Friday, July 17, 2009

Empathy, Sometimes Dreaded

The hearings of the Senate Judiciary Committee over the nomination of Judge Sonia Sotomayor to the United States Supreme Court are over. Network executives are breathing a sigh of relief, able now to return to coverage of Michael Jackson or whichever celebrity they're obsessing over now.

And it was, as expected, a kind of dance with everyone playing his/her roles: the impressive nominee avoiding answering questions while member of the opposition party play to their base and, well, members of her own party playing to their ethnic base.

Senator Tom Coburn (R.- OK) was particularly entertaining as he acted out his part, wringing his hands over the despised "empathy." In his opening statement, on July 13, Coburn described his concern that judges strictly adhere to the law, eschewing personal instincts:

We expect a judge to merely call balls and strikes? Maybe so, maybe not. But we certainly don't expect them to sympathize with one party over the other, and that's where empathy comes from.

Judge Sotomayor, you must prove to the Senate that you will adhere to the proper role of a judge and only base your opinions on the Constitution's statutes and, when appropriate, treaties. That's your oath. That's what the Constitution demands of you.

You must demonstrate that you will strictly interpret the Constitution and our laws and will not be swayed by your personal biases or your political preferences, which you're entitled to.

As Alexander Hamilton stated in Federalist Paper Number 78, the interpretation of the law is a proper and peculiar province of the courts. The Constitution, however, must be regarded by the judges as fundamental law. He further stated it was indispensable in the courts of justices that judges have an inflexible and uniform adherence to the rights of the Constitution.

A nominee who does not adhere to these standards necessarily rejects the role of a judge as dictated by the Constitution and should not be confirmed.


Reasonable men and women can disagree about this philosophy, though ironically Judge Sotomayor strained endlessly during the hearings to convince the GOP Senators that she agrees, while the very conservative and Republican Justice Alito disagrees. Two days, later, however, Senator Coburn questioned the nominee about the right to arm bears bear arms:

Thank you. Let me follow up with one other question. As a citizen of this country, do you believe innately in my ability to have self-defense of myself -- personal self-defense? Do I have a right to personal self- defense?

SOTOMAYOR: I'm trying to think if I remember a case where the Supreme Court has addressed that particular question. Is there a constitutional right to self-defense? And I can't think of one. I could be wrong, but I can't think of one.

SOTOMAYOR: Generally, as I understand, most criminal law statutes are passed by states. And I'm also trying to think if there's any federal law that includes a self-defense provision or not. I just can't.
What I was attempting to explain is that the issue of self- defense is usually defined in criminal statutes by the state's laws. And I would think, although I haven't studied the -- all of the state's laws, I'm intimately familiar with New York.

COBURN: But do you have an opinion, or can you give me your opinion, of whether or not in this country I personally, as an individual citizen, have a right to self-defense?

SOTOMAYOR: I -- as I said, I don't know.

COBURN: I'm talking about your...

SOTOMAYOR: I don't know if that legal question has been ever presented.

COBURN: I wasn't asking about the legal question. I'm asking about your personal opinion.

SOTOMAYOR: But that is sort of an abstract question with no particular meaning to me outside of...

COBURN: Well, I think that's what American people want to hear, Your Honor, is they want to know. Do they have a right to personal self-defense?

Do -- does the Second Amendment mean something under the 14th Amendment? Does what the Constitution -- how they take the Constitution, not how our bright legal minds but what they think is important, is it OK to defend yourself in your home if you're under attack?

In other words, the general theory is do I have that right? And I understand if you don't want to answer that because it might influence your position that you might have in a case, and that's a fine answer with me.
But I -- those are the kind of things people would like for us to answer and would like to know, not how you would rule or what you're going to rule, but -- and specifically what you think about, but just yes or no. Do we have that right?

SOTOMAYOR: I know it's difficult to deal with someone as a -- like a judge who's so sort of -- whose thinking is so cornered by law.


This line of questioning amusingly went on slightly longer (continuing to the "splaining to do" remark), but Sotomayor wasn't lured into the Senator's trap. Sure, she could have said that she agreed with (presumably Coburn's position) a constitutional right to self-defense or she could have demurred, allowing the denizens of the right to brand her as an activist leftist judge. (Just for the fun of it, check the consitution. Right- nothing in it about "self-defense.")

But that is apart from the sheer inconsistency of the Oklahoman's remarks. On Day One he praises Alexander Hamilton for his advocacy of "an inflexible and uniform and adherence" approach to the Constitution and warns the nominee that she "must demonstrate that you will strictly interpret the Constitution and our laws and will not be swayed by your personal biases or your political preferences." Then on Day 3 he pirouettes and probes whether she believes "personally, as an individual citizen, (citizens) have a right to self-defense."

And what to make of Senator Coburn's curiosity about whether S.S. believes "innately in my ability to have self-defense of myself." Innately- does Coburn really believe Sotomayor's ideas are in her genes? That she comes to her views by heredity? (And "self-defense of myself"- is there some other kind of self-defense we're not aware of?) Clearly, Coburn was not encouraging discussion about the finer points of the law or the Constitution- rather, about whatever instinct, feeling, or, yes, sense of empathy Sotomayor might have for an individual needing to defend himself/herself.

Unsurprisingly, these hearings provided nary a glimpse into the nominee's opinions about major issues- not gun rights, abortion, national security, the economy, or anything else. Not very enlightening, but as spectacle, a reasonably pleasant diversion.

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