Tales of a wandering lesbian


WARNING:  Political Content.  If you don’t want to know my political views, stop reading here.

When President Obama announced his nomination of Sonia Sotomayor, he outlined the qualities that he admires in judges:

“First and foremost is a rigorous intellect, a mastery of the law, an ability to hone in on the key issues and provide clear answers to complex legal questions.

“Second is a recognition of the limits of the judicial role, an understanding that a judge’s job is to interpret, not make law, to approach decisions without any particular ideology or agenda, but rather a commitment to impartial justice, a respect for precedent, and a determination to faithfully apply the law to the facts at hand.

“These two qualities are essential, I believe, for anyone who would sit on our nation’s highest court. And yet these qualities alone are insufficient. We need something more. [Emphasis mine.]

“For as Supreme Court Justice Oliver Wendell Holmes once said, the life of the law has not been logic, it has been experience; experience being tested by obstacles and barriers, by hardship and misfortune; experience insisting, persisting, and ultimately overcoming those barriers. It is experience that can give a person a common touch and a sense of compassion, an understanding of how the world works and how ordinary people live.

“And that is why it is a necessary ingredient in the kind of justice we need on the Supreme Court.”

President Obama’s “empathy standard” has caused an uproar in some political and legal corners.  That standard was articulated in 2005 when then Senator Obama voted against the confirmation of John Roberts.  Here’s – in part – what he said:

“[W]hile adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a court, so that both a Scalia and a Ginsburg will arrive at the same place most of the time on those 95 percent of the cases — what matters on the Supreme Court is those 5 percent of cases that are truly difficult. In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.

“In those 5 percent of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision. In those circumstances, your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions or whether the commerce clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce, whether a person who is disabled has the right to be accommodated so they can work alongside those who are nondisabled — in those difficult cases, the critical ingredient is supplied by what is in the judge’s heart.”

Here’s what I find interesting.  In listening to the Sotomayor hearings, especially the opening remarks of the Senators, I hear two distinct groups.  One group talks about the importance of a person’s background and the perspective that informs the decisions of a judge.  One group talks about the dispassionate application of law that is critical to our system.  Both have a point.  But here are my two cents.

I’m a lawyer.  I love the law.  I loved studying the law. I loved applying the law.  I drafted legal opinions for a living. It was a fun game.  I was not, however a great lawyer.  The great lawyers and judges that I worked with weren’t the ones that could plug facts into a formula and come up with the answer.  If that were all that is necessary to be a great judge, any first year associate could do it.  The great judges and attorneys that I knew were the ones who understood how the law would impact people’s lives.

That doesn’t mean that they didn’t apply the law.  It doesn’t mean that they bent the law to their whims.  It meant that they had the empathy to understand, in situations where the law did not dictate a specific answer, (this happens far more than you might think) how the law would impact all people.

For me that’s the interesting thing going on in the Sotomayor hearings.  Some see empathy as a weakness – akin to bias.  They have plapable and articulated fear that someone who has empathy will have it for a particular party or policy position.  That is not empathy.

Those who see empathy as a benefit understand that a justice who has empathy has it for ALL parties and for NO policy positions.  A justice who has empathy makes decisions in the murky grey middle based on an understanding of how all people will be impacted.  They use the law, and they use rules of construction to get as close to a dictated result as possible.  And if they are then left without a clear result, they look at the possible results and how they fit into a broader picture.

For me, this is a critical piece.  I was able to apply the law directly, suscinctly, and absurdly.  I did it repeatedly.  It made me a good gamesman.  It did not make me a good jurist.

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July 14, 2009   3 Comments