Judging Justices, Catholic and Otherwise

When Samuel Alito was nominated to the Supreme Court by President Bush in 2005, there was a great and frequently uncivil hoo-rah to the effect that Alito would give the Supremes a “Catholic majority.” In this case, “Catholic” was code for “anti-Roe v. Wade ”—and if you doubt that, consider that there was precious little noise out of the folks who fretted about Alito and the Catholic “majority” when President Obama nominated Judge Sonia Sotomayor, of Puerto Rican and Catholic ancestry, to fill the slot on the Court being vacated by Justice David Souter.

From what little was disclosed about Judge Sotomayor’s religious convictions and practice immediately after her nomination, it seems fair to say, at a minimum, that she’s not been particularly ardent in the practice of the faith. But that’s entirely beside the point when considering what her accession to the Court would mean—as it should have been entirely beside the point with Sam Alito, who by all accounts is a seriously practicing Catholic. To grasp what counts, think back to the Winter Olympics during the heyday of the Cold War.

Olympiad after Olympiad, there were bitter protests over the behavior of Soviet and other communist-bloc judges in events—like figure-skating—that were to be rule-governed, but in which certain judgments calls were inevitable. No one denied the latter; the problem was that the communist judges always seemed to give higher marks to athletes from their own countries. Everyone knew this was going on. Most people thought it grossly unfair, and a lot were outraged. But the communist judges likely thought they were doing their patriotic duty (or saving their jobs, and perhaps in some cases their scalps) by tilting toward those with whom, by their ideological lights, they were supposed to empathize.

If, however, you thought it bad practice in sports that a rule-governed contest into which judgment calls inevitably intruded had been turned inside-out, such that the rules were regularly bent to subjective considerations, you might want to ponder something Judge Sotomayor said in 2001: “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better [judicial] conclusion than a white male who hasn’t lived that life.”

In a political culture in which “narrative” is now all, there may be an inclination to think that there’s wisdom in that claim. But Justice Clarence Thomas—whose riveting memoir, “My Grandfather’s Son,” tells a tale of achievement against great odds at least as compelling as Judge Sotomayor’s—would disagree. Why? Because Justice Thomas thinks it his duty to extrude his personal experiences from his judging, and to interpret the law according to his best understanding of what legislators intended. Judge Sotomayor, who once said that “policy is made” by the courts, has a far more expansive idea of the appellate judiciary’s role in our system.

“Empathy” is an admirable quality in a judge in certain legal circumstances—sentencing, for example—but not in determining what the law means. If ours is to remain a system in which the people govern themselves through elected representatives, federal appellate judges and Supreme Court justices cannot act as if they were a Super-Legislature. Judges are not appointed to make law; that’s what state legislators and members of Congress do. No claim to superior “empathy” ought to change that constitutional fact. Indeed, the federal judicial oath itself enjoins a dispassionate commitment to equal justice on all judges.

There’s nothing new about this argument, save that this time it’s likely to be submerged beneath the nominee’s personal story. What might be new, though, and what should certainly be put to Judge Sotomayor in her confirmation hearings, is the question of whether she regards as settled law those elements in the 1992 Casey decision that permit regulation of the abortion industry (by such measures as informed consent and parental notification in the case of a minor seeking an abortion). If she doesn’t, then the door will have opened wider to the de facto enactment of FOCA—the Freedom of Choice Act—through judicial rather than legislative action.

George Weigel


George Weigel is an American author and political and social activist. He currently serves as a Distinguished Senior Fellow of the Ethics and Public Policy Center. Weigel was the Founding President of the James Madison Foundation.

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  • SeanReynoldsNZ

    Part of the issue at the core of this matter is that we now live in a world in which nothing can mean anything. For you Americans, the Constitution is no longer to be read in terms of what the Founding Fathers of your country were thinking when they penned it (or even in terms of what voters in each state were thinking when they voted on the subsequent amendments), but according to the feminist-racialistic-sociologist thoughts of the current times.

    Likewise in New Zealand, what are known as “Treaty Principles” are to be incorporated into legislation there. For those of you unfamiliar with New Zealand history, this refers to the Treaty of Waitangi which was an agreement between various Maori tribes and the Queen of England which was supposed to guarantee protection of Maori land-ownership while extending British sovereignty over Aotearoa (The Land of the Long White Cloud – the Maori name for New Zealand). The problem is that while the New Zealand Government has placed reference of “Treaty Principles” into the laws, the Government has refused to define what these principles are, leaving that for the courts. This allows the judiciary to re-write history and follow the currents of the time, rather than necessarily go by what Captain Hobson and the Maori chiefs were thinking at the time.

    This is called Postmodernism in action.

  • It’s also called the Dictatorship of Relativism.

  • goral

    What a coincidence Sean Reynolds, the Mohican name for the United States is the land of the long black cloud. (TIC) Certainly it was a prophetic label since the land now is under a dark cloud. Opinions pass for policies and are wished into law.
    The natives are quite content as long as Mohican Sun pours millions of gambling revenue into gov’t coffers.

    It’s not about law and justice and the Constitution it’s about gambling, I mean gaming. Could Chief Obama be the last of the Mohicans?