For some, she's an easy target

The president's recent remark about the qualities he seeks in a new justice has given this debate its larger philosophical frame. Calling empathy "an essential ingredient for arriving at just decisions and outcomes," Obama said he would look for someone "who understands that justice isn't about some abstract legal theory."

It's unclear precisely what Obama means by empathy, but if the term connotes a sympathy for the underdog that should play a role in jurisprudence, that's an appropriate sentiment for, say, a legislative body, but one that doesn't fit well with the idea of impartial justice.

"Most progress toward making the country a fairer place has been due to a more serious application of the equal protection of the laws," said Harvey Silverglate, a prominent Boston-area attorney. "Equal protection can be measured. Empathy can't."

In nominating Sotomayor, who serves on the US Court of Appeals for the Second Circuit, Obama seemed to be redefining the concept a bit, speaking less of an active legal sympathy than a wide-ranging real-world understanding. Quoting Oliver Wendell Holmes Jr.'s observation that "the life of the law has not been logic; it has been experience," the president said a justice needed to know "how the world works and how ordinary people live."

That puts the matter in a more comfortable and accustomed frame. Still, it's unlikely to disarm the controversy, in part because of some of Sotomayor's own remarks. During a 2001 speech entitled "A Latina Judge's Voice" at the University of California School of Law, she made this comment about judges: "I would hope that a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn't lived that life."

As Stuart Taylor noted recently in National Journal, if one were to reverse the position of Latina woman and white male in that sentence, it would provoke no small amount of condemnation. And certainly in conservative politics, little resonates quite so powerfully as something that fails the "Imagine if a white male had said that" test.

To note the frequency of that formulation is not to deny that it's sometimes a valid test. Read in totality, however, Sotomayor's speech is less an assertion of superior judgment than an acknowledgment that one's overall experience, including gender and ethnicity, can't help but play a role in shaping her perception and judgment. No doubt Sotomayor was hoping to blunt attacks on that front yesterday by emphasizing her reverence for the rule of law.

Still, how those philosophical issues intersect with real life will no doubt come up in connection with the Second Circuit's judgment against a group of white New Haven firefighters who sued after the city refused to certify an employment test because it would make a disproportionate number of whites eligible for promotion.

Whatever one's perspective, those are all legitimate and interesting avenues for exploration.

Now for a cheap canard, raised by a New Republic piece: She lacks intellectual capacity - and she might even be a bully.

"The most consistent concern was that Sotomayor, although an able lawyer, was 'not that smart and kind of a bully on the bench,' as one former Second Circuit clerk for another judge put it," wrote Jeffrey Rosen.

Hmmm. Let's see. Sotomayor graduated summa cum laude from Princeton, one of the nation's most rigorous universities. She went on to Yale Law School, hardly a place for the mediocre, and from there, to an impressive legal career.

Further, worried as one must be about Supreme Court comity, it's hard to imagine Sotomayor intimidating the high court's healthy egos.

After all, Antonin Scalia, who occasionally reads his blistering dissents from the bench, isn't exactly a shrinking violet.

So let the confirmation process begin. But let it also stick to legitimate matters - be they legal or philosophical - and avoid the silly sideshows.

Scot Lehigh can be reached at lehigh@globe.com.