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Elena Kagan: Would she turn Supreme Court into We the People?

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Thomas's approach received a public relations boost in the 2005 confirmation hearings for Chief Justice John G. Roberts, when Justice Roberts compared the judges' work to that of umpires – simply calling balls and strikes within the Constitution's preset strike zone. His compelling metaphor – and his flawless performance in those hearings – changed the game for future nominees who might dare to suggest they'd judge any differently.

Under Roberts's rubric, minority candidates would now have to testify that they, like Thomas, would engage in cold constitutional calculus, not Marshall's empathy-inflected jurisprudence.

Accordingly, when Sonia Sotomayor sat before the Senate Judiciary Committee last summer, she appeared positively robotic in agreeing with the Republicans' demands that she disavow any suggestion that her life experience would influence her judging.

Specifically, she sought to obscure the real significance of her oft-delivered line: "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."

The "wise Latina" statement clashed with the notion that judges must do nothing more than look to the history or intent behind the law at issue. Justice Sotomayor's Democratic supporters, not at all willing to turn the historic nomination of the first Latin-American to the Supreme Court into a dragged-out national referendum on constitutional interpretation, claimed the quote was taken out of context. But the entire speech, given in 2001, was about "whether by ignoring our differences as women or men of color we do a disservice both to the law and society." She claimed that "aspiration to impartiality is just that – it's an aspiration because it denies the fact that [women and people of color] are by our experiences making different choices than others."

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