I think the "empathy" question is a valid one, coupled with a past statement which she suggests that she could better adjudicate matters related to Latino women than a white caucasian male would. I have not read many of her opinions, but I think it is safe to say that she is not a constitutional texualist.

Whether she believes the right to procreate with one's own genes is one of the fundamental rights protected by marriage, or if a marriage could be prohibited by law from attempting to procreate.

Whether she believes Congress could prohibit attempts at human cloning and genetic engineering, or if there is a right to create human beings from other methods besides sexual reproduction of a man and a woman.

Whether she believes people should have the same right to procreate with a person of either sex, or only with a person of the other sex.

Whether she has more empathy for children of sperm and egg donors to know their parents, or for individuals who want to use donor gametes to have offspring.

Diddens and to whom she is "empathetic". It seems to me that her empathy matches Obama's - corrupt officials first.

Those are all valid questions. In fact, they are softballs. If Sotomayer can't hit that line of questioning out of the park she shouldn't be on the court.

Have you paid your taxes yet?

It's been a while since we've heard from the single-issue-world of John Howard. Refreshing to know he's still obsessing about it.

"In two employment discrimination cases, the facts are identical: the employees are paid less than their colleagues because their employer dislikes the employee's race and sex. In one case, the employee is a poor Puerto Rican woman; in the other, the employee is a rich German man.

(1) Do you believe that it is permissible for the court to reach opposite conclusions in these two cases?

(2) Compared to a white Jewish malejudge, would a Latina judge be more, less, or equally likely to reach the correct results in these two cases?"

"I have followed this man's career for some time," said President George H.W. Bush of Clarence Thomas in July 1991. "He is a delightful and warm, intelligent person who has great empathy and a wonderful sense of humor."

Let's take a look at these descriptors, shall we?

-Delightful
-Warm
-Intelligent
-Has a great deal of empathy
-Has a wonderful sense of humor

No, I don't think that "empathy" mattered with Thomas, because it's irrelevant to his qualifications for the Supreme Court... just like whether he's "delightful," "warm," or in possession of "a wonderful sense of humor." He could be a curmudgeonly bastard, and that wouldn't make him any less qualified for the Court.

Does she feel empathy towards people, particularly poor citizens who want to defend themselves in their own homes with a gun?

A puckish Republican Senator would vote against Sotomayor, and would issue the following statement in doing so:

Judge Sotomayor consistently sides on behalf of the powerful against the powerless; on behalf of a strong government or corporation that wants to condemn private property against upholding American's individual rights to keep and bear arms or own property. If there is a case involving an employer municipality and an employee landowner and the Supreme Court has not given clear direction, she'll rule in favor of the employer municipality. If there's a claim between prosecutors and defendants in a gun possession case, if the Supreme Court has not provided a clear rule of decision, then she'll rule in favor of the state.

Compared to a white Jewish malejudge, would a Latina judge be more, less, or equally likely to reach the correct results in these two cases?"

A Latina would be more likely to reach correct results than a malejudge of any ethnicity, religion, or gender. What we want is benejudges.

That's why we have to ask questions of the nominees before they get on the court. And why we seek well-rounded and thoughtful people who have long-term vision and concern for how a decision will effect society. If they turn a blind eye to the way the world is changing, and just mete out ignorant rulings based on the meager scraps of evidence that other ignorant judges have limited the case to, that'll likely result in future suckage for human rights and dignity, and lead to eugenics and coercive genetic enhancement. It's exactly why we need a justice who is more like a poet than a program, someone like Wendell Berry, for example.

I agree. Also I want a full session covering the application of the bill of rights to sentient robots and self-aware computer networks, particularly vis-a-vis whether nuclear genocide constitutes self-defense.

We need answers now before its too late.

{ agree. Also I want a full session covering the application of the bill of rights to sentient robots and self-aware computer networks, particularly vis-a-vis whether nuclear genocide constitutes self-defense.

We need answers now before its too late.}

While you lawyers get answers to those questions, the rest of us will be killing those filthy robot scum.

It would be manifestly improper for the Supreme Court to say anything about same sex procreation until a live case or controversy involving actual SSP came before them. They do not issue advisory opinions.

Right. They just issue trimesters.

AdamK:

Thanks for the Bush empathy cite. Thomas' empathy illustrates the rule of IOKIYAAR.

This nomination of the "dumb" and "not very smart" "Maria" Sotomayor is certainly bringing out the hidden prejudices in many.

If they turn a blind eye to the way the world is changing, and just mete out ignorant rulings based on the meager scraps of evidence that other ignorant judges have limited the case to ...

If an appellate court feels that the lower court has not sufficiently fleshed out the factual underpinnings of the case, they will remand with instruction to develop the factual record. What they are absolutely forbidden from doing is basing their decisions on facts not in the records. They are courts of law, not triers of fact.

Oren:

It's been a while since we've heard from the single-issue-world of John Howard. Refreshing to know he's still obsessing about it.

Do you think your statement contributes to the discussion? Attacking individuals really serves no purpose other than to lower the tone of the discourse here. I don't expect much better from some others, but you are clearly one of the more intelligent posters, and I hate to see you do the same thing.

On the other hand, I would like to excise and reaffirm my comments that John seems to have a different view of what an appellate court can do with respect to the factual record than any authority that I have ever read on the subject.

Appellate courts can rule (or remand to develop the record) on the facts before them, no more, no less.

rosetta's stones has a point. Courts never indulge in line drawing, except for abortion.

Is there such a thing as reverse discrimination? If so, under what facts?

How long should racial preferences remain legal?

And like abortion, the court could face a case of a couple wanting to genetically enhance their child, or a same-sex couple wanting to try to combine their genetic material, or a person that wants to clone their mother, up against a federal law or state law that prohibits doing so, like many states have in varying degrees, and the PCBE recommended Congress enact in 2004. We know that people tend to come down one of two ways on issues like this. They are either laissez-faire libertarian absolute-reproduction-rights transhumanist pigs, or they are wise bioconservatives. The facts are the same for everybody, but some people think its OK to do genetic engineering and there's a right to manufacture children (or just manufacture 'people' as far as labs and doctors are concerned) however one wishes, and others who might see a supportable basis in prohibiting it. I think we need to find out her Transhumanist ick factor.

And about marriage:

Does she agree with the dicta in Lawrence v Texas that marriage is, at minimum, "about the right to have sexual intercourse?"

Does she think the right to create children is related to marriage?

Does she think it would be OK to prohibit a marriage from even attempting to conceive children together? What about the right to use their own gametes and the right to use donated gametes? Does she have empathy for donor-conceived children or for infertile neurotic selfish people who want to use donor gametes?

And like abortion, the court could face a case of a couple wanting to genetically enhance their child, or a same-sex couple wanting to try to combine their genetic material, or a person that wants to clone their mother, up against a federal law or state law that prohibits doing so, like many states have in varying degrees, and the PCBE recommended Congress enact in 2004.

So your question involves a plaintiff that does not yet exist, using a technology that is not yet possible* in the face of a law that does not yet exist. Did I get that right?

* I work in biotech, I am keenly aware of the limits of our abilities. No, I don't do genetic engineering, so this has no impact on me personally.

The question of whether there is a right to attempt those things is independent of a plaintiff or technology existing.

No, it depends keenly on the particular facts and the particular law. The founders were very clear that judges decide cases and controversies, not hypothetical disputes or abstract debates about the scope of a right. Their job consists entirely of the space between the rubber and the road.

Now, if you wanted to be productive about it, you can ask her about the general framework that the Court should apply to emerging technologies unforeseen by the founders, independently of the nature of the actual future technology. For instance, does she believe in the sort of functional-analysis of technology that Orin talks about in his email cases or does she subscribe more to the effect-analysis that he often derides? That is, does it matter how a technology works, or what it does.

We have to ask questions of the nominees before they get on the court. And why we seek well-rounded and thoughtful people who have long-term vision and concern for how a decision will effect society. If they turn a blind eye to the way the world is changing, and just mete out ignorant rulings based on the meager scraps of evidence that other ignorant judges have limited the case to, that'll likely result in future suckage for human rights and dignity, and lead to eugenics and coercive genetic enhancement.