Empathy on the Supreme Court

No matter who President Obama picked for his Supreme Court nominee, you knew they would be bright and well qualified to be one of the Supremes.  It certainly seems that Sonia Sotormayor fills the bill.  Obama clearly loved his time at Harvard Law and teaching at the University of Chicago Law School.  He loves the give and take.  The intellectual stamina it takes to wade through US Supreme Court opinions.  So here she is, Sonia Sotomayor.  Princeton, Yale, both public service and private practice experience.  Years as a District Court judge where her days are filled listening to criminal drug cases, civil lawsuits between disgruntled plaintiffs and lawyered-up defendants, and appeals from bankruptcy cases and magistrates rulings.  She saw it all as a District Court judge in New York City.

Prior to making his decision, President Obama apparently stated that he wanted a justice who had empathy.  The right-wing went nuts, equating empathy with being an activist judge, assuming that if a justice was empathetic they would always rule for the underdog.  But they mistook the definition of empathy.  To be empathetic is to listen to all sides, to try and understand someone else's point of view.  That however is not sympathetic.  And one can and should be empathetic without being sympathetic.  For instance, Judge Sotomayor may have been empathetic to a drug dealer's life story, trying to make a buck on the streets of South Bronx.  But you know, that doesn't mean she was sympathetic.  She may have chastised the dealer for bringing drugs to her childhood neighborhood, for not trying to find other, legal ways, to make a living.  

Being empathetic, however, is the most important quality for a Supreme Court Justice.  If there ever was a governmental position that is isolated and detached from the every day lives of Americans, it is being a Supreme.  They have clerks who come from the creme de la creme of law schools, who research and indeed, write most of the opinions.  They work with eight other people, also appointed for life, who apparently rarely interact except for their meetings to decide on a scant 80 or so cases to hear during a session that runs from October to June.  It's a cool job if you can get it!

So having someone on the court who may remember what it was like to be hungry, or whose neighbors might have been broke, or who had to work through high school...well, it adds a bit of American values to an American institution.  And in those 80 or so cases, maybe when some of the justices want to decide the case on a procedural ground, throwing out a convict's last appeal because he didn't know the filing date, maybe her voice will be the one to ask to look at the matter on substantive grounds.  That maybe that one person should have a second look at the merits of his case.  And if that is judicial activism, well, that's just fine.

We could have used empathy when the interned Japanese sought relief from their rounding up and imprisonment without cause during World War II.  We could have used empathy during Plusey v. Ferguson.  We could have used empathy in the recent Leadbetter case.  

Justice Sonia Sotomayor.  Princeton Phi Beta Kappa.  Yale Law Review Editor.  Smart, gutsy, moderate, empathetic.  It's a good day.