The Sotomayor hearings were a mass of missed opportunities for Republicans and Democrats alike.

The law, lawyers, and the court.
July 15 2009 6:54 PM

What a Waste

The Sotomayor hearings were a mass of missed opportunities for Republicans and Democrats alike.

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It probably didn't help that Sotomayor threw empathy under the bus yesterday when she repudiated President Obama's never-to-be-spoken-again standard for the quality he most seeks in a jurist: "Judges can't rely on what's in their heart. ... It's not the heart that compels conclusions in cases; it's the law." I have my own doubts about the utility of the word empathy in describing what's lacking on the Roberts Court. I worry that it is too malleable to be useful and too easily caricatured. In certain ways, the empathy standard set Sotomayor up for the very attacks she has garnered—she's too emotional, too prejudiced to be fair. No wonder she torched it. Her only job here was to get confirmed.

But at least Obama's empathy standard was a start toward articulating a liberal judicial theory. Now Senate Democrats are back at the drawing board. Writing with cheese.

So consider this: Republicans came into these hearings with nothing to lose. They were never going to block this nomination, but they could have used these days to make it clear they are not the party of Rush Limbaugh and Joe the Plumber. They could have questioned Sotomayor about her record, her views, even asked a tough question or two about wise Latina women. They opted not to.

Democrats also came into these hearings with nothing to lose. They were going to seat this nominee, tee up the next two, and school the American people on why the Supreme Court matters and how it's letting them down and explain why balls and strikes are half the equation. They opted not to. When you think of it that way, beyond just being a waste of time, these hearings were also a waste of a thousand opportunities.

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