Where the "Facts" Take Us on Judge Sotomayor

When I first wrote for Huffington Post over two years ago, one of my first blogs was about the intellectual free fall our country was in at the time. Our leaders were either ignorant, manipulative or both. And they didn't care what the rest of us thought. We were the outsiders, many for two presidential terms, facilitators. But we didn't matter in any case. Why else would the people who needed food, water and shelter after Hurricane Katrina have waited so long? How else would we have been duped into a war with a country that hadn't attacked us or our allies and had no weapons of mass destruction while North Korea was busy creating them right under our noses? What else would explain the greed and shifty dealings, the payoffs and payouts that sunk the U.S. economy? Need I go on?

So, here we are now with a strikingly intelligent female judge nominated for the Supreme Court. What should we be discussing to be sure she is suited to sit on the highest court in the land? Should it be whether she is a bully? After all, most of us on both sides of the political aisle know that women who push hard are subject to that label. Is it the height of intelligence and responsibility to discuss one quote over and over? Haven't we all on occasion said what we meant poorly? Or failed to get the second part of our thoughts out quickly enough to avoid crafting a sound bite for our critics?

I love this business of wanting to discuss the "facts" about Judge Sotomayor. "Let's talk about the facts instead of empathy" the Republican plants insist. Do they not realize that as soon as human beings begin to observe and talk about any "fact" they impose upon it their own experiences, values, leanings, preferences, and biases? Are they completely unaware of how limited words are in expressing the potential complexity of human thought? "This is a table" may be a factual statement -- right or wrong. But "This is a brown table" is subject to greater interpretation. "This is a well-built, brown table takes us further into the realm of opinion, and yet many would consider this a statement of fact -- pure and simple. But they would be wrong. That's my take on it, and I'm sticking to it. Soon my view may even seem factual to me. You get my drift.

There is no such thing as a completely factual reading of the U.S. Constitution. Otherwise, we'd have one judge -- the fact checker judge. He, no doubt, would be over in a dusty corner somewhere. But, instead, we have nine on the Supreme Court. It doesn't take nine people to identify the facts, but it sure takes at least that to interpret what there is of them.

The next time someone complains that Judge Sotomayor might bring to her Supreme Court decisions empathy for minorities, women, children, elderly, disabled, or some other group of us, we might ask whether they think their observations are ones of fact. We might suggest that if "strict interpretation of the Constitution" means that there is out there for all cases a way of getting at the facts, we dismiss the Supreme Court and replace it with a Supreme Computer.

Ah, but wait. Wouldn't a Supreme Computer require human input? Indeed it would. And what if that input came from the "wrong people"? Wouldn't that be risky for either or both Democrats and Republicans? Even if that weren't the case, wouldn't those humans mess up the "facts" with their sloppy thinking? Of course they would. But maybe we'd have justice without empathy for once. Now there's a goal for you. How about justice without compassion? Let's hear it for that people!

It's ludicrous. Even if there are limitations to Judge Sotomayor's brilliance that we should consider, who will ever know as they float deep within a quagmire of absurdity. Facts are not what we're looking for so much as reasoned objectivity. There is a difference. Can she be as objective as is expected of other Justices? Do they not bring to their decisions how they were raised, who they are, who taught them, who nominated them, how they voted in years past and a judicial philosophy? Of course they do. And many have said so, including Chief Justice Roberts. Should we object to a Chief Justice who grew up with sisters and a mother and therefore has an admitted particular concern for gender inequality? Hmmm.

Let's start thinking, shall we? Otherwise the loud mouths, hateful and uninformed among us will take this debate lower until there is no further place to fall.

Dr. Reardon also blogs at bardscove.

Comments

[Vurz]

I certainly would rather have a normal person with the ability to empathize on the court and am glad that Obama mentioned it as a requirement.

Since a lack of empathy is one of the traits of the sociopath/­psychopath it's disturbing that the Republicans are pushing for a candidate without that trait.

[AProudLiberalDem]

Ms. Sotomayor is an impressive pick by the president, but two facts aren't being discussed. She is a catholic (whose church wants all Catholics to oppose the right to choice) and has no record on abortion. Kathleen is right in this article in that a judge should bring empathy and their personal experience to the bench. That is why I want to see how Ms. Sotomayor stands on abortion and Roe v. Wade. All this life story stuff is great, but I want to know where she stands on important topics that affect all of us. Remeber, once on the bench she is in for life and can vote with empathy on any topic she wants, including opposing a woman's right to choice! She is not only a choice threatening the right, she may also be a threat to us on the Left.

[DiogenesOfAlaska]

Recalling the rhethoric against Obama from these elections, I wonder what would happen if the president recommended a nominee on the basis that he or she would simply be the most 'brilliant.'

Wasn't 'brilliance' the main accusation against Obama in the elections?

Yes, it's indeed ludicrous: seeking 'justice without empathy for once'.

[Phil Shaw]

Perhaps the best example of Judge Sotomayor's point that a judge of a minority background can perhaps see the facts of a case differently, and rule more wisely, than a white judge who has not had the same set of experiences is the case of: Virginia v. Black et al., 538 U.S. 343 (2003). That case involved the constitutionality of criminalizing cross burning. During oral arguments, most of the justices indicated that cross burning was protected by the first amendment, that is, until Justice Thomas set them straight by arguing that cross burning had only one purpose: to instill fear, and it was not protected by the first amendment. His view became the majority view. In the minority? Justice Souter, a liberal white male who wrote that the law could not presume intent to terrorize and the cross burning was free speech.