Friday, May 29, 2009

Empathy And Activism

It all started when President Obama, commenting on his quest for a replacement for retiring Supreme Court Associate Justice David Souter, explained

I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a casebook; it is also about how our laws affect the daily realities of people's lives, whether they can make a living and care for their families, whether they feel safe in their homes and welcome in their own nation. I view that quality of empathy, of understanding and identifying with people's hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes.

Utah Senator Orrin Hatch summed up the reaction of conservative Republicans when he charged "Those are all code words for an activist judge who is going to . . . be partisan on the bench."

Once Judge Sonia Sotomayor was nominated by President Obama, a line from a speech she gave at the law school of the Univeristy of California-Berkeley in 2001 caused an uproar. With a little context added, Judge Sotomayor stated

Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O'Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.

And a remark Judge Sotomayor made at a panel discussion at Duke University in February of 2005, this about the role of circuit court judges, also elicited controversy. She noted (video below):

The Court of Appeals is where policy is made. And I know this is on tape and I should never say that because we don't make law. I know…I know. (some laughs) I'm not promoting it. I'm not advocating it. I'm…you know. OK. (more laughs)

Having said that, the Court of Appeals is where, before the Supreme Court makes the final decision, the law is percolating. It's interpretation. It's application.

The Repub long knives came out. Wendy Long (once a clerk for Clarence Thomas), counsel for the Judicial Confirmation Network, contended the Judge's "body of work.... appears to be a view of the courts as engines of soical and political change- in short, wrought out of a devotion to judicial activism." Mitt Romney decried her alleged "expansive view of the role of the judiciary." And Republican Party chief Rush Limbaugh, who accused the nominee of being a "reverse racist," claimed "We have Sonia Sotomayor who thinks that the court is where policy is made." Syndicated columnist Charles Krauthammer argues "if nothing else, it (i.e., conservatism) stands unequivocally against justice as empathy." And so on.

Now it appears that empathy is a pretty widespread emotion among judges. When promoting Clarence Thomas as his Supreme Court nominee, President George H.W. Bush referred to the judge as "a delightful and warm, intelligent person who has great empathy and a wonderful sense of humor." When he appeared in January, 2005 before the Senate Judiciary Committee after his nomination to the Supreme Court, Judge Samuel Alito responded (slightly more than halfway through the transcript) to a question from Sen. Tom Coburn (R.-Ok.) by maintaining (video way below):

Because when a case comes before me involving, let's say, someone who is an immigrant -- and we get an awful lot of immigration cases and naturalization cases -- I can't help but think of my own ancestors, because it wasn't that long ago when they were in that position.

And so it's my job to apply the law. It's not my job to change the law or to bend the law to achieve any result.

But when I look at those cases, I have to say to myself, and I do say to myself, "You know, this could be your grandfather, this could be your grandmother. They were not citizens at one time, and they were people who came to this country."

When I have cases involving children, I can't help but think of my own children and think about my children being treated in the way that children may be treated in the case that's before me.

And that goes down the line. When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account. When I have a case involving someone who's been subjected to discrimination because of disability, I have to think of people who I've known and admire very greatly who've had disabilities, and I've watched them struggle to overcome the barriers that society puts up often just because it doesn't think of what it's doing -- the barriers that it puts up to them.

Greg Sargent has learned that soon after she was appointed to the Supreme Court, in March 1982 Sandra Day O'Connor opined

I think that I bring to the court differences in background that are more germane than my gender.

My experience as a legislator gives me a different perspective. Also, I bring to the court the perspective of a woman primarily in a sense that I am female, just as I am white, a college graduate, etc.

Yes, I will bring the understanding of a woman to the court, but I doubt that that alone will affect my decisions,” she said. “I think the important fact about my appointment is not that I will decide cases as a woman, but that I am a woman who will get to decide cases.

And if the Repub right is only a recent convert to the battle against empathy, it appears to be downright wrong about the role of judges. quotes a conservative law professor as commenting that Sotomayor's remark "seems to be nothing more than an observation that, as a practical matter, many policy disputes are resolved in the federal courts of appeals. This is an indisputably true observation." And another law professor maintains "the circuit courts play by far the greatest legal policymaking role in the United States judicial system," greater, apparently, than state courts which, Justice Scalia has written, "possess the power to “make” common law, but they have the immense power to shape the States’ constitutions as well. See, e.g., Baker v. State, 170 Vt. 194, 744 A. 2d 864 (1999)." Further, as Paul Gewirtz and Chad Golder have argued, striking down a law enacted by Congress is arguably the best criterion for determining how "activist" a judge is- and typically, the more conservative, Republican Supreme Court justices have done so more than the liberal, Democratic justices.

Obviously, the GOP is in a bind trying to determine its response to this nomination. Continuing to attack Sotomayor as a "racist" a la Limbaugh and Gingrich risks alienating the Hispanic community and its voters, not only in the short term but for a longer period. But criticizing the nominee as an "activist" judge (an illegitimate argument at that) without bringing into play the issue of "empathy" and, inevitably, ethnicity, may be walking a tightrope too precarious for even the Flying Wallendas.

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