Judge Not

Although it appears that the confirmation of Sonia Sotomayer is a foregone conclusion, that hasn't stopped the Judiciary Committee from making much ado about nothing over the "record" of Judge Sotomayer. Of course, it's all about the chance for the esteemed Senators to pontificate in front of the cameras rather than to truly probe the record of the Judge.

And Senator Sessions needn't worry. He still has the pointy hat crowd locked up. The same is true for his colleagues. As Craig Crawford of CQ Politics notes, Smiling GOPers Ought to be Frowning:

Watching Lindsey Graham's gotcha grin as he needled Supreme Court nominee Sonia Sotomayor with disingenuous and rhetorical questions you had to wonder what was so funny.

Does the Republican senator think it is amusing that he and his party's condescending tone toward the Hispanic woman was costing them ethnic votes with each passing hour of Tuesday's Judiciary Committee hearing?

It is not that the Republican inquiries were out of bounds in legal terms. A confirmation hearing like this is a political forum.

Even if they vote for her, the fallout for Republicans could reach well beyond Hispanic voters. They are coming across as a bunch of snarky and bitter old white men who cannot bear the thought of their kind losing power.

The impact of this story on the political scoreboard should give Democrats much more to smile about. (Emphasis added)

Beyond the Committee charade, the most annoying part of the confirmation hearing is the fact that Judge Sotomayer's record has been so twisted and misrepresented by the GOP and the media.

Shortly after she was nominated by President Obama, I spent some time reading up on the various decisions that she was involved in during her tenure on the Court. SOTUSblog had a 4 part series on her opinions, see, Judge Sotomayor’s Appellate Opinions in Civil Cases, Part II, Part III, Part IV. See also, Reports on Judge Sotomayor’s Record, for a round up of legal blogs and other opinions on her record.

The reality is that she is a moderate Judge who carefully follows precedent, notwithstanding what may be perceived as her personal views. That should not be a surprise, since when all was said and done, the biggest issue the GOP could come up with was a supercilious attack on the fact that she might harbor some empathy in her soul. See The GOP's misguided and confusing campaign against judicial empathy.

Not that empathy was always such a dirty word. As Americablog recalls, Ah, empathy:

Justice Sam Alito on empathy and judging

“When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account.”

Flashback: Alito Knows A Thing Or Two About Empathy Also

On Wednesday, Glenn Greenwald posted a key part of the transcript of Justice Samuel Alito's 2006 confirmation hearing, which suggests that, just three and a half years ago, Republicans thought empathy was a pretty righteous quality in a Supreme Court nominee. Well, we've dug up the footage of that portion of the hearing and, as it turns out, he sells the empathy pretty well.

Flashback: George H.W. Bush On Clarence Thomas' 'Great Empathy'

"I have followed this man's career for some time," said President George H.W. Bush of Clarence Thomas in July 1991. "He is a delightful and warm, intelligent person who has great empathy and a wonderful sense of humor."

But when you've got nothing else, what's are you going to do?? The early smears about her temperament problems, Early Smears On Sotomayor: ‘Dumb,’ ‘Bully,’ ‘Doesn’t Play Well With Others,’ ‘Obnoxious’, didn't quite cause enough of a stir. The problem was, no matter how tough she is, she's no match for Justice Scalia. See Sotomayor’s Blunt Style Raises Issue of Temperament. Then, there was that little problem of sexism creeping into the equation. As the Times observed:

Judge Guido Calabresi, a former dean of Yale Law School who taught Ms. Sotomayor there and now sits with her on the Second Circuit, said complaints that she had been unduly caustic had no basis. For a time, Judge Calabresi said, he kept track of the questions posed by Judge Sotomayor and other members of the 12-member court. “Her behavior was identical,” he said.

“Some lawyers just don’t like to be questioned by a woman,” Judge Calabresi added. “It was sexist, plain and simple.”

He said Judge Sotomayor’s forceful and lucid arguments had persuaded him to reconsider his position in a number of instances. “And I’m a tough act,” he said.

As usual, what all this has done is framed the debate, making this moderate judge appear to be a leftist zealot rather than the moderate she is. It has dampened the cries of the liberal left, who wanted a true liberal to be appointed to the court. Seeking a bomb-throwing, passionate, liberal Scalia for a seat on the Supreme Court. And, she may be a very good judge, but a liberal she's not.

For more on the Judge, see the array of quotes gathered by Shaun Mullen at Kiko's House, Quotes From Around Yon Soniasphere.