By Fr. George Welzbacher
June 7, 2009
President Obama has made it very clear that, over and above intellectual competence, the distinctive quality that he is searching for in evaluating candidates for nomination to the U. S. Supreme Court is empathy, a word defined in the Shorter Oxford English Dictionary as "the power of mentally identifying oneself with (and so fully comprehending) a person or object of contemplation." The dictionary provides, by way of illustration, a statement of Martin Luther King: "Pity is feeling sorry for someone; empathy is feeling sorry with someone." Those who consider all human life to be sacred and who hold innocent human life to be inviolable can only hope that the President's recently announced nominee, Sonia Sotomayor, will feel empathy for, or, in other words, will "mentally identify herself with" the most innocent and the most defenseless and thus the most deserving of help of all human beings, the unborn child.
Judge Sotomayor, a Puerto Rican émigrée, has been identified in the media as a Roman Catholic. Whether such imputed Catholicity carries with it a commitment to respect and to protect an unborn child's absolute right to life cannot in today's world be taken for granted. Intimations with respect to her position on this issue can perhaps be gleaned from the evaluations of her candidacy published in two of our nation's leading newspapers. May I share those evaluations with you here. The first is from last Sunday's New York Times (May 31). The second is from The Wall Street Journal for May 27.
Sotomayor Would Be Sixth Catholic Justice, but the Pigeonholing Ends There
By Laurie Goodstein
New York Times, May 31, 2009
If Judge Sonia Sotomayor is confirmed for a seat on the Supreme Court, she will be the sixth of the Justices who are Roman Catholic - a stunning robed portrait in a country where Catholics were once targets of discrimination and suspicion.
Four of the Catholics an the court are reported to be committed attendees of Mass, and they make up the court's solid conservative bloc-Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. The fifth Catholic Justice Anthony M. Kennedy, often votes with them.
There are indications that Judge Solomayor is more like the majority of American Catholics: those who were raised in the faith and were shaped by its values, but who do not attend Mass regularly and are not particularly active in religious life. Like many Americans, Judge Sotomayor may be what religion scholars call a "cultural Catholic"-a category that could say something about her political and social attitudes.
Interviews with more than a dozen of Judge Solomayor's friends from high school, college, law school and professional life said they had never heard her talk about her faith, and had no recollection of her ever going to Mass or belonging to a parish. Her family did not return phone calls for comment.
A White House spokesman speaking on her background, put it this way: "She currently does not belong to a particular parish or church, but she attends church with family and friends for important occasions."
Many of Judge Sotomayor's friends and colleagues also said they believed that her expressed commitment to social justice and community service is a reflection of her Catholic upbringing....
Studies have consistently shown that the 57 percent of Catholics who rarely or never attend Mass are far more liberal on political and cultural issues than Catholics who attend weekly or at least once a month.
In fact, 52 percent of Catholics who do not attend church regularly say abortion is morally acceptable, compared with 24 percent of churchgoing Catholics, according to a Gallup study released in March based on polling over the previous three years. Gallup found that 61 percent of non-churchgoing Catholics found same-sex relationships morally acceptable, compared with 44 percent of churchgoers.
But legal scholars say that while Judge Sotomayor's Catholic identity will undoubtedly shape her perceptions, they will not determine how she would rule on the bench. After all, they point out, Justices William J. Brennan Jr. and Frank Murphy, both Catholics, had records as liberals, while Justice Scalia has been a reliable conservative. Their positions have differed, even on issues covered in Catholic teaching, like abortion....
After her father died, Judge Sotomayor was brought up in the Bronx by her mother. She attended Cardinal Spellman High School, an academically rigorous Catholic school, in an era when boys and girls were segregated.
But it was also in the era after the Second Vatican Council, when the church was opening up to modem culture. Mass at Spellman High was accompanied by a guitar, and girls were asking why they could not be altar servers, said Jane Morris, who knew Judge Sotomayor while both were student council leaders. "We were allowed and encouraged to ask a lot of questions," said Ms. Morris, who is now the girls' athletic director at Spellman High....
At Princeton, where Judge Solomayor belonged to a Puerto Rican student group, a group of Latino students attended Mass every week, but she was not among them, a former classmate recalled.
Judge Sotomayor married her boyfriend from high school, Kevin E. Noonan, in a small chapel at St. Patrick's Cathedral in New York City in the summer of 1976, after both graduated from college, according to a friend of Judge Sotomayor. But within seven years they were divorced, and it is not known whether she obtained a marriage annulment from the church. She has not remarried and has no children.
As a Hispanic Catholic, Judge Sotomayor is part of the church's most vibrant and growing wing. Hispanic Catholics, studies show, are more liberal than white Catholics on some social and economic issues, like immigration and health care reform, but more conservative on homosexuality and abortion.
Justice Scalia, whose son is a Catholic priest, and Justice Alito are of Italian Catholic ancestry. Justice Thomas is an African-American convert who once went to seminary, left the church for 28 years and rejoined in the mid-1990s. [His return to the Church was occasioned in part by his presence at the ordination of his colleague's son to the priesthood] .
Lucas A. Powe Jr., a professor of law and government at the University of Texas, Austin, said Chief Justice Roberts and Justices Scalia, Thomas and Alito are "Catholic and movement conservatives."
"That combination is just golden for being anti-abortion and anti-affirmative action," said Mr. Powe, author of "The Supreme Court and the American Elite, 1789-2008" (March 2009, Harvard University Press).
Justice Kennedy, who wrote two decisions favoring equal rights for gay people, is a "country club Republican," which Mr. Powe described as "an economic conservative without some of the social conservatism."
The court's liberal wing is made up of Justices Ruth Bader Ginsburg and Stephen G. Breyer, who are Jewish, and John Paul Stevens, a Protestant.
The Rev. Joseph A. O'Hare, a Jesuit priest and te former president of Fordh am University, who came to know Judge Sotomayor when they both served on the New York City Campaign Finance Board in the 1980s, said.- "I just don't think Sonia would fit in with Roberts, exactly, and certainly not Scalia I think they're very different Catholics. " [Emphasis Added].
* * * * *
The 'Empathy' Nominee
Opinion Page-The Wall Street Journal,
May 27, 2009
In making Sonia Sotomayor his first nominee for the Supreme Court yesterday, President Obama appears to have found the ideal match for his view that personal experience and cultural identity are the better part ofjudicial wisdom.
This isn't a jurisprudence that the Founders would recognize, but it is the creative view that has dominated the law schools since the 1970s and from which both the President and Judge Sotomayor emerged. In the President's now-famous word, judging should be shaped by "empathy" as much as or more than by reason. In this sense, Judge Sotomayor would be a thoroughly modem Justice, one for whom the law is a voyage of personal identity.
"Experience being tested by obstacles and barriers, by hardship and misfortune; experience insisting, persisting, and ultimately overcoming those barriers," Mr. Obama said yesterday in introducing Ms. Sotomayor. "It is experience that can give a person a common touch of compassion; an understanding of how the world works and how ordinary people live. And that is why it is a necessary ingredient in the kind of Justice we need on the Supreme Court."
In a speech published in the Berkeley La Raza Law Journal in 2002, Judge Solomayor offered her own interpretation of this jurisprudence. "Justice [Sandra Day] O'Connor has often been cited as saying that 'a wise old man and a wise old woman will reach the SAME conclusion in deciding cases' ," she declared. "I am ... not so sure that I agree with the statement. First... there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a BETTER conclusion than a white male who hasn't lived that life."
We quote at such length because, even more than her opinions, these words are a guide to Ms. Sotomayor's likely behavior on the High Court. She is a judge steeped in the legal school of identity politics. This is not the same as taking justifiable pride in being the first Puerto Rican-American nominated to the Court, as both she and the President did yesterday. Her personal and family stories are admirable. Italian-Americans also swelled at the achievement of Justice Antonin Scalia, as Jewish-Americans did at the nomination of Benjamin Cardozo.
But these men saw themselves as judges FIRST and ethnic representatives SECOND. Judge Solomayor'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.
There are signs of what this means in practice in her lower court decisions. One of them is Ricci v. DeStefano, involving the promotion of white firefighters in New Haven and now pending before the Supreme Court. In the case, heard by a three-judge panel including Judge Sotomayor, the city refused to certify promotion exams when the results of the exam would have elevated 18 WHITE firefighters and ONE Hispanic -- an outcome that would have underrepresented minorities [AFRICAN- AMERICAN]. The firefighters sued, charging discrimination.
After the three judge panel issued a brief opinion repeating the district court's decision, the appeals court declined to rehear the case en banc [by the entire court], an outcome which infuriated Ms. Sotomayor's colleague and fellow Clinton appointee José Cabranes. In a dissent joined by five of his colleagues, Judge Cabranes criticized the slip-shod handling of the case by a majority that lacked the courage of its racial preference convictions. The "perfunctory disposition" of the opinion, he noted, "lacks a clear statement of either the claims raised by the plaintiffs or the issues on appeal."
Judge Cabranes added that the discrimination issues raised by the case were "worthy of review" by the Supreme Court, which took the case and may well overturn the Sotomayor panel's ruling. The case raises the question of whether a judge with an avowed commitment to applying her own "experience" to cases was disinclined to [hear] an argument made by those not sharing that personal experience.
Or consider the result last year in Knight v. Commissioner, in which the Supreme Court unanimously upheld her ruling in a tax case involving individual tax deductions, even as her REASONING drew a rebuke from Chief Justice John Roberts. The Second Circuit opinion "FLIES IN THE FACE OF THE STATUTORY LANGUAGE, " he wrote for the Court.
In April, the Supreme Court OVERTURNED 6-3 her 2007 ruling in Riverkeeper v. EPA in which she found that the EPA could not consider cost-benefit analysis in judging whether companies need to upgrade to the best technology available, even when the costs were wholly disproportionate to the benefits. And in the 2006 case of Merrill Lynch v. Dabit, the Court ruled 8-0 to OVERTURN her position that a state class-action lawsuit against Merrill Lynch was not pre-empted by federal law.
Even the best judges get overturned, of course, but the issue here is less the result than Judge Sotomayor's legal REASONING. As a lower court judge, she was restrained by a higher authority. On the Supreme Court, she is limited only by the other Justices she can win over to her arguments .... [Emphasis Added]
* * * * *Finally the British publication The Economist (for May 30, 2009), in a lengthy report entitled "Scrutinizing Sonia", made these points among others:
.... Conservatives argue that race and sex should be irrelevant when promoting judges--or firefighters, for that matter. They also think judges should apply the law impartially. Ms Sotomayor seems hazy on this point. In [a] speech in California, she said she agreed "that judges must transcend their personal sympathien and prejudices", but added. "I wonder whether achieving that goal is possible in all or even in most cases. And I wonder whether by ignoring our differences as women or men of colour we do a disservice both to the law and to society....
How Ms Sotomayor will shape the court is hard to discern. In cases where Plaintiffs allege discrimination because of race, sex, disability or age, she has usually sided with the plaintiffs. But she once ruled that the right to free speech barred New York City from firing an office worker for posting a racist letter.
She has never ruled on gay marriage, an issue likely to come before the Supreme Court before long. Her views on the death penalty or executive power are unknown. She once ruled against an abortion-rights group, but the case turned on whether the government can attach strings (specifically: don't promote abortion) to money it gives to foreign charities. She said it can, which was hardly controversial.
Her decisions as an appeals-court judge will be minutely examined in the coming weeks. Gun-rights absolutists are up in arms, so to speak, about her view that the second amendment does not apply to the states. (In Maloney v. Cuomo, she ruled that New York could ban a martial- arts weapon consisting of two sticks linked with a chain.) Property-rights enthusiasts shudder at her ruling, in Didden v. Village of Port Chester, that the government could seize a man's land so that a developer could build on it, even though both parties wanted to build the same thing-a pharmacy. Economists sigh that she ordered the Environmental Protection Agency not to weigh costs against benefits in enforcing certain provisions of the Clean Water Act ....