LOOKING BEYOND THE NARROW CONFINES OF THE LAW…. In light of all the talk about “empathy” and allowing personal background to “influence” application of the law, part of me can understand why a quote like this one, from a Supreme Court nominee, might seem inappropriate to conservatives.
“[W]hen a case comes before me involving, let’s say, someone who is an immigrant — and we get an awful lot of immigration cases and naturalization cases — I can’t help but think of my own ancestors, because it wasn’t that long ago when they were in that position.
“And so it’s my job to apply the law. It’s not my job to change the law or to bend the law to achieve any result. But when I look at those cases, I have to say to myself, and I do say to myself, ‘You know, this could be your grandfather, this could be your grandmother. They were not citizens at one time, and they were people who came to this country.’ …
“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.”
As has been obvious this week, the right considers this kind of thinking outrageous. Impartial judges are tasked with following and applying the law, without bias or preconceived prejudices. They are, to borrow the popular metaphor, umpires responsible for calling balls and strikes. Thinking about one’s “ancestors,” and feeling “empathy” for struggling defendants, is a recipe, conservatives have told us, for judicial disaster.
When a nominee says, “It’s not my job to change the law or to bend the law to achieve any result,” it’s not acceptable, we’re told, for the next word to be, “but….” The rule of law simply cannot withstand this approach to jurisprudence.
Except, the above quote didn’t come from Sonia Sotomayor; it came from Samuel Alito, during his Supreme Court confirmation hearing. What’s more, he was responding to a question from Sen. Tom Coburn (R-Okla.), one of the Senate most ardent conservatives, who didn’t find Alito’s response controversial in the slightest.
At the time, Alito’s remarks were, oddly enough, considered a selling point. He’s not a cold-hearted conservative, we were told, because Alito is willing to look beyond the letter of the law and consider his own family’s background when ruling on all kinds of cases.
If our surprisingly strident right-wing friends care to explain why this sentiment is a disqualifier for a Latina nominee, but a strength for an Italian male nominee, I’d sure appreciate it.