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Flags of caution over Sotomayor

Does she really think a judge can't be objective?

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At first blush, it appears that President Obama has honored his campaign pledge to nominate judges based on their ability to empathize with the downtrodden. The question now, for the Senate, is to determine whether the empathic skills of his first nominee to the high Court, Judge Sonia Sotomayor, would enhance the court's ability to faithfully apply the law or would instead amount to an impermissible thumb on the scales of justice.

Senators should reserve judgment on that all-important question until they have had a chance to review Judge Sotomayor's jurisprudential record with care. Her experience as a former prosecutor and trial court judge may bring a familiarity with how justice actually operates "on the ground" to a court where, for some time now, that particular experience has been lacking. That would be a good kind of empathy. But there are some red, or at least yellow, flags in Sotomayor's record that suggest something significantly more than that may be in play.

One flag rises over a speech Sotomayor gave at Berkeley which was reprinted in the La Raza Law Journal in 2002. In it, Sotomayor cited a couple of propositions that she accepts, both of which are deeply troubling. One is the claim made by Professor Martha Minow of Harvard that "there is no objective stance but only a series of perspectives – no neutrality, no escape from choice in judging." The other, made by Professor Judith Resnik of Yale, is that "to judge is an exercise of power."

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