Confirmation process should stick to legitimate matters

President Barack Obama made his first Supreme Court nomination Tuesday — and already the battle lines are being drawn. Expect the issues of empathy versus impartiality, identity politics and affirmative action to become flash points in Judge Sonia Sotomayor's confirmation process.

The president's recent remark about the qualities he seeks in a new justice has given this debate its larger philosophical frame. Calling empathy "an essential ingredient for arriving at just decisions and outcomes," Obama said he would look for someone "who understands that justice isn't about some abstract legal theory."

It's unclear precisely what Obama means by empathy, but if the term connotes a sympathy for the underdog that should play a role in jurisprudence, that's an appropriate sentiment for, say, a legislative body, but one that doesn't fit well with the idea of impartial justice.

"Most progress toward making the country a fairer place has been due to a more serious application of the equal protection of the laws," said Harvey Silverglate, a prominent Boston-area attorney. "Equal protection can be measured. Empathy can't."

In nominating Sotomayor, who serves on the U.S. Court of Appeals for the 2nd Circuit, Obama seemed to be redefining the concept a bit, speaking less of an active legal sympathy than a wide-ranging real-world understanding. Quoting Oliver Wendell Holmes Jr.'s observation that "the life of the law has not been logic; it has been experience," the president said a justice needed to know "how the world works and how ordinary people live."

That puts the matter in a more comfortable and accustomed frame. Still, it's unlikely to disarm the controversy, in part because of some of Sotomayor's own remarks. During a 2001 speech entitled "A Latina Judge's Voice" at the University of California School of Law, she made this comment about judges: "I would hope that a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn't lived that life."

As Stuart Taylor noted recently in National Journal, if one were to reverse the position of Latina woman and white male in that sentence, it would provoke no small amount of condemnation. And certainly in conservative politics, little resonates quite so powerfully as something that fails the "Imagine if a white male had said that" test.