Where Did Sotomayor's Empathy Go?

Obama's nominee sets out to prove that she can be as reserved (and mean) as any white male judge.

| Tue Jul. 14, 2009 11:39 PM EDT

MoJo D.C. bureau Legal Affairs reporter Stephanie Mencimer is reporting live from inside the Sotomayor confirmation hearings this week. This is the wrap-up of Tuesday's action. For the latest analysis, watch our video and live blog here, or follow Stephanie's and David Corn's coverage on Twitter.

America finally got to hear from President Obama's first Supreme Court nominee on Tuesday and she turned out to be...kind of dull. Sonia Sotomayor's performance on day two of her confirmation hearing induced a heavy dose of Bork nostalgia—a longing for the days when we got straight answers out of would-be justices, even if the answers were sometimes offensive. Instead of hearing what Sotomayor thinks about the issues (or even the nonissues) of the day, we learned more about the deep-seated anxieties of white, male Republicans. Oh, and nunchucks. (Check out the video at the end of this article.)

Like all the GOP senators, Jon Kyl of Arizona pressed Sotomayor about the "wise Latina" comment, which she called a rhetorical flourish that "fell flat." Still, Kyl and his Republican colleagues seemed to suspect Sotomayor had been secretly plotting to foment an insurgency by giving speeches at law school luncheons. I got the impression he was waiting for her to jump up and yell, "Viva la revolution!"

Kyl did elicit one noteworthy tidbit from Sotomayor when he asked what she thought of Obama's argument that the last mile of judging is determined by what's in the judge's heart. Sotomayor was having none of that mushy stuff. "It's not what's in the heart that compels conclusions in cases. It's the law," she said briskly. Kyl drilled down: Wasn't it really her emotions that guide her decision-making? (Read: isn't that how all women operate?)

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The exchange set a pattern—Republicans would accuse Sotomayor of being a soft-hearted minority, and she would parry with examples from her 17-year judicial career where she'd been as mean or meaner than any white guy on the bench. And the Democratic senators were very eager to reinforce that point. Sen. Chuck Schumer (D-NY) summarized a long list of awful cases where she'd ruled against, for instance, the victims of discrimination, or plane crashes. His point: Sotomayor may be a Latina from the Bronx, but her decisions will look just like Alito's! Dios mio.

There was also a lot of deference on display—deference by Sotomayor, that is. She deferred to Congress on regulatory matters; deferred to her colleagues on cameras in the court (though she did say she would to try to persuade them to give it a shot!). She deferred to precedent, and no doubt biting her tongue, she deferred to Sen. Lindsey Graham (R-SC), who dressed her down for daring to express an opinion in an extracurricular speech and for bullying male lawyers in her courtroom.

Graham's cross-exam was downright nasty (I take back what I said yesterday about his Southern manners.) At one point, he cattily instructed Sotomayor, "Don't become a speechwriter if this law thing doesn’t work out." Later, he said, 'I like you, for whatever that matters"— then called her a bully and quoted unflattering comments about her from anonymous lawyers. Sotomayor offered that the complaints may have been made by attorneys who found the Second Circuit's unique procedural rules difficult and challenging. Graham shot back, "Lawyers find you difficult and challenging. Do you think you have a temperament problem?" His unsolicited advice: "Maybe these hearings are a time for self-reflection." It’s hard to imagine a senator being so thoroughly patronizing to Roberts or Alito.

The most entertaining part of the hearing came when Sotomayor displayed a surprising familiarity with nunchucks. (Bonus video here.) But in an eight hour-hearing, she only made one genuinely candid comment. When Sen. Russell Feingold (D-Wisc.) asked whether her vaunted empathy would apply to the Brewers' fans in his state and to rural folk, Sotomayor replied, charmingly, that she travels to all kinds of places, even the "mountains," and when she does she always tries to crash with friends—not to save money, but to soak up the local culture.

Sotomayor's couch-surfing confession provided the hearing's only glimpse so far of the humanity we've heard so much about in media reports and speeches. I'd like to see a little more of this side of her. It's obvious that she knows the law and that she's smart. But so far—perhaps on her guard after the "wise Latina" kerfuffle—she's been all business, even dour. At one point, she remarked, 'We’re not robots." She could have fooled me.

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