The nominee and the empathy continuum

“Empathy” seems to be the judicial buzz word of the day. We are told that Judge Sonia Sotomayor, President Obama’s pick to replace retiring Supreme Court Justice David Souter, has it in abundance. This, plus her “personal story” appear to be Judge Sotomayor’s most important qualifications, at least as far as the MSM is concerned.

Admirable qualities, to be sure, but they are not the weightiest qualifications for the highest court, nor should they be. Lots of people, including many lawyers and judges, have compelling personal stories. No doubt their stories provide broad perspective and inform their decision making. As for judges, while empathy might cause a judge to rule with more deliberation, it is not a substitute for sound legal reasoning.

Judge Sotomayor’s legal reasoning has come under fire with her nomination. Most political junkies now know about fellow Circuit Judge and Clinton appointee Jose Cabranes’ dissent to Sotomayor’s opinion in Ricci v. DiStefano. Cabranes took the rare step of directly criticizing Sotomayor’s reasoning asserting it lacked a clear statement of the claims and provided a “perfunctory disposition.” You’ll soon hear about the Supreme Court unanimously (8-0) overturning her decision in the 2006 class action case Merrill Lynch v. Dabit and the high court’s 6-3 decision reversing her decision in the 2007 environmental regulation case Riverkeeper v. EPA, among other decisions.

My primary focus at this point, however, is on the fallacy that empathy should be atop the list of qualifications. It is important to understand that the Supreme Court is exclusively an appellate court, meaning you can’t just file your lawsuit there. Rather, every year the high court reviews the decisions the justices choose to review—a handful of decisions at that—based on petitions filed with the court. And those decisions were authored by judges who have already reviewed the record and one or more lower court decisions at the local level.

It is at the local level, where judges preside over hearings, jury and bench trials, take testimony, review evidence and make rulings, evaluate the credibility of witnesses, and reach decisions based on the merits, that empathy is critical. Real world experience can assist a trial judge in making sound decisions in cases every day because the judge is on the front lines, in the best position to evaluate and know when and to what extent empathy should play a role.

Frankly, by the time a case reaches the Supreme Court, it has been briefed, argued, reviewed and evaluated by numerous lawyers, law clerks and judges. The emotion and basis for empathy have been almost entirely excised. What is left is the smallest number of facts necessary to permit the Supreme Court to evaluate and rule on the decision they are reviewing, and the legal analysis used to accomplish this review. Empathy, while playing a role, is relegated to a minor consideration at this level.

Unfortunately, President Obama has it backwards. Empathy seems to be of paramount importance for his selection of a nominee. This is consistent with his stance during the campaign where he said:

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

He’s right in one sense. Judges should not be automatons that parrot back abstract legal theory in a vacuum without regard for the realities of claims and defenses. However, there is no justification for a Supreme Court justice to author an opinion based on whether people feel, for example, “welcome in their own nation.”

Put simply, the level of empathy that is relevant to a judge’s job decreases the further away from the trial court a case gets. The foot soldier who is on the ground is in a much better position than the general at the Pentagon to assess the immediate situation, evaluate the options and choose the best one based on the rules of engagement. If the justice system is a continuum, then empathy should be greatest in the local court and the least at the Supreme Court. And, of course, a judge should have empathy to all sides in litigation since neutrality is vital.

During a 2002 speech when she recounted a quote from Justice Sandra Day O’Conner that “a wise old man and a wise old woman will reach the same conclusion in deciding case”, Judge Sotomayor commented, “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.”

Strangely, even if President Obama is correct and empathy should be a critical element, he has chosen a nominee who by her own words doesn’t show it. At least not toward white men. Maybe that’s the whole point.