Tuesday, May 26, 2009

Doubling Down on Empathy

This strikes me as a good description of President Obama's nomination of Judge Sonia Sotomayor to the United States Supreme Court. Like all of us, I am still learning about Judge Sotomayor and have probably revised even those thoughts I expressed this morning on Charlie Sykes show or those that you can see this evening on the six o'clock news on Channel 12 (in a "dueling" segment with Ed Fallone in which the "duel", if there was one, mostly found the cutting room floor.)

But I do believe that Obama's selection contrasts sharply with those of President Bush and the differences are instructive and fodder for debate about the role of the judiciary. It isn't that I am prepared to say that Judge Sotomayor is an extraordinarily liberal nominee (although she may be), but we can say that she has made at least one extraordinary statement. Although one should only let a single statement bear so much weight, we are, after all, blogging here and relative immediacy has its virtues.

In a lecture at Berkeley, she said the following:

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.

There is, of course, both pedestrian and a controversial aspects to this statement. It can be read to say a little or to say quite a bit. The pedestrian element is that we are all a product of our pasts and being a latina (e.g., Judge Sotomayor) or growing up in a blue collar household in Milwaukee (e.g., me) is part of that. There are times when this experience (or empathy for those similarly situated) can help us see, as I have blogged before, the true nature of the circumstances before us. If that was all she had to say, it'd be unexceptional.

But I don't read her remarks to stop there. To the contrary, she seems to say that the fact that the life experiences of judges will affect their presuppositions and that that those presuppositions will affect judging is not just inevitable, but, at least in certain ways, normative.

To be fair, in the same speech, she mentions the need to check her assumptions. But, in expressing her belief that there is no neutral stance from which to judge (but, rather, a series of perspectives), she is not saying that neutrality or dispassion is difficult. She is saying that it is nearly impossible or at least very unlikely. While she acknowledges that not all Latinas (or African Americans or children from blue collar households) will process their experiences in the same way, she seems comfortable with the idea that there is (perhaps even due to what she calls "inherent psychological or cultural differences")a perspective associated with - if not compelled by - one's background. This ought, she seems to say, to be relevant in the selection of judges and in the process of judging.

The difficulty, of course, is that there is a world of difference between acknowledging that who you are is a product of where you have been and believing that where you have been and what you think it tells you about the world ought to be - if not the measure of the law - a substantial filter through which it should be viewed. If neutrality is a struggle, then judicial methodology ought to be wary of that which gives judges too much discretion. In this sense, what you say about method makes a difference. Checking one's assumptions is, I think, not only a matter of intent and internal struggle, but method. When you begin by privileging or endorsing the idea that empathy or the peculiar lessons of one's life, the threat is judging that is more declamation that discernment.

And this does effect judging in a way that implicates popular debates about judicial activism and restraint. This is reflected, I think, in the Judge's somewhat startling statement that she would hope a Latina would reach a better decision than someone who "hasn't lived that life." Some people see that as a racist statement. Although her reference to "inherent psychological and cultural differences" makes me uneasy (while not intended as such by her, this is not a principle that is historically associated with judging men and women by the content of their character), I don't see it as "racist."

It can, I think, reflect one of two assumptions; but I think that Judge Sotomayor clearly intends one over the other. One possibility it that, because there is no basis upon which to conclude that your experience or preferred empathies (or anyone else's) are preferable to any others, one ought not to be overly apologetic about using your own as a starting point.

But I don't think that is quite what she is saying. The notion that the empathies of someone "who has lead that life" might lead to better (as opposed to different) decisions is to say something about the nature of the world and the role that judges should play in it. It reflects, I think, a stance that is roughly evocative of Justice Stone's famous foonote 4 in Carolene Products, suggesting extra constitutional solicitude in the case of "prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities ...." Her comments reflect a belief that this is the way in which the world works, a judgement about who is likely to be on the short end of the stick and an assumption about the role that judges ought to play in response.

If that's so, Sonia Sotomayor would hardly be the first person to see things this way. It has been a prominent feature of liberal jurisprudence for decades. Whether it is, in 2009, an appropriate perspective is another matter. That would be something worth debating.

Cross posted at Marquette University Law School Faculty Blog.


jp said...

I think Judge SoƱia Sotomayor used sloppy language in the past. My gut tells me she will be extremely thoughtful and careful as a Supreme Court Judge. Playing in the big leagues with all pros tends to tighten the … lips.

Anonymous said...

Shark, you probably like justices who appoint the president of the US.

Anonymous said...

How can a white male even have an opinion...?

Rick Esenberg said...

Anon 3:12

My own sense of Bush v. Gore is that the Gore campaign got hoisted on its own petard. They quite skillfully manuevered themselves into what they thought was a stacked recount in Florida only to lose everything. I am not offended that SCOTUS did not let them get away with it. The irony, of course, is that Gore would have lost the stacked recount anyway although perhaps not some others that no one was really asking for and that I am not sure could have been conducted on a neutral basis.


It can also loosen them. A Supreme Court justice must live with the limitations of the institution, but not much else in the way of constraint.

Anonymous said...

Anon 3:12
You must be a sore loser.

Anonymous said...

Rick, where the law imposes a "reasonable person" standard, for example, and a judge is called to pass on the question, where should he or she draw from?

Rick Esenberg said...

Normally, the idea is what a reasonable person would do do in response to certain circumstances or subject to certain constraints. Of course, in applying such a standard a judge must draw on her experience and even empathize with the situation of the person before her. My argument, though, is not that empathy is somehow barred from the bench but that it cannot carry the weight that the President seems to want to rest on it.

Anonymous said...

Actually, the ideological right seems to be the party larding up this empathy business.

Anonymous said...

Maybe looking at Sotomayor's judicial record on racial discrimination cases would be more useful than extrapolating on a single line (though reading the full speech where that line was given would be a step in the right direction).

The conclusion of the case review linked above:

In sum, in an eleven-year career on the Second Circuit, Judge Sotomayor has participated in roughly 100 panel decisions involving questions of race and has disagreed with her colleagues in those cases (a fair measure of whether she is an outlier) a total of 4 times. Only one case (Gant) in that entire eleven years actually involved the question whether race discrimination may have occurred. (In another case (Pappas) she dissented to favor a white bigot.) She particulated in two other panels rejecting district court rulings agreeing with race-based jury-selection claims. Given that record, it seems absurd to say that Judge Sotomayor allows race to infect her decisionmaking.

Anonymous said...

Her comments reflect a belief that this is the way in which the world works, a judgement about who is likely to be on the short end of the stick and an assumption about the role that judges ought to play in response.Yeah, Pappas must be an example of when Sotomayor let her empathy get the best of her.

Anonymous said...

Although she probably isn't really SCOTUS material, Judge Sotomayor is about as good as we conservatives will get from the current President and Senate. Even the left acknowledges that she's apparently not the sharpest tool in the shed, so will more likely be influenced by Roberts, et al than take them to the left with her. And the left also seems to be concerned that she's a bit of a wild card on Roe/abortion. The public debate over the role of judges should also favor conservatives, unless they spend too much time calling her a "racist," etc. So, again, the President's nominee is pretty bad, but could be a lot worse.

Anonymous said...

It may get a lot worse.
Some suggest Obama selected her to make it easier to nominate a far left Judge the next time.

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