BLOGROLL

The following originally appeared as an op-ed in Politico. -Staff

President Barack Obama had barely announced that he would nominate Judge Sonia Sotomayor to replace Supreme Court Justice David Souter when the "news" media declared that she would be confirmed. The American people, however, expect the Senate to do its confirmation duty correctly rather than quickly. By a thorough and fair process that, when he was a senator, Obama argued should be "civil and deliberate," we must determine whether Sotomayor is qualified to sit on the Supreme Court.

Qualifications fall into two categories. The first includes experience and character. The administration once suggested that Souter's replacement should come from other than the U.S. Court of Appeals, on which every current Supreme Court justice has served. Having chosen another federal appellate judge, the administration now emphasizes instead that Sotomayor has more federal judicial experience than any Supreme Court nominee in a century. This means, of course, that it will take time properly to review and consider the enormous record that accumulates during such extensive judicial service.

Qualifications, however, go beyond such experience. The more important qualification is Sotomayor's judicial philosophy, or her understanding of the power and role of judges in our system of government. In other words, what kind of judge is she now and what kind of justice will she be? As a senator arguing against one of President George W. Bush's appeals court nominees, Obama argued that judges must "subordinate their views in order to decide each case on the facts and merits alone."

But as a presidential candidate, he pledged to pick judges who have empathy toward certain groups and, as president, said that a judge's personal empathy is an "essential ingredient" in arriving at just decisions. Does Sotomayor subscribe to one of these very different judicial philosophies?

Sotomayor has written articles and given speeches that suggest a very expansive view of judicial power. She has, for example, endorsed a judiciary that is "constantly overhauling the law" and has questioned whether judges should even attempt to transcend their personal sympathies and prejudices in deciding cases. She and others have emphasized the need for judges to understand and appreciate the impact of their decisions on people's lives.

The question is not whether, as a human being, Judge Sotomayor has empathy, but what, as a judge, she does with it. Clarifying her judicial philosophy requires going beyond generalizations and clichés, avoiding litmus test political issues and focusing on the process by which Judge Sotomayor would interpret and apply the law to decide cases.

These are just a few elements of what should be the Senate's main focus -- whether Sotomayor is qualified by experience and character, and especially by judicial philosophy, to sit on the Supreme Court of the United States.

Some would distract senators from independently examining the nominee's current record by insisting that support for her 1998 appeals court nomination requires support for her current Supreme Court nomination. This view is probably another epiphany produced by the last election, because Democrats have in the past felt no such obligation. Justice Samuel Alito was unanimously confirmed to the U.S. Court of Appeals in 1990. In 2006, 17 Democrats who were still in the Senate were among the 42 votes against him. Chief Justice John Roberts was unanimously confirmed to the U.S. Court of Appeals in 2003. Less than three years later, 21 Democrats felt unconstrained by their past support for him and opposed his Supreme Court nomination.

Justice Clarence Thomas was unanimously confirmed to the U.S. Court of Appeals in 1990. Only 19 months later, 43 Democrats abandoned their previous support and opposed his Supreme Court nomination. Then-Sen. Joe Biden (D-Del.) was in each of these groups. On Feb. 6, 1990, while chairing the Judiciary Committee hearing on Clarence Thomas' appeals court nomination, he explained that "there is a fundamental distinction between what is required of and should be sought of a circuit court judge and a district court judge and a Supreme Court judge."

Now that Obama has nominated Sotomayor, the Senate must evaluate her record and determine whether she is qualified to sit on the highest court in the land. That is a current duty that must be fulfilled on her current record so that the American people will know what kind of justice she will be.