Sonia Sotomayor is going to be confirmed as our newest Supreme Court justice. There's little doubt about that-the votes are there. But Congress is going through the motions with these hearings anyway.One thing that's come up again is this issue of whether a justice should be "empathetic." Obama first floated this thought back on July 17, 2007, at a Planned Parenthood conference, saying a Supreme Court justice should be someone "who's got the heart, the empathy, to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old. And that's the criteria by which I'm going to be selecting my judges."Some people read this empathy criterion as code for some kind of minority favoritism. Back when Souter retired, Wendy Long, a former clerk for Justice Clarence Thomas and legal counsel to the Judicial Confirmation Network, articulated the concern:...what he means is he wants empathy for one side and what's wrong with that is it is being partial instead of being impartial. A judge is supposed to have empathy for no one but simply to follow the law.... The best way to have empathy for people and the best way to have empathy for our Constitution is to appoint judges who will rule based on the law and to have empathy, if you will, for the law only and to rule based on the law...And this week, during the hearings, everyone's been talking about it. Sen. Jeff Sessions of Alabama said:I will not vote for, and no senator should vote for an individual nominated by any president who believes it is acceptable for a judge to allow their own personal background, gender, prejudices or sympathies to sway their decision. Call it empathy, call it prejudice or call it sympathy, but whatever it is, it's not law...I think it's crazy to argue that empathy interferes with applying the law. There are all sorts of aspects of judging that not only benefit from, but require, empathy. A good example is the recent Supreme Court decision on the 13-year old girl who was strip searched at school for ibuprofen. To rule that a strip search is intrusive, as they did, you have to understand the trauma it would cause a girl, and that requires understanding her feelings-an ability otherwise known as empathy. It's similar when a judge has to gauge the deterring effect of a punishment or any mitigating psychological circumstances surrounding a dispute. In these cases, making a sensible judgment is easier if you're good at understanding the inner workings of people's minds and hearts, and harder if you just aren't very sensitive to them. And it's reasonable to think that people who've been 13-year old girls (or racial minorities, or disabled) are better equipped to put themselves in the relevant shoes. That's why you want a diverse, and I'd say empathetic, crew of justices.So we can argue about whether Sotomayor is prejudiced or privileges some group identity over the law, but that's not the same question as whether empathy has a role in a judge's work. It clearly does, and it's valuable. Disregard the people who simplify this issue as a choice between empathy or following the law.
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