As I’ve said, empathy is a fine quality. But in the courtroom, it’s only good if the judge has it for you. What if you’re the other guy? When he walks out of the courthouse, he can say he received his day in court. He can say he received a hearing. But he can’t say he received justice.

After a lengthy dissertation denouncing Democrats for blocking the confirmation of previous Republican nominees, McConnell said that despite his strong belief that the president is entitled to great deference in his choice of Supreme Court justice, the senator would not support this one.

“If empathy is the new standard, then the burden is on any nominee who is chosen on that basis to show a firm commitment to equal justice under the law,” he said. “If nominees aren’t even expected to apply equal justice, we can’t be expected simply to defer to the President — especially if that nominee, as a sitting judge, no less, has repeatedly doubted the ability to adhere to this core principle.”

He continued:

Looked at in this light, Judge Sotomayor’s record of written statements suggests an alarming lack of respect for the notion of equal justice, and therefore, in my view, an insufficient willingness to abide by the judicial oath. This is particularly important when considering someone for the Supreme Court since, if she were confirmed, there would be no higher court to deter or prevent her from injecting into the law the various disconcerting principles that recur throughout her public statements. And for that reason, I will oppose her nomination.

McConnell then went on to criticize Sotomayor’s judicial record, and repeated the mistaken view, expressed by Sen. Jon Kyl (R-Ariz.) at the nomination hearing last week, that the Supreme Court in the discrimination case of Ricci v. DeStefano had unanimously rejected the Second Circuit opinion that Judge Sotomayor had joined.

“I’m referring to the Ricci case, in which a majority of the justices on the Supreme Court rejected Judge Sotomayor’s decision and all of them agreed that her reading of the law was flawed,” he said. “Here was a case in which a group of firefighters who had studied hard and passed a written test for promotion were denied it because not enough minority firefighters had scored as well as they had.”

As I’ve explained before, and as Sen. Dianne Feinstein (D-Calif.) ably pointed out at the hearing last week, the Supreme Court’s decision was 5-4, with four dissenters saying they would have affirmed the Second Circuit opinion.

McConnell’s full statement is here.

Senators also hammered Sotomayor about her ethnic identification and whether she could rule fairly without undue influence from her gender or political preferences. Wait, let me guess, you’re white guys! Are we to infer that men of European descent are never unduly influenced by their own ethnicity, gender or political preferences? Can anyone affirm this assertion with a straight face?

After a few centuries dominating Washington’s political landscape, the white guys can be forgiven their instinctive resistance to those who view the contours of life through a different lens. Forgiven, at least, by those who empathize with them.

Sen. Jeff Sessions (R-Ala.) meets with Sonia Sotomayor on June 2. (Zuma Press)

Amid the posturing by senators on both sides of the aisle, the outlines of a long-running debate over the role of judges in the American legal system emerged on the first day of the confirmation hearing of Judge Sonia Sotomayor.

Whether judges are neutral, “objective” arbiters of the law or biased individuals who impose their own views and life experience on legal interpretation is a debate that dates back to the early 20th century and included such famous justices as Oliver Wendell Holmes and Louis Brandeis, who argued that law is indeterminate and judges are flawed human beings influenced by external factors.

Illustration by: Matt Mahurin

Since then, scholars and judges have taken that idea in various directions. Monday the debate was on display in full force again in the Senate, with the quality of “empathy” that President Obama said he prized being on the one hand defined by Democratic supporters as “humanity” and by Republican critics as “bias.”

As Ranking Republican Jeff Sessions (R-Ala.) put it in his opening statement: “Empathy for one party is always prejudice against another.”

Sen. Tom Coburn (R-Okla.) similarly criticized the notion that “empathy” is a desirable quality for a Supreme Court justice, noting that it suggests that the law can be interpreted in various ways.

“I’m deeply concerned by your assertion that the law is uncertain,” said Coburn, addressing Sotomayor. “We want justice to be predictable. I’m worried that our Constitution may be seen to be malleable and evolving, whereas I, as someone who comes from the heartland, believe, as do the people I represent in Oklahoma, that there is a foundational document and statutes and treaties that should be the rule rather than our opinions.”

Sotomayor, for her part, has never said that her opinions should trump the law or the Constitution. On Monday, she described her judicial philosophy as simply “fidelity to the law.” But she has also acknowledged repeatedly that her background and upbringing may influence her view of a situation. As she described it Monday: “My personal and professional experiences help me listen and understand, with the law always commanding the result in every case.”

In other contexts, however, usually addressing Latino law students, Sotomayor has said, in a statement repeated over and over by Republicans at Monday’s hearing, that “I would hope that a wise Latina woman with the richness of her experiences would, more often than not, reach a better conclusion than a white male who hasn’t lived that life.”

CNN reports that “that sentence, or a similar one, has appeared in speeches Sotomayor delivered in 1994, 1999, 2002, 2004 and 2001,” and it’s become the basis of Republican objections to her confirmation to the court.

Democratic supporters yesterday defended her “empathy” and denied that it’s the equivalent of bias. “We want a nominee with a sense of compassion,” said Sen. Herb Kohl (D-Wisc). “Compassion does not mean bias or lack of impartiality. It is meant to remind us that the law is more than an intellectual game, and more than a mental exercise.”

Quoting Justice Clarence Thomas from his confirmation hearing, Kohl said it is important that a justice ” ‘can walk in the shoes of the people who are affected by what the Court does.’ I believe this comment embodies what President Obama intended when he said he wanted a nominee with ‘an understanding of how the world works and how ordinary people live.’ ”

Although defending Sotomayor’s “understanding” and “compassion,” Democrats are also aware that some of her past remarks represent her greatest vulnerability, and they’ve tried to keep the focus on Sotomayor’s 17 years’ worth of written judicial opinions. Independent studies from the Congressional Research Service, SCOTUSblog and the Transactional Records Access Clearinghouse have concluded that her decisions reflect neither activism nor liberal bias. But Republican senators at yesterday’s hearing repeatedly argued that her statements outside the courtroom are more telling than her judicial opinions because, as a Supreme Court justice, she would not be bound by precedent nearly as much as she was on the court of appeals.

Sen. Orrin Hatch (R-Utah), for example, warned that on the Supreme Court “Judge Sotomayor will help overturn the very precedents that today bind her” on the court of appeals. “The judicial position she will take on the Supreme Court will be very different than the position she has on the Second Circuit.” Therefore, he argued, her extrajudicial statements – in speeches, in law review articles, in career counseling seminars — ought to be seriously considered.  Although “we are urged to ignore her statements and focus only on her judicial decisions,” Hatch said, “We show respect to her by taking her entire record seriously.”

Democrats shot back by criticizing the record of Republican nominees, who they claimed had become, contrary to their initial promises, the most activist justices on the Court. Chief Justice John Roberts, in particular, came in for criticism for, during his confirmation hearing, likening a judge to an “umpire” at a baseball game calling “balls and strikes”; Roberts then ended up playing a far more activist role as a justice.

“The “umpire” analogy is belied by Chief Justice Roberts,” said Sen. Sheldon Whitehouse (D-R.I.). Quoting a recent article in The New Yorker by Jeffrey Toobin, Whitehouse said: “[i]n every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff. Some umpire.”

In fact, Whitehouse argued, under Roberts’ leadership in recent years: “the right wing Justices of the Court have a striking record of ignoring precedent, overturning congressional statutes, limiting constitutional protections, and discovering new constitutional rights,” he said, such as “the first limitation on Roe v. Wade that outright disregards the woman’s health and safety” and a decision striking down a gun restriction in Washington, D.C. “discovering a constitutional right to own guns that the Court had not previously noticed in 220 years.”

Whitehouse continued: “The Roberts Court has not lived up to the promises of modesty or humility made when President Bush nominated Justices Roberts and Alito.”

But Whitehouse, like all of the senators yesterday, was not really there to debate judicial philosophy or constitutional history. The senators were talking largely to their own constituents, and not to the other side. Sotomayor is widely expected to be confirmed, but Republicans appear to be voicing objections they expect their conservative constituents to have — about Sotomayor, and about larger social issues.

Republicans remained rigid in their views that Sotomayor’s acknowledgment that different people will have different perspectives on the law was a troubling sign. Sotomayor’s statement that “There is no objective stance but only a series of perspectives, no neutrality, no escape from choice in judging,” said Coburn, is “deeply troubling.”  He added: “The fact that it’s subjective implies that it’s not objective. And if we disregard objective consideration of facts, then all rulings are subjective and we lose the glue that binds us together as a nation.”

Of course, Coburn’s ideal of perfect predictability in the law that allows an escape from judgment and perspective would obviate the need for a Supreme Court — and for the Senate’s confirmation hearing.

For better or worse, the majority of senators haven’t gone that far, and Sotomayor’s confirmation hearing continues Tuesday.

Slamming the interest in “empathy” that President Obama expressed early on in his search for a nominee, Sessions said: “Empathy for one party is always prejudice against another.”

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Greenwald writes:

Without a trace of sympathy or even interest in the plight of the plaintiff, Sotomayor methodically recounted the evidence of discrimination and, in as coldly and legalistic a manner as possible, concluded that the Norville ‘produced insufficient evidence at trial to show that the hospital’ discriminated against her.

The Norville case, Greenwald continues, “was one where she acted exactly contrary to the Rove-led disparagement of her jurisprudence — the accusation that she disregards objective legal considerations in favor of emotions and sympathy for what Charles Krauthammer euphemistically described as ‘certain ethnicities.’ ”

My own reading of the case is that she not only didn’t let her sympathies get in the way, but she may have gone too far in ignoring human “emotions and sympathy” to rule based on hyper-technicalities. By “emotions and sympathy,” I don’t mean bias; I mean the fact that discrimination cases are inherently about whether a supervisor made an employment decision based on an emotional, rather than an objective, assessment of an employee. And that requires a judge to let herself empathize at least a little with the situation the case presents.

In the case of Wendy Norville, a 56-year-old black nurse who suffered a spinal injury while working at the Staten Island hospital where she’d been employed for 13 years, the question of whether the hospital refused to reasonably accommodate her disability because of her race, her age, or her disability itself is hardly clear. Yet Judge Sotomayor, writing for a three-judge panel on the Second Circuit Court of Appeals, affirmed the dismissal of her race and age claims on extremely technical, legalistic grounds that would seem to me to have been more appropriate for a jury. (Granted, as a lawyer I worked briefly on employment discrimination cases, so I might be considered biased. But as a former law clerk to a  federal appeals court judge, I saw many of these cases and I doubt I would have recommended coming down the way Sotomayor did on this one.)

Take, for example, Sotomayor’s discussion of Norville’s race discrimination claim, which was based “on her allegation that the hospital refused to accommodate her disability despite having made job accommodations for two disabled white nurses,” as Sotomayor described it.

That’s normally enough to create a prima facie case of discrimination that the hospital would then have to rebut. But here, Sotomayor decided against Norville’s claim failed because Norville failed to show that she was “similarly situated” to the two white nurses. One had terminal cancer and due to the treatment often had to leave work early. The other had a herniated disc — as did Norville — but was promoted to Head Nurse around the time of her injury.

That wasn’t good enough to get her claims to the jury, wrote Sotomayor, because Norville did not provide “evidence regarding the specific degree to which either of these nurses was disabled, the type of work they did prior to becoming disabled, or the ways in which they were limited in performing their jobs. Norville thus has failed to demonstrate that they were ‘subject to the same standards governing performance evaluation’ or that they ‘engaged in conduct similar to [hers].’”

Although I don’t have the full trial record before me, that reasoning seems to place a much greater burden on Norville than she should have had to bear before trial. The fact that the hospital accommodated two other white nurses who had serious disabilities — as Norville did, but was not accommodated — at least seems to create a real question as to whether the reason for the hospital’s action was due to Norville’s race. And it’s the jury’s job to provide the answer.

Sotomayor used similar reasoning to dismiss Norville’s claim of age discrimination, based on the fact that a 38-year old nurse was hired for a position that the hospital could have offered her as a reasonable accommodation for her disability (which, it’s worth emphasizing, was due to an injury sustained on the job).  Even though the hospital gave contradictory reasons for choosing the younger nurse over Norville, and Sotomayor concluded that Norville presented sufficient evidence that she was qualified for the job and that the hospital’s reasoning might be pretextual, strangely, that wasn’t enough to create a question of fact about whether the real reason was age discrimination.  Sotomayor seems to require some direct evidence that the reason for the hospital’s decision was Norville’s age — although given that employers rarely state their discriminatory reasons for their actions, showing pretext is usually sufficient to get the case to the jury to decide what was the real motive.

In fact, it was then-Judge (now Justice) Samuel Alito who, as the lone dissenter in the Third Circuit sex discrimination case of Sheridan v. DuPont, insisted that there ought to be some more direct evidence of the kind of discrimination alleged — an issue that caused considerable controversy during his Supreme Court confirmation hearing.

I know this seems like a long and excessively detailed analysis of one judicial opinion, but I do think it says something about Sonia Sotomayor, which  Greenwald alludes to but many others seem to be overlooking:  Sotomayor’s hyper-technical reading of the law may not always be such a good thing. In Norville’s case, for example, did Sotomayor miss the forest for the trees?

The fact that the jury ultimately awarded Norville $1.6 million for her disability discrimination claim alone — which Sotomayor allowed to go forward based on yet another technical (and correct) reading of the law — suggests that she might have.

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]]> http://washingtonindependent.com/44777/will-liberals-be-disappointed-in-sotomayor-part-ii/feed 32 http://washingtonindependent.com/43327/supreme-court-nominee-debate-defined-by-conservatives http://washingtonindependent.com/43327/supreme-court-nominee-debate-defined-by-conservatives#comments Mon, 18 May 2009 10:00:15 +0000 Aaron Wiener http://washingtonindependent.com/?p=43327 With President Obama’s announcement of his first Supreme Court nominee likely to come as early as this week, liberals and conservatives jockeying for position in the confirmation battle have begun to find their roles. So far, it is conservatives who have generally succeeded More...

President Barack Obama (WDCpix)

With President Obama’s announcement of his first Supreme Court nominee likely to come as early as this week, liberals and conservatives jockeying for position in the confirmation battle have begun to find their roles. So far, it is conservatives who have generally succeeded in defining the terms of the debate, while liberals have been left to defend against charges of coded language and hidden agendas.

After Justice David Souter announced his retirement on May 1, Obama laid out a broad spectrum of qualities he will seek in his nominee at a press briefing. Among these were “a sharp and independent mind,” “a record of excellence and integrity,” “respect for constitutional values” and “empathy.”

Illustration by: Matt Mahurin

Given this range of terms to work with, conservatives quickly settled on “empathy” as the one around which to draw the battle lines, and the others faded from the debate. Obama did not utter the word “empathy” without forethought; he had used the term two years earlier as a senator in discussing Supreme Court nominations. But since his May 1 statement, he has had little control over which of the many criteria he put forth receive attention and which get shunted aside. Conservatives saw a potential political advantage in attacking “empathy,” and liberals have been unable to reframe the debate around other terms that may be more to their benefit.

Sen. Orrin Hatch (R-Utah) led the charge against “empathy.” “[Obama] said that a judge has to be a person of empathy,” Hatch said on ABC’s This Week two days after Obama’s statement. “What does that mean? Usually that’s a code word for an activist judge.”

Since then, Republicans have continued to hammer Obama for his “empathy” criterion. Former George W. Bush senior adviser Karl Rove called it code for a “liberal, activist Supreme Court justice,” and John Yoo, Bush’s head of the Office of Legal Counsel who has since come under scrutiny for his role in authorizing extreme interrogation techniques, cautioned that by nominating “a Great Empathizer,” Obama would “give Senate Republicans yet another opportunity to rally around a unifying issue.” Yet as conservatives set the rhetorical stage for the confirmation battle, liberals active in the judicial process are trying, with little success, to move the debate past “empathy.”

Conservative judicial experts believe the empathy argument is a political winner for Republicans, and they have shaped their talking points accordingly. Gary Marx, executive director of the Judicial Confirmation Network, a conservative organization that promotes “the confirmation of highly qualified individuals to the Supreme Court of the United States,” believes that judicial empathy and adherence to the text of the Constitution are incompatible.

“He said he wants someone who respects the rule of law, and he wants someone with empathy,” Marx said of Obama. “You can’t have it both ways, Barack.”

“Conservatives get a little upset when the president uses the word empathy,” agreed Brian Darling, the director of U.S. Senate relations at the Heritage Foundation and a former counsel to two Republican senators. “The word empathy doesn’t show up in the Constitution.”

While progressives involved in the judicial nomination debate dispute conservatives’ characterization of code words, they appear reluctant to offer new language to redirect the discussion, instead reacting with bewilderment and frustration to conservative attacks.

Goodwin Liu, a Berkeley law professor and the chairman of the board of directors of the American Constitution Society, a liberal legal organization, expressed surprise at the controversy that “empathy,” a positive term, has engendered. “I’m a little baffled by that,” he said. “If it’s a code word, I don’t know what it’s a code word for.”

On another conservative line of attack — judicial activism — liberal experts countered that this label was itself a code.

Bill Yeomans, the legal director of the progressive advocacy group Alliance for Justice, said that the term judicial activism “is sort of thrown out unthinkingly” by conservatives who use it as a proxy for a number of different lines of attack. “It’s a code word,” he said. In its own right, it “doesn’t really mean anything.”

Liu concurred. “Judicial activism is a result that someone doesn’t like,” he said. “That’s it.”

Yeomans and Liu both argued that if activism is measured by a departure from precedent, the conservatives on the bench have been more activist than their liberal counterparts. “By any definition of judicial activism, I think it’s fair to say that the conservatives have been the activists over the past ten years or so,” said Liu.

While the liberal experts took issue with the key terms used by conservatives — or at least their usage of those terms — they shied away from putting forward new catchwords. “I guess I’d want to get away from the concept of code words,” said Yeomans. He wants to see the confirmation hearings focus on intelligence, knowledge of the law, an open mind and a willingness to follow the facts — a reframing that would take the game off of the Republicans’ court.

Conservatives, on the other hand, have a number of catch phrases they want to apply to Supreme Court nominees. “We will continue to be using the metaphor of the neutral umpire,” said Marx, echoing the language used by now-Chief Justice John Roberts in his 2005 confirmation hearing. Marx listed two other qualifications a justice should possess: “judicial restraint” and “not legislating from the bench.”

He also pulled out a Biblical reference to make his point. King Solomon, he said, did not need “empathy” or “compassion” to resolve the famous baby case. “Was that compassionate?” he asked rhetorically. “No, it was wisdom.”

Despite their success in determining which terms have come to dominate the debate, conservatives acknowledge that their purpose may not be so much to block the confirmation of a justice as to score political and perhaps fundraising points for future elections.

Marx says that the confirmation debate will have “three huge implications”: it will educate the American people about the issues, help them understand Obama’s true political philosophy and set the stage for the 2010 U.S. Senate campaigns.

According to Darling, the effects of this battle could extend to 2012 as well. “Whoever this nominee’s going to be,” he said, “if the court moves forward on gay marriage or restricts the Second Amendment or goes forward with another change that’s unpopular among the American public… that’s something that will affect the president’s reelection bid.”

Still, the game is likely to change considerably when Obama announces his nominee. “To be honest, I think this is all noise,” Darling conceded. “It will become completely irrelevant when the nominee is put forth.”

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Here’s RNC chairman Michael Steele’s empathic view of the whole “crazy nonsense empathetic” thing, as he put it while guest hosting on Bill Bennet’s radio show: “I’ll give you empathy. Empathize right on your behind!”

ThinkProgress has the video here.