If you’ve listened to conservatives complain about President Obama’s criteria for choosing Sonia Sotomayor, his Supreme Court nominee, you might have come to the conclusion that he’s picked someone who will willfully disregard the law and simply impose personal opinions in every case that comes before the court.
What did Obama say to cause such uproar on the right? He wants a justice who understands how the law actually affects people. Horror of horrors, he wants someone with empathy. Critics seem to have conflated empathy with sympathy. All empathy implies is that one has the ability to put oneself in another person’s shoes. What I’ve yet to hear is an explanation of why understanding how the law plays out as a practical matter in everyday life for real human beings is a bad thing.
Perhaps the most troubling thing for Obama critics was his statement as a candidate in 2007 that he wanted a judge “to recognize what it’s like to be a young, teenage mom; the empathy to understand what it’s like to be poor or African-American or gay or disabled or old.” That would be troubling if Justice Sotomayor were always to side with poor, black, or gay litigants, no matter the facts of the case. If such a thing happened, I would be at the Supreme Court door, protesting with Sean Hannity and Rush Limbaugh. But no credible nominee who’s in the mainstream, even of liberal jurisprudence, would do that.
But putting all that aside, I think having Judges on the bench who understand what it’s like to be a minority could be a plus in some cases. For example, in a case involving sexual harassment in the workplace, the law might not specify what sorts of behavior constitute harassment. It would be nice in those cases to have a Judge who can clearly imagine what it’s like to be a woman in a workplace, and how the behavior in question in the case could affect a woman’s ability to do her job and enjoy treatment equal to that of her male colleagues, which is her right. In that case, I want a Judge who yes, has empathy.
Chief Justice Roberts famously likened judging to being an umpire in baseball who sits back and calls balls and strikes dispassionately. But that is not always a fair analogy. As has been observed many times, the law is not always clear, and there will be discretion involved. If this weren’t true, we would just have computers spit out decisions.
Since we still use human beings instead of the new Mac book pro to make decisions, this indicates that we accept that there is gray area in the law, and that we recognize Judges cannot just use text of the law or refer to precedent. In making decisions in those cases, Judges will inevitably bring their own experiences and their own understanding of what is or is not unacceptable. When a decision of that sort is necessary, I would argue that it is critical to have someone on the bench who understands the perspectives of the different parties in the case and who will consider how the ruling will affect them.
Perhaps the most farcical aspect of the controversy is when certain conservatives claim to want complete objectivity in all judicial decisions. That’s patently false. Many conservatives just want empathy for a different set of litigants. Pat Robertson would love to have a Justice who had empathy for a child in the womb instead of the mother. Still others want the Supreme Court to have empathy for a white man suing because he failed to gain employment, promotion, or admission to college because of affirmative action.
We all want to have a fair judiciary. I certainly have no desire to see a Court that simply “legislates from the bench,” and substitutes its own preferences for those of Congress or the American people. But just as surely, when there is gray area in the law, and a Judge has to exercise discretion, I do not want a Judge who refuses to consider the perspectives of the litigants and how the ruling affects different people.