Right-wing Sotomayor Critics Hit Rock Bottom

Republicans aren't just the party of "no" they are a one-note party. Like a dog with a bone they find an issue, sometimes just a word, and chew on it until it fits the contours of their ideological mindset. So it is with the word "empathy", and a Sotomayor statement about the judgment of a "wise Latina woman" vs. a white male. Partisans think they have hit the mother-lode of ways to thwart her confirmation, calling her a racist and discounting the mostly non-controversial nature of her rulings after decades on the bench.

The pretense that Republicans appoint Supreme Court justices based on outstanding qualifications and commitment to the rule of law is absurd on its face. Jennifer Rubin of Commentary Magazine maintained recently that when George H. W. Bush used the word empathy in describing Clarence Thomas it was just a parenthetical remark that added another dimension to his distinguished record as a jurist, while President Obama used it as his main reason for choosing Judge Sotomayor. In reality, Thomas was only modestly qualified, hardly top-of-the-line, chosen mainly because he was a black man with conservative credentials - - pro-life, anti-affirmative action and a willing disciple of Antonin Scalia; he hasn't disappointed supporters.

In Sotomayor's case "empathy" is a talking point for right-wing pundits and politicians who choose to ignore her exceptional educational background, her long service on the bench and in law enforcement. As Obama has said, if cases were clear-cut and easily resolved they wouldn't come before the Supreme Court so "the law" is constantly being reviewed by the courts. Let's be honest, Roberts and Alito, in addition to their pro-life positions, are known to be pro-business, an important consideration for the Bush White House. Bias isn't always about black, white or brown but is often about the haves who represent institutionalized power and the have-nots whose access to power is limited.

When Sotomayor commented about the judgment of "a wise Latina woman" she should perhaps have been mindful about how that phrase would resonate in the years to come. However, in the body of her work at the time, she was careful to say that, while one brings one's own experience to bear in making judgments, one has to be careful not to let it become the overriding factor in formulating decisions that must in the final analysis rely on the law and precedent. But how does one measure corporate influence vis-a-vis regular folks, influence that doesn't get the same hot-button attention that race does?

Conservatives are rarely forthcoming about their allegiance to Wall Street, their resistance to environmental protections and their lapses of judgment at critical moments - - e.g. the fact that Scalia's daughter was a Bush presidential campaign worker might have been a reason for him to recuse himself during the Bush v. Gore litigation. Water under the dam, but still it rankles, especially when current party wags engage in what they insist is principled opposition to far less compromised individuals.

In a stunningly revelatory moment that poses the question, how low can they go, G. Gordon Liddy, (you remember him right? - - one of the Watergate plumbers during the Nixon administration) on his radio talk show wondered how Judge Sotomayor might rule if she were menstruating when she had to render a decision as a Supreme Court jurist. That has been familiar ground for men who raise this issue every time a woman is thought to be a serious candidate for the presidency or other high office.

From a different vantage point others may reflect on the possibility that erectile dysfunction could be a factor in some of the overwrought rants emanating from certain right-wing men. Surely a woman's menstrual cycle is unlike the ego-threatening male phenomenon of anatomical failures that necessitate the use of prescription drugs - - but who really knows? However, if men choose to add that layer of lunacy to discussions about the viability of female Supreme Court nominees they may invite questions about whether some form of masculine insecurity clouds their judgment.

Appointments to the Supreme Court need to be taken seriously not made the subject of vicious, trumped-up charges that demean nominees and impede a proper confirmation process. A blindfolded Lady Justice is meant to symbolize an impartial judicial system that guarantees equal protection for all under the law. Empathy is just an expression of the hope that our courts tap the widest possible range of experience when they interpret the Constitution and our laws and that, in the end, justice is served.