“Empathy” versus Law

It is one of the signs of our times that so many in the media are focusing on the life story of Judge Sonia Sotomayor, President Obama’s nominee for the Supreme Court of the United States.

You might think that this was some kind of popularity contest, instead of a weighty decision about someone whose impact on the fundamental law of the nation will extend for decades after Barack Obama has come and gone.

Much is being made of the fact that Sonia Sotomayor had to struggle to rise in the world. But stop and think.

If you were going to have open heart surgery, would you want to be operated on by a surgeon who was chosen because he had to struggle to get where he is or by the best surgeon you could find—even if he was born with a silver spoon in his mouth and had every advantage that money and social position could offer?

If it were you who was going to be lying on that operating table with his heart cut open, you wouldn’t give a tinker’s damn about somebody’s struggle or somebody else’s privileges.

The Supreme Court of the United States is in effect operating on the heart of our nation—the Constitution and the statutes and government policies that all of us must live under.

Barack Obama’s repeated claim that a Supreme Court justice should have “empathy” with various groups has raised red flags that we ignore at our peril—and at the peril of our children and grandchildren.

“Empathy” for particular groups can be reconciled with “equal justice under law”—the motto over the entrance to the Supreme Court—only with smooth words. But not in reality. President Obama used those smooth words in introducing Judge Sotomayor but words do not change realities.

Nothing demonstrates the fatal dangers from judicial “empathy” more than Judge Sotomayor’s decision in a 2008 case involving firemen who took an exam for promotion. After the racial mix of those who passed that test turned out to be predominantly white, with only a few blacks and Hispanics, the results were thrown out.

When this action by the local civil service authorities was taken to court and eventually reached the 2nd Circuit Court of Appeals, Judge Sotomayor did not give the case even the courtesy of a spelling out of the issues. She backed those who threw out the test results. Apparently she didn’t have “empathy” with those predominantly white males who had been cheated out of promotions they had earned.

Fellow 2nd Circuit Court judge Jose Cabranes commented on the short shrift given to the serious issues in this case. It so happens that he too is Hispanic, but apparently he does not decide legal issues on the basis of “empathy” or lack thereof.

This was not an isolated matter for Judge Sotomayor. Speaking at the University of California at Berkeley in 2001, she said that the ethnicity and sex of a judge “may and will make a difference in our judging.”

Moreover, this was not something she lamented. On the contrary, she added, “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.”

No doubt the political spinmasters will try to spin this to mean something innocent. But the cold fact is that this is a poisonous doctrine for any judge, much less a justice of the Supreme Court.

That kind of empathy would for all practical purposes repeal the 14th Amendment to the Constitution of the United States, which guarantees “equal protection of the laws” to all Americans.

What would the political spinmasters say if some white man said that a white male would more often reach a better conclusion than a Hispanic female?

For those who believe in the rule of law, Barack Obama used the words “rule of law” in introducing his nominee. For those who take his words as gospel, even when his own actions are directly the opposite of his words, that may be enough to let him put this dangerous woman on the Supreme Court.

Even if her confirmation cannot be stopped, it is important for Senators to warn of the dangers, which will only get worse if such nominations sail through the Senate smoothly.