The role of the court is the issue

The Senate confirmation hearings on Judge Sonia Sotomayor offer us the opportunity to see the divide between the ideologies of judicial activism and judicial restraint.

The NRO editors suggest the hearings ought to be framed by three principles:

The first is the judicial obligation of impartiality, memorably captured by Chief Justice Roberts’s umpire metaphor. Every metaphor has its limits, of course, but the umpire metaphor usefully conveys the principle, central to the rule of law, that judges are to be neutral and dispassionate.

That’s a principle that President Obama, alas, clearly rejects. In explaining his 2005 vote against confirming Roberts, then-Senator Obama declared that it’s proper for justices to resort to their “deepest values,” their “core concerns,” and “the depth and breadth of [their] empathy” in deciding what he called the “truly difficult” cases. Indeed, he claimed, in such cases the critical ingredient is supplied by “what is in the judge’s heart.”

Actually, in the first morning alone, Chief Justice Robert’s umpire metaphor came up about six times by as many senators in their opening statements, leading one of them to remind the committee these hearings are about Sotomayor. But plan to hear more about Roberts’ baseball analogy this week.

The second defining principle is that judicial decision-making is, or at least ought to be, a craft distinct from policy-making — that it is bounded by traditional interpretive principles that confine judges to saying what the law is. It’s far from clear that Sotomayor recognizes any limit on the judicial role. She has feebly defended wholesale resort to foreign and international law on the ground that American judges shouldn’t “close their minds to good ideas.” And her bizarre complaint that “the public fails to appreciate the importance of indefiniteness in the law” rests on a failure to recognize that it’s the role of legislatures, not of judges, to adapt the law to changing circumstances.

Third is the American ideal of colorblindness, the ideal of equal opportunity for all citizens in a legal regime that does not practice racial discrimination. That is the standard the Supreme Court adopted over half a century ago in Brown v. Board of Education, and it is the standard embraced by the Civil Rights Act of 1964 — before it was judicially hijacked.

Sotomayor, however, rejects the ideal of colorblindness in favor of a fervent and crude quota mentality — a mentality that is unpopular with wide swaths of the American public, including Hispanics.

So that’s the framework.

How did the snapshot of the first morning fit within it? Well, it had some interesting moments.

Despite Republican misgivings, Sen. Lindsey Graham, R-S.C., told Sotomayor, “Unless you have a complete meltdown, you’re going to get confirmed.

“And I don’t think you will” have a meltdown, he added quickly as Sotomayor sat listening, her face in a half-smile.

Sotomayor kept that poker face all morning, remarkably. And some Republican senators took the opportunity while they have it to express some deep concerns.

Sen. Jeff Sessions of Alabama, the senior Republican, vowed a “respectful tone” and “maybe some disagreements” when lawmakers begin questioning Sotomayor on Tuesday.

Moments later, he took aim at Sotomayor’s 2001 statement that her standing as a “wise Latina woman” would sometimes allow her to reach a better decision than a white male.

“I will not vote for, and no senator should vote for an individual nominated by any president who believes it is acceptable for a judge to allow their own personal background, gender, prejudices or sympathies to sway their decision,” he said.

“Call it empathy, call it prejudice or call it sympathy, but whatever it is, it’s not law,” Sessions said. “In truth, it’s more akin to politics, and politics has no place in the courtroom.”

That will be the theme of the week.