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Sotomayor would have to make value judgments

'Follow the law!' does not answer questions on gay marriage, abortion, and life imprisonment for juveniles.

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For weeks we have heard the right wing lambaste President Obama's intention to nominate an empathetic person to the Supreme Court. The criticism is that empathy is irrelevant – or even harmful – to a judge's ability to interpret and apply the law.

According to Mr. Obama's critics, a judge's task is like an umpire's job of calling balls and strikes. An umpire needs only to know the rules that govern the strike zone and then make a value-free judgment about whether the ball went through it: Neither empathy nor a sense of justice is required. Likewise, a judge need only know the black-letter law and apply it evenhandedly: No value judgments – whether based on moral, policy, or other considerations – are required.

This claim is pure myth, and the right wing knows it. Consider that some right-wing pundits such as Rush Limbaugh temporarily warmed to the nominee, Judge Sonia Sotomayor. Why? The judge apparently is a Roman Catholic. This might mean that she is morally opposed to abortion.

But wait: Why would her moral views be relevant to whether she would be a good justice? Aren't good justices able to apply the law without appeal to any considerations outside the law's text, moral or otherwise?

The difference between the left and the right is not that the latter wants judges to follow the law and the former wants activists who ignore it. Rather, they disagree about which moral, political, and policy considerations should affect their interpretation and application of law. Right-wing pundits implicitly concede this point by hoping that Judge Sotomayor's moral beliefs about abortion comport with theirs.


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