Orrin's Blog

The following originally appeared as an op-ed in the National Review. -Staff

President Obama's nomination of Judge Sonia Sotomayor to replace Supreme Court Justice David Souter puts the judicial-selection ball in the Senate's court. We can serve America well by focusing on whether she is the kind of justice America needs, in a process that is both thorough and fair.

The Constitution gives the power to nominate and appoint judges to the president, not to the Senate. The appointment power is discussed in Article II, not in Article I. The election of a Democratic president has no doubt produced an epiphany on this point among Senate Democrats, who argued under a Republican president that the Senate has an independent and coequal role in the process. But the Constitution labels the Senate's role in checking the president's appointment power as "advice and consent." The Senate must advise whether the president should appoint his nominees by giving or withholding consent.

The basis for that decision is whether Sotomayor is qualified to sit on the Supreme Court. Qualifications fall into two general categories: a nominee's experience and character, and her judicial philosophy. The latter is the most important and the most challenging to determine. "Judicial philosophy" refers to a nominee's understanding of the power and role of judges in our system of government. In other words, what kind of judge will she be?

The clues for answering this question must come from Sotomayor's record, which includes her speeches, articles, and written opinions, as well as the responses she will provide during the coming weeks. Many analysts, reporters, and grassroots advocates act as if a judge's philosophy can be determined with a calculator: They look at which side won, or which political interest benefited, and label the decision and the judge accordingly. That is the wrong standard. Politics is about winners and losers, and it is appropriate to characterize politicians as being pro-this or anti-that. But judging is about the process of reaching results -- about whether the law or the judge determines winners and losers, no matter the issues or the parties involved. In their oath of office, in fact, judges swear to administer justice "without respect to persons" and to perform their duties impartially.

In the Senate, on the campaign trail, and during his first months in office, President Obama has suggested that he thinks judges should do something quite different. He has said judges should decide cases based on their personal values, or what is in their hearts. He has not only promised to appoint judges who have personal empathy toward certain groups, but also said that such personal feelings are essential for arriving at just decisions. Empathy is an admirable quality, but the question is not whether judges have empathy, but what they do with it -- whether they use it instead of the law to make decisions. If so, then President Obama's criteria are simply code for good old-fashioned judicial activism. If that is what he means, he should defend it. If that is not what he means, he should explain it.

It would be appropriate to assume that Judge Sotomayor at least generally fits the president's criteria. And she has made statements of her own that raise similar concerns. In a 1996 article, she endorsed a legal system in which judges are "constantly overhauling the law." In a 2002 speech, she doubted whether judges can transcend their personal sympathies and prejudices "even in most cases" and questioned whether they should do so at all. At a 2005 conference, she stated flatly that "the Court of Appeals is where policy is made." The confirmation process is an opportunity to determine what these and other clues about Sotomayor's judicial philosophy mean, and what they say about her qualifications to join the Supreme Court.