Seeking empathy on the court
Obama's 'empathy' criteria betrays the notion that justice is blind, regardless of whether a litigant is black, white, male, female, gay, straight, rich or poor.
Alan Bock
Sr. editorial writer
The Orange County Register
Sunday, May 10, 2009
We might as well start with the handicapping and explain the reasons later. Barack Obama could easily surprise us, but if I were laying odds today I would say the leading candidates to be the next Supreme Court justice are Judge Diane P. Wood, 58, of the 7th U.S. Circuit Court of Appeals in Chicago; Sonia Sotomayor, 54, of the 2nd Circuit court in New York; and Elena Kagan, 49, currently solicitor general and formerly dean of the Harvard Law School. Michigan Gov. Jennifer Granholm, 50, a Harvard law graduate and former assistant U.S. attorney, and Kim McLane Wardlaw, 54, of the 9th Circuit court in San Francisco figure as long shots.
You probably noticed that all those named are women and all relatively young. The age is a pragmatic factor; presidents these days want to appoint Supreme Court justices who will stay on the bench a good long time to maximize their influence. And given that President Obama is unlikely to be inclined to resist the strong pressure to appoint a woman because he is far from rejecting the essentially tribal identity politics that is so much part-and-parcel of Democratic Party politics these days, if there is such a thing as a sure thing in Supreme Court politics, it is that the next justice will be a woman.
Cass Sunnstein, 54, who teaches law at the University of Chicago and is close to Obama, and Merrick Garland, 56, of the D.C. Circuit appellate court, a traditional farm system for the Supreme Court, are on some peoples' short lists, and either would make an interesting choice – and might yet get serious consideration if Obama has other opportunities. But nobody expects them to get more than cursory glances this time around.
It's sad and in some ways baffling that certain identities play such a prominent role in our politics. I can see an argument that the court itself would benefit from having more women on it. Based mostly on close observation of a sample of one (my wife), I can see a case for a hypothesis that at least some women are more empathetic, more practical and more to-the-point in their thinking than most men.
It is beyond me, however, how women in general or even women's groups like NOW will actually benefit from having another woman on the high court, but that argument is made quite often. Maybe when a majority of Supreme Court justices are women, or the chief justice is a woman, we'll get beyond such quota-thinking.
Of course, that word "empathy" has already become the first point of contention in the complex ritual that Supreme Court nominations have become. When President Obama accepted Justice David Souter's retirement, he said he would be looking for a new justice who would be "someone who understands that justice isn't about some abstract legal theory or footnote in a case book; it is also about how our laws affect the daily realities of people's lives." That "quality of empathy," he said, is "an essential ingredient for arriving at just decisions and outcomes."
Sen. Orrin Hatch, a Utah Republican and veteran of the Senate Judiciary Committee, which will first question Obama's nominee, jumped on the empathy word right way as a code word for an "activist" judge, one who would be inclined to interpret the law so as to get an outcome favorable to a particular group, to find new rights nobody had noticed before, or even to make up law to get to a preferred outcome.
It is true, of course, that every judge comes to the bench with certain life experiences, and those experiences can affect decisions no matter how scrupulously he or she tries to put them aside. The notion of an impartial "umpire," which Chief Justice John Roberts invoked during his confirmation hearings, may be an ideal to strive for but the ideal is almost always affected by experiences and sympathies.
There is real danger in emphasizing empathy, however. The goddess Justitia is depicted as blindfolded to remind us that the law is supposed to be no respecter of persons, that it shouldn't matter whether a litigant is black, white, male, female, straight, gay, rich, poor, powerful or powerless. Justice consists of dispensing legal decisions impartially. The fact that this ideal is difficult and perhaps impossible to reach without exception, or even consistently, doesn't necessarily mean we should abandon it in favor of the vaguer, more emotional ideal of empathy, a concept that could do damage also to the concept of equal treatment under the law.
The notion that "diverse" life experiences will lead to more empathy or to decisions informed by that experience is suspect as well. I would argue that nobody on the current court has a more compelling poverty-to-prominence personal story than Justice Clarence Thomas. Yet his jurisprudence is informed much more by his personal political philosophy (which is arguably influenced by that experience, to be sure) than by how he felt or how he was treated as a child or young man. The experience matters, but it's not the only factor.
All that said, here are some of the pluses and minuses of some leading candidates:
Sonia Sotomayor may have been the leading choice until a tape surfaced on which she uttered an inconvenient truth, which in politics qualifies as a gaffe. Speaking at Duke University in 2005, she noted that "[a]ll the legal defense funds out there, they're looking for people with court of appeals experience," because "the court of appeals is where policy is made." That's one of those truths nobody likes to admit, and she immediately caught herself: "I know this is on tape, and I should never say that, because we don't make law, I know. Um, OK. I know. I'm not promoting it, I'm not advocating it."
If that rather clumsy comment doesn't torpedo her, Sotomayor could have been a nice two-fer, a female Hispanic with a dramatic personal story. Of Puerto Rican descent, she grew up in a Bronx housing project. She was diagnosed with diabetes at 8, and her father died when she was 9. Yet she graduated summa cum laude from Princeton and got her law degree from Yale. She issued the opinion that ended the Major League Baseball strike in 1995 and allowed the Wall Street Journal to publish Vince Foster's suicide note. Last year she sided with the New Haven city government in a case just argued before the Supreme Court involving a test for firefighter promotion that no African-Americans passed, so the city dumped the test and didn't promote anybody.
Diane Wood was appointed to the 7th Circuit by Bill Clinton in 1995. She is reputed to hold her own with Judges Richard Posner and Frank Easterbrook, two conservatives with large intellects. She is already being targeted for a 2001 decision that allowed the use of the RICO anti-racketeering law to keep anti-abortion protesters away from abortion clinics (until overturned by the Supreme Court in 2003). She also ruled that a convicted sex offender could not be barred from city parks after admitting he had impure thoughts about children but hadn't done anything about them.
Elena Kagan has no judicial experience (Senate Republicans blocked her appellate-court nomination in 1999), though she clerked under former Justice Thurgood Marshall. She has a long paper trail of academic writing, including a paper, done when Clinton was president, questioning the theory of a "unitary executive." At Harvard she opposed military recruiting on campus because of the military's "don't-ask-don't-tell" policy on homosexuality and disappointed liberals by defending indefinite detention of terrorism suspects. At Harvard she also recruited several prominent conservative scholars and seems to have run the department harmoniously.
Jennifer Granholm falls outside the clique of Ivy League circuit court judges (though she graduated from Harvard Law School) so she would qualify for diverse experiences. Kim McLane Wardlaw, despite her blonde hair and surname, was the first Latina to serve on the federal appeals court. She wrote the decision (now before the Supremes) that found a Fourth Amendment violation in the strip-search of a 13-year-old Arizona schoolgirl suspected of hiding Ibuprofen in her panties. She wrote the first opinion giving Fourth Amendment protection to e-mail messages.
Gay groups would love to see Obama put the first openly gay justice on the high court (KathleenSullivan and Pam Karlan at Stanford's law school would qualify) but that seems like a very long shot.
Given how close the Democrats are to having a filibuster-proof majority in the Senate – and how politically risky a filibuster would be for Republicans – Obama is likely to have little trouble getting his Supreme Court choice confirmed, unless something truly scandalous emerges.
Republicans could use the hearings well in two ways. The first would be to abandon the tired old trope about "activist" judges, a false dichotomy used by conservatives and liberals alike when convenient. The Supreme Court's job is to protect the Constitution from the legislative and executive branches, so when it determines the Constitution has been violated it is supposed to be "activist" enough to invalidate the law or executive action in question. That kind of activism is healthy and essential. The old gripe about "liberal activist" judges was tired in the 1970s. It's time for something more sophisticated and more genuinely constitutional.
Roger Pilon, vice president for constitutional studies at the libertarian Cato Institute, also told me that the Supreme Court nomination hearings could be an "opportunity for Republicans struggling with their identity to reestablish themselves, through sharp, sophisticated and informed questioning, as the party of liberty and limited constitutional government." Whether the old bulls on the Judiciary Committee are capable of that (or whether they believe in limited government anymore) is an open question, but they would do well to keep in mind that these televised confirmation hearings will be one of the first times large numbers of people will be exposed to more than sound bites from Republicans since Obama took office.
Although the president's appointment is likely to be younger and more open than Justice Souter to seeing the law as a way to make policy and change society, since Justice Souter has generally sided with the "liberal" bloc, the immediate impact of an Obama appointee is likely to be fairly minor. But the process will be fascinating and will likely hold a few surprises along the way.
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