08/15/2009 05:12 am ET | Updated May 25, 2011

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.