UPDATE: 28 U.S. Code 453: "Oaths of Justices and Judges":
I, [Sonia Sotomayor,] do solemnly swear (or affirm) that I will administer justice without regard to persons, and do equal justice to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as [associate justice of the United States Supreme Court] under the Constitution and laws of the United States. So help me God. [Emphasis added]
Where does empathy fit here? Can a justice who is empathetic to one side then decide a case impartially? How? In short, can Judge Sotomayor honestly take this oath? (Hat tip to Rush Limbaugh)
George F. Will, "Identity Justice," Washington Post, May 27, 2009:
Her ethnity aside, Sotomayor is a conventional choice. . . . And like conventional liberals, she embraces identity politics, including the idea of categorical representation: A person is what his or her race, ethnicity, gender, or sexual preference is, and members of a particular category can be represented -- understood, empathized with -- only by persons of the same identity.
Editors, "The 'Empathy' Candidate," Wall Street Journal, May 27, 2009:
Judge Sotomayor's belief is that a "Latina woman" is by definition a superior judge to a "white male" because she has had more "richness" in her struggle. The danger inherent in this judicial view is that the law isn't what the Constitution says but whatever the judge in the "richness" of her experience comes to believe it should be.
Editors, "Advice on Consent," National Review, May 26, 2009:
Judge Sonia Sotomayer is female, Hispanic, liberal, and mediocre.
Stuart Taylor, Jr., "Identity Politics and Sotomayor," National Journal, May 23, 2009:
Imagine the reaction if someone had unearthed in 2005 a speech in which then-Judge Samuel Alito had asserted, for example: "I would hope that a white male with the richness of his traditional American values would reach a better conclusion than a Latina woman who hasn't lived that life" -- and had proceeded to speak of "inherent physiological or cultural differences."
Stuart Taylor, Jr., "The Politics Of Naming Sotomayor," National Journal, May 26, 2009:
But the political payoff of naming the first Hispanic justice -- and a woman to boot -- seems to me to be the key. This is a shrewd nomination politically, if not necessarily a good one jurisprudentially . . . .
Fred Barnes, "What Could Go Wrong?" weeklystandard.com, May 26, 2009:
High court nominees who look unassailable on the day they're nominated sometimes crash and burn even before they're voted on.
David Paul Kuhn, "Obama's Past May Aid Sotomayor Critics," Real Clear Politics, May 26, 2009:
"All of the legal defense funds out there, they're looking for people with Court of Appeals experience. Because it is, Court of Appeals is where policy is made," she said in a professorial tone. Aware of the gravity of the comment, she offered a casual caveat, "And I know, and I know, that this is on tape, and I should never say that. Because we don't," putting her hands up to signify air quotes, "make law, I know." As the audience laughed . . . .
John Yoo, "Empathy Triumphs Over Excellence," American Enterprise Blog, May 26, 2009:
President Obama's nomination of Judge Sonia Sotomayor shows that empathy has won out over excellence . . . .
Peter Kirsanw, "Judging by Identity," The Corner, May 26, 2009:
The nomination of Judge Sotomayor demonstrates that identity politics not only remains alive and well, but may be accompanied by an unabashedly racialist interpretive doctrine. If there is a sentient being in the White House press corps, he should ask Mr. Gibbs how a post-racialist president could nominate to the Supreme Court a judge who said the following:
Whether born from experience or inherent physiological or cultural differences, a possibility I abhor or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a different in our judging.
Jeffrey Rosen, "The Case Against Sotomayor," New Republic, May 4, 2009:
The most consistent concern was that Sotomayor, although an able lawyer, was "not that smart and kind of a bully on the bench," as one former Second Circuit clerk for another judge put it.
Roger Kimball, "Why you should oppose Sonia Sotomayor's nomination to the Supreme Court," PajamasMedia, May 26, 2009:
Sonia Sotomayor, the first Hispanic nominee to the Supreme Court, believes that the job of judges is to make the law, not uphold it.
Ilya Somin, "The Sotomayor Pick," The Voloch Conspiracy, May 26, 2009:
I am also not favorably impressed with her notorious statement that "a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn't lived that life."
Richard A. Epstein, "The Sotomayor Nomination," forbes.com, May 26, 2009:
Evidently, the characteristics that matter most for a potential nominee to the Supreme Court have little to do with judicial ability or temperament, or even so ephemeral a consideration as knowledge of the law. . . . [A]ffirmative action standards are a bad way to pick one of the nine most influential jurists in the U.S., whose vast powers can shape virtually every aspect of our current lives.
Sonia Sotomayer, Transcript, "A Latina Judge's Voice," Speech delivered May 15, 2009, at University of California, Berkeley, School of Law:
[Contains the much-quoted statements about "inherent physiological or cultural differences" and the "wise Latina woman."]
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