President Obama's first nominee for the Supreme Court arrives on the playing field with momentum that will be difficult to stop. At 54, Sonia Sotomayor is the ideal age and has all the right academic and judicial credentials. She would upgrade the court's diversity of gender and ethnicity. She has an inspiring personal story of aspiration, work and sacrifice. Her mother sat in the East Room of the White House weeping with joy at her appointment ceremony.
So how might this bullet train to the high court be derailed? That is the question for conservatives who oppose her (or may eventually do so), as well as for supporters who want to see her nomination confirmed as swiftly as possible.
Sotomayor will attract opposition for her views on abortion, gay marriage and other cultural issues. An unpopular ruling on affirmative action that she joined may soon be overturned by the current Supreme Court, with attendant publicity. And she has made several ill-advised remarks regarding policymaking from the bench and the advantages of judgment some Latinas may have over certain white males.
But these are the predictable squabbles over ideology and judicial philosophy and personal expression that one might expect from any judge likely to be appointed by a Democratic president in our time. The damaging quotations from speeches may well be handled in a few deft lines when Sotomayor settles in for a session with the Senate Judiciary Committee in July.
A potentially greater source of vulnerability may be implied by a term that President Obama and others have been using lately. The term is empathy. In the parlance of their party, Democrats use this word to mean sensitivity to the plight of the poor, the disadvantaged and the downtrodden. Why shouldn't a judge, exercising the great power the Constitution has reserved for the judiciary, show compassion for the consequences?
Republicans, for their part, regard empathy as a code word for emotion. They imply that emotion, in the context of jurisprudence, is tantamount to irrationality. Lately, Republicans have made frequent reference to "feelings," as in "the court should apply the law as written, irrespective of the feelings of the individual justices." Getting in touch with one's feelings might be good therapy, the conservatives say, but it's a lousy way to decide big cases.
An emphasis on feelings also plays to prejudices about Sotomayor's sex (the word hysteria is rooted in a Greek word for women) and ethnicity (the Latin character is almost synonymous with emotionality). But these subtexts function as undercurrents. The direct attack is on the notion that a judge who empathizes with people is a bad judge.
This is one way to read the frequent references being made to the symbolic statue of Justice, holding aloft the scales while wearing a blindfold. To be truly impartial, the implication would have it, one needs to be oblivious.
One can wonder whether any such concept of justice stands up to scrutiny. Is it really a superior intellectual system that seeks to apply only a dispassionate reading of laws written generations or even centuries earlier? Or is that a mental construct that glorifies the status quo, justifying economic and political arrangements as they are?
Empathy also implies a sharing — whether of values or circumstances or experience. It may be obvious to some that any such identification constitutes a conflict of interest for a judge, especially a Supreme Court justice. But if the presence of such connections implies partiality, what does the absence of such connections imply?
Ultimately, Sotomayor has more going for her than any one nominee has any right to expect. In addition to her qualifications and attributes, she has the potent advantage of representing a group that is now the largest political minority in the U.S. and the fastest-growing. Hispanics are increasingly able to vote, and increasingly likely to vote Democratic. The last thing minority Republicans need right now is to deny a Hispanic a seat on a court that has never had one.
It is also dangerous for Republicans to go too far in seeking a dehumanized rationality on the high court. The public wants sensible and evenhanded judges. But there is little evidence that the public wants automotons.
When the last new justice, Samuel Alito, was appointed in 2005, he began his confirmation process as an unknown and a bit of a cold fish. The public did not fall in line behind his nomination until after his wife had fled the hearing room one afternoon in tears, distraught at the way her husband was being caricatured.
After that emotional moment, featured endlessly in the media, the polarity switch was thrown and the energy flowed in the nominee's favor. In the end, concerted Democratic opposition was unable to threaten his confirmation.
Sotomayor begins her confirmation battle with the emotional polarity already in her favor. So long as she maintains that advantage, and so long as the facts of her case remain as they are today, resisting her will cost opponents more than it gains them.