Empathy and the Judicial System,
Natalia J. Garland
Although the social work profession has been exercising the
attitude and skill of empathy for a long time, it was not until the
presidency of Barack Obama that empathy has apparently become a
pressing qualification for government officials--especially for
judges. This became a source of controversy during last week's
confirmation hearings of Supreme Court nominee, Judge Sonia
Sotomayor. Should empathy be a job requirement for judges? And if
so, should judges practice empathy in the same way as social
workers and psychotherapists?
In an effort to
answer the above questions, I will turn to the opening statements
of three senators who participated in the confirmation hearings:
Senator Jon Kyl (R-Arizona), Senator Lindsey Graham (R-South
Carolina), and Senator Jeff Sessions (R-Alabama). I chose these
senators' statements because they focused on judicial philosophy
(rather than court decisions or case particulars). Today, I will
also include some remarks by Judge Sotomayor, Linda Chavez, and
Senator Tom Coburn (R-Oklahoma).
This essay is an
assemblage of notes which I took while watching the confirmation
hearings on T.V., as well as some research which I did to try to
document (and double-check) my T.V. notes. So, today's topic is an
incomplete process with sketchy conclusions. The following are
some concerns about judicial empathy which I adapted from the
senators' comments and which intrigued me to tackle the problem of
empathy in the courts. Only the last concern is of my own making.
Does Judicial Empathy Risk...
- Imposing the will or subjectivity of the judge?
- Including some defendants or plaintiffs while excluding
- Creating a framework that is too flexible or outside our laws?
- Removing the judge from mainstream values?
- Jeopardizing the interpersonal boundaries among judges, lawyers,
defendants, and plaintiffs?
In the profession of
social work, empathy is a highly developed skill. It is used in
conjunction with other skills and values such as non-judgment,
self-determination, and confidentiality. The therapist's
expressions of empathy help to develop a trusting relationship with
the patient, to open honest communication, and to promote growth.
Empathy is used within each therapist's personal preference of a
theoretical background and within professional ethics.
Can empathy be used
in a courtroom? It would seem that the practice of therapeutic
empathy is inappropriate for a judge. We know that judges make
judgments regarding guilt or innocence of a crime, and that they
confine an individuals's self-determination when such behavior is
illegal. Let's turn to Senator Kyl's opening statement and look
for some ideas on how a judge might apply empathy.
SENATOR JON KYL'S OPENING STATEMENT
I would hope every American is proud that a Hispanic woman has been
nominated to sit on the Supreme Court. In fulfilling our advise and
consent role, of course, we must evaluate Judge Sotomayor's fitness
to serve on the merits, not on the basis of her ethnicity.
With a background that creates a prima facie case for confirmation,
the primary question I believe Judge Sotomayor must address in this
hearing is her understanding of the role of an appellate judge.
From what she has said, she appears to believe that her role is not
constrained to objectively decide who wins based on the weight of
the law, but who, in her opinion, should win. The factors that will
influence her decisions apparently include her 'gender and Latina
heritage' and foreign legal concepts that get her 'creative juices
What is the traditional basis for judging in America? For 220
years, presidents and the Senate have focused on appointing and
confirming judges and justices who are committed to putting aside
their biases and prejudices and applying law to fairly and
impartially resolve disputes between parties.
This principle is universally recognized and shared by judges
across the ideological spectrum. For instance, Judge Richard Paez
of the Ninth Circuit--with whom I disagree on a number of
issues--explained this in the same venue where, less than 24 hours
earlier, Judge Sotomayor made her now-famous remarks about a 'wise
Latina woman' making better decisions than other judges. Judge Paez
described the instructions that he gave to jurors who were about to
hear a case. 'As jurors,' he said, 'recognize that you might have
some bias, or prejudice. Recognize that it exists, and determine,
biases and passions—then you should not sit on the case.'
And then Judge Paez said: 'The same principle applies to judges. We
take an oath of office. At the federal level, it is a very
interesting oath. It says, in part, that you promise or swear to do
justice to both the poor and the rich. The first time I heard this
oath, I was startled by its significance. I have my oath hanging on
the wall in the office to remind me of my obligations. And so,
although I am a Latino judge and there is no question about that—-I
am viewed as a Latino judge--as I judge cases, I try to judge them
fairly. I try to remain faithful to my oath.'
What Judge Paez said has been the standard for 220 years—-it
correctly describes the fundamental and proper role for a judge.
Unfortunately, a very important person has decided it is time for
change—-time for a new kind of judge; one who will apply a
different standard of judging, including employment of his or her
empathy for one of the parties to the dispute. That person is
President Obama; and the question before us is whether his first
nominee to the Supreme Court follows his new model of judging or
the traditional model articulated by Judge Paez.
President Obama, in opposing the nomination of Chief Justice
Roberts, said that 'while adherence to legal precedent and rules of
statutory or constitutional construction will dispose of 95 percent
of the cases that come before a court...--what matters on the
Supreme Court is those 5 percent of cases that are truly
difficult... In those 5 percent of hard cases, the constitutional
text will not be directly on point. The language of the statute
will not be perfectly clear. Legal process alone will not lead you
to a rule of decision.'
How does President Obama propose judges deal with these hard cases?
Does he want them to use judicial precedent, canons of construction,
and other accepted tools of interpretation that judges have used
for centuries? No, President Obama says that 'in those difficult
cases, the critical ingredient is supplied by what is in the
Of course, every person should have empathy, and in certain
situations, such as sentencing, it may not be wrong for judges to
be empathetic. The problem arises when empathy and other biases or
prejudices that are 'in the judge's heart' become 'the critical
ingredient' to deciding cases. As Judge Paez explained, a judge's
prejudices, biases, and passions should not be embraced—-they must
be 'set aside' so that a judge can render an impartial decision as
required by the judicial oath and as parties before the court
I respectfully submit that President Obama is simply outside the
mainstream in his statements about how judges should decide cases.
I practiced law for almost 20 years before every level of state and
federal court, including the U.S. Supreme Court, and never once did
I hear a lawyer argue that he had no legal basis to sustain his
client's position, so that he had to ask the judge to go with his
'gut' or 'heart.' If judges routinely started ruling on the basis
of their personal feelings, however well-intentioned, the entire
legitimacy of the judicial system would be jeopardized.
The question for this committee is whether Judge Sotomayor agrees
with President Obama's theory of judging or whether she will
faithfully interpret the laws and Constitution and take seriously
the oath of her prospective office.
Many of Judge Sotomayor's public statements suggest that she may,
indeed, allow, and even embrace, decision-making based on her
biases and prejudices.
The 'wise Latina woman' quote, which I referred to earlier,
suggests that Judge Sotomayor endorses the view that a judge should
allow her gender-, ethnic-, and experience-based biases to guide
her when rendering judicial opinions. This is in stark contrast to
Judge Paez's view that these factors should be 'set aside.'
In the same lecture, Judge Sotomayor posits that 'there is no
objective stance but only a series of perspectives—-no neutrality,
no escape from choice in judging’ and claims that '[t]he aspiration
to impartiality is just that—-it's an aspiration because it denies
the fact that we are by our experiences making different choices
than others.' No neutrality, no impartiality in judging? Yet, isn't
that what the judicial oath explicitly requires?
And according to Judge Sotomayor, 'Personal experiences affect the
facts that judges choose to see...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.'
Judge Sotomayor clearly rejected the notion that judges should
strive for an impartial brand of justice. She has already
'accepted' that her gender and Latina heritage will affect the
outcome of her cases. This is a serious issue, and it's not the
only indication that Judge Sotomayor has an expansive view of what
a judge may appropriately consider. In a speech to the Puerto Rican
ACLU, Judge Sotomayor endorsed the idea that American judges should
use 'good ideas' found in foreign law so that America does not
'lose influence in the world.'
As I've explained on the floor of the Senate, the laws and
practices of foreign nations are simply irrelevant to interpreting
the will of the American people as expressed through our
Constitution. Additionally, the vast expanse of foreign judicial
opinions and practices from which one might draw simply gives
activist judges cover for promoting their personal preferences
instead of the law. You can, therefore, understand my concern
when I hear Judge Sotomayor say that unless judges take it upon
themselves to borrow ideas from foreign jurisdictions, America is
'going to lose influence in the world.' That's not a judge's
Some people will suggest that we shouldn't read too much into Judge
Sotomayor's speeches and articles—-that the focus should instead be
on her judicial decisions. I agree that her judicial record is an
important component of our evaluation, and I look forward to
hearing why, for instance, the Supreme Court has reversed or
vacated 80 percent of her opinions that have reached that body, by
a total vote count of 52 to 19.
But we cannot simply brush aside her extrajudicial statements.
Until now, Judge Sotomayor has been operating under the restraining
influence of a higher authority--the Supreme Court. If confirmed,
there will be no such restraint that would prevent her from—-to
paraphrase President Obama—-deciding cases based on her heart-felt
views. Before we can faithfully discharge our duty to advise and
consent, we must be confident that Judge Sotomayor is absolutely
committed to setting aside her biases and impartially deciding
cases based upon the rule of law.
[End of quote.]
Two key words in
Kyl's statement are fairness and impartiality. We
depend on judges to apply the law fairly and impartially and
from a certain philosophical background. In other words, the
judicial philosophy of a democracy is different from that of
a dictatorship; the system of laws in America is different from
that in Switzerland; Post-Civil Rights America is different from
pre-Civil Rights America. Supreme Court judges must faithfully
interpret the Constitution. However, empathy is not the same
as prejudice, bias, sympathy, subjectivity, experience, heritage,
or good intentions. Do fairness and impartiality exclude
to Heinz Kohut, "is the capacity to think and feel oneself
into the inner life of another person." According to Carl
Rogers, empathy means "to perceive the internal frame of
reference of another with accuracy and with the emotional
components and meanings which pertain thereto as if one were the
person, but without ever losing the 'as if' condition. Thus, it
means to sense the hurt or the pleasure of another as he senses
it and to perceive the causes thereof as he perceives them, but
without ever losing the recognition that it is as if I were hurt
or pleased and so forth."
and Rogers' definitions do not exclude the application of
fairness and impartiality, their definitions are certainly more
suited for psychotherapy than for the judicial system. A judge
cannot analyze or evaluate the emotional components and
meanings of a defendant. If she did, she would be practicing
psychotherapy instead of law.
Let's move on to
Senator Graham's opening statement. Like his colleague, Kyl,
Graham also states concerns about judging from the heart--a type
of judging which President Obama believes is appropriate in
extremely difficult or complex court cases. Obama stated that 5
percent of cases require a judge to rely on her deepest
values, her core concerns, and her broader
perspectives on how the world works. Since Sotomayor was
nominated by Obama, it is natural to question if she would adhere
to Obama's preferred judicial philosophy.
SENATOR LINDSEY GRAHAM'S OPENING STATEMENT
Well, thank you. I've learned something already, the Schumer
conservative standard. And we'll--we'll see how that works. No
Republican would have chosen you, Judge; that's just the way it
is. We would have picked Miguel Estrada. We would all have voted
for him. And I don't think anybody on that side would have voted
for Judge Estrada, who is a Honduran immigrant, who came to this
country as a teenager, graduated from Columbia magna cum laude,
Harvard, 1986, magna cum laude and Law Review editor, a stellar
background like yours, and that's just the way it was. He never
had a chance to have this hearing. He was nominated by President
Bush to the D.C. Circuit Court of Appeals, which I think most
people agree is probably the second highest court in the land, and
he never had this day. So the Hispanic element of this hearing's
important, but I don't want it to be lost that this is mostly
about liberal and conservative politics more than it is anything
And having said that, there are some of my colleagues on the other
side that voted for Judge Roberts and Alito, knowing they would
not have chosen either one of those, and I will remember that.
Now, unless you have a complete meltdown, you're going to get
And I don't think you will, but, you
know, the drama that's being created here is--is--is interesting.
And--and my Republican colleagues who vote against you I assure
you could vote for a Hispanic nominee. They just feel unnerved by
your speeches and by some of the things that you've said and some
of your cases. Now, having said that, I don't know what I'm going
to do yet, but I do believe that you, as an advocate with a Puerto
Rican defense legal fund, that you took on some cases that I would
have loved to have been on the other side, that your organization
advocated taxpayer-funded abortion and said in a brief that to
deny a poor black woman Medicaid funding for an abortion was
equivalent to the Dred Scott case. Now, that's a pretty extreme
thing to say, but I think it was heartfelt.
I would look at it the other way. To take my taxpayer dollars and
provide an abortion to--to pay for abortion I disagree with is
pretty extreme. So there's two ways of looking at that.
You were a prosecutor, but your organization argued for the repeal
of the death penalty because it was unfairly applied and
discriminatory against minorities.
Your organization argued for quotas when it came to hiring. I just
want my colleagues to understand that there can be no more liberal
group, in my opinion, than the Puerto Rican defense legal fund
when it came to advocacy. What I hope is, if we ever get a
conservative president and they nominate someone who has an equal
passion on the other side, that we will not forget this moment,
that you could be the NRA general counsel and still be a good
My point is, I'm not going to hold it against you or the
organization for advocating (inaudible) from which I disagree.
That makes America a special place. I would have loved to have
been in those cases on the other side. I hope that wouldn't have
Now, when it comes to your speeches, that is the most troubling
thing to me, because that gives us an indication, when you're able
to get outside the courtroom without the robe, an insight into how
you think life works, and this wise Latino comment has been talked
about a lot.
But I can just tell you one thing: If I had said anything remotely
like that, my career would have been over. That's true of most
people here. And you need to understand that, and I look forward
to talking with you about that comment.
Does that mean that I think that you're racist? You've been called
some pretty bad things. No. It just bothers me when somebody
wearing a robe takes the robe off and says that their experience
makes them better than someone else. I think your experience can
add a lot to the court, but I don't think it makes you better than
Now, when I look at your record, there is a lot of truth to what
Senator Schumer said. I don't think you've taken the opportunity
on the circuit to--to be a cause-driven judge. But what we're
talking about here today is, what will you do when it comes to
I'm pretty well convinced I know what you're going to do. You're
probably going to decide cases differently than I would. So that
brings me back to, what am I supposed to do knowing that?
I don't think anybody here worked harder for Senator McCain than I
did, but we lost, and President Obama won. And that ought to
matter. It does to me. Now, what standard do I apply? I can
assure you that if I applied Senator Obama's standard to your
nomination, you--I wouldn't vote for you, because the standard
that he articulated would make it impossible for anybody with my
view of the law and society to vote for someone with your activism
and background when it comes to lawyering and judging.
He said something about the 5 percent of the cases that we're all
driven by. He said something to the effect, in those difficult
cases, the critical ingredient is applied by what is in the
judge's heart. Well, I have no way of knowing what is in your
heart any more than you have knowing what's in my heart. So that
to me is an absurd, dangerous standard.
Maybe something good could come out of these hearings. If we start
applying that to nominees, it will ruin the judiciary. I have no
idea what's in your heart anymore than you have an idea what's in
my heart, and I think it takes us down a very dangerous road as a
country when we start doing that.
Now, there was a time when someone like Scalia and Ginsberg got
95-plus votes. If you were confused about where Scalia was coming
down as a judge, you shouldn't be voting, anymore than if you were
a mystery about what Justice Ginsberg was going to in these 5
percent of the cases. That is no mystery. There's some aspect of
you that I'm not sure about that gives me hope that you may not go
down the--Senator Feingold's road when it comes to the war on
terror, and we'll talk about that later on.
But generally speaking, the president has nominated someone of
good character, someone who has lived a very full and fruitful
life, who is passionate. From day one, from the time you got a
chance to showcase who you are, you've stood out and you've stood
up and you've been a strong advocate and you will speak your
The one thing I'm worried about is that if we keep doing what
we're doing, we're going to deter people from speaking their mind.
I don't want milquetoast judges. I want you to be able to speak
your mind, but you've got to understand that when you gave these
speeches as a sitting judge, that was disturbing to me.
I want lawyers who believe in something and are willing to fight
for it and I don't want the young lawyers of this country feeling
like there's certain clients they can't represent because when
they come before the Senate, it will be the end of their career.
So I don't know how I'm going to vote, but my inclination is that
elections matter. And I'm not going to be upset with any of my
colleagues who find that you're a bridge too far, because in many
ways, what you've done in your legal career and the speeches
you've made give me great insight as to whether--where you'll come
out on these 5 percent of the cases.
But President Obama won the election and I will respect that. But
when he was here, he set in motion a standard, I thought, that was
more about seeking the presidency than being fair to the nominee.
When he said, "The critical ingredient is supplied by what is
in the judge's heart," translated, that means, "I'm not
going to vote against my base, because I'm running for
We've got a chance to start over. I hope we'll take that chance.
You will be asked hard questions and I think you expect that, and
my belief is that you will do well, because whether or not I agree
with you on the big theme to live is not important.
The question for me is have you earned the right to be here and if
I give you this robe to put you on the Supreme Court, do I
believe, at the end of the day, that you will do what you think is
best, that you have courage, and that you will be fair.
Come Thursday, I think I'll know more about that. Good
[End of quote.]
Graham stated his
concerns about any overlapping of Sotomayer's professional duties
and personal life. Sotomayor, for several years, belonged to a
Hispanic advocacy organization which some people would regard as
politically radical. She also gave speeches in which she made
remarks that seemed biased, or perhaps reflecting identity politics.
Her past decisions (law-and-order decisions) as a lower court judge,
however, seemed not to mirror any personal preferences or biases
but were made according to law and precedent. If she were to
become a Supreme Court judge, a position in which she might have
opportunity to set precedent, would she do so according to fairness
and impartiality or would she allow her heart (or emotional
empathy) to sway her toward personal political preferences?
Sotomayor seems to
identify strongly as a Puerto Rican and a feminist. This is not
wrong. This would be a problem only if she over-identified with
defendants or plaintiffs of a similar background and tendency, or
if she had a negative reaction toward those who were culturally
and politically different, thereby losing her capacity for fairness
in application of the law or in setting precedent. As Graham
states, we cannot really know what goes on in her heart--unless
she directly tells us. We can only evaluate Sotomayor's speeches,
conduct, and her court decisions. One of the senators stated that
there seems to be dissonance between her personal life and
her court decisions. Let's further explore the possibility of
As a social worker,
I learned early in my career to make a sharp distinction between
my professional duties and my personal life. Even though I used a
portion of my personal time to read professional literature and to
do research that would help me with difficult cases, I guarded my
private life and engaged in activities that were enjoyable,
meaningful, and fulfilling. Not only did I keep strict boundaries
between my patients and me, but I also maintained various levels of
boundaries between my colleagues and me. Depending on my job
environment, I selectively discussed how I voted, where I went to
church or if I missed a Sunday, or how I spent my weekend. I was
more likely to talk about books, music, and movies.
This separation of
the professional and personal elements became even more essential
when I began my website. I built my first website in 2000--there
were no blogs at that time and very few professionals were writing
for the web. Because I was not accustomed to public self-disclosure
(i.e., in a manner in which my patients could potentially access my
off-the-job or outside-the-therapy-session views), because I did
not want to incur any conflict of interest with my employer, and
because I wanted to adhere to professional ethics, I was careful to
create my website as a personal pursuit (to read more about why I
began writing essays, see Essay No. 50).
Now, I suspect that
most social workers disagree with many of my essays. Politically,
I am probably more moderate or conservative than the majority of
social workers who, for example, belong to the N.A.S.W. However,
I do not discriminate against anyone. My practice of social work
has always been and will always be totally within the social work
code of ethics. I have worked with many patients whose lifestyles
are very different from mine, and this has never presented a
problem to them or to me. Is this an example of dissonance? No,
it is an example of what it means to be a professional.
Is it possible that
Sotomayor also distinguishes between private and professional
modes of what is appropriate to say and do? Do her speeches show
that she is flippant and cocky? Perhaps. But if so, these
qualities could possibly be categorized as personality defects
rather than biased politics. Either way, the concern remains
whether Sotomayor will continue to show judicial restraint, or if
she will use her Supreme Court position to implement the desires of
Some social workers
also struggle with empathy. Below is a quotation from Lawrence
Shulman's book, The Skills of Helping. This is an old book
(1992), but a standard that is still quoted in some social work
It is not uncommon to observe a worker so identified with a child
in a family conflict situation that the worker pushes the parent
to understand the child's feelings while simultaneously expressing
very little understanding of the feelings of the parent. Providing
some genuine empathy for the parent's dilemma is often the key to
helping the parent to understand the struggles of the child.
There are a number
of reasons why it can be difficult for a worker to express
empathy with a client. The capacity to be in touch with the
client's feelings is related to the worker's ability to
acknowledge his or her own. Before a worker can understand the
power of emotion in the life of the client, it is necessary to
discover its importance in the worker's own experiences. Workers
will often have difficulty in expressing empathy with the feelings
of the client in specific areas that touch upon their own lives.
Workers are human, facing all of the stresses and difficulties
associated with daily living, including periods of life crisis.
When a worker hears his or her own difficult feelings being
expressed by a client in an interview, the capacity for empathy
can be blunted. Another major block block to empathy can be the
worker's authority over the client. For example, a worker who has
apprehended (removed) a child in an abuse situation may find
empathic responses to the client blocked at the time when they may
be most needed.
[End of quote.]
It is also possible
that what might appear to be dissonance is not related to the
juggling of the professional or political elements within the whole
of one's life, but to a self-concept and worldview known as
identity politics. Let's turn to the testimony of Linda
Chavez, Chairman of the Center for Equal Opportunity, for a
definition of identity politics.
LINDA CHAVEZ' TESTIMONY (EXCERPT)
I testify today not as a wise Latina woman but an American who
believes that skin color and national origin should not determine
who gets a job, a promotion or a public contract or who gets into
college or receives a fellowship.
My message today is straightforward. Mr. Chairman, do not vote to
confirm this nominee. I say this with some regret, because I
believe Judge Sotomayor's personal story is an inspiring one, which
proves that this is truly a land of opportunity, where
circumstances of birth and class do not determine whether you can
Unfortunately, based on her statements both on and off the bench, I
do not believe Judge Sotomayor shares that view. It is clear from
her record that she has drunk deep from the well of identity
I know a lot about that well, and I can tell you that it is dark
and poisonous. It is, in my view, impossible to be a fair judge and
also believe that one's race, ethnicity and sex should determine
how someone will rule as a judge.
Despite her assurances to this committee over the last few days
that her "wise Latina woman" statement was simply a,
quote, "rhetorical flourish fell flat," nothing could be
further from the truth.
All of us in public life have, at one time or another, misspoken.
But Judge Sotomayor's words weren't uttered off the cuff. They were
carefully crafted, repeated, not just once or twice, but at least
seven times over several years.
As others have pointed out, if Judge Sotomayor were a white man who
suggested that whites or males made better judges, again, to use
Judge Sotomayor's words, quote, "Whether born from experience
or inherent physiological or cultural differences," end quote,
"we would not be having this discussion. Because the nominee
would have been forced to withdraw once those words became
But, of course, Judge Sotomayor's offensive words are just a
reflection of her much greater body of work as an ethnic activist
Identity politics is at the core of who this woman is. And let me
be clear here. I'm not talking about the understandable pride in
one's ancestry or ethnic roots, which is both common and natural in
a country as diverse and pluralistic as ours.
Identity politics involves a sense of grievance against the
majority, a feeling that racism permeates American society and its
institutions and the belief that members of one's own group are
victims in a perpetual power struggle with the
[End of quote.]
If we focus on the
last paragraph in the above quotation, there are four more key
words or terms to add to today's discussion: grievance,
victims, and power struggle: all of which are
directed against the majority. In other words, regarding
judicial empathy, it is difficult to conceive that someone with a
background of identity politics could have empathy for the
majority or for an individual belonging to the majority. Chavez
goes on to state examples of identity politics from the life and
career of Sotomayor.
LINDA CHAVEZ' TESTIMONY, CONTINUED (EXCERPTS)
From her earliest days at Princeton University, and later, Yale
Law School, to her 12-year involvement with the Puerto Rican Legal
Defense and Education Fund, to her speeches and writings, including
her jurisprudence, Judge Sotomayor has consistently displayed an
affinity for such views.
As an undergraduate, she actively pushed for race-based goals and
timetables for faculty hiring. In a much-praised senior thesis, she
refused to identify the United States Congress by its proper name,
instead referring to it as the North American Congress or the
During her tenure as chair of the Puerto Rican Legal Defense and
Education Fund's Director Litigation Committee, she urged
(inaudible) seeking lawsuits challenging the civil service exams,
seeking race-conscious decision-making similar to that used by the
city of New Haven in Ricci.
She opposed the death penalty as racist. She supported race-based
government contracting. She made dubious arguments in support of
bilingual education and more broadly in trying to equate English
language requirements as a form of national origin discrimination.
As a judge she dissented from an opinion that the Voting Rights Act
does not give prison inmates the right to vote.
And she has said that as a witness--eyewitnesses' identification of
an assailant may be unconstitutional racial profiling in violation
of the equal protection clause, if race is an element of that
identification. Finally, she has shown a willingness to let her
policy preferences guide her in the Ricci case.
Although she has attempted this week to back away from some of her
own intemperate words and has accused her critics of taking them
out of context, the record is clear. Identity politics is at the
core of Judge Sotomayor's self-definition. It has guided her
involvement in advocacy groups, been the topic of much of our [sic]
public writing and speeches, and influenced her interpretation of
There is no reason to believe that her elevation to the Supreme
Court will temper this inclination, and much reason to fear that it
will play an important role in how she approaches the cases that
will come before her, if she is confirmed.
Although it would be
easy to overlook Sotomayor's senior thesis as a product of youthful
zeal, there is apparently a pattern throughout her education and
career that points to something beyond empathy for some (e.g.,
Hispanics or minorities) and beyond "pride in one's ancestry
or ethnic roots:" identity politics as a guiding force
restrained only by actual current laws which must be upheld by a
If identity politics
can obstruct the exercise of empathy toward all, then let us also
question if certain personality defects can likewise obstruct the
ability to make empathic responses. Chavez referred to Sotomayor's
speeches as containing "intemperate words." In today's
essay, I have also questioned if Sotomayor were perhaps flippant or
cocky. In closing, I will turn to Senator Coburn's questioning of
Sotomayor during the confirmation hearings.
SENATOR TOM COBURN'S QUESTIONING (EXCERPT)
SOTOMAYOR: I'm attempting to answer your question, Senator, but our
roles and the ones we choose to serve--your job is wonderful. It
is so, so important. But I love that you're doing your job, and I
love that I'm doing my job as a judge. I like mine better.
COBURN: I think I would like yours better as well, although I doubt
that I could ever get to the stage of a confirmation
[End of quote.]
Although the above
statements were generated in a somewhat relaxed or casual manner,
I was struck by Sotomayor's assertion of herself or her work as
superior to someone else's. Anyway, that was my impression of the
remark. I could be wrong, and I do not want to nitpick. But the
above comment just seems to fit in with the wise Latina
comment. Despite her self-composure throughout the confirmation
hearings, this could be one moment in which Sotomayor slipped up.
In other words, there was no dissonance; but perhaps a revelation
of an underlying temperament which she seems to have demonstrated
in her speeches.
So far, I have
attempted to discern differences between therapeutic empathy and
judicial empathy by introducing the concepts of judicial fairness
and impartiality. I have also attempted to explain that a
healthy separation can exist between one's professional and
private life, and that political differences can exist between a
professional person and the clientele served without necessarily
jeopardizing or corrupting the services. In addition, I have
attempted to define identity politics and personality defects as
obstructions to empathy--perhaps more than genuine political
disagreement or life experiences (different or similar). In Part
II, I will begin with Senator Jeff Sessions' opening statement and
I will share my notes on the judicial system itself.
[NOTE: This essay is
not intended to serve as a statement on any judge's or other
officials' mental stability, moral character, or fitness to serve.
The author's comments represent a personal search and personal
impressions, and are not intended to carry official diagnostic or
evaluative values. The purpose of this essay is to explore the
theme of judicial empathy, particularly as this theme unfolded as a
significant process in the Sotomayor confirmation hearings. This
essay is a work in progress, not a finished product, and is
therefore subject to error.] (Written 07/20/09: bibliography available.)
Until we meet