Politico pronounces itself somewhat surprised to see Republicans going on the attack against Sonia Sotomayor in the opening round of her confirmation hearing. If so, they must not have acquainted themselves with Jeff Sessions, who got Borked before Robert Bork by this very committee as a judge before becoming a Senator. Sessions promised tough questioning, and he showed his hand in his opening statement as ranking member:
Senate Republicans mounted a surprisingly tough attack to open Supreme Court nominee Sonia Sotomayor’s confirmation hearing Monday, with Sen. Jeff Sessions calling her belief in the importance of a judge’s personal background “shocking and offensive to me.”
“I will not vote for—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 in favor of, or against, parties before the court,” said Session (R-Ala.), the ranking member of the Senate Judiciary Committee. …
“Judge Sotomayor has said that she accepts that her opinions, sympathies, and prejudices will affect her rulings. Could it be that her time as a leader of the Puerto Rican Legal Defense and Education Fund, a fine organization, provides a clue as to her decision against the firefighters?” Sessions said. “It seems to me that… Judge Sotomayor’s empathy for one group of firefighters turned out to be prejudice against the others.”
Sessions hits exactly on the problem of “empathy” as a model for judicial action. When judges start tweaking their rulings based on the relative sympathy of the plaintiff or the defendant, they deviate from the rule of law into the rule of whim — and even worse, the rule of politically-correct bias. Judges should impartially act according to the law, and not their sympathies.
Many will say that such a standard is impossible to meet in every instance, and I agree; humans see things through the prism of their own experiences. However, we should not use that as an excuse to make bias and sympathy the standard to apply rather than the potential for injustice that they will cause. That is the promise of the statue of Justice, which holds a scale while blindfolded to remind jurists not to tip that scale based on their personal passions.