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I noticed that the two other justices present were Stevens and Ginsburg JJ, the two liberal members of the court. Do they know something about Sotomayor that we don’t? Or are they merely angling to be her new best friends? Who knows. The more interesting thing for me to note is that Obama seems to return to the ’empathy’ test for Supreme Court nominees without invoking the word empathy:

Justice William Brennan once said that in order for government to ensure those rights for all its citizens, government officials must be attentive to the concrete human realities at stake in the decisions they make. They must understand, as Justice Brennan put it, “the pulse of life beneath the official version of events.” The pulse of life beneath the official version of events.

Justice Sotomayor understands those realities because she’s witnessed them firsthand as a prosecutor, a litigator, and a judge, working to uphold our laws, keep our communities safe, and give people the chance to live out their dreams — work that she has done with devotion, with distinction, and with an unyielding commitment to give back to this country that has given her so much.

As you can see, Obama then proceeds to tie the empathy test inextricably with the sympathetic background of Sotomayor J (namely her Bronx upbringing). This is about the only thing which Republicans were willing to concede on Sotomayor’s behalf – that she had a life story. I think this foresages, in some small part, Obama’s plan for his next Supreme Court nominee. He is going to bring another jurist with a sympathetic background, with perhaps a more liberal leaning jurisprudence. That way, Obama can really bring a strong argument that it is not the judicial philosophy of the justice that the Republicans object to, but her alternative background. Playing hardball, for sure, but its really the Republicans own fault for going after Sotomayor so hard.

As to what I think about the empathy test itself, its hard to be sure. The empathy test could be what the Republicans mean it to be – empathy for certain types of groups over others. Namely, the poor, racial minorities etc. You know how I feel about entrenching affirmative action in the law. If on the other hand, it is about feeling the empathy of both parties, then I would whole-heartedly accept the empathy test. If Obama truly believes Sotomayor matches his empathy test, then it seems more likely to be the latter. But his continued emphasis on her background makes it more likely to it is as the Republicans believe. Of course, we can’t simplify any president’s beliefs to such a black and white view – especially not a Constitutional lawyer like Obama. Either way, I think this comment is well worth a second look when Stevens has a heart attack.


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