During the opening day of confirmation hearings, Judge Sonia Sotomayor came under fire from Sen. Charles Grassley (R-IA) for stating that her experiences as a Latina affects her judicial outlook. “This empathy standard is troubling to me,” Grassley said. “The Constitution requires that judges be free from personal politics … feelings and preferences.”
But Grassley never objected when Judge Samuel Alito said virtually the same thing during his confirmation hearing, when Alito testified he “can’t help but think of” his immigrant family when evaluating immigration cases:
When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background, or because of religion or because of gender, and I do take that in to account.
Then yesterday, Grassley admitted to applying a double standard to Sotomayor during an interview with NPR’s Robert Siegel. Siegel reminded Grassley that during Alito’s confirmation hearing, the judge said his background plays a role in his judicial philosophy — and Alito still managed to secure Grassley’s support:
NPR: By your standard that would be disqualifying. He should have said instead my family, my background counts for nothing.
GRASSLEY: That’s absolutely right. […]
NPR: But you didn’t vote against Justice Alito’s confirmation.
GRASSLEY: No I didn’t.
Also in Alito’s confirmation hearing, the judge referenced his father’s experience as the basis of his view on district reapportionment. The answer was in response to a questions asked by Grassley. Alito’s testimony and subsequent ruling in Ricci v. DeStefano prompted Salon’s Glenn Greenwald to ask in jest: “Did Alito’s Italian-American ethnic background cause him to cast his vote in favor of the Italian-American plaintiffs?”