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.