Jun 05 2009

Judicial “empathy”?

Category: affirmative action,diversity,Uncategorizedharmonicminer @ 9:49 am

The issue here is that of the empathy of Supreme Court nominee Sotomayor for a firefighter named Ricci, whose case against the New Haven Fire Department she overturned.  He had sued the city for  failing to promote him when he had met all qualifications, purely on the grounds that no black candidates had similarly qualified.  Apparently taking that fact as proof that the qualifications were racist, Sotomayor concurred that the city had done the right thing in promoting no one.  So we have a very hardworking firefighter, who went far above and beyond expectations to prepare for the examination to determine his qualifications for promotion, for whom the good judge appears to have no empathy whatsover.  Charles Krauthammer makes it very clear that this should be a teaching moment.

Empathy is a vital virtue to be exercised in private life — through charity, respect and lovingkindness — and in the legislative life of a society where the consequences of any law matter greatly, which is why income taxes are progressive and safety nets built for the poor and disadvantaged.

But all that stops at the courthouse door. Figuratively and literally, justice wears a blindfold. It cannot be a respecter of persons. Everyone must stand equally before the law, black or white, rich or poor, advantaged or not.

Obama and Sotomayor draw on the “richness of her experiences” and concern for judicial results to favor one American story, one disadvantaged background, over another. The refutation lies in the very oath Sotomayor must take when she ascends to the Supreme Court: “I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich. … So help me God.”

When the hearings begin, Republicans should call Frank Ricci as their first witness. Democrats want justice rooted in empathy? Let Ricci tell his story and let the American people judge whether his promotion should have been denied because of his skin color in a procedure Sotomayor joined in calling “facially race-neutral.”

When judges are to be evaluated based on their “empathy,” inevitably the question is, “Empathy for whom?”  It is clear that judicial empathy will pretty much never be exercised in favor of the currently most despised class, namely white males, who are presumed to have “white male privilege,” even if they are dyslexic, or come from a poor family or broken home, or were abused as children, or had to work extra hard, etc.

In any case, judicial empathy, to the extent that it is appropriate (which isn’t much, in my opinion) should be reserved for prescribing punishments after triers of fact have demonstrated guilt in criminal cases, or perhaps limiting damages in civil cases, after the facts have been determined.  It is certainly inappropriate in an appeals judge (which is all the Supreme Court is), who is normally NOT there to determine or review facts of cases, but rather whether the law was correctly applied TO those facts.

Will Judge Sotomayor find it acceptable if no fire-fighter in New Haven is ever promoted again?  Would she find that “fair”?

We are supposed to be a government of laws, not of persons.   Lady Justice is supposed to be “blind.”  She certainly isn’t supposed to be opening one eye to check for the level of skin pigment.