Empathy is NOT Justice
by Gina Giacopuzzi
I’ve read a lot about the nomination of Judge Sonia Sotomayor to the Supreme Court in the last couple weeks, including one 2500-plus word essay in Time that talked more about how careful Republicans should be in opposing her appointment than it did about her track record. It struck me a little bit like writing a movie review that told other critics they should like the movie.
Given Sotomayor’s limited track record, none of the news outlets are pinning her as pro-life or pro-abortion. In one ruling, seven years ago, Sotomayor upheld a lower-court decision to throw out a pro-abortion group’s case that attempted to challenge a federal ban on funding international groups that provided abortions. (President Barack Obama has since repealed the ban.) She has made no ruling or public statements, however, on the premise of Roe v. Wade or whether she thinks the Constitution provides a right to abortion.
I would not go so far as to say, as one commentator did, “consider that we are about to have the first Supreme Court confirmation hearing in almost a quarter-century that does not revolve, in one way or another, around Roe v. Wade.” I would go so far as to say that Sotomayor’s jurisprudence, thus far, has been overwhelming liberal and will continue to be so if she serves on the Supreme Court. Much has been made of Obama’s verbalized intent to nominate someone with a “common touch”, and rightly so. A lifetime nominee to the highest court in the land should not be known for legislating from the bench. Her influence could reverberate through the fabric of American judicial precedent for the next 20 years.
I hate to state the obvious, but a justice must, first and foremost, be just. This may seem like a given, but Sotomayor recently was part of a panel of judges that ruled against a group of firefighters who had worked hard to pass a promotion test in New Haven, only to see the case thrown out because no black firefighters passed the test to become commanders. One of the plaintiffs, Frank Ricci, is a dyslexic firefighter who studied hard and hired tutors to pass the test. The case, Ricci v. DeStefano, will likely be a focus of Sotomayor’s confirmation hearings because the amicus brief filed to support the appellate panel’s decision was so pathetic.
“The opinion contains no reference whatsoever to the constitutional claims at the core of this case,” wrote dissenting Judge Jose Cabranes (a Clinton appointee). “(It) lacks a clear statement of either the claims raised by the plaintiffs or the issues on appeal.” The case is now before the Supreme Court.
Here’s what’s scary about that case: The appellate judges, Sotomayor included, felt no inclination to base their brief on, well, law.
“If Cabranes is right (we’ll know soon), the Sotomayor panel ignored the law and then tried to bury a case that cried out for justice, if not empathy,” said Roger Pilon, vice-president of legal affairs at the Cato Institute.
“The problem with empathy, of course, is not its presence in the abstract, but the more specific question of empathy for whom?” asked attorney Erik S. Jaffe in a discussion on the meaning of “empathy” in relation to judicial appointments. “Are we only supposed to feel the pain of the politically correct side of the suit? Such unidirectional empathy practically begs judges and justices to solve the problem of the supposed “victim” in any given case, potentially allowing such emotional response to override statutory, constitutional, or practical constraints on the role of the judicial system.”
I quote Jaffe at length because he is much more eloquent than I could ever be. In discussions over abortion, of course we are worried about empathy and victims—-pro-lifers, as a group, are victim advocates. However, unlike pro-abortion advocates, we can argue this case from a legal standpoint as well. Life, liberty and the pursuit of happiness—-what greater precedent is there? And, unlike abortion advocates, we can see the drawbacks of having someone on the bench who feels the need to “solve a problem” rather than justly hear a case.
“If empathy means ensuring that certain litigants win because they tug at our hearts, then I do not want our judges and justices to have that version of empathy,” Jaffe concluded.
I couldn’t have said it better.
I’ve read a lot about the nomination of Judge Sonia Sotomayor to the Supreme Court in the last couple weeks, including one 2500-plus word essay in Time that talked more about how careful Republicans should be in opposing her appointment than it did about her track record. It struck me a little bit like writing a movie review that told other critics they should like the movie.
Given Sotomayor’s limited track record, none of the news outlets are pinning her as pro-life or pro-abortion. In one ruling, seven years ago, Sotomayor upheld a lower-court decision to throw out a pro-abortion group’s case that attempted to challenge a federal ban on funding international groups that provided abortions. (President Barack Obama has since repealed the ban.) She has made no ruling or public statements, however, on the premise of Roe v. Wade or whether she thinks the Constitution provides a right to abortion.
I would not go so far as to say, as one commentator did, “consider that we are about to have the first Supreme Court confirmation hearing in almost a quarter-century that does not revolve, in one way or another, around Roe v. Wade.” I would go so far as to say that Sotomayor’s jurisprudence, thus far, has been overwhelming liberal and will continue to be so if she serves on the Supreme Court. Much has been made of Obama’s verbalized intent to nominate someone with a “common touch”, and rightly so. A lifetime nominee to the highest court in the land should not be known for legislating from the bench. Her influence could reverberate through the fabric of American judicial precedent for the next 20 years.
I hate to state the obvious, but a justice must, first and foremost, be just. This may seem like a given, but Sotomayor recently was part of a panel of judges that ruled against a group of firefighters who had worked hard to pass a promotion test in New Haven, only to see the case thrown out because no black firefighters passed the test to become commanders. One of the plaintiffs, Frank Ricci, is a dyslexic firefighter who studied hard and hired tutors to pass the test. The case, Ricci v. DeStefano, will likely be a focus of Sotomayor’s confirmation hearings because the amicus brief filed to support the appellate panel’s decision was so pathetic.
“The opinion contains no reference whatsoever to the constitutional claims at the core of this case,” wrote dissenting Judge Jose Cabranes (a Clinton appointee). “(It) lacks a clear statement of either the claims raised by the plaintiffs or the issues on appeal.” The case is now before the Supreme Court.
Here’s what’s scary about that case: The appellate judges, Sotomayor included, felt no inclination to base their brief on, well, law.
“If Cabranes is right (we’ll know soon), the Sotomayor panel ignored the law and then tried to bury a case that cried out for justice, if not empathy,” said Roger Pilon, vice-president of legal affairs at the Cato Institute.
“The problem with empathy, of course, is not its presence in the abstract, but the more specific question of empathy for whom?” asked attorney Erik S. Jaffe in a discussion on the meaning of “empathy” in relation to judicial appointments. “Are we only supposed to feel the pain of the politically correct side of the suit? Such unidirectional empathy practically begs judges and justices to solve the problem of the supposed “victim” in any given case, potentially allowing such emotional response to override statutory, constitutional, or practical constraints on the role of the judicial system.”
I quote Jaffe at length because he is much more eloquent than I could ever be. In discussions over abortion, of course we are worried about empathy and victims—-pro-lifers, as a group, are victim advocates. However, unlike pro-abortion advocates, we can argue this case from a legal standpoint as well. Life, liberty and the pursuit of happiness—-what greater precedent is there? And, unlike abortion advocates, we can see the drawbacks of having someone on the bench who feels the need to “solve a problem” rather than justly hear a case.
“If empathy means ensuring that certain litigants win because they tug at our hearts, then I do not want our judges and justices to have that version of empathy,” Jaffe concluded.
I couldn’t have said it better.
posted by Al @ 2:46 AM
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