Persons With Empathy Need Not Apply

I was watching television on the morning it was announced that Judge Sotomayor had been nominated to the Supreme Court. Tom Fitton, president of Judicial Watch, was being interviewed and expressed his opposition to the nominee. When asked why, he responded: "Because President Obama picked her." I was somewhat surprised at his candor, since it spoke the truth, namely that the organization would oppose anyone the President named. But he went on to explain that opposition by condemning the President's avowed desire to pick someone with "empathy" for those that society has chosen to ignore or have been subjected to discrimination. Somehow Mr. Fitton and certain Senators (as reflected in the current hearings) seem to find that this characteristic is a disqualifier; that being empathetic to the downtrodden is inconsistent with the rule of law; that one who has empathy should not be seated on the Supreme Court of the United States. We should have only those persons who have no empathy -- persons like Jesus Christ, Mother Teresa, Bishop Tutu, etc. need not apply. They would not make the cut.

But ironically, Mr. Fitton was followed by another conservative voice who condemned the judge for her decision in the New Haven firefighters' case (forgetting that it was a court decision, not hers alone), pointing out that white firefighters who had risked their lives in the 9/11 attack and sacrificed and studied to take the test and passed it were denied promotions and increased income which they had earned and deserved because of her ruling. How is that relevant? Because apparently in following what she perceived to be the correct application of the law, she neglected to feel "empathy" for those who were adversely affected by her (the court's) ruling. Apparently "empathy" like "judicial activism" is in the eye of the beholder.

Because of the limited size of the Supreme Court, it cannot possibly be representative of every race, religion or ethnic group in America; nor was it meant to be. But diversity brings understanding to the Court. There can be no doubt that a judge who has experienced discrimination, sexual harassment or other life-forming experiences draws upon them in considering and deciding cases. Empathy, because of those experiences, is to be embraced, not condemned. Experience informs, but does not dictate, the outcome.

Comments

[threegoal]

I think the place of empathy in judging is in perhaps being able to obtain a deeper understanding of the facts, particularly as they affect real people in real lives. The less empathetic see the facts from only their point of view. As an aside, the point of view that results from being a white male raised in relative privilege seems to have a history of being well represented, although that does not match the background of every white male Justice..

A great recent example of that was the Safford, AZ teen-age strip search case. Justice Ginsberg appeared to have a deeper understanding of how the strip-search might impact a girl in the age range of the plaintiff, and that empathy changes the understanding of the facts to which you apply the protections of the 4th Amendment. That gave her an insight she could share with the other justices, and perhaps influence the thinking of some of them. By all accounts, an all-male Supreme Court would have been far less likely to see what facts were the same way, and the woman's view on what invasions of privacy might mean to a 13 year-old would not have been there for the justices to hear when talking among themselves.

That is the argument for a diversity of backgrounds and experiences on the Court.

[Judge H. Lee Sarokin - Huffpost Blogger]

threegoal - You make the argument better than I did.

[Liberal2]

"Empathy" from the bench is in the wrong place (though it generally is the only place one can find it), it belongs in the White House and Congress (where it's applied based on the size of one's campaign contribution).

[GrammyP]

Well spoken.

[Jackcravell]

Well stated.

[KarenT]

So the Repubs are empathetic to the white firefighters and the decision should have been based on that vs. the law.

[Judge H. Lee Sarokin - Huffpost Blogger]

No Karen. My point was that the conservatives were decrying the use of empathy in judging, and then ironically seemed to complain that Judge Sotomayer failed to show empathy for the white firefighters who were adversely affected by her (the court's) ruling. I do not think empathy should decide cases, but it plays a role as threegoal so lucidly points out in her comment.

[JRsNana]

Shhhhh, Judge, you can't say "empathy". It'll make the Republicans crazy. Stand back. Here they come.