Among the charges thrown at Sonia Sotomayor by her conservative critics, the argument that she and the President who nominated her to the Supreme Court would elevate empathy over law has proven the most contentious. In large part this is because her judicial record suggests quite the opposite; but mainly because nearly every recent Republican appointee to the Court has stressed, at one point or another, that their cultural and even ancestral roots do have an effect on their jurisprudence.
Along those lines, the Huffington Post has obtained video footage of Justice Clarence Thomas declaring during his own confirmation hearings that his own background would allow him to "bring something different to the Court."
"I can walk in the shoes of the people who are affected by what the Court does," says Thomas, in a quote that surfaced on Friday in print but not video. "You know, on my current court I have occasion to look out the window that faces C Street, and there are converted buses that bring in the criminal defendants to our criminal justice system, bus load after bus load. And you look out and you say to yourself, and I say to myself almost every day, 'But for the grace of God there go I.'"
The transcript of that September 1991 confirmation hearing is remarkable if only because it begs the question: when was it determined that empathy automatically obscured reason? After all, Sandra Day O'Connor emphasized that her role as a woman on the court affected her judicial capacities, while Samuel Alito acknowledged being influenced by the history of his ancestors when it came to the immigration debates.
Thomas may have been the most forthcoming of them all, telling Senators at his confirmation hearing's opening that when he saw those faces, "You feel that you have the same fate, or could have, as those individuals. So I can walk in their shoes, and I can bring something different to the Court. And I think it is a tremendous responsibility, and it is a humbling responsibility; and it is one that, if confirmed, I will carry out to the best of my ability..."
"With respect to the underlying concerns and feelings about people being left out, about our society not addressing all the problems of people, I have those concerns," he admitted. "I will take those to the grave with me. I am concerned about the kids on those buses I told you. I am concerned about the kids who didn't have the strong grandfather and strong grandparents to help them out of what I would consider a terrible, terrible fate. But you carry that feeling with you. You carry that strength with you. You carry those experiences with you."