Caroline Johnston Polisi

(WOMENSENEWS)–On the eve of Judge Sonia Sotomayor’s confirmation as our nation’s next Supreme Court justice, the code words of these judicial confirmation hearings are beginning to ring pretty loud and clear.

Judge Sotomayor’s Senate supporters insisted that she has a "deep respect for judicial precedent" which has come to have a special–and comforting–ring to those on the side of maintaining a woman’s legal right to an abortion.

Common law dictates that judges should generally follow the decisions of their predecessors, creating a consistent body of case law (following precedent is also referred to as the principle of stare decisis).

When asked about her views on abortion, Sotomayor noted: "I can speak to what the court has set in its precedent. In Planned Parenthood v. Casey, the court reaffirmed the core holding of Roe v. Wade that a woman has a constitutional right to terminate her pregnancy in certain circumstances. In Casey, the court announced that, in reviewing state regulations that may apply to that right that the court considers whether that regulation has an undue burden on the woman’s constitutional right. That is my understanding of what the state of the law is."

There weren’t a lot of headlines branding the Catholic-school-educated Sotomayor as pro-choice, but one can infer from her remarks that she is not seeking to overturn Roe v. Wade, as the rules of stare decisis dictate that judicial precedent should stand.

Coded Rhetoric Conveys Message

Coded political rhetoric is a common way politicians speak to one group of constituents without offending another.

For example, as Jeffrey Toobin notes in his book "The Nine," George W. Bush sent a message to his anti-choice evangelical Christian right supporters during his second presidential debate with John Kerry by invoking the Dred Scott decision as an example of "judicial activism."

That notorious 1857 case cited the concept of constitutionally protected personal property rights to uphold the practice of slavery.

When asked about his views on possible Supreme Court nominations, Bush cited the notorious case and criticized it by saying, "That’s a personal opinion. That’s not what the Constitution says."

The reference to a case overturned more than a hundred years ago (with the passage of the 13th and 14th Amendments) puzzled many people. But anti-choice activists understood what it meant. In that camp, Roe v. Wade is portrayed as the modern equivalent of Dred Scott: a horrible decision where judges took the law into their own hands, leading to disastrous consequences for the moral composition of American culture, and fated to be overturned.

The "Empathy" Debate

President Obama’s use of the word "empathy" was also charged with hidden meaning and has set into motion a debate between the two parties’ jurisprudential ideologies.

"We need somebody who’s got the heart, the empathy to recognize what it’s like to be a young teenage mom," Obama said at a Planned Parenthood meeting during the presidential primary elections.

When announcing Justice David Souter’s retirement on May 1, President Obama reiterated his desire to appoint someone with the laudable characteristic, noting, "I view that quality of empathy, of understanding and identifying with people’s hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes."

Since then, "empathy" has come under massive partisan fire as liberal-speak for always siding with the underdog, a proposition that many conservatives believe runs counter to the principle of neutral adherence to the rule of law. "Identity politics," they say, has no place on the Supreme Court of the United States. The opposing view of a judicial philosophy embracing "empathy" is one that portrays the judge’s role as strictly one of an "umpire."

This "umpire" versus "empathy" debate, which was at the heart of the push-and-pull of last week’s hearings, goes back to a famous (perhaps apocryphal) admonition by one of our nation’s most respected Supreme Court Justices, Oliver Wendell Holmes Jr., that a judge’s duty is not to "do justice," but rather to "apply the law."

The quotation reveals an often disconcerting reality about the judicial process: strict adherence to abstract legal rules sometimes produces results that run counter to one’s own sense of moral justice.

Formulaic Conclusion

Under this rubric, a judge simply discerns the external legal rules that apply to a certain case, plugs in the facts and reaches a formulaic conclusion.

The judge-as-umpire analogy was championed by Chief Justice John Roberts during his 2005 judicial confirmation hearings, back in September 2005 (Sen. Obama voted against Roberts’ confirmation).

John Payton, director-counsel and president of the NAACP Legal Defense and Educational Fund, recently noted that the Roberts view of judicial interpretation has, throughout our nation’s history, been an excuse for judges to turn a blind eye to laws that relegated minorities to the margins of society.

Indeed, it was empathy, not playing judge-as-umpire, that prompted Sandra Day O’Connor (who left the court in 2006) to pen the famous majority opinion in the affirmative action case Grutter v. Bollinger. This decision upheld the University of Michigan Law School’s admission policy, which sought a "critical mass" of minority students. It was also empathy that underscored her Planned Parenthood v. Casey ruling in 1992, in an opinion jointly written with Justices Souter and Kennedy, reaffirming the central tenets of Roe v. Wade.

O’Connor was especially outraged by the then-Judge Samuel Alito’s Third Circuit opinion upholding a spousal notification law (which required a woman to inform her husband before obtaining a legal abortion), writing, "there are millions of women in this country who are victims of regular physical and psychological abuse at the hands of their husbands. Should these women become pregnant, they may have very good reasons for not wishing to inform their husbands."

When confirmed, Judge Sotomayor will be only the third woman in history to serve on the nation’s highest court. In an era when women attend law school and enter into the field of law at the same rates as their male counterparts, I think it’s high time we get some "empathy" for women’s issues on the Supreme Court.

Of course, having empathy does not give justices carte blanche to inflict their own moral views on society. One expects a good judge to look to the text of the law, to seek to comply with the rules of stare decisis and then–only after exhausting these guides–to engage in the intellectual exercise of choosing a consequence that he or she feels is best for society (a concept Judge Richard Posner calls "legal pragmatism").

Indeed, the accepted standard of mainstream American judging is a combination of restraint and freedom.

Sotomayor toed the line during her judicial confirmation hearings last week, noting that her role is not "to make law, but to apply it." Now only time will tell how her judicial philosophy may shape our nation’s future.

Caroline Johnston Polisi is an attorney in New York City.