Doubling Down on Empathy

This strikes me as a good description of President Obama’s nomination of Judge Sonia Sotomayor to the United States Supreme Court. Like all of us, I am still learning about Judge Sotomayor and have probably revised even those thoughts I expressed this morning on the Charlie Sykes show or those that you can see this evening on the six o’clock news on Channel 12 (in a “dueling” segment with Ed Fallone in which the “duel,” if there was one, mostly found the cutting room floor).

But I do believe that Obama’s selection contrasts sharply with those of President Bush and the differences are instructive and fodder for debate about the role of the judiciary. It isn’t that I am prepared to say that Judge Sotomayor is an extraordinarily liberal nominee (although she may be), but we can say that she has made at least one extraordinary statement. Although one should only let a single statement bear so much weight, we are, after all, blogging here and relative immediacy has its virtues.

In a lecture at Berkeley, she said the following: 

Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O’Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O’Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.

There is, of course, both pedestrian and controversial aspects to this statement. It can be read to say a little or to say quite a bit. The pedestrian element is that we are all a product of our pasts and being a Latina (e.g., Judge Sotomayor) or growing up in a blue-collar household in Milwaukee (e.g., me) is part of that. There are times when this experience (or empathy for those similarly situated) can help us see, as I have blogged before, the true nature of the circumstances before us. If that was all she had to say, it’d be unexceptional.

But I don’t read her remarks to stop there. To the contrary, she seems to say that the facts that the life experiences of judges will affect their presuppositions and that that those presuppositions will affect judging are not just inevitable, but, at least in certain ways, normative.

To be fair, in the same speech, she mentions the need to check her assumptions. But, in expressing her belief that there is no neutral stance from which to judge (but, rather, a series of perspectives), she is not saying that neutrality or dispassion is difficult. She is saying that it is nearly impossible or at least very unlikely. While she acknowledges that not all Latinas (or African-Americans or children from blue-collar households) will process their experiences in the same way, she seems comfortable with the idea that there is (perhaps even due to what she calls “inherent psychological or cultural differences”) a perspective associated with — if not compelled by — one’s background. This ought, she seems to say, to be relevant in the selection of judges and in the process of judging.

The difficulty, of course, is that there is a world of difference between acknowledging that who you are is a product of where you have been and believing that where you have been and what you think it tells you about the world ought to be — if not the measure of the law — a substantial filter through which it should be viewed. If neutrality is a struggle, then judicial methodology ought to be wary of that which gives judges too much discretion. In this sense, what you say about method makes a difference. Checking one’s assumptions is, I think, not only a matter of intent and internal struggle, but method. When you begin by privileging empathy or the peculiar lessons of one’s life, the threat is judging that is more declamation than discernment.

And this does effect judging in a way that implicates popular debates about judicial activism and restraint. This is reflected, I think, in the Judge’s somewhat startling statement that she would hope a Latina would reach a better decision than someone who “hasn’t lived that life.” Some people see that as a racist statement. Although her reference to “inherent psychological and cultural differences” makes me uneasy (while not intended as such by her, this is not a principle that is historically associated with judging men and women by the content of their character), I don’t see it as “racist.”

It can, I think, reflect one of two assumptions, but I think that Judge Sotomayor clearly intends one over the other. One possibility it that, because there is no basis upon which to conclude that anyone’s experiences or empathies are preferable to those of others, one ought not to be overly apologetic about using one’s own as a starting point.

But I don’t think that is quite what she is saying. The notion that the empathies of someone “who has lived that life” might lead to better (as opposed to different) decisions is to say something about the nature of the world and the role that judges should play in it. It reflects, I think, a stance that is roughly evocative of Justice Stone’s famous foonote 4 in Carolene Products, suggesting extra constitutional solicitude in certain cases: “prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities . . . .” Her comments reflect a belief that this is the way in which the world works, a judgement about who is likely to be on the short end of the stick and an assumption about the role that judges ought to play in response.

If that’s so, Sonia Sotomayor would hardly be the first person to see things this way. It has been a prominent feature of liberal jurisprudence for decades. Whether it is, in 2009, an appropriate perspective is another matter. That would be something worth debating.

Cross posted at Shark and Shepherd.

This Post Has 3 Comments

  1. Matthew Fernholz

    This nomination reveals something more important, something that cuts to the very essence of the Obama presidency. Barack Obama emerged from being an obscure state legislator to a political rock star overnight, largely as the result of a speech he gave to the Democratic National Convention in 2004. In that historic oration, then State Senator Obama assured the fawning audience that “[t]here’s not a black America, and white America, and Latino America, and Asian America; there’s the United States of America.” Apparently, not so.

    Of all the political issues in America, identity politics is the most divisive. This is because it is intentionally meant to divide people. While one can change his status, his job, his education level, or even his viewpoints, one cannot (absent complicated surgery) change his gender or his ethnicity. The identity politics that emerged from the New Left is particularly poisonous because it promises to forever divide a heterogeneous culture such as America.

    An Obama presidency was supposed to end this. The first black president in America was to be the final chapter of the glorious civil rights movement. However, the Sotomayor selection makes clear that the President is more interested in cynically redrawing the electoral map than racial unity. Obama sees himself as a transformative president. Because ending identity politics would be bad for the Democratic Party, it is not surprising that the President opted to favor its continuation over racial unity.

    What is saddest about this nomination and Judge Sotomayor’s own comments, is that her immense achievements have been denigrated. Princeton, Yale Law School, prosecutor, federal appellate judge. A resume to hang your hat on. Yet even Judge Sotomayor’s supporters opt to define her by her DNA, and not her accomplishments.

    Senate Democrats opposed Miguel Estrada’s nomination to the D.C. Circuit Court because of his race. Now, it appears that Judge Sotomayor was appointed to the Supreme Court to help woo Hispanic voters. If President Obama does not end the game of racial politics, who will?

  2. Ed Fallone

    The joke goes as follows: After the 1972 presidential election, the New York liberal was shocked to learn that Nixon had won. “How could McGovern lose?,” she said, “Everyone I know voted for him.”

    The point of the joke is that big city liberals were too wrapped up in group-think and were out of touch with the rest of the country.

    The federal judiciary has become more diverse in recent years, but there is still a great deal of “group-think” among that elite circle. Same law schools, same clerkships, same big law firms.

    From my perspective, all that Judge Sotomayor meant in her speech was that there is a much wider world than the world reflected in the “group-think” of many federal judges, and that she is proud to bring some of that experience to the bench.

    All of the false outrage, and umbrage, and casual assertions of racism cannot mask the fact that she has a point.

  3. John Foust

    Aren’t you over-inflating Obama’s mention of empathy as a desirable characteristic of a judge?

    Who said “I have followed this man’s career for some time, and he has excelled in everything that he has attempted. He is a delightful and warm, intelligent person who has great empathy and a wonderful sense of humor” and who was he talking about?

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