The MSM and liberal blog sites are attempting to conflate comments SCOTUS nominee Judge Sonia Sotomayor with “similar” comments made by current Justice Sam Alito during his nomination process. Cacophonous cries of GOP hypocrisy can be heard throughout as a major component of the liberal talking points. Don’t believe it.
It is true that during his confirmation hearings, Alito said, “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.” Does this statement suggest Alito has empathy? Sure, and there’s nothing to apologize for. As I’ve said in previous posts, judges are not automatons and the act of judging is not a series of precise, mechanical calculations.
Moreover, context, as always, is key. Alito’s statement was part of a longer response to a specific question from Sen. Tom Coburn, R-OK about “Sam Alito, and what he cares about, and let us see a little bit of your heart and what’s important to you in life”. Neither the question nor the answer was designed to seek information about Alito’s judicial philosophy. Alito also responded that he thinks of his own children when he is presented with a case involving children, his immigrant ancestors when deciding a case involving immigration, and disabled friends when a disability discrimination case comes his way. So, he’s human. Duh.
Note, however, the middle part of Alito’s answer most libs leave out: “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.” In other words, Alito is not saying that his feelings, heritage and upbringing are insignificant or the guiding forces in his decision making. They are merely a factor as he applies the law and are not a basis for bending the law to fit his feelings.
Compare Alito’s comments and their context with those by Judge Sotomayor. She delivered her quip that she, as a “wise Latina woman” would make better decisions than a white man, during a speech the UC Berkeley law school in 2001. Throughout the speech, Sotomayor stressed the significance of her past, upbringing, sex and ethnic heritage—sounds a bit Alito-esque, right?
Not really. She gave the address at symposium called "Raising the Bar: Latino and Latina Presence in the Judiciary and the Struggle for Representation" and sponsored by La Raza—yes, the same La Raza that, for example, opposes a border fence and other security and illegal immigration measures, and supports driver licenses and in-state tuition breaks for illegals. Certainly a friendly audience for Judge Sotomayor to share her true feelings on race and gender. The entire tenor of her speech was a reflection on the revolutionary impact women and minority judges are having and will have in changing how cases are decided if we can just get more of them on the bench. Don’t believe me? Read the speech and see for yourself.
Her words speak for themselves. For example, in a challenge to another judge’s earlier remarks, Judge Sotomayor wonders whether the goal that “judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law…is possible in all or even in most cases.”
In other words, Judge Sotomayor questions whether judges can ever use the law with fairness and integrity. Nothing remotely this radical can be read into Alito’s comments.
Given Judge Sotomayor’s membership in La Raza, her articulated views, her obvious bias now is being dismissed as poorly chosen words—though completely scripted for that specific occasion—and her documented problems with judicial temperament, it isn’t a stretch to think that Justice Sotomayor would use her racial identity and empathy to reach conclusions driven by those qualities instead of the rule of law.
The comments of Alito and Sotomayor are not the same. And when you see the difference, who would you rather be your judge? If you are anything but a liberal minority, does Sotomayor sound like someone you want judging your case?
Showing posts with label judge sotomayor. Show all posts
Showing posts with label judge sotomayor. Show all posts
Sunday, May 31, 2009
Thursday, May 28, 2009
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.
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.
Subscribe to:
Posts (Atom)
