The Supreme Court

Empathy v law

Which Sonia Sotomayor is the Senate about to confirm?

FEW people recognised the white-haired protester, but everyone knew her story. Norma McCorvey is better known as “Jane Roe”, the pregnant litigant behind Roe v Wade, the 1973 Supreme Court decision that legalised abortion. Ms McCorvey is now passionately pro-life. On July 13th, she was briefly arrested for disrupting the first day of Sonia Sotomayor’s Senate confirmation hearings by hollering for Roe v Wade to be overturned.

That is unlikely to happen any time soon, if ever. If Barack Obama thought Ms Sotomayor would vote to overturn Roe, he would not have nominated her to the Supreme Court. Granted, presidents sometimes make mistakes, and Ms Sotomayor has been predictably guarded about her views. Asked privately last month if she thought the unborn had rights, she reportedly said she had never thought about it.

To many conservatives, Roe v Wade was a watershed. The constitution does not mention abortion. Yet the Supreme Court read between the lines and found a right to choose one, thereby seizing control of abortion policy from elected state legislators. That fuelled the culture war, for two reasons. First, a large minority of Americans think abortion is murder. Second, many think judges should not substitute their personal preferences for the law. And that is the issue that has so far dominated Ms Sotomayor’s confirmation hearings.

Republicans complain that, in a series of speeches, Ms Sotomayor has suggested that a judge may be guided by something other than the facts of the case and the relevant American law. For example, she has said it is appropriate to consider foreign law when interpreting the American constitution. Since there are rather a lot of foreign laws, this sounds like a licence to pick and choose whatever supports the judge’s preferred outcome.

Equally worrying to conservatives, Ms Sotomayor has said that sex and ethnicity may influence a judge’s decisions. In 2001, for example, she noted that former Supreme Court justice Sandra Day O’Connor thought that “a wise old man and a wise old woman will reach the same conclusion in deciding cases.” Ms Sotomayor said: “I am…not so sure I agree with [this] statement…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.”

Ms Sotomayor spent most of this week repudiating this sentiment. “The task of a judge is not to make the law. It is to apply the law,” she said. As a lower-court judge for 17 years, she said, she has faithfully upheld the law and precedents. Asked whether she agreed with Barack Obama that judges should rely on “empathy”, she said: “We apply law to facts. We don’t apply feelings to facts.” She said the “wise Latina” quote was misunderstood.

Republicans do not believe her. Her rulings as a judge have been “generally speaking left of centre, but within the mainstream,” said Lindsey Graham, a Republican senator from South Carolina, but her speeches “just blow me away”. Mischievously, Mr Graham asked her if she could recite her “wise Latina” quote from memory. Of course, she did not want to repeat it on television. Mr Graham, who is white, observed that if he had said white males make better senators, it would have ended his career, and rightly so.

“The Framers created a written constitution to make sure our constitutional rights were fixed and certain,” said John Cornyn, a senator from Texas. “The role of judges was intended to be modest,” he said, but over time “the Supreme Court has invented new rights not clearly rooted in any constitutional text.” For example, he said, it has micromanaged the death penalty, invented new rules governing everything from sex to punitive damages and even changed the rules of golf. Democrats retort that Ms Sotomayor’s long and modest record as a judge is more important than her speeches. Republicans are not reassured. As a lower-court judge, she was bound by Supreme Court precedent. Once on the Supreme Court, she will not be.

Ms Sotomayor’s confirmation is in little doubt. Republicans have only 40 out of 100 seats in the Senate, so they cannot block her. But the hearings still matter. Both parties think they can gain a political advantage from them. Republicans hope to win votes by highlighting areas where Democratic orthodoxy strikes most Americans as unfair.

For example, only 9% of Americans think that race should ever be a factor in deciding who gets promoted for a job, according to a poll by YouGov for The Economist, while 85% think it should not. Hence the Republicans’ decision to call as witnesses this week some firefighters who were denied promotion because of their skin colour. They did well on a test, but none of their black colleagues did, so the city that employed them threw out the test and promoted no one. Ms Sotomayor ruled that that was fine; the Supreme Court recently reversed her decision.

Democrats hope to win votes because Ms Sotomayor would be the first Latina on the Supreme Court. Hispanics are a large and swelling part of the electorate. They cast 9% of the votes in last year’s presidential contest. And their votes are up for grabs. Republican attacks on her can easily be portrayed as white guys in suits trying to keep a qualified Latina down. So the Republicans are treading carefully.

Meanwhile Ms Sotomayor is acquitting herself well enough. She does not dazzle, but she knows her stuff and has made no mistakes so far. She answers questions slowly, as if making sure that nothing informative passes her lips. Asked about her legal philosophy, she says she doesn’t like labels. Asked if the Supreme Court overstepped its authority in a property-rights case, she said the Court thought not.

According to YouGov some 41% think Ms Sotomayor should be confirmed, while 29% oppose and 30% are unsure. But the only voters she needs to worry about are the 100 in the Senate. And, as Mr Graham observed, unless she has “a complete meltdown”, she will be confirmed.