I’m going to try and avoid writing about the transparently stupid and toothless conservative howls in response to Sonia Sotomayor’s nomination to the Supreme Court. I will make one quick point though on this “empathy” blowback (as voiced here by Jonah Goldberg):
The “empathy” thing strikes me as a warrant for bias (which is an ancient problem) not judicial activism (a more recent, or at least more specific, phenomenon). And, as it applies to identity politics, it is a form of racism and/or sexism. For instance, Obama wants judges to side with members of the Coalition of the Oppressed in the really tough cases. That needn’t be a call for judicial activism. Rather it’s a call for bias — in favor of the status quo.
In the first place, there really is little truth to this accusation, but let’s say for a moment that Jonah is completely right: Sonia Sotomayor is biased — from personal experience, empathy, or whatever — to sympathize with the the dread “Coalition of the Oppressed.” So what? Is Jonah Goldberg really suggesting that Chief Justice Roberts doesn’t have an inclination to sympathize with people of a similar background, or does Jonah believe that ceaselessly ruling on behalf of the incumbent power is just what happens when someone possesses intellectual honesty? I mean, I really don’t understand this argument. Of course personal background and perspective influence a justice’s decisions — is anyone daft enough to believe that a Christian male’s desire to overturn Roe is a result of uncompromising objectivity? The point is that a court which is diversely arrayed to reflect the diversity of experience in the United States is a court that is more likely to reach decisions that reflect majority opinion. This is a good thing.