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The Empathy Seat on the Supreme Court

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One wouldn't think that such otherwise innocuous words as "empathy" and "life experience" would have the power to unsettle an institution as solid as the legal system, but with the nomination of Judge Sonia Sotomayor to the Supreme Court, President Obama has apparently done just that.

With this, his first Supreme Court appointment, the president, who just happens to be a former president of the Harvard Law Review (so we can assume he knows something about judges), is asking the Senate, and bar associations across the United States, to finally accept what most Americans already know to be true: that judges who behave like robed robots, who bang their gavels like petulant children, who not only dismiss cases but conduct themselves dismissively, who confuse the elevation of where they sit with some exaggerated detachment from the human experience, and who fail to realize that those who come before the law are not merely plaintiffs and defendants, but real people with deep grievances and great emotional complexity, are not well suited to stand in judgment of other human beings.

When the president introduced Judge Sotomayor to the nation, he spoke about how much her compelling life story and the breadth of her experiences made her uniquely qualified to occupy a seat on the Supreme Court. Yet, many people -- conservative judges, law professors, court watchers, beltway pundits, and a good number of Republican senators -- have questioned whether empathy should be equally valued, or is in any way a substitute, for legal reasoning, judicial temperament, and emotional neutrality.

The presumption seems to be that justice cannot be both blind and sensitive at the same time.

Aside from whether it is good for the nation that a Hispanic Latina is on the Supreme Court, the president framed this judicial appointment not in terms of ethnicity or gender, but rather on qualities that one may already possess without even having to attend law school.

Actually, one wonders whether empathy and compassion can even survive the law school experience. So much of the law is dedicated to narrowing issues, limiting the scope of stories, and valuing facts over actual truths. Laser sharp minds are trained to think mechanically and dispassionately, never expansively or outside the box-like maze of the law. Legalism and formalism always trumps moral agency. In such a laboratory where critical thought overrides emotional intelligence and where legal principles are endlessly dissected like cadavers, the broad experiences of life, and the impact of legal rules on ordinary people, often get lost in the dense translation of judicial opinions.

Legal analysis always reigns supreme, especially when it comes to the Supreme Court.

Ironically, a great many students enter law school having written their admission essays on Atticus Finch from To Kill a Mockingbird. And the influence of Atticus Finch is even more eternal outside of classrooms and courtrooms. The American Film Institute selected Atticus Finch as the greatest movie hero of all time. Yet, the very values that this fictional lawyer embodied -- "you never really know a man until you stand in his shoes and walk around in them" -- seems to be precisely what President Obama had in mind when he elevated empathy as a judicial requirement for the highest court in the land.

Yet, if law students were motivated to become lawyers on account of Atticus Finch, and a majority of movie-loving Americans have rooted for Atticus Finch in ways that have surpassed even their affections for James Bond and Indiana Jones, why then have so many actual lawyers and judges failed to adopt emotion and empathy in the way they practice law and dispense justice? Why were President Obama's words in praise of Judge Sotomayor perceived as so original, if not controversial? Somewhere between graduating from law school, passing the bar, and hanging up a shingle, those who are licensed to navigate our legal system have lost their inner-Atticus Finch.

I don't know Judge Sotomayor. I can't say whether she was the most qualified to occupy what may from now on become known as the empathy seat on the Supreme Court. If confirmed, hopefully she will validate President Obama's desire to humanize the Court, and his vision of expressly nominating someone for reasons apart from legal credentials alone.

Is empathy the new GPA?

Probably not. Two of the most conservative justices on the Supreme Court in recent memory, former Chief Justice William Rehnquist and Justice Clarence Thomas, each demonstrated what can happen when the alchemy of personal experience and empathy informs a Supreme Court decision.

Rehnquist once wrote a majority opinion that upheld the application of the Family and Medical Leave Act to the states, which disappointed conservatives and shocked women's rights groups who never counted on him as an ally. What Rehnquist didn't mention in his opinion was that his daughter was a single working mother with childcare problems, and the chief justice was often recruited into picking up his granddaughters from school.

And the normally reticent Justice Thomas, to the surprise of everyone, once, during oral argument in a cross-burning case, spoke openly and impassionedly about the "reign of terror" that this pernicious symbol has unleashed on his persecuted community. At that moment, Justice Thomas slipped out of his robe and stepped into shoes of an African-American man.

Atticus Finch would have been proud.

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