Ironies in Sen. Herb Kohl's Sotomayor Confirmation Remarks

Wisconsin Senator Herb Kohl sent out his opening remarks from today's Judiciary Committee confirmation hearings.  

He seemed, generally, to embrace Obama's empathy theme and run with it.  Senator Al Franken, too, like many of the Democrats on the committee, tried to sound a rather annoying "populist Portia" note.  

But one passage in Kohl's speech stuck out to me:

Third, we want a nominee with a sense of compassion. This is a quality that I have considered with the last 6 Supreme Court Justices. Compassion does not mean bias or lack of impartiality. It is meant to remind us that the law is more than an intellectual game, and more than a mental exercise.

As Justice Black said, “The courts stand against any winds that blow as havens of refuge for those who might otherwise suffer because they are helpless, weak, outnumbered or because they are non-conforming victims of prejudice and public excitement.”

First, it's slightly odd to quote Justice Black, perhaps the court's most notoriously strict, straitjacketed textualist, after saying the law is no intellectual game or mental exercise.

Second, it's ironic to quote Justice Black, author of the much-despised majority opinion in the Japanese internment case, Korematsu, on helping the innocent "non-conforming victims of prejudice and public excitement."

I didn't find either of those ironies helpful.  But I do think one additional irony in Kohl's remarks made for a nice little rhetorical parry:

As Justice Thomas told us at his confirmation hearing, it is important that a justice, “can walk in the shoes of the people who are affected by what the Court does.”

See, even Justice Thomas wants empathy, therefore Sotomayor must be confirmed.  QED