Right Wing Watch: In Focus | July 2009 |

Themes from the Right — Day 2

The second day of right-wing attacks on Supreme Court nominee Judge Sonia Sotomayor continued many of the themes of the first day’s attacks, mostly distortions of her judicial record and public remarks and distortions of President Obama’s desire for judges who exhibit empathy. National Review published a wave of anti-Sotomayor commentary on its website. (Some of this information may have been distributed on Day 1 but didn’t make our initial analysis.)

Empathy Is Evil

Right-wing groups have been distorting President Obama’s stated qualifications for judicial nominees since before he took office; they continue to imply that his stated desire for judges with “empathy” means judges who would apply only empathy to the cases before them. There’s no way to seriously interpret his remarks that way, but intellectual seriousness is not the order of the day for the opponents of Sotomayor’s nomination. They made clear that they would attack anyone Obama nominated.

So claims about President Obama wanting judges who will ignore the law in favor of their personal feelings and biases continue to proliferate. Jonah Goldberg of National Review, for example, picked up a line from the ranting Glenn Beck – that a judge with empathy is incapable of adhering to the judicial oath of office requiring impartiality. Here are more examples:

  • Jonah Goldberg: “Why make this complicated? President Obama prefers Supreme Court justices who will violate their oath of office. And he hopes Sonia Sotomayor is the right Hispanic woman for the job.”
  • Sen. Orrin Hatch: “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.”
  • David Limbaugh, (mis)paraphrasing President Obama: “I want my judges to have empathy. And don’t tell anyone, but when I say ’empathy,’ that’s code for bending the law to achieve the results I want based on the selective empathy I have for certain victimized groups.”
  • Thomas Sowell: “‘Empathy’ for particular groups can be reconciled with ‘equal justice under the law’ – the motto over the entrance to the Supreme Court – only with smooth words. But not in reality.”
  • Gary Bauer, writing in the Washington Times: “Mr. Obama has told us what kind of judges he is seeking: judges who feel unconstrained by the plain language of the law or the text of the Constitution, judges who instead will act on their ’empathy,’ on their own sense of right and wrong. He wants judges who will legislate from the bench. That is the very definition of judicial activism…It’s unsurprising then that Mr. Obama has nominated Judge Sotomayor….
  • Andrew McCarthy, National Review: “It’s not the rule of law, it’s the rule of lawyers…It is the claim that something extraneous to the law, to the antecedent rules we all agree to live by, should be dispositive in a given case. And that something is the lawyer-turned-judge’s subjective sense of right and wrong, of fairness stemming from the judge’s unique life experience. The president euphemistically calls this ’empathy,’ but it is nothing more than the lawyer unconstrained by the law.”
  • Rich Lowry, editor, National Review: “Obama uses empathy as a code word for judicial liberalism…Impartiality has been supplanted by empathy. The old-fashioned virtue of objectivity…is giving way to an inherently politicized notion of judging based on her feelings. Lady Justice is to let slip her blindfold and let her decisions be influenced by her own experiences and personal predilections. Obama and Sotomayor embrace this method of judging with gusto, even though it is deeply antithetical to justice properly understood. That is why Sotomayor is such a radical choice. Not only will she define the court’s left flank, she represents a judicial philosophy that is neither truly judicial nor a philosophy. The political outcome – and the personal biases that drive it – is paramount.”

Identity Politics

The Right continues to cite the Ricci case and Judge Sotomayor’s comments about bringing her life experience to her job to claim that she is so caught up in “identity politics” that she is incapable of treating people who come before her fairly. Some have also started to suggest without evidence that she violated ethical rules or committed judicial malpractice in the Ricci case.

National Review’s Rich Lowry said her comments reflect “race and gender determinism.”

Deborah O’Malley, Heritage Foundation: “During her hearings, senators should demand an explanation for her radical statements of ethnic superiority.”

The American Center for Law and Justice asks: “Will Judge Sotomayor allow identity politics to influence her judicial decision-making, or will she uphold the rule of law?”

Kay Daly, Coalition for a Fair Judiciary, in Human Events: “Although Justice dons a blindfold when weighing the scales of justice, Sotomayor admits that she lifts that blindfold so as to peek at her own complexion and the skin color of the parties before her. ”

Washington Examiner: “Is President Obama now asking that we look the other way when blatant racism comes from an Hispanic woman of otherwise solid achievement?”

Of course, all the Right’s yammering about empathy and identity politics became simply embarrassing when it turned out that Samuel Alito, at his Senate confirmation hearing, talked about how his background influenced his decision-making as a judge. Here’s just a sampling of what he said: “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.”


It’s irresistible for some right-wing leaders to cry “radical judicial activist,” and many are:

  • Washington Times editors: “[Sotomayor] seems to be the most radical person ever nominated for the high court.”
  • Ramesh Ponnuru: “We will doubtless learn more about Sotomayor, both good and bad, in the days to come. But based on the early signs it appears that President Obama has made the crassest of political picks.”
  • Televangelist Pat Robertson on Sean Hannity’s program on Monday night: “I think it’s an outrage. I think Obama has reached out to one of the most left-wing judges that there is in the United States.” Not true, but Robertson rarely allows the truth to interfere with a good rant.
  • Editors, National Review: Judge Sonia Sotomayor is female, Hispanic, liberal, and mediocre….Unfortunately, liberalism has for some time now incorporated a tacit judicial philosophy in which the goal is to impose policies as left-wing as a judge can get away with. Sotomayor seems to march to that beat. More to the point, perhaps, she has shown no signs of marching to any other one.”
  • Andrew McCarthy, National Review: “Judge Sotomayor is unabashed in claiming license to judge, and indeed to make law, in accordance with her feelings and her politics, which are decidedly leftist.”

Reversal Rate

Right-wing Pundits continued to hit on Sotomayor’s supposedly troublesome reversal rate at the Supreme Court, even though the claim has been thoroughly debunked. (Her rate, based on a handful of cases out of hundreds of rulings over many years as a judge, is actually lower than the Court’s overall reversal rates for cases it considers.)

Pushing Senate Republicans

Some activists continue to push for Senate Republicans, many of whom have been sticking to cautious statements about carefully reviewing Sotomayor’s record, to go on the attack against her nomination:

  • Gary Bauer: Republicans should make it known publicly that Mr. Obama has, once again, put liberal ideology ahead of the country. That can only happen if Republicans fight.”
  • David Limbaugh: “Senate Republicans must take a stand and vocally oppose this nomination, not on the basis of partisan politics, but in defense of the rule of law and the proper role of the judiciary, principles the president is only pretending to honor.”

The Family Research Council sent an activist alert with the subject line “Oppose Judges Who Impose Their Personal Beliefs” and urging people to sign petitions to senators.

Right-wing direct-mail guru Richard Viguerie complained about the Republican Party’s response but vowed that conservative activists would lead an all-out campaign against Sotomayor:

“The nomination of Sonia Sotomayor unites all wings of the conservative movement–economic, foreign policy, social, traditional, neocon, and libertarian–in a way we haven’t seen since the early Clinton years.

“Judge Sotomayor frightens all conservatives. As the debate over her nomination heats up, conservatives will provide the primary opposition to Sotomayor and will quickly launch a massive educational campaign using direct mail, the Internet, talk radio, cable TV, You Tube, and other forms of new and alternative media.

“It was sad to read that Republican National Committee Chairman Michael Steele’s comment on the Sotomayor nomination reflected the typical reaction Americans have come to expect from Republican politicians when he said that Republicans will reserve judgment on Sotomayor.

“No wonder conservatives now look to talk show hosts and other unelected conservatives for leadership, rather then wet-finger Republican politicians who always seeming to be waiting to see the direction of the political winds.

“It remains to be seen how active and effective Republican politicians will be on this historic fight, but conservatives are on the field, engaged, and ready to battle President Obama and all U.S. Senators who support Sotomayor.”