By Dave Andrusko

Please send your much appreciated thoughts and comments to daveandrusko@gmail.com.

Pro-abortion President Barack Obama has wasted no time making the case that Judge Sonia Sotomayor, his proposed replacement for retiring Supreme Court Justice David Souter, ought to be quickly confirmed. Of course! It'd be a lot to expect that Obama would enthusiastically endorse a vigorous and in-depth scrutiny of the Yale Law School graduate and member of the United States Court of Appeals for the Second Circuit.

Supreme Court nominee Judge Sonia Sotomayor  with pro-abortion President Barack Obama and pro-abortion Vice President Joseph Biden.

But the rest of us are due a careful exploration of Judge Sotomayor's record as a judge and, as best we can, her judicial philosophy. For us this is particularly important because there is little in the way of a track record on abortion. Let me make four observations.

1. Republicans--and fair-minded Democrats--owe it to the American people not to be coerced into silence. We will hear in short order what is implicit now. To do anything other than celebrate the choice of the first Latina to sit on the Supreme Court is, if not overtly racist, substantively so. Republicans are already being counseled by the usual suspects that it is political suicide to question the first proposed representative on the Supreme Court of what is now the nation's largest minority. But throwing principle under the bus is rarely a good course of action. Besides, if Judge Sotomayor is everything Obama said she is, he should welcome an honest back-and-forth discussion.

2. This is not the forum for a lengthy investigation of "identity politics, including the idea of categorical representation," described by columnist George Will this morning as meaning "A person is what his or her race, ethnicity, gender, or sexual preference is, and members of a particular category can be represented -- understood, empathized with -- only by persons of the same identity."

Asked about this idea, Rai Rojas, NRLC Hispanic Outreach Director, responded brilliantly.

"Sotomayor has been quoted in a speech to a large Hispanic group as saying, 'I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion [as a judge] than a white male who hasn't lived that life.' Does that richness of experience include abortion? We know from numerous polls and studies that Hispanics in the United States overwhelmingly disagree with the notion of abortion on demand. Abortion is not a part of our cultural richness--it is not a part of our identity as Latinos.

"The fact that she has been nominated to the highest court in the land by the single most pro-abortion president in our history is not a source of pride for many Latinos."

3. Aside from a New Haven affirmative action case, what probably poses the most concern for Sotomayor's supporters is a comment she made at February 25, 2005, Duke University School of Law forum. Sotomayor did say that "the court of appeals is where policy is made," a red flag if ever there was one. Her supporters say that remark was taken out of context. Okay, here's the full context. (This is a CNN transcription but it accurately conveys what you can see on Youtube.) Answering a question from the audience, Sotomayor said,

"All of the legal defense funds out there, they're looking for people with Court of Appeals experience. Because it is -- Court of Appeals is where policy is made. And I know, and I know, that this is on tape, and I should never say that. Because we don't 'make law,' I know. [Laughter from audience] Okay, I know. I know. I'm not promoting it, and I'm not advocating it. I'm, you know. [More laughter] Having said that, the Court of Appeals is where, before the Supreme Court makes the final decision, the law is percolating. It's interpretation, it's application."

What can be concluded? Trying to be scrupulously fair, it would seem clear that the audience laughed for two reasons.

First, they knew that embracing the idea of legislating from the bench–of a judge substituting his or her policy preferences for those of the elected branch of government–is the kind of frank admission that can get a judge into hot water. But second they laughed because it was their little secret–that while "progressive" judges must verbally play the game, they oughtn't to let niceties such as separation of powers get in the way of coming to the "correct" outcome. In any event the Senate Judiciary Committee ought to question Sotomayor thoroughly about this.

4. One other thought for today, which ties together points 1-3. We have Roe v. Wade for many ugly and unintelligent and unappealing reasons. But at the top was the justices' desire to reach a predetermined outcome that was breathtakingly radical in scope which they then spent decades pretending was a middle-of-the-road compromise, more like a spring cleaning than torching the house. Impartiality was treated like the uninvited guest whose presence was never acknowledged or wanted.

No one except Judge Sotomayor knows where she falls along the judicial activist spectrum. But is very unnerving to read what she said in a 2001 speech:

"The aspiration to impartiality is just that -- it's an aspiration because it denies the fact that we are by our experiences making different choices than others. . . . Justice [Sandra Day] O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases . . . . I am not so sure that I agree with the statement. First, . . . there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life."

And although Obama studiously avoided the "E" word (empathy) in introducing Sotomayor, she could not possibly have been chosen had she not come loaded with the quality that Obama has highlighted over and over again. But for Obama empathy does not mean equal empathy for all, as columnist Stuart Taylor has pointed out. It's "special empathy" for the "powerless" [unborn babies being, of course, the conspicuous exception].

"In addition," Taylor writes, "law-making is supposed to be mainly a democratic exercise driven by voters, not a judicial exercise driven by empathy for selected groups. Indeed, our laws as written already reflect the balance of interests -- of empathy, if you will -- that the democratic process has struck between the powerless, the powerful and other groups."

As we have noted in this space more than a few times, when asked the American people have made their preferences clear about the kind of justice they want on the bench. To take just one example, last November The Polling Company asked voters if they prefer a President to nominate Justices to the Supreme Court and judges to the federal courts who "will interpret and apply the law as it is written and not take into account their own viewpoints and experiences" or "take into account their own viewpoints and experiences" in deciding cases.

By more than a 3-1 margin they voiced support for judicial restraint (70% to 22%). Interestingly, this included 79% of Republicans, 64% of unaffiliated voters, and 52% of Democrats.

It is up to reporters, bloggers, and the Senate Judiciary Committee to find out what kind of justice Sonia Sotomayor would be.

Part Two -- Pro Suicide Culture? What Pro Suicide Culture