial and constitutional philosophy, which if confirmed she would be freer to indulge. |
