A Judge's Special Obligation
It's certainly appropriate for some who aspire to leadership to share their personal stories with those who will determine whether they are selected for such a role.
In a democratic society, most of us will want the laws and attendant regulations that govern us to be made by people who have an understanding of the potential impact of their decisions on the lives of those affected. Barack Obama's story, and John McCain's, were relevant factors in voters' selections. The same would be true in evaluating which candidates for Congress, mayor, city council, etc., would most likely govern in the ways we prefer.
Quite the opposite is true in the selection and appointment of judges. The judicial function is not a policy-making function but that of ensuring that the constraints of the Constitution are adhered to and that laws which are not inconsistent with the Constitution are followed and equitably applied. All of us are subject to bias: Our histories lead us to have more sympathy for some and less for others. But it is the obligation of a judge to treat all equally under the law, the privileged no less than the unfortunate; the white male no less than the Latina female. Anything less undermines the most basic of democratic principles: that the policies that guide the nation be made by those elected by the people for that purpose.
Ironically, by emphasizing Judge Sotomayor's personal history, the Obama administration and her supporters have created controversy that need not exist. By discussing her inclinations, and the reasons for them, the administration has opened the door for well-meaning believers in the Constitutional system to question her selection on the valid grounds that judging is not, and is not intended to be, lawmaking. Members of the president's party -- who are more likely to be positively influenced by her "empathy" -- were going to vote for her anyway.
Judge Sotomayor's judicial record shows very little indication of any tendency to use her own preferences as a guide to her rulings. If the debate over her nomination had focused solely on her rulings and the reasons for them -- including the rationale for the Ricci decision -- that the city was following federal law -- the path to confirmation would have been smoother than it has been.
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