Whenever did empathy become a bad thing?

June 3, 2009 | 134 comments
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The Sotomayor nomination has put the strangest ideas into circulation. The latest rallying cry is that — brace yourself — she is a judge who might have empathy. Oh, no! This is apparently a very bad thing.

Which raises the question: How would Jesus judge?

Therefore all things whatsoever ye would that men should do to you, do ye even so to them: for this is the law and the prophets.

-Matthew 7:12

He shall have judgment without mercy, that hath shewed no mercy; and mercy rejoiceth against judgment.

-James 2:13

But thou, O Lord, art a God full of compassion, and gracious, longsuffering, and plenteous in mercy and truth.

-Psalm 86:15

14 Therefore, my son, see that you are merciful unto your brethren; deal justly, judge righteously, and do good continually; and if ye do all these things then shall ye receive your reward; yea, ye shall have mercy restored unto you again; ye shall have justice restored unto you again; ye shall have a righteous judgment restored unto you again; and ye shall have good rewarded unto you again.

-Alma 41:14

I think it’s a pretty good bet that Jesus would judge with empathy. What do you think?

**

President Obama said, in the statement that helped launch the discussion,

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.

Well, at least one politician is looking for someone who might judge like Jesus would.

Nevertheless, let us appoint judges, to judge this people according to our law; and we will newly arrange the affairs of this people, for we will appoint wise men [ed: or wise Latina women?] to be judges, that will judge this people according to the commandments of God.

-Mosiah 29:11

**

Now, I realize that judges have an important job, and that deciding who is best qualified for the job involves some balancing of values. A candidate may be very strong in one area but not strong in another; I don’t mean to suggest that empathy is a trump card. Obviously there are other important considerations.

But let’s not lose track of the basics. Empathy is a very good thing. Full stop.

Ceteris paribis, a judge with empathy is always better than one without. And a person with empathy is better than one without. Empathy is a great, wonderful, strongly positive, Christlike value, and we could all stand to have more of it. Even judges.

Let us speak up, loudly, against the profoundly unChristian idea that empathy is somehow a bad thing.

And shame on you, Orrin Hatch, for your own remarks disparaging the idea of empathy in a judge.

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134 Responses to Whenever did empathy become a bad thing?

  1. Frank McIntyre on June 3, 2009 at 5:31 pm

    Perhaps, Kaimi, the argument is that ceterus is not paribus. Rather, that a judge known to emphasize “empathy” is in fact doing so by downweighting other virtues. Similar to Oaks’ gospel hobby example about banging one key on the piano too much. For example, being empathetic may make it more difficult to justly apply the law, for you may “stumble because of [your] over anxiety” (quote from Jacob 4 — but I’m not claiming this is exactly what Jacob was talking about).

    That said, I have no particular dog in the empathy fight and haven’t bothered to follow the (likely inane) arguments made by the various political and politicized groups.

  2. Marc Bohn on June 3, 2009 at 5:47 pm

    Empathy is a good thing. The problem here is the sham that our judicial nomination process has become, where code words ARE used and we have judges tip-toe around issues in proceedings where they tell the politicians considering their nominations want to hear without really saying anything of substance at all. I don’t, however, think it ridiculous that people want to probe what exactly Obama means when he speaks of empathy, because terms like “empathy” and “respect for precedent” in judicial nomination proceedings are MEANT to shed light on how nominees would rule on the small percentage of cases that are truly controversial and which the Supreme Court zeroes in on… to give some indication when the system we’ve built explicitly prohibits a candid exchange of views.

    Ultimately, it seems pretty clear that Sotomayor should be confirmed. She’s got a solid judicial record and seems very intellectually capable. She may not be a conservative’s choice for the spot, but elections have consequences. My disappointment is that this whole process is so politicized that a majority of the GOP will probably vote against her confirmation. Obama can’t complain though. His politically calculated vote against Roberts just helped reinforce the whole backward approach here. Roberts was imminently qualified and a solid choice as well. Not a liberal’s choice for the spot, but, hey, elections have consequences. Instead of being about the nominee, much of these proceedings will inevitably end up being about the opposing party’s base, re-election and posturing. If you have aspirations, you’re likely going to put politics above a legitimate consideration of the nominee (like Obama did with Roberts).

  3. jimbob on June 3, 2009 at 5:47 pm

    Isn’t the real danger of empathy as a judge wrapped up in the old axiom that “hard facts make bad law?” I’m in a case right now where the judge is literally bending over backwards to find theories so that an opposing party can stay in the case, even though they don’t have a legal ground to stand on. Why? Because they arguably got screwed, and he doesn’t like them not having some sort of recourse, even though that’s exactly how the law reads.

    I guess that’s fine at the trial level, where the worst that can happen is one bad result, but if a member of SCOTUS does the same thing, it means a bad precedent that every court in the nation is bound to follow. That is, empathy (or at least too much of it) might be a bad idea at that level because you could do equity to one party while crafting a horrible precedent to everyone else.

    But maybe that’s not what you had in mind.

  4. Steve Evans on June 3, 2009 at 5:58 pm

    A fake scandal about nothing. Sotomayor’s going through.

  5. Mark on June 3, 2009 at 6:33 pm

    Uh, empathy is a good quality for a person. Not a good quality for a judge.

    A judge applies the law as it is written. Empathy has absolutely nothing to do with it. If we don’t know the rules, then the system breaks down.

    The 14th Amendment essentially disallows “empathy” as a judicial qualification. See Thomas Sowell’s excellent recent articles on the topic.

  6. Sonny on June 3, 2009 at 6:34 pm

    #4 Steve,

    I am sure that you were just as against petty politics played against the just-as-qualified Justice Roberts, correct?

  7. Thomas Parkin on June 3, 2009 at 6:38 pm

    I’m so sick of the left right divide in this country I just want to spit. Progressives would march us to a world that should never be, and conservatives would fix us in a world that should never have been. I want off the wheel. Is there anything more apt to blunt a body’s native intelligence than loyalty to a political party? ~

  8. Paul M on June 3, 2009 at 6:43 pm

    Kaimi:

    I must assume based on your argument that you think empathy is a necessary precondition for exercising mercy. That’s the only way the scriptures you cite relate at all to your stated topic. Frankly, I think you need to make a full argument because I’m not buying.

  9. Dave on June 3, 2009 at 6:45 pm

    It all seems pretty mild compared to what conservative nominees have to go through, doesn’t it? And Sotomayor did make the statements, so it is fair to bring them up. If a prospective juror were to make remarks playing up her empathy for a minority defendant and suggesting to the trial judge that, because of her own ethnic affiliation, she could arrive at a better result than some white male juror (who would presumably be limited to considering the facts), it would probably disqualify that prospective juror. At least unless she made it quite clear that, despite empathy or feelings, she would nevertheless act on the facts of the case rather than empathy for the defendant. I’m sure Sotomayor will make (or has made) similar clarifications.

    If it would disqualify a prospective juror, it at least is fair game to talk about for a prospective judge. But if this is the worst they can come up with, she will certainly be confirmed.

  10. Reeder on June 3, 2009 at 6:53 pm

    Of course empathy is a good thing. That’s why the word is being used. Using positive words that everyone agrees with makes it look like you’re on the side of the good guys.

    As it is being used here, “empathy,” as has been said, is a code word in the argument between judicial activism and judicial restraint. Does a judge look at the Constitution first, trying to understand the founders’ original intent, and then apply what is actually written to a particular case, or does a judge come to a conclusion on a case first, based on their own experience and their own ideas about right and wrong, and then turn to the law to find an acceptable justification for their decision? Conservatives tend toward the former, constructionist approach, and liberals lean to the latter, “empathetic” method.

    And underneath that argument lies the issue of how judges will decide cases regarding major social issues, particularly abortion. The Constitution, of course, says nothing explicitly about abortion, but there are strong feelings on both sides of the issue. No judge seeking confirmation is going to directly answer a question about how they would decide a case involving abortion, so the Senators charged with confirming or denying an appointment are going to look elsewhere for clues. A word like “empathy” means that a potential judge leans toward judicial activism and thus, would probably favor abortion rights (as well as liberal views on other social issues).

    Of course empathy is a good, Christlike quality, and we should all strive to possess it. But the word used in that sense is completely irrelevant to its context as used here for a potential judicial appointment.

  11. m&m on June 3, 2009 at 7:03 pm

    This calls to mind an experience I had. I went to view a court proceedings for a messy and difficult adoption case (both sides were in much pain and it was awful for all). The judge came right out and said that it all tore at his heart, that it was a nightmare kind of case.

    But in the end, he basically said that he was sworn to make decisions based on the law and precedent. In a sense, he had to put his feelings aside. I think he wanted people to understand that he didn’t do that w/o realizing that there was no good solution that would keep everyone happy, and that was hard. But judges have to do hard stuff.

    I tend to agree that in the end, we don’t appoint judges for their ability to empathize, but to fairly and justly interpret the law. (I’m speaking more generally here, though, not about Sotomayor in particular.)

    Any virtue to an extreme can be a vice, and I think empathy is no exception. Christ is a being of perfect balance of ALL good virtues.

  12. Julie M. Smith on June 3, 2009 at 7:13 pm

    “As it is being used here, “empathy,” as has been said, is a code word in the argument between judicial activism and judicial restraint.”

    ——————————-
    “I have followed this man’s career for some time,” said President George H.W. Bush of Clarence Thomas in July 1991 [in his speech selecting him for the high court]. “He is a delightful and warm, intelligent person who has great empathy and a wonderful sense of humor.”

  13. Kaimi Wenger on June 3, 2009 at 7:15 pm

    And watch out for John 8, which is a very clear instance of someone ignoring clear statements of the law in favor of an empathy approach. That darned judicial activist.

  14. Dan on June 3, 2009 at 8:08 pm

    Whenever did empathy become a bad thing?

    Answer: when it suits the Republican big wigs.

    Today’s simple answer to simple questions. :)

  15. Dan on June 3, 2009 at 8:15 pm

    Kaimi,

    Great work in bringing up John 8. The interesting thing about that whole incident is that a bunch of men bring a woman they claim was “caught in the act.” Those men fail to bring the “man caught in the same act” to Jesus for justice. How exactly did these men know the woman was “caught in the act?” Could one of them had been involved, if not more than one of them? Note how NONE of them could pick up a stone to cast it at the woman “caught in the act.”

    /sorry, slight threadjack there.

  16. Aluwid on June 3, 2009 at 8:31 pm

    Kaimi,

    As the Messiah, Jesus can render judgment in whatever way He views as best. Mortal judges on the other hand should follow the law, they are not God.

  17. Steve Evans on June 3, 2009 at 8:35 pm

    Well, Sonny, as a matter of fact if someone had made the outlandish remark that “empathy” was a bad thing in a judge, yes, I would have probably scoffed at it even as applied to Roberts. Thankfully, that adjective has never been used in the context of Justice Roberts.

    Shows what you know.

  18. Mark D. on June 3, 2009 at 8:39 pm

    More like a content free answer to a fatuous question…

    In a civil suit, the difference between what a judge does and what God does in comparable circumstances is that the judge doesn’t fund the judgment out of his own pocket, on condition of repentance. God does.

  19. Mark B. on June 3, 2009 at 8:48 pm

    Get rid of that excrescence Roe v. Wade, and nobody would care about appointments to the Supreme Court. And that’s the way it should be. I don’t want unelected people, no matter how empathetic or intelligent or even if their biases match mine exactly, making law. Let them decide cases, and leave to the legislative branch the business of making law.

    The NY Times published a letter today with the laughable line: “I would remind the president that this country already found common ground on abortion in 1973, when the Supreme Court decided Roe v. Wade.” And we found common ground in 1857 when the Court decided Dred Scott.

    Let Congress, with all its messiness, stumble its way with us, eventually, to common ground. A bevy of Platonic guardians in black robes cannot, whether they’re dripping with empathy or not.

  20. Dan on June 3, 2009 at 8:53 pm

    If we’re going to debate how God judges, then we need to account for the fact that the ONLY reason God can show any kind of “empathy” or “compassion” or “mercy” is solely because of the Atonement of Jesus Christ. On numerous occasions, God has stated that mercy cannot rob justice, and that justice is very uncaring, very uncompassionate, very unemphatic. Atonement aside, no human being could possibly convince God to let him into the Kingdom of Heaven while not paying for his sins. God would cease to be God if he did that. The only reason why God can show the empathy he really has toward us is because he sacrificed his Son. This allows him to show mercy, because Jesus paid Justice, so Justice is not robbed.

    This is not the standard that man’s laws require. As a morphing entity, man’s law is not anywhere as close to as exact as God’s law. There is constant push and pull on man’s law, ranging from legislative acts, to the impressions and opinions of legal minds, to “judicial activism” to popular uprisings. To demand a justice try to stick with established law on any topic without consideration of the possible changes at hand is just simply impossible. Particularly in how law is applied to minority groups in America by mostly white justices. Sotomayor will be America’s first Hispanic justice on the Supreme Court. The perspective she brings will enrich the court, just as does Scalia’s and Alito’s Italian heritage.

    And of course, as Julie noted, George H. W. Bush praised Clarance Thomas’s “empathy”… so the debate over “empathy” is really IOIYAR. And once again, Democrats allow Republicans to dominate the narrative. Since when should there even be a question about Sotomayor’s race? She’s a racist? Says a white male? Since when should we question how she would rule based on ONE measly quote that was taken out of context? If she had said other such things, sure, then you should doubt her qualifications. But one quote? Taken out of context? We’re not talking about a Pat Buchannan here, who is, based on plenty of evidence over the decades, a true racist. Com’on Democrats! Be more aggressive against this really weak attack on a fairly qualified candidate. It’s not that hard.

  21. Adem on June 3, 2009 at 9:16 pm

    If being empathetic qualifies one for the high court then Obama made a poor choice in Sotomayor. He should have put me at the top of the short list. My qualifications: Extremely empathetic; have experience in Legalzoom and Family Lawyer; am a Latino Republican with richness of experience that will more often than not reach better conclusions than white Democrats.

  22. Mark D. on June 3, 2009 at 9:17 pm

    If we’re going to debate how God judges, then we need to account for the fact that the ONLY reason God can show any kind of “empathy” or “compassion” or “mercy” is solely because of the Atonement of Jesus Christ.

    Absolutely right. No one is stopping the judge or anyone else from paying his neighbor’s electrical bill. The law does preclude the judge from determining of his own accord that the electrical bill does not need to be paid.

    The legislature could (and does) fund programs where the neighbor can apply for assistance with his or her electrical bill under certain circumstances. So do private organizations. Such programs are funded by the common consent and majority will of the people.

    A judge determining of his or her own accord that a bill does not need to be paid, because of his personal empathy for the situation of the debtor, would be equivalent to a bill of attainder and a judicial taking of property without just compensation.

    If we are going to make provisions to pay people’s electrical bills, the rules need to apply fairly to all possible applicants, and awarded on an impartial basis, not because a judge has empathy for some applicants and not for others.

    In other words, elected representatives decide who should deserve assistance at a general cost to the public at large, and a judge or other official applies those rules impartially. No arbitrary and capricious judicial deprivations of the property of some in the interests of others. Even the legislature is forbidden from doing that.

  23. Peter on June 3, 2009 at 10:14 pm

    Counterpoint: I notice there aren’t many quotes here from the Old Testament. Jehovah, the God of Israel, often didn’t come across so empathetic. And it’s arguable that Christ’s empathy stems primarily from his role as Advocate before the Father, rather than Judge. I’m not arguing against empathy — I just don’t think it should be used as a license to apply the law differently or use a different legal standard.

  24. Kaimi Wenger on June 3, 2009 at 10:43 pm

    Isn’t the real danger of empathy as a judge wrapped up in the old axiom that “hard facts make bad law?” I’m in a case right now where the judge is literally bending over backwards to find theories so that an opposing party can stay in the case, even though they don’t have a legal ground to stand on. Why? Because they arguably got screwed, and he doesn’t like them not having some sort of recourse, even though that’s exactly how the law reads.
    I guess that’s fine at the trial level, where the worst that can happen is one bad result, but if a member of SCOTUS does the same thing, it means a bad precedent that every court in the nation is bound to follow. That is, empathy (or at least too much of it) might be a bad idea at that level because you could do equity to one party while crafting a horrible precedent to everyone else.

    I’m familiar with the idea that hard cases make bad law, because judges are inclined to be empathetic.

    And my response is — if our legal system is such that it cannot take account of empathy, then the solution is not to get rid of empathy.

    Jesus didn’t tell the woman in John 8, your cause is just, but if I intervene it will set a bad precedent. He showed empathy.

    Uh, empathy is a good quality for a person. Not a good quality for a judge.

    And yet judges are people, aren’t they?

    The problem isn’t with empathy, which is clearly supported by tons and tons of scripture. The problem is with our idea of judges as automatons.

    It all seems pretty mild compared to what conservative nominees have to go through, doesn’t it? And Sotomayor did make the statements, so it is fair to bring them up. If a prospective juror were to make remarks playing up her empathy for a minority defendant and suggesting to the trial judge that, because of her own ethnic affiliation, she could arrive at a better result than some white male juror (who would presumably be limited to considering the facts), it would probably disqualify that prospective juror. At least unless she made it quite clear that, despite empathy or feelings, she would nevertheless act on the facts of the case rather than empathy for the defendant. I’m sure Sotomayor will make (or has made) similar clarifications.

    Sure, take a look at her comments. If there’s a problem in the substance of those comments, bring it up. Absolutely. That’s normal process.

    But the idea that Sotomayor might empathize with other people is *not* a negative. And statements from Hatch and others — Hatch actually said that he has no idea what empathy is! — are just silly.

    Empathy is not a bad thing.

    This calls to mind an experience I had. I went to view a court proceedings for a messy and difficult adoption case (both sides were in much pain and it was awful for all). The judge came right out and said that it all tore at his heart, that it was a nightmare kind of case.
    But in the end, he basically said that he was sworn to make decisions based on the law and precedent. In a sense, he had to put his feelings aside. I think he wanted people to understand that he didn’t do that w/o realizing that there was no good solution that would keep everyone happy, and that was hard. But judges have to do hard stuff.
    I tend to agree that in the end, we don’t appoint judges for their ability to empathize, but to fairly and justly interpret the law.

    Why is it that we idealize the judge as automaton?

    Isn’t empathy part of fair judging?

    Again, I ask, How Would Jesus Judge?

  25. Mike on June 3, 2009 at 10:44 pm

    Can mercy rob justice?

  26. Kaimi Wenger on June 3, 2009 at 10:45 pm

    As the Messiah, Jesus can render judgment in whatever way He views as best. Mortal judges on the other hand should follow the law, they are not God.

    So God is merciful, but we mortals are supposed to be unmerciful? What kind of upside down idea is that?

    Be like Jesus, people. That’s pretty straightforward belief.

  27. Aluwid on June 3, 2009 at 10:59 pm

    “I see you’ve been charged with drunken driving and vehicular manslaughter. Oh, and this is your fourth citation for drinking and driving as well!”

    “What is that you say? Oh, you are the sole provider for your young family? Why yes, they do look very cute in your latest Christmas card…”

    “Well that really changes everything! Normally we would impose punishment and seek justice for the victims, but in this case I’m going to dismiss all the charges. It’s certainly the empathetic thing to do, given your situation.”

    “And as for any complainers – let he who has never broken the law make the first complaint!”

  28. Dan on June 3, 2009 at 11:01 pm

    Mike,

    Can mercy rob justice?

    Not when you are dealing with eternal justice. But when you are dealing with man’s justice, you’re talking about a whole different set of rules. For example, abortion is legal in this country. Were a woman to abort her fetus, there is no legal question of the act. She is within the law. But just as instantly as Roe V Wade made that act legal, so can a similar judicial rendering can completely change that so that very same act is no longer legal. In terms of eternal justice, is a particular act legal one day and illegal the next?

    What I’m saying is that man’s justice is so inherently flawed, so ever changing, that it is impossible to be, as Kaimi says, an automaton. Because we keep coming across scenarios not previously covered by existing law, we have to make things up as we go along! Take pornography for instance. Is it really clear from existing practice before say the 1800s that there was any rule against it? Or take smoking cigarettes. Was there any established law against smoking before Western Europe happened upon “high” Native Americans? (listen to the old Bob Newhart piece on the discovery of cigarettes, freaking hilarious!). We had to make stuff up as we went along. For cigarettes, society allowed it. Then certain places said, you know what this stuff is bad for you. Nowadays cities like New York places bans on smoking in public places, something which has caught on in other areas. Is there any established rule that New York based that decision on? Nope. They made it up as they went along.

    Man’s law is flawed, changing and corrupted. To ask a judge to be an automaton is just simply ludicrous under the circumstances in which we live.

  29. Mark on June 3, 2009 at 11:04 pm

    Note that Jesus didn’t say to the woman that she was fine, no biggie. He shamed the hypocrites into not bringing charges.

    Civil law is not the same as God’s law. I can forgive a murderer while I pull the switch on the execution chamber. There’s no conflict because the civil law must have consistent rules applied equally. God’s law is different because he can judge our hearts.

    Unless you think it’s okay for me to come over to your house and take your stuff. Should you have empathy for me? Or should you report me to the police?

  30. zoroas on June 3, 2009 at 11:56 pm

    Agreed. Empathy is a good trait.

    But which is better: to be governed by a group of empathetic, life-tenured oligarchs or to be governed by ourselves–come what may?

    In the legislative sphere, factions empathize with their members. Conservatives see the hard working entrepreneur who deserves the fruit of his genius. Liberals see the struggling laborer who deserves more of the pie.

    More and more the judicial function has subverted the legislative function to the degree that judges are now actors in the legislative sphere.

    I believe that we should be allowed to govern ourselves and if we create stupid laws, so be it. If the majority sees a law as more empathetic because it creates more jobs in the developing world and the minority sees it as un-empathetic because of its impact on nature, so be it. And if the roles are reversed so the environmentalist or activist who empathizes with animals wins a majority, then again I say, so be it.

    Of courses judges make some policy. They have to. But there is a difference between applying statutory/constitutional policies to knew and difficult situations versus supplanting the legislative/ammendment making process entirely.

  31. Alison Moore Smith on June 4, 2009 at 12:03 am

    Since when should we question how she would rule based on ONE measly quote that was taken out of context?

    I’m generally impressed with Sotomayor’s experience. But I’m baffled when I read this. What is the “context” in which her comment that a Latina will “more often than not” make a better decision than a white man acceptable and reasonable–and not racist?

    I’m just not someone who thinks the white male bashing serves the cause of women and/or non-whites.

  32. Mark D. on June 4, 2009 at 12:12 am

    If Jesus Christ was appointed to be a federal judge, you can bet that he would follow the law and leave “empathy” out of any matter where he was not given express permission to exercise it (punitive damages and criminal sentencing perhaps). To do otherwise would be dishonest, immoral, and a violation of his oath of office.

  33. Paradox on June 4, 2009 at 12:40 am

    Jesus would judge according to the commandments of God. Empathy is a very good thing, but when that empathy leads to a mercy that robs justice, it’s a terrible mistake. Let’s look at that Mosiah verse again:

    “Nevertheless, let us appoint judges, to judge this people ACCORDING TO OUR LAW; and we will newly arrange the affairs of this people, for we will appoint wise men to be judges, THAT WILL JUDGE THIS PEOPLE ACCORDING TO THE COMMANDMENTS OF GOD.” -Mosiah 29:11

    She can know what it feels like to be Joe the Plumber, Liza Minnelli, and everyone in between. If she doesn’t judge in a way that will preserve righteousness in this country, her empathy will be useless.

  34. m&m on June 4, 2009 at 2:46 am

    Why is it that we idealize the judge as automaton?

    Interesting perspective, Kaimi. I don’t see this judge in my example as being an automaton at all. I felt his concern and empathy — his realization of the burden that weighed on his decision and of the impact it would have. His heart was big and that made me respect him all the more. The tenderness that came from him as he expressed how hard this situation was tore at all of us, because I think we all felt it. There was no solution that would avoid pain. It was awful, and I didn’t envy him for one second the position he was in.

    But in the end, I respect him most for taking a really emotional situation and separating himself from the emotion enough to comb carefully through the law and the relevant cases and fulfilling his sworn-in duty to do what was right with the law. Empathy would not have solved the situation, because it was a rock/hard place situation – as many court cases are.

    I guess I wonder if you don’t see any possible way that empathy/compassion/whatever you want to call it (a sense of emotion/concern for someone’s predicament) could cloud decision-making abilities. Have you not ever seen situations where “empathy” has possibly clouded judgment?

    I think sometimes we want to hold up love so high that we won’t see all the other characteristics that God has in perfect balance with His love. There is more to being Godlike than just being loving. In balance with other principles, of course empathy can be a powerfully good thing.

    (I should note that I’m speaking more generally, not to the Sotomayor situation.)

  35. Geoff B on June 4, 2009 at 4:26 am

    I agree empathy is extremely important, especially for the unborn spirits who would like to come to this world but are killed in the womb by the millions.

  36. Geoff B on June 4, 2009 at 5:37 am

    To follow up on the above, and since you are relying on religious arguments, Kaimi, you may want to consider that your standard of empathy is not always right. I know that you consider “having empathy” as, in the current environment, agreeing with you politically. But for many people, the 1930s Supreme Court justices who stopped the incredibly harmful New Deal measures for many years had a significant amount of empathy for the business owners and employees who would have been (and were) harmed by those measures. Those were the conservative judges who had empathy.

    By the same measure, perhaps true empathy in the Christ-like sense is to care more about an unborn fetus than to care about political expediency or the rights of a mother to be bothered to carry that fetus for nine months. Or perhaps true empathy in the Christ-like sense is to care more about God’s laws of sexual conduct than the “rights” of people to do whatever they want with their sexual desires. Or perhaps true empathy is to care more about the property rights of small owners than about the collective community’s rights to take property away from individual landowners.

    Do you see how empathy is a very subjective way of determining how good a judge can be?

  37. John on June 4, 2009 at 5:40 am

    Since GB senior selected Clarence Thomas in part for his “empathy,” as has been noted above, one has to wonder if the word has any meaning at all — other than a lame excuse for Republicans to oppose the nomination of someone not appointed by a Republican.

  38. Dan on June 4, 2009 at 6:18 am

    Alison,

    #31,

    If you wish context, please, here is the full text of her remarks that are so controversial. I suggest the whole thing, but here is where the relevant section is:

    In our private conversations, Judge Cedarbaum has pointed out to me that seminal decisions in race and sex discrimination cases have come from Supreme Courts composed exclusively of white males. I agree that this is significant but I also choose to emphasize that the people who argued those cases before the Supreme Court which changed the legal landscape ultimately were largely people of color and women. I recall that Justice Thurgood Marshall, Judge Connie Baker Motley, the first black woman appointed to the federal bench, and others of the NAACP argued Brown v. Board of Education. Similarly, Justice Ginsburg, with other women attorneys, was instrumental in advocating and convincing the Court that equality of work required equality in terms and conditions of employment.

    Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. 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.

    Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case. I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown.

    However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Other simply do not care. Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.

    I also hope that by raising the question today of what difference having more Latinos and Latinas on the bench will make will start your own evaluation. For people of color and women lawyers, what does and should being an ethnic minority mean in your lawyering? For men lawyers, what areas in your experiences and attitudes do you need to work on to make you capable of reaching those great moments of enlightenment which other men in different circumstances have been able to reach. For all of us, how do change the facts that in every task force study of gender and race bias in the courts, women and people of color, lawyers and judges alike, report in significantly higher percentages than white men that their gender and race has shaped their careers, from hiring, retention to promotion and that a statistically significant number of women and minority lawyers and judges, both alike, have experienced bias in the courtroom?

    Each day on the bench I learn something new about the judicial process and about being a professional Latina woman in a world that sometimes looks at me with suspicion. I am reminded each day that I render decisions that affect people concretely and that I owe them constant and complete vigilance in checking my assumptions, presumptions and perspectives and ensuring that to the extent that my limited abilities and capabilities permit me, that I reevaluate them and change as circumstances and cases before me requires. I can and do aspire to be greater than the sum total of my experiences but I accept my limitations. I willingly accept that we who judge must not deny the differences resulting from experience and heritage but attempt, as the Supreme Court suggests, continuously to judge when those opinions, sympathies and prejudices are appropriate.

    And just note what kind of person has gone ahead and taken her words out of context and bashed her with it: white conservative males. They don’t have much credibility on the subject frankly.

  39. Jettboy on June 4, 2009 at 7:42 am

    The problem isn’t that she has “empathy” as a judge. The problem is that she has stated or implied that she has “empathy” for a particular set of citizens at the exclusion of others. It is a statement of unequal empathy that goes against the very notion of blind justice that is the hallmark of United States law. Once again the liberal Democrats have twisted the argument to make it sound like the mean old Republicans rather than deal with the substance of the argument.

  40. Aluwid on June 4, 2009 at 7:48 am

    Dan,

    Is President Obama a white conservative male? He said that “I’m sure she would have restated it.” The White House spokesman (he has white skin so perhaps his opinion doesn’t matter) said her “word choice in 2001 was poor.” (Yet this is not the first time she said this, she made a very similar statement in a speech 7 years earlier…)

    The fact that you determine credibility based on skin color is unfortunate and unhelpful in getting our country away from racism.

  41. Marc Bohn on June 4, 2009 at 8:09 am

    #9 Dave – How is this more “mild” than what Justice Roberts went through? Roberts confirmation wasn’t that acrimonious and a majority of the Democratic caucus actually voted for Roberts. Alito had it rougher, but just you wait and see what storms brew on the right if/when Obama is tasked with replacing a conservative on the court.

    #29 Mark – Err… that’s a pretty curious reading of the passage Mark. “Neither do I condemn thee: go, and sin no more.”

    #36 Geoff B – I think you make a good point in #36. Some on the left can be rather selective when determining what issues deserve empathy.

  42. Dan on June 4, 2009 at 8:11 am

    Jettboy,

    The problem is that she has stated or implied that she has “empathy” for a particular set of citizens at the exclusion of others.

    Where did she say that?

    Aluwid,

    The fact that you determine credibility based on skin color is unfortunate and unhelpful in getting our country away from racism.

    Really? You’re telling me this instead of Newt Gingrich? Tell it to Gingrich dude. Tell it to Limbaugh. They are your party’s leaders. They have set the tone here, not Sotomayor and certainly not me.

  43. Mark D. on June 4, 2009 at 8:15 am

    #33: If we were a theocracy, or the constitution expressly allowed judges to judge according to their perception of “the commandments of God” then that would be legitimate.

    However, the Book of Mormon legal system was quite different than ours. In particular during the “reign of the judges” spoken of there was no separation of (civil) powers. The chief judge and the chief executive were one and the same, and there does not appear to be a legislative branch at all. Naturally, in such a system the scope of legitimate discretion for a “judge” is much higher than a system where a judge is duty bound to honor the laws established by a separate branch of government, a branch created for that very purpose.

    If we were to move in the direction suggested, the very first thing that would need to happen would be fixed length terms and popular elections for federal judges, making the Supreme Court into a super legislature. In the extreme, we could dispense with Congress completely. Isn’t that what Obama wants, for Supreme Court justices to be some sort of unelected super-Senate, one without the burden of multi-cameral consensus? Do this, do that – my feelings tell me so.

  44. Dan on June 4, 2009 at 8:20 am

    Mark D.,

    Isn’t that what Obama wants, for Supreme Court justices to be some sort of unelected super-Senate, one without the burden of multi-cameral consensus? Do this, do that – my feelings tell me so.

    Huh? Seriously where do you guys get all this from? Are there two Americas here and one of them is invisible to me? Obama wants a dictatorship?

  45. Jason J on June 4, 2009 at 8:22 am

    I think mechanically applying the scriptures to political labels and buzzwords is a great idea. Take “pro-choice,” for example. What’s all the fuss about on the Religious Right? Agency is a foundational principle of the gospel. See, e.g., 2 Nephi 2. It is the plan of Satan to take away our freedom to choose. Jesus was clearly on the side favoring choice. So why all the ire about favoring agency?

    Or, as a totally unrelated example, let’s look at “pro-life.” As the ultimate source of life, God is most certainly in favor of it. “For as the Father hath life in himself; so hath he given to the Son to have life in himself; . . . And ye will not come to me, that ye might have life.” John 5: 26, 40. “Bread of life,” “tree of life,” water of life,” “word of life,” etc. It couldn’t be clearer. The gospel teaches us that life is good, not bad.

  46. Jettboy on June 4, 2009 at 8:22 am

    Dan, I take it you don’t know what the word implied means do you?

  47. Dan on June 4, 2009 at 8:24 am

    Jettboy,

    Let me quote you again:

    The problem is that she has stated or implied that she has “empathy” for a particular set of citizens at the exclusion of others.

    Let me be clearer with my question. Where did she ‘state’ that?

  48. Jettboy on June 4, 2009 at 8:25 am

    “Huh? Seriously where do you guys get all this from? Are there two Americas here and one of them is invisible to me?”

    I would have to say absolutely and without question there are two Americas and the one of them is invisible to you. You just don’t like it when the other America pushes back.

  49. Mark D. on June 4, 2009 at 8:26 am

    44: That is exactly what judging according to empathy means in a system such as ours – an arrogation of executive, legislative, and judicial power into the hands of a small number of unelected officials.

    The difference between that and full on judicial despotism is a difference of degree, not of kind. In other words, we only act like a super legislature / executive at the margins or when we feel really strongly about it.

  50. Dan on June 4, 2009 at 8:27 am

    Jettboy,

    I would have to say absolutely and without question there are two Americas and the one of them is invisible to you. You just don’t like it when the other America pushes back.

    So you think like Mark that Obama wants to abolish Congress and set up a Supreme Court dictatorship? Where’s your evidence? Does it come from your invisible friend Bob?

  51. Dan on June 4, 2009 at 8:28 am

    Mark, #49,

    So then Clarance Thomas is a terror on the Supreme Court because the man who selected him selected him because of his “empathy?”

  52. Mark D. on June 4, 2009 at 8:31 am

    51: If Clarence Thomas actually judged that way, yes.

  53. Aluwid on June 4, 2009 at 8:32 am

    Dan,

    “Really? You’re telling me this instead of Newt Gingrich? Tell it to Gingrich dude. Tell it to Limbaugh. They are your party’s leaders. They have set the tone here, not Sotomayor and certainly not me.”

    Did you or did you not make this statement?:
    “And just note what kind of person has gone ahead and taken her words out of context and bashed her with it: white conservative males. They don’t have much credibility on the subject frankly.”

    It is you that considers skin color in determining the worth of viewpoints, not us. And it is Sotomayor who uses skin color in determining the worth of judges, not us.

  54. Dan on June 4, 2009 at 8:32 am

    Mark,

    what indication do you have that Sotomayor ‘judges’ differently than Thomas? Have you actually read any of her renders? Or are you going by what your invisible friend George tells you?

  55. Dan on June 4, 2009 at 8:34 am

    Sorry Aluwid, but that is incorrect. The issue of race would not be even in consideration if people like Newt and Rush did not open their vile mouths and call Sotomayor racist. There has been and will be pushback against such words. A white man calling a Latina a racist over a phrase taken out of context is a racist.

    I’m with you in hoping America gets past racism, but people like Newt and Rush make that very difficult. And they have to be called out on it. Why do you defend them?

  56. Dan on June 4, 2009 at 8:38 am

    Mark,

    I apologize, that last comment I got a little too snarky.

  57. Mark D. on June 4, 2009 at 8:43 am

    56: Primarily because she said so herself. You know it would be nice, Dan, if you would raise your debating technique above the junior high school level, and recognize that people have principled positions that aren’t out of the Democratic party handbook.

  58. Aluwid on June 4, 2009 at 8:43 am

    Dan,

    “A white man calling a Latina a racist over a phrase taken out of context is a racist.”

    No, if that case were true (which it isn’t, her words are not taken out of context – Obama’s defense of her reflects this fact) then whomever made the statement would be wrong, there is no logical reason to assume they are a racist.

    Once again you are letting the skin color of an individual determine how you judge them.

  59. Dan on June 4, 2009 at 8:46 am

    Mark,

    Where did she say so herself?

    As to the junior high school level, again, I ask you to raise that with your Republican leadership. Can I expect them to raise their level?

    And yes, Aluwid, her words were taken out of context. Read them yourself. Base your judgment on what she said, not what Rush tells you to think.

  60. Chris H. on June 4, 2009 at 8:50 am

    I will ignore the previous comments. However, as a political philosopher interested in the role empathy (and more specifically the idea of care) plays in the sense of social justice, I have found much of the reaction to Obama’s original comments interesting.

    It seems that many think that an empathetic judge will ignore the law out of sympathy. Yet, as an appellate judge, and particularly as a Supreme Court justice, the are not determining guilt, instead they are interpreting matters of Constitutional significance. This is where empathy comes in. Is the justice committed to abstract legal principles or are they concerned about human well-being. The justices of the liberty of contract era (including those at the start of the New Deal) ignored human well-being in favor of property rights. The Dred Scott case in many ways follow the same tragic logic.

    The Supreme Court is bound by the Constitution. But we should not forget that the Constitution is a contractual extenstion of the democratic consent of the people. The people are the law.

    Geoff B., SCOTUS since Roe (largely under the wise guidance of Justice O’Connor) has applied empathy for the situation of the woman (and women) in general. I recognize that many here would disagree. I find in compelling.

  61. Chris H. on June 4, 2009 at 8:52 am

    “it compelling.”

  62. Mark D. on June 4, 2009 at 8:55 am

    59: She has explicitly affirmed her view that a being a female minority allows her to make superior decisions than otherwise, and that “white men” are particularly handicapped in that regard.

    Justice Thomas explicitly disavows such conceits.

  63. Aluwid on June 4, 2009 at 8:56 am

    Dan,

    “And yes, Aluwid, her words were taken out of context.”

    The White House disagrees with you. Yes they initially used this defense but they abandoned it because it doesn’t work. The problem is that she said that one race/gender was *better* than another when it came to judging. It is the comparison of “better”, based on race/gender, that was inappropriate, President Obama’s spokesman reflected this when he said:

    “I think if she had the speech to do all over again, I think she’d change that word,” Gibbs said, adding as he walked away that Sotomayor has said that herself “in discussions with people”

    http://www.politico.com/politico44/perm/0509/sotomayor_4b19acd7-a6a7-47d1-81ac-86348c3421f0.html

  64. Rick M on June 4, 2009 at 9:02 am

    IMO, a supreme court justice is to rule on law and to use the Constitution and other relevant law to render a decision, not to add to that law via personal correspondence or to based on how they “feel”. To me, that is the difference between a judge and a justice. Yes, they are technically the same but in actuality they (justices) are ruling on someone else’s rulings and whether they are upheld by the Constitution.

    Should feelings and emotions trump law in a civil court of land? No.

  65. Mark D. on June 4, 2009 at 9:05 am

    60: These “abstract legal principles” were developed over thousands of years to ensure human well being, to protect against abuses of government power in particular. Long experience has demonstrated that the rule of law is superior to arbitrary executive and judicial caprice.

    There is nothing wrong with exercising empathy for the challenges of women as a legislator. As a judge, it is essentially a claim to enlightened despotism.

  66. Chris H. on June 4, 2009 at 9:07 am

    “they (justices) are ruling on someone else’s rulings and whether they are upheld by the Constitution.”

    True, but how does the Constitution get interpreted? It is not a simple matter. I would hope that those with this task have empathy. When it comes to feelings and emotions I am with Aristotle…they matter.

  67. Chris H. on June 4, 2009 at 9:11 am

    “These “abstract legal principles” were developed over thousands of years to ensure human well being, to protect against abuses of government power in particular.”

    They have failed to actually do so. They failed to protect human well being well into the 20th century. Nice track record. I am not opposed to the rule of law. I am opposed to your interpretation of law and the purpose of law.

  68. Rick M on June 4, 2009 at 9:15 am

    But Chris, if you rule or judge by emotion and feelings it is chaos. There must be law and it must be dealt evenly or there is no such thing as justice. It cannot always come down on the side of a more liberal aspect of “feel good justice”.

  69. Chris H. on June 4, 2009 at 9:20 am

    Ummm, I am not talking about “feel good justice.” It is our connection to other human beings that will lead us to deal with others evenly and justly. I am not saying that you only rule on emotion or feeling (I am too much of a Kantian for that) but that such emotions and feelings should play a role in those considerations.

  70. Mark D. on June 4, 2009 at 9:22 am

    67: Legal principles are not self-animating. Historical neglect of fundamental legal principles such as separation of powers or equality under the law neither impugns the superiority of those principles nor demonstrates that we would all be a lot better off if, say, the 14th amendment to the constitution had never been ratified.

  71. Chris H. on June 4, 2009 at 9:28 am

    The 14th Amendment could be viewed as a rejection of older (more tradition) principles that failed to recognize the full equality of human beings. Actually, could you clarify your comment on the 14th amendment. Curious as to what you are trying to say.

  72. Mathew on June 4, 2009 at 9:29 am

    This is only strange if one also finds it strange that Bush said he would not appoint anyone to the Supreme Court who condoned the Dred Scott decision. Dred Scott, of course, affirmed that slaves taken into free territories remained slaves–a decision exactly three people in the United States still think was a good one, none of whom are remotely in danger of being appointed to the Supreme Court. Kaimi, being a smart law professor, understands perfectly what Dred Scott and empathy have in common, but hides the ball. And I like Sotomayer for SCOTUS.

  73. Chris H. on June 4, 2009 at 9:37 am

    Huh?

  74. Dan on June 4, 2009 at 9:41 am

    Aluwid,

    The problem is that she said that one race/gender was *better* than another when it came to judging.

    But that’s not what she said. Her exact words are:

    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.

    Taken out of context, yes, you are quite correct. You get the impression she is saying that a Latina woman would “reach a better conclusion than a white male who hasn’t lived that life.” But that is taking her words out of context. Which is very very easy to do. What is the context?

    In our private conversations, Judge Cedarbaum has pointed out to me that seminal decisions in race and sex discrimination cases have come from Supreme Courts composed exclusively of white males. I agree that this is significant but I also choose to emphasize that the people who argued those cases before the Supreme Court which changed the legal landscape ultimately were largely people of color and women. I recall that Justice Thurgood Marshall, Judge Connie Baker Motley, the first black woman appointed to the federal bench, and others of the NAACP argued Brown v. Board of Education. Similarly, Justice Ginsburg, with other women attorneys, was instrumental in advocating and convincing the Court that equality of work required equality in terms and conditions of employment.

    Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. 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.

    Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case. I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown.

    She is discussing here a very, shall we say, racy topic. When it came to topics of race or gender discrimination the previously white Supreme Court *always* sided against the female or minority UNTIL minority and women lawyers argued at the Supreme Court for the minority and for women. What she is arguing is that a white man doesn’t have as much experience in understanding a minority woman for example, and that she would hope that a Latina woman with the richness of her life and experiences would come to better conclusions than a white man who has not lived that life. As a white man who has not lived the life Judge Sotomayor has lived, I will readily agree that my experiences are not good enough to judge a life born in those circumstances. This is not to argue that we should have separate justices for women, and separate ones for minorities and so on, but rather that the experiences of minorities and women added to the Supreme Court would enrich and enhance the decisions of that Supreme Court more than would an all white Supreme Court, which has historically not done well at ruling for minorities until minorities got to argue in front of them.

    She’s not a racist, Aluwid. Newt and Rush are wrong, and no one should be carrying their water for them. No one should even be listening to the likes of them, but yet here we are.

  75. Dan on June 4, 2009 at 9:43 am

    Chris,

    Ummm, I am not talking about “feel good justice.”

    Right. No one on the left is. That’s a straw man based on phrases taken out of context that fit perfectly with the boggeymen created by the likes of Rush and Newt to rally their base.

  76. Aluwid on June 4, 2009 at 9:58 am

    Dan,

    “What she is arguing is that a white man doesn’t have as much experience in understanding a minority woman for example, and that she would hope that a Latina woman with the richness of her life and experiences would come to better conclusions than a white man who has not lived that life.”

    Or shortened: Latina female judges make better decisions than white male judges.

    “She’s not a racist, Aluwid.”

    There is a lot of space between “correct” and “racist”. I doubt she is a racist, but her viewpoint on race/gender is wrong, is inappropriate for a Justice to hold, and should be repudiated.

  77. Chris H. on June 4, 2009 at 10:17 am

    Dan,

    I think that Mark D. and others are making legitimate points. I just disagree. I do not see why Rush Limbaugh and Newt Gingrich need to be part of every discussion. Take the arguments as they come.

  78. jimbob on June 4, 2009 at 10:22 am

    “And my response is — if our legal system is such that it cannot take account of empathy, then the solution is not to get rid of empathy.”

    But Kaimi, isn’t that why we have 500 years of “equity” built in to the system? I guess my point is that if the Court can’t find something there to satisfy its desires to be “empathetic,” maybe it’s just time to apply the law as written.

  79. Rick M on June 4, 2009 at 10:24 am

    Chris H #69,

    I agree in an idealistic way that law should be tempered with empathy but I think we agree that it should not rule with empathy so as to disregard the law.

    I don’t necessarily believe Judge Sotomayer was taken out of context. She may have spoken without due consideration of her comment and how it would be perceived but since these are spoken instead of written responses I can attribute, in part, that it may not have been her intention to appear racist or sexist.

    Dan #42, 55, 59, 74, 75,

    It appears that you have created your own bogeymen with Newt and Rush. Try thinking beyond the partisan politics here.

  80. KLC on June 4, 2009 at 10:29 am

    Kaimi, Dan, and others, you’ve convinced me that empathy in law and politics is good. So when can we expect an empathetic discussion of Jay Bybee from you all?

  81. Chris H. on June 4, 2009 at 10:30 am

    Rick,

    I think we are understanding each other. It is not about empathy trumping law, but an approach to the law which is guided by empathy. Something like that.

    I do not have much of a problem with what she said. I do think that it is funny that many are so focused on it when there is a large body of work to look at.

  82. Chris H. on June 4, 2009 at 10:31 am

    KLC,

    The rule of law is all that applies when discussing Bybee. Did you miss that memo.

  83. jimbob on June 4, 2009 at 10:32 am

    “A fake scandal about nothing. Sotomayor’s going through.”

    Somewhat off-topic, but I’d like to say this on Sotomayor:

    I am moderately right of center. I believe that textualism must be the primary construct–as much as it can be–for determining constitutional issues. I am a big believer in federalism. As such, Sotomayor probably wouldn’t be my first choice for the position she’s nominated for.

    But I also recognize that we have a democratic president and nearly 60/40 split in the Senate in favor of democrats. That being true, I think Obama could have easily gone much more radical than he did, had he wanted to, and probably could have forced it through. Instead, he chose someone who is moderately pro-business, has a record of generally upholding laws as written, and who saved baseball as we know it. Put simply, given the makeup of American politics today, I think that she is just about as good a candidate as any conservative could have hoped for.

  84. Chris H. on June 4, 2009 at 10:36 am

    jimbob,

    I think that is a fair evaluation. The landscape of American politics as it is, I do not see much reason to worry about attacks on the nomination. Though I do enough these conceptual conversations.

  85. Chris H. on June 4, 2009 at 10:37 am

    Not “enough” but “enjoy” in 84.

  86. Steve Evans on June 4, 2009 at 10:38 am

    Jimbob, we don’t always see eye to eye, but I think your analysis is pretty good here. Sotomayor did indeed save baseball.

  87. Nate Oman on June 4, 2009 at 11:02 am

    I am not going to even try to read all of these comments, but I would just make three points:

    1. Our myths of empathy are not entirely consistent with our myths of law. Empathy is all about regard the the particulars of every case. Law is always about insisting that some particulars cannot be considered. Jesus, of course, claimed to have bridged this gap, but it is notable that in order for him to do so he had to engage in a cosmic miracle we call the Atonement. The cosmic miracle only makes sense, however, if there is a real and legitimate tension that it is meant to miraculously bridge.

    2. The debates about Sotomayor and empathy have been couched in terms her biography. Journalists love this story because biography is easy to write about and law is hard to write about. However, I don’t see that there is much evidence that her biography actually matters all that much in her judging. She is a moderately left-of-center jurist. I don’t know of any evidence that her judging is in any real sense different than the judging of a moderately left-of-center jurist who is a white male son of privilege.

    3. Virtually all public debates about the judiciary are BS. This is especially true of virtually all public debates about Supreme Court nominees. One of the pernicious effects of democracy is that it empowers journalists to dominate public debates.

  88. Mark B. on June 4, 2009 at 11:10 am

    Isn’t “Latina female” redundant? Are there any Latina males out there?

    Isn’t the real concern not that a judge has empathy, but whether the judge’s empathy is distributed equally? Should the judge have more empathy for the homeowner whose property is taken for a public use or for the community which, through its elected representatives has decided that the public interest requires the taking? Should the judge have more empathy for the young woman with the unplanned pregnancy or for the fetus she is carrying? How does one decide which party to a contract deserves more empathy?

    Show me a neutral principle by which we can decide which party deserves greater empathy–I don’t think there is one.

    If mercy is to rob justice, let it be done by an elected official. If I don’t like his or her choice, then I (with a majority of my fellowcitizens) can “throw the bugger out.”

  89. Kaimi Wenger on June 4, 2009 at 11:29 am

    This is only strange if one also finds it strange that Bush said he would not appoint anyone to the Supreme Court who condoned the Dred Scott decision. Dred Scott, of course, affirmed that slaves taken into free territories remained slaves–a decision exactly three people in the United States still think was a good one, none of whom are remotely in danger of being appointed to the Supreme Court. Kaimi, being a smart law professor, understands perfectly what Dred Scott and empathy have in common, but hides the ball. And I like Sotomayer for SCOTUS.

    Err, huh? I’m just a law professor, Mat. You’re going to have to connect whatever dots you’re trying to suggest here, because I don’t see it.

    And lay off the drugs, dude. Your friends care about you. Help us help you, man.

    Nice work on your Rich Mom, Poor Mom series at fmh, by the way.

  90. gst on June 4, 2009 at 12:05 pm

    Speculating as to what kind of federal appellate judge Jesus would be is about as helpful as asking if he would buy a home in an HOA gated community, which we also examined on T&S recently. Let us recognize that in many contexts “What would Jesus do” is a deeply stupid question.

  91. Steve Evans on June 4, 2009 at 12:06 pm

    gst, that’s the sort of comment I would expect from Jesus.

  92. gst on June 4, 2009 at 12:12 pm

    That is true of all of my comments, I trust.

  93. Steve Evans on June 4, 2009 at 12:15 pm

    Real Jesus wouldn’t have to ask.

  94. Nate Oman on June 4, 2009 at 12:19 pm

    “Let us recognize that in many contexts “What would Jesus do” is a deeply stupid question.”

    I want this on a bumper sticker!

  95. Ian Cook on June 4, 2009 at 12:30 pm

    I couldn’t read through all the comments, and i’m sure that this point has been brought up already. It seems to me that conservatives are more focused on Justice, while Democrats are more focused on mercy.

    As I recall, the laws of mercy and justice are eternal. Both are good and essential. I believe there can be a middle ground.

    In other words, can’t we all just get along?

  96. Peter LLC on June 4, 2009 at 12:32 pm

    It seems to me that conservatives are more focused on Justice, while Democrats are more focused on mercy.

    That may be, but as for me and my house, we are focused on getting ours.

  97. Bull Moose on June 4, 2009 at 12:57 pm

    @ Marc Bohn, Judge Sotomayor’s judicial record is hardly solid. The Supreme Court has reviewed six cases decided by Sotomayor, five of which have been reversed. In the one case her decision was upheld, the Court unanimously rejected the legal reasoning of her panel, indicating it “flies in the face of the statutory language.” (Empathy over the statutory law?)

  98. Nate Oman on June 4, 2009 at 1:07 pm

    Thanks gst. This is why God created the internet.

  99. gst on June 4, 2009 at 1:11 pm

    Note the change. I had the quote wrong the first time, and I realized after I created the bumper sticker that I didn’t agree with the sentiment! A terrible feeling for a bumper stickerer.

  100. bbell on June 4, 2009 at 1:27 pm

    Empathy of course is not a bad concept in general. In the context here in which is being used its a code word for a liberal jurist. One who favors abortion rights, gay rights, affirmative action, criminals rights etc

    There is a similar code phrase for a conservative justice. “Follows the constitution” or “strict constructionist” Exact opposite of the jurst above on those issues.

    Sotomayor will be confirmed due to the overwhelming Dem majority.

  101. gst on June 4, 2009 at 1:33 pm

    Sorry if this is off-topic, but here’s another one I made for you.
    http://www.zazzle.com/sadly_war_is_sometimes_the_answer_i_authoriz_bumper_sticker-128007548668161893

  102. Walt Eddy on June 4, 2009 at 1:43 pm

    Sounds like code for the blues bell. Sounds as if you disfavor abortion rights, gay rights, affirmative action, and criminals rights. So in what context does empathy work for you? Can it ever be beneficial for a judge to have some in his/her work?

  103. rameumptom on June 4, 2009 at 1:48 pm

    Empathy is an okay passion. But it is not for the courts. The courts may use compassion, which is just fine. Mercy is good for the courts to consider. Empathy – to try and feel the individual’s pain, is not.
    The SCOTUS is to interpret the Constitution, not make new laws based upon emotional responses. History has shown that a nation that does not have a solid, in stone, written law, will write laws that will eventually trample everyone’s rights. And if we choose empathy over rule of law with some compassion involved, then we’re destroying the Constitution.
    Remember King Noah? His biggest crime was rejecting the teachings laid down by his father and the earlier Nephite kings. Rule of law meant nothing, and I’m sure he felt empathy towards many groups, in exchange for something of value to him, of course.

  104. bbell on June 4, 2009 at 1:54 pm

    Like I said above Empathy is a good quality to have. But in this context its removed from the traditional meaning of empathy and is a political code word for liberal leaning SC justice.

    For example the nominee did not have empathy for Ricci. She ruled against a man who has clearly been discriminated against. As is to be expected for a liberal jurist in a case like this. No real surprise. If Ricci had been a minority she would have found all the empathy in her heart for him and ruled in his favor.

  105. Walt Eddy on June 4, 2009 at 1:56 pm

    BM. Citations? Any links?

  106. Adam Greenwood on June 4, 2009 at 2:03 pm

    I feel, very deeply, the heartfelt passion with which you all have made your arguments here. I love you all.

    Which makes me the only one here who’s acting like Christ. Have fun in hell, chumps.

  107. Walt Eddy on June 4, 2009 at 2:14 pm

    As I understand it, Ricci required more empathy than that reserved for Ricci. It will be interesting to hear Sotomayor answer questions about it. Everybody seems to agree Ricci has bad facts and could damage Title VII. I agree the better place for empathy is in Congress in enacting the law. That might be sufficient if Congress never enacted ambigous statutes or the facts and circumstances never evolved beyon the Congress’s contemplation.

  108. Bull Moose on June 4, 2009 at 3:43 pm

    Walt Eddy, see CNN’s short bio “Sotomayor’s resume, record on notable cases” scroll down to “Cases Reviewed by the Supreme Court.”

    Let me also amend my previous comment to say that she’s had 7 decisions reviewed with one pending. Two were upheld, one upheld but her legal reasoning unanimously rejected.

    Everything I’ve read indicates that Ricci is likely to be reversed, which would make her record on Supreme Court review 1 for 7 (upheld, but her reasoning rejected in Knight vs. Commissioner not counted in her favor). This should be the focus of the inquiry into her qualifications.

    If she is 1 for 7 on cases granted cert., how many cases did she get wrong that haven’t been reviewed by the Supreme Court.

  109. Walt Eddy on June 4, 2009 at 4:20 pm

    Thanks, Bull Moose. Interesting. You don’t think, though, that because a panel votes against your judge that means he/she was wrong, do you? What if the SC and the CCAs were liberal-leaning and we were talking about a judge more in line with your politcal philosophy?

    Empathy on the SC court waxes and wanes. Personally, I’m ready for it to wax. Looking at the record, I’m not certain from the case summaries in the linked article Sotomayor will make it wax or wane that much more. The hearings, though, should be interesting. What worries me is she got the tax case so wrong. (I worked in taxes until I retired.)

  110. Struwelpeter on June 4, 2009 at 4:40 pm

    I think empathy as a judge has become more important in light of the Iqbal decision’s importation of “plausibility” into the Rule 12 dismissal analysis.

  111. Aaron on June 4, 2009 at 4:51 pm

    Reading through the above posts, I am once again thankful I didn’t become a lawyer.

  112. Bull Moose on June 4, 2009 at 4:59 pm

    Walt, I wondered the same thing when I heard about the reversals. But, look at the Justice splits in the decisions. Two cases were unanimously decided: one upheld, but unanimous rejection of the Appellate panel’s reasoning, and one reversed. Only two are 5-4 splits: one upheld (Dissenting: Breyer, Kennedy, Souter, Alito), and one reversed (Dissenting: Stevens, Souter, Ginsburg, Breyer), the latter probably the most ideologically split.

    The other two had stronger majorities, but probably only in the 6-3 case (Dissenting: Stevens, Souter, Ginsburg) was the split more ideologically based.

    I’ll admit that I’m guessing on the ideological reasons for the splits, because I have not read the cases. But I will say that if the Supreme Court reverses a lower court, then yes, the lower court’s judges were wrong. That’s the nature of appellate decisions: finding error.

    I think the unanimous reversal in Dabit v. Merrill Lynch is somewhat of a concern, and perhaps showed where her “empathy” for the plaintiff shareholders may have driven a bad decision.

  113. Rick M on June 4, 2009 at 5:27 pm

    Walt #104,

    “Sounds like code for the blues bell. Sounds as if you disfavor abortion rights, gay rights, affirmative action, and criminals rights. So in what context does empathy work for you? Can it ever be beneficial for a judge to have some in his/her work?”

    What right does someone have to end the life of another? No gay person has any fewer rights than I do. If an African-American can be elected to the highest office in the land and do so with the popular vote, affirmative action should be done away with, it’s equal. And lastly, criminals forfeit their rights until they are former-criminals or ex-convicts. Some sentences carry a life-long attachment but the convict (or ex) knew this going into it. If you think the law is too harsh, change it, don’t disregard or disrespect it.

  114. gst on June 4, 2009 at 5:36 pm

    My last threadjack and I’ll leave it alone–This thread inspired me to come up with a whole line of bumper stickers. Give them as gifts. http://www.zazzle.com/nuanced_stickers

  115. Bull Moose on June 4, 2009 at 5:46 pm

    gst, I hate, hate, hate bumper stickers.

    But, I love those!

  116. Nun on June 4, 2009 at 7:42 pm
  117. Mathew on June 5, 2009 at 2:23 am

    Kaimi,
    I will never get off the horse. Unlike my so-called friends, the horse loves me.

    OK, the dots. Objections in certain conservative circles to Obama’s pledge to appoint someone with “empathy” to the court stem from the idea, correct or not, that “empathy” is code for “judicial activism”. As you allude to, the senior senator from Utah apparently believes empathy is “a code word for an activist judge.” Hatch’s take is main stream enough to be repeated loudly and often in reputable publications:

    http://online.wsj.com/article/SB124347199490860831.html

    The google can provide numerous other examples.

    On the other side of the aisle, liberals claimed Bush II’s reference to Dred Scott was code for Roe v. Wade. According to liberal Kremlinologists, Bush’s pledge to not appoint anyone to SCOTUS who condoned Dred Scott was really a pledge to find appointees ideologically opposed to Roe.

    http://www.nytimes.com/2004/10/18/opinion/18mon3.html
    http://www.slate.com/id/2108083/

    You, being a law professor, political junkie and all-around smart guy, know that conservative objections are not to empathy per se, but to a perceived judicial philosophy, but you send them up with a straight face worthy of Stephen Colbert for their strange, supposedly unchristian views. I suppose your post is no worse than the majority of what has been written regarding Sotomayor and empathy—but I have such a high regard for your legal acumen (seriously) that I am disappointed to see you producing little more than liberal talking points.

  118. Walt Eddy on June 5, 2009 at 11:35 am

    Rick M.

    I subscribe to charity and pacifism. Both, I believe require empathy. I want my temporal judges, wherever they are on the left-right continuum, to exemplify the characteristics of the eternal judge I believe in. The same is true of those I vote for. I want my laws to reflect charity and pacifism.

    Relative to the rights for ending the life of another, as in abortion, I don’t believe there are any. Surely, though, one must admit that even the LDS church subscribes to abortion in limited circumstances. Furthermore, the onset of mortal life is a murky proposition; and no one can deny that various rational arguments exist concerning its demarcation. Free agency is the higher law in my view.

    I am not gay, but my empathetic sense is that gays do have fewer rights than non-gay people. For example, where I live they do not have the right to marry someone of the same sex that they love amorously, whereas I do have the right to marry someone I love amourously, albeit my wife is the opposite sex. On the other hand, I don’t know for certain what rights limit you over against a gay person where you are. Perhaps it’s true where you live. I hope so.

    Your statement on affirmative action suggests to me that you believe affirmative action was okay at one time but now evidence (the election of President Obama) suggests it’s not. As long as you or my SCJ judges the specific case based upon all the relevant facts and circumstances and application of applicable law empathetically, I agree.

    While it is true that convicts forfeit some rights, it is erroneous to conclude that they forfeit all rights. For example, most convicts still retain the right to life and happiness, if not liberty, even if they are incarcerated. The high rate of recidivism in most situations attests to the fact that the laws and policies of our governments and correctional institutions could do much better.

    I do not lightly advocate disregarding or disrespecting law—temporal or ecclesiastical. Sometimes, though rarely, it is necessary to sacrifice obedience when the lower law violates a higher one.

  119. Rick M on June 5, 2009 at 11:46 am

    Interesting thoughts, though I can’t say I agree with all of them. For instance, a “right” should not require a license, fundemental or not. Some states forbid certain adult heterosexual unions as well, such as first cousins marrying, even if they have declared an amorous love for one another.

  120. Rick M on June 5, 2009 at 11:50 am

    Would you consider polygamous celestial marriages “higher law”? Many would call that sacrifice if civil laws forbid it and higher law calls for it (just an example for the sake of debate).

  121. Rick M on June 5, 2009 at 11:57 am

    When we enter a civil court, we enter a court of law. We all know the law is not perfect and each case is not from the same cookie-cutter mold. Laws are written for our protection (supposedly). It is not meant to have an emotional bias. If it does, can it truly be justice for one man that commits the same crime as another to receive a far lesser punishment? I don’t believe so.

  122. Mark D. on June 5, 2009 at 12:18 pm

    A criminal case is one of those areas where it makes perfect sense for a judge to have a balanced sense of empathy. Judges in criminal cases have sentencing flexibility for a reason – as long as they don’t abuse it that is a great thing.

    It is civil cases where injecting empathy into the process is a license to rob Peter to pay Paul, to practice undue favoritism, to destroy the confidence of citizens that if they obey the law their rights will be protected and so on. It is corrosive to the very idea of equality under the law.

    From the Code of Conduct for United States Judges:

    Canon 1 commentary: “Deference to the judgments and rulings of courts depends upon public confidence in the integrity and independence of judges. The integrity and independence of judges depend in turn upon their acting without fear or favor.”

    Canon 2A: “A judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”

  123. annegb on June 5, 2009 at 12:37 pm

    great thread….gst, will you marry me and bear my children?

  124. Walt Eddy on June 5, 2009 at 12:56 pm

    Rick M

    While I advocate for judges with empathy, having empathy alone isn’t enough, as others have articulated above and elsewhere. For me, other qualifications are also a must: experience, intelligence, ability to communicate, integrity, etc.

    Empathy and experience surely played a role in formulating the law that forecloses marriage between cousins. It also seems to have borne sway in the case of King Solomon in handling the case of the two women before him with a single surviving infant.

    Relative to your question (regarding polygamous celestial marriages and higher law), I am not certain I can answer without noting the following. The premise in the question suggests that there are celestial polygamous marriages. My limited experience and empathy for women in polygamous marriages as I understand and perceive them, and I admit my experience is limited although I have written a novel on the subject, makes me circumspect as to whether there are such things as polygamous celestial marriages. It reminds me of President Obama’s speech yesterday when he talked about women in Muslim countries having the agency to choose whether or not they will wear, for example, the hijab. It also reminds me of an article I once read by Eugene England on fidelity relative to polygamous marriages. It is obvious that an entire culture exists in the Western United States with Mormon roots that considers polygamy a higher law, thereby sacrificing their obedience to the civil law to marry. The facts and circumstances as I understand them coupled with all the empathy I can muster for their situation make me believe the civil law is higher than their “polygamous celestial marriages.”

    Bottom line though is I agree with the post’s premise that empathy is a positive and admirable quality for a SCJ to have.

  125. Kaimi Wenger on June 5, 2009 at 2:28 pm

    Here’s a question. Which Supreme Court nominee said the following statement in confirmation hearings?

    Senator, I tried to in my opening statement, I tried to provide a little picture of who I am as a human being and how my background and my experiences have shaped me and brought me to this point.
    I don’t come from an affluent background or a privileged background. My parents were both quite poor when they were growing up.
    And I know about their experiences and I didn’t experience those things. I don’t take credit for anything that they did or anything that they overcame.
    But I think that children learn a lot from their parents and they learn from what the parents say. But I think they learn a lot more from what the parents do and from what they take from the stories of their parents lives.
    And that’s why I went into that in my opening statement. 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.
    So those are some of the experiences that have shaped me as a person.

    Answer here.

    UPDATE: Fixed the link now.

  126. jimbob on June 5, 2009 at 4:47 pm

    “Which Supreme Court nominee said the following statement in confirmation hearings?”

    I have no idea, because the link isn’t working from my computer, but I’ll bet the identity of whoever it was is surprising and ironic.

    Oh, please, let it be ironic!

  127. Kaimi Wenger on June 5, 2009 at 5:02 pm

    (Fixed the broken link.)

  128. Raymond Takashi Swenson on June 5, 2009 at 5:52 pm

    It is NOT true that there were no Supreme Court rulings in favor of women until a woman was on the court. The first female justice was selected by Reagan, who was elected in 1980. In 1976, a member of my constitutional law class recounted for us how she had been the successful plaintiff in a Supreme Court decision we were studying, holding that her employer school district was wrong to suspend her from teaching because she was pregnant.

    If I can only hope for empathy from someone who has ethnic characteristics that match my own, then I am going to have a long wait to find someone who is a Japanese-Swedish-Italian Mormon military veteran.

    No person has a right or entitlement to be appointed to a court on grounds of being of one race, gender, or religion. It is a matter of discretion with the authorities who appoint judges or the people who elect them. A president has the right to decide it would be a good idea to have a woman, a Hispanic, a black, a Jew, a Catholic or even a Mormon on a court, on the theory that adding diversity to the cultural mix of a collegial appellate court can improve the sum total of that court’s understanding of the way laws affect real people. It may be a questionable theory, but he (or she) has the discretion to follow his or her own best judgment on that issue, even if I think he (or she) is misguided and irrational in doing so. So President Obama is within his rights to nominate Sotomayor to the Supreme Court, and the fact that the people elected a majority of Senators from his party ensures she will be confirmed.

    On the other hand, I think it is self-serving and ego-centric for a person to say “I have a better understanding of the circumstances of a class of disadvantaged people, so I should be given priority appointment to the courts over any white male, no matter what his actual life experience in living with women and minority people or people of minority religious beliefs.”

    The Church invests a substantial amount of its resources, both financial and personal, in training white males to be empathetic toward people of various ethnic groups. We plunk boys from Provo down in Peru, from Boston in Bolivia, from Salt Lake in Sierra Leone, from Jersey City in Japan, from Tremonton in Tonga. They live in the same kinds of homes, and eat the same food, as people from all walks of life.

    The Church tries to teach its young men and adult priesthood holders to honor and respect their mothers, daughters, sisters and wives, to exercise leadership with love, to serve unselfishly.

    To claim that “white males” “just don’t get it”, that they can never be trusted to have empathy for the plight of the poor, the marginalized, the powerless, is to say that Christ’s call to us to love our neighbors as ourselves, to have charity for the least among us, is a hopeless enterprise, and that the only hope for the powerless is to seize power through people of their own particular ethnicity and gender, and then negotiate with other segments of society to get their particular share of the pie.

    To say that white males can never have empathy for black men and women and children is to deny the sacrifice that was voluntarily made by hundreds of thousands of Union soldiers, who understood that, whatever the rhetoric of the Civil War, the fundamental issue was whether America would have “a new birth of freedom” as a nation where “all men are created equal” was a reality. To say that white Christian Americans can have no empathy for Arab Muslims is to deny the sacrifice voluntarily made by soldiers who believed they were protecting good Muslim people from the ravages of tyrants and totalitarians in Iraq and Afghanistan. To say that the white majority can never accept blacks or Japanese as equals is to say that the sacrifices of a hundred thousand former slaves as soldiers in the Union Army, and of the 442nd Regimental Combat Team of Japanese Americans who volunteered for service out of concentration camps, counts for nothing in demonstrating that those despised minorities deserved recognition as full citizens.

    So I personally think that Judge Sotomayor has a constricted vision of what human beings can accomplish in reaching out beyond those who look and speak like themselves and having true empathy and understanding of the many diverse Americans who are not like them in some way, but like them in having full human dignity and a right to equal justice under the law.

  129. Dan on June 5, 2009 at 5:54 pm

    Raymond,

    It is NOT true that there were no Supreme Court rulings in favor of women until a woman was on the court.

    That’s not what Sotomayor or I said. She said that until women were able to actually argue in front of the Supreme Court, the Supreme Court always ruled against women in discrimination cases.

  130. Alison Moore Smith on June 8, 2009 at 5:34 pm

    Dan #38:

    Whether born from experience or inherent physiological or cultural differences…

    Dan, again, how is that NOT racist? The context you present seems to reinforce the idea that it is, rather than refute it.

    Maybe you think I’m arguing that because it’s racist, she must be WRONG. But I’m simply arguing that her statement–even in context–simply does place her as being superior in some areas BECAUSE of her race.

    Let me give you an example: I think the church would BENEFIT from having women in some of the highest decision-making positions in the church. BECAUSE I think woman ARE better at some things, in general, and because I think their particular experiences (which are definitely different–particularly in the church) help them understand some things in a way few men will. That IS a sexist position.

    I just don’t think all discrimination is wrong. I think some of it is just common sense. Like keeping pedophiles away from my kids.

    So, yes, I think her comment is racist. In context. But that doesn’t mean I think she’s wrong. Race often does make a difference in what we know–not just what we feel–as does gender.

  131. Dan on June 8, 2009 at 6:13 pm

    Alison,

    What she was saying is that a Latina has more intimate and complex understanding of the life of a Latina than a white male does of a Latina’s life. She notes that the Supreme Court had never ruled in favor of a woman’s discrimination suit until a woman herself argued in front of the court. Previous to that, only men had argued for a woman, and apparently every single time the woman’s complaint was dismissed by the all white, all male Supreme Court. She’s not saying that a white man is incapable of understanding the life of a Latina, as plenty do. She’s simply stating that she would hope a wise Latina would reach a better conclusion regarding the life of a Latina than a white man could.

    Personally, I don’t see her comment as racist. The context shows that she’s not showing any disparaging thoughts toward white Supreme Court justices, or lawyers arguing at the Supreme Court.

  132. Mike H. on June 10, 2009 at 8:41 pm

    Ah, the follies of Supreme Court Nomination. Clarence Thomas gets in, but it took a LOT of glossing over his love of the pornographic, and what could have been construed as sexual harassment. Robert Bork was voted down at the end after a lot of argument. A few other Nominees had to withdraw early on.

    As far as empathy goes, the Legal system isn’t about fairness. Yes, equal rights under the Law, but nothing about being fair.

    The Hearings are mostly about Roe vs. Wade anymore.