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We're All Originalists Now

We're All Originalists Now

By Kellyanne Conway and David McIntosh - June 16, 2009

Judge Sotomayor's nomination to the United States Supreme Court has generated a healthy debate over the role of judges. Some fuel was recently added to the fire when it was discovered that the White House sent Republican U.S. Senators a memo making the case that Sotomayor is a "[a] nonideological and restrained judge." According to the White House, Sotomayor rejects liberal judicial activism and the injection of personal views and experiences from the bench because she "wrote expressly about the importance of judicial restraint" during the confirmation process for her Second Circuit nomination.

The memo is being distributed precisely as Sotomayor discusses her nomination with Republican Senators. And it is probably no coincidence that, on the same day, Senate Judiciary Committee Chair Senator Patrick Leahy, an enthusiastic Sotomayor supporter, said that she told him she would not decide cases based on personal feelings and background, because "ultimately and completely...as a judge, you follow the law."

We are not surprised that the White House and Senate Democrats suddenly champion judicial restraint. The American people certainly do.

In a national post-election survey of 800 actual voters, the polling company, inc. found that 70% of respondents preferred that judges not base their decisions on personal views and feelings. Only 23% favored judges who would go beyond the law and take their own personal views and feelings into account.

These poll numbers explain why -- despite the President's personal popularity and a 60-vote majority in the Senate -- the White House must address the fact that Americans overwhelmingly disapprove of the President's standard for picking judges, as well as the standard articulated by Sotomayor throughout her career.

Her previous writings cast doubt on her willingness to neutrally apply the law. It is also difficult to square Sotomayor's latest overtures as a defender of restraint with the fact that President Obama already committed to picking judges with a willingness to tip the scales of justice in favor of particular parties involved.

Speaking before Planned Parenthood while a candidate for President, then-Senator Obama said he wanted judges with "the heart, the empathy, to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old." This has come to be known as the "empathy standard" or, more appropriately, the "favored parties" standard.

In the President's stated view, application of the law and the Constitution is usually adequate, but in cases involving individuals or groups that the current President identifies for special treatment, something more is needed. In these cases, Obama suggests, judges should remove the blindfold of justice and use feelings, political preferences and in Sotomayor's case, one's "compelling life story" to justify decision-making.

Judging by Sotomayor's body of work, which consistently reveals her judicial philosophy, President Obama found someone who fits the bill.

Even so, we fully expect Democrats to continue casting Sotomayor as a restrained judge with a commitment to impartiality because they see the same facts we see: When it comes to judicial philosophy, Americans overwhelmingly support judicial restraint and want judges who will neutrally apply the law.

In a separate question in the same poll only 13%, strongly favored the Obama "empathy" standard when it was quoted to them verbatim. When asked what Senators should take into account when confirming a Justice, a nominee's record of interpreting the law as written was the most popular choice among seven options provided, at 41%, outperforming the next highest response, a nominee's past experience as a judge, by eight points.

The Senate has started to review Sotomayor's record and she will soon answer questions about her judicial philosophy under oath. Will she stand by her previous support for liberal judicial activism? Will she agree with the President's standard for choosing judges?

We hope she will embrace this historic opportunity to tell the American people what she really believes about the law and the Constitution. Whatever the result, supporters of the rule of law should consider the Democrats' rush to embrace judicial restraint a great victory in the battle of ideas.

Mr. McIntosh is a former Republican congressman from Indiana, held senior positions in both the Reagan and Bush administrations, and is a co-founder of the Federalist Society; Mrs. Conway is president and CEO of the polling company™.

Kellyanne Conway and David McIntosh

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