Our View - Empathy is an essential part of a judge's role

(Iowa City Press-Citizen "Our View," July 19, 2009)

The Senate Judiciary Committee hearings last week ended with a pretty clear indication that the committee would recommend to confirm Judge Sonia Sotomayor as the third woman and first Latina to sit on the U.S. Supreme Court. Even some Republicans on the committee started introducing their questions with phrases like, "Once you're on the Court, I hope you will ..."

University of Iowa Law Professor Todd Pettys, in a phone interview Friday, said the weight of Sotomayor's long, balanced judicial record clearly overpowered the effect of the relatively few controversial examples her Republican critics kept pulling from her speeches.

"When the White House nominated her, they knew what was in those speeches and how often she uses some of the phrases," said Pettys, who live-blogged about the hearings for The Des Moines Register last week. "If she had only been on the bench for a short time, her critics could have said, 'These speeches are an indication of how she is going to rule.' And that would have been quite a strong argument. ... But considering how voluminous her judicial record is, it's remarkable how little they spoke about it."

The Republican senators did use the hearings to repeatedly criticize President Obama's statement that he considers "empathy" to be an essential quality of judicial temperament. But Pettys observed that, even in their attempts to equate "empathetic judge" with "activist judge," some Republicans seemed to be seeking reassurance themselves that Sotomayor could empathize with her critics.

Sen. Lindsey Graham, for example, sounded very much like a Republican leaning toward voting in favor of Sotomayor but wishing she could make it easier for him, Pettys said. That came across when the senator from South Carolina asked if Sotomayor could understand why some people become so afraid when they read some of phrases in her speeches.

"A lot of us are concerned from the left and the right that unelected judges are very quick to change society in a way that's disturbing," Graham said Tuesday. "Can you understand how people may feel that way?"

Sotomayor's reply was simply, "Certainly, sir." But she could have proven her point even more emphatically if she had answered something along lines of, "If you mean, 'Can I empathize with them?', then, yes, I certainly can, sir."

Sotomayor often answered questions about the role of empathy in her decisions with a variant of the statement, "My life experiences help me to listen and understand." Yet she also suggested judges not only need to pull from their personal experience to empathize with people like them, they also need to be able to empathize with people unlike them. Without such ability, judges are at equal risk of letting either their unexamined prejudices or their unexamined affinities obscure their application of the law.

Pettys understandably said he was disappointed in how this more dynamic understanding of the role of judges became lost in the political theater that is the confirmation hearing process.

"It showed how in this nation -- at least in political circles -- we have an orthodox, simplistic view of what judges do," Pettys said. "The nominee still has to pay homage by saying, 'We don't make law; we only apply law.' That may be true, strictly speaking, but it's very misleading."

The Republican senators seemed to imply that judges should be robots -- or in Chief Justice John Roberts' overused phrase, "umpires" -- that mechanistically evaluate cases based on the specific instructions and parameters provided by Congress. But the instructions provided too often prove to be either contradictory or insufficiently specific. A robot can't evaluate how broad Constitutional phrases such as "freedom of speech" should apply to issues ranging from pornography to schools monitoring students' Facebook accounts. And lawmakers themselves often disagree on the intent behind a law.

"In the written texts that judges have to read, the legal words are so vague and -- especially in terms of the Constitution -- written at such a high level of generalization, judges by necessity play a powerful rule in shaping the content of the law."

And no robot could provide assurance to Lindsay Graham and his supporters that she both understands and can empathize with their fears.