Apparently, there is nothing so worrisome as a judge biased in favor of the status quo. Fortunately, we have Jonah Goldberg to tell us why:
The “empathy” thing strikes me as a warrant for bias (which is an ancient problem) not judicial activism (a more recent, or at least more specific, phenomenon). And, as it applies to identity politics, it is a form of racism and/or sexism. For instance, Obama wants judges to side with members of the Coalition of the Oppressed in the really tough cases. That needn’t be a call for judicial activism. Rather, it’s a call for bias — in favor of the status quo.
Indeed, if you look at the Ricci case, Satomayor’s actions seem exactly like a reactionary defense of the status quo. The existing legal regime is to her liking because it sustains a racial spoils system that discriminates in favor of preferred minorities. The Ricci case threatens the existing system. Sotomayor’s shameful attempt to bury it aside, was her substantive ruling against Ricci judicial activism — making policy from the bench — or was it the equivalent of judicial wagon-circling? It seems to me it was closer to the latter.
By “judicial wagon-circling,” Goldberg seems to be referring to not making up the law as they go and not overthrowing precedent. After all, isn’t a judge normally supposed to be biased towards the status quo, the (more or less) settled state of law, rather than looking to engage in social experiments from the bench? Wasn’t that one of Romney’s constant refrains that won him so much approval in mainstream conservative circles? Isn’t that one of the key planks in almost every argument against the actions of various state judiciaries concerning gay marriage? Isn’t a bias in favor of the status quo usually an important part of judicial restraint? Was the California Supreme Court recently engaged in “judicial wagon-circling” to defend the status quo on Proposition 8, or were they respecting the constitutionality of a constitutional amendment passed by popular referendum? Ah, yes, the catchy slogans don’t seem so clever anymore, do they? If Sotomayor is biased in favor of the status quo, how exactly does the empathy for the “Coalition of the Oppressed” work? After all, to be biased in favor of said “Coalition” would entail altering the status quo to their benefit (hence the fear of radicalism, the influence of identity politics and concerns about empathy), but to be biased in favor of the status quo would then be to stand in the way of benefiting the “Coalition.”
The essence of Goldberg’s complaint–complete with the pejorative use of reactionary–is that Sotomayor is a sort of liberal dinosaur defending the established order against new challenges and threats. The problem with her, if we took this seriously, is that she is not sufficiently radical enough, in that she respects the structure of precedents and statutes that has been built up over the last several decades and does not propose, as her critics would like to have her do, to embrace a simple approach to equal protection. One might ask the following at this point: if Ricci himself was not challenging the constitutionality of the relevant provision in federal law, why would anyone have expected Sotomayor to volunteer to say that it was unconstitutional?
There is something eerily similar to conservative reactions to the Ricci case and the common conservative reaction to the rulings of the courts in the Schiavo controversy: the actual substance of law in the matter was fairly straightforward and clear, but it yielded a result that many conservatives found unacceptable, and they therefore sought all manner of political remedies to undo the reasonable decisions of the courts. Rather than locating the problem in the law or in the unusually difficult circumstances of the case in question, conservatives determined that it was the judges who were the problem. There is also a similarity in the schizophrenic reactions to Sotomayor (defender of the bankrupt system! no, crazy radical! maybe both!) to the way conservatives vacillate between accusing Obama of being a hypocrite and liar (“he promised change, but he’s just continuing Bush’s policies”) and freaking out about the approaching dictatorship of the proletariat that he will supposedly usher in. For my part, I have not had any illusions that Obama was anything other than a conventional establishmentarian, and this was obvious all along, and in choosing Sotomayor he has shown yet again how he can make a rather boring status quo decision seem much more momentous and remarkable than it is.