Empathy and the Law: Why Sotomayor is Not the Whole Problem

In the interest of full disclosure: my degree is in politics, and my senior thesis focused on problems of constitutional interpretation as they relate to fundamental rights. Constitutional law was my favorite class in college. I read Scalia and John Hart Ely for fun. I’m a nerd.

That being the case, it should be unsurprising that I’ve followed the saga of President Obama’s nomination of Judge Sonia Sotomayor for the Supreme Court of the United States with a great deal of interest. Sotomayor, a Hispanic woman, is a federal appellate judge of no particular brilliance, whose decisions have been overturned on the basis of statutory misinterpretation about 60% of the time that they’ve been appealed to the Supreme Court. The right has excoriated her nomination as a case of “identity politics,” the obvious implication being that Obama would not have nominated a judge with the same professional background as Sotomayor, had the judge happened to be a white male. This assessment may be a fair one—our diversity-loving president would’ve been unlikely to pass up the opportunity to make a historic Supreme Court nomination such as Sotomayor’s in favor of adding another man to the Court—but it is insufficient.

The real problem with Obama’s nomination of Sonia Sotomayor is not that he may have chosen her primarily because of her second X chromosome and the color of her skin. The real problem is that the President considers Sotomayor’s Latina identity to be an asset for a Supreme Court Justice because it is more likely to make her an “empathetic” judge. President Obama has stated outright that “information about the struggles and hardships that people are going through,” rather than, for example, integrity, a brilliant mind, or a broad and deep knowledge of the law, “will make her a good judge.”* Sotomayor herself has not just admitted, but seems to celebrate, the idea that “our gender and national origins may and will make a difference in our judging,” and that “personal experiences affect the facts that judges choose to see.”*

Anyone who has read Aristotle’s Politics (or seen Legally Blonde) will be familiar with the Greek philosopher’s famous line: “The law, therefore, is reason without passion.” Reason, free from passion: the ability to assess the applicability of written guidelines for political life to a particular situation without prejudice, treating like cases alike and unlike cases differently. This fundamental principle of good government is echoed in countless places in the founding documents of the American republic: the idea that liberty can only be protected when the government is one “of laws, and not of men.” For this reason, images and sculptures of Lady Justice show her blindfolded, with a balance in her hand: because the purpose of the law is to provide an impartial judge between two naturally partial parties.

Here, then, is the fundamental problem with Sotomayor’s outlook, and also with the President’s approach to nominating federal judges: both seek to advance a judicial philosophy that entrusts judges not with the scales of justice, to determine what the law decrees the outcome must be, but rather with a much broader authority, to decide from the “richness” of their “personal experiences” what the outcome of the case ought to be. The tragedy of this approach is that, in so doing, Obama and the judges he appoints will speed the gradual decay of the American court system. From the institution of impartial justice that the Constitution decrees it ought to be, an empathy-based judicial philosophy will transform the Supreme Court into a bevy of unelected tyrants, nine multicolored men and women whose “opinions, sympathies and prejudices”* are the only law that binds their decisions. True freedom, I fear, can have none but a very small place under such a system.

* Quotes taken from AP article on Sotomayor located here: http://news.yahoo.com/s/ap/us_obama_sotomayor Accessed May 31^st, 2009.