I watched Sonia Sotomayor’s Senate confirmation hearings with mixed feelings, ranging from boredom to anger. I found some of the questions and comments so off-putting that at times I had to look away and turn the TV off. But overall, there was a kind of fascination to the hearings, especially in what they told us about the state of the nation’s culture wars.
It was quite a spectacle seeing several middle-aged, white males lecturing Sotomayor about the irrelevance of race, gender and life experiences for a judge. One such senator brought up Chief Justice John Roberts’ assertion in a recent school integration case that the way to stop discrimination on the basis of race is to stop discriminating on the basis of race. We also repeatedly heard references to Justice Roberts’ judges are like umpires dictum, declared in the opening remarks of his own confirmation hearings in 2005.
Who needs a wise Latina woman if life is that simple. No wonder her Republican questioners forced Judge Somomayor to disown her wise Latina remark from a 2001 lecture at UC Berkeley's School of Law, where she said: “. . . 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.”
It may not have been the wisest choice of words on her part. However, if you read the whole Berkeley speech in which those remarks were made, you would have been able to put her words in the proper context of the overall lecture, titled A Latina Judge's Voice, in which she also said:
“Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.”
The “wise Latina” quote was misunderstood, she said during the Senate confirmation. Taken out of context is the way I would put it. I suspect that the same senators that were so offended by Sotomayor’s remarks, were deeply moved when Justice Samuel Alito referred to his Italian immigrant background during his own 2006 Supreme Court confirmation hearings and said:
“When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account.” The double standard is alive and well.
Then there is the curious empathy issue, which keeps coming up ever since the President said in his May 1 remarks: “I view that quality of empathy, of understanding and identifying with people's hopes and struggles as an essential ingredient for arriving at just decisions and outcomes.”
During the confirmation hearings, Republican senators expressed their concern that Sonia Sotomayor has suggested in her speeches that a judge may be guided by something other than the facts of the case and the relevant law. Most everyone would agree, and an analysis of her record will show that in her 17 years as a judge she has faithfully upheld the law and precedents. She has repeatedly said: “The task of a judge is not to make the law. It is to apply the law.” Asked whether she agreed with Barack Obama that judges should rely on empathy, she simply replied: “We apply law to facts. We don’t apply feelings to facts.”
Is President Obama right that empathy is a desirable quality in judges? Do the senators so forcefully questioning Judge Sotomayor about empathy really believe that it is not? Or is it perhaps another double standard example - it is OK to feel empathy toward members of your own group or tribe, but not toward the others outside your tribe.
Thinking about these questions brought to mind a recent landmark Supreme Court decision that, in my opinion, sheds some light on the role that empathy plays in the way judges make and communicate their decisions.
Lawrence V. Texas is a United States Supreme Court case decided in 2003. In a 6-3 ruling, the justices struck down the sodomy law in Texas. Prior to this ruling, there were a variety of sodomy laws in different states, some making illegal all sexual acts not leading to procreation, others limiting their illegality to acts between same-sex couples. Lawrence overruled an earlier Supreme Court decision, Bowers V. Hardwick which upheld the constitutionality of a Georgia law that criminalized private sodomy acts between consenting adults, whether the couples were of the same or different sex. Lawrence invalidated all sodomy laws throughout the United States.
Justice Anthony Kennedy wrote the majority opinion, which ruled that “the intimate, adult consensual conduct at issue here was part of the liberty protected by the substantive component of the Fourteenth Amendment's due process protections.” He also added that “the Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.”
Kennedy’s opinion was grounded not on morality or any such conduct traditionally protected by society, but on the right of consenting adults to engage in intimate and personal conduct for those involved. He wrote:
“It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.”
Justice Sandra Day O’connor voted with the majority but filed a separate concurring opinion, expressing her reasons for invalidating the Texas anti-sodomy statute, reasons which were different than those argued by Kennedy. She voted against the Texas statute because it overtly discriminated against homosexuals as a group. Sodomy between opposite-sex partners is not a crime in Texas, so “Texas treats the same conduct differently based solely on the participants. . . . The Texas statute makes homosexuals unequal in the eyes of the law by making particular conduct - and only that conduct - subject to criminal sanction. . . . Texas’ sodomy law brands all homosexuals as criminals, thereby making it more difficult for homosexuals to be treated in the same manner as everyone else.”
I am not sure if Justices Kennedy and O’connor felt something like empathy toward homosexual Americans as they wrote their opinion, but their choice of words sounds to me as if they did, or at least, as if they were not worried that feelings of empathy would interfere with the legal merit of their opinions.
Let’s now look at the dissent in Lawrence v. Texas written by Justice Antonin Scalia. The fact that he dissented was not surprising given his voting record. But I was taken aback by the sharpness of his language.
Scalia wrote in his dissent: “State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers’ validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding. . . . The impossibility of distinguishing homosexuality from other traditional “morals” offenses is precisely why Bowers rejected the rational-basis challenge.”
“Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.”
I was left speechless when I first read Justice Scalia’s opinion. Why did he feel the need to use such strong and hurtful language, essentially saying that homosexuality is right up there with incest and bestiality as moral offenses that society has every right to guard against? Why is he so incensed at homosexuals fighting for their civil rights, so that their most personal feelings and conduct are no longer referred to as “moral opprobrium”?
If I found his words so hurtful, then how would my homosexual friends and colleagues feel when reading the particular way that Justice Scalia chose to portray their intimate feelings toward another person? How about their families? Couldn’t he have chosen language that would have been less insulting to a significant portion of the country?
It is possible to oppose the repeal of the Texas sodomy laws without the kinds of discriminatory feelings that seem implicit in Justice Scalia’s choice of words. Justice Clarence Thomas also dissented in this case, but wrote a separate short opinion in which he said:
“I join Justice Scalia’s dissenting opinion. I write separately to note that the law before the Court today ‘is … uncommonly silly.’ . . . If I were a member of the Texas Legislature, I would vote to repeal it. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources.”
“Notwithstanding this, I recognize that as a member of this Court I am not empowered to help petitioners and others similarly situated. My duty, rather, is to decide cases ‘agreeably to the Constitution and laws of the United States.’ ”
Not surprisingly, many concluded that Justice Scalia did what he did because of prejudice against homosexuals. I am not sure if Justice Scalia is prejudiced or just highly intolerant toward those whose beliefs and actions differ from his own. But, getting back to empathy, I think that most of us are far more concerned with judges that let personal prejudices or extreme intolerance affect their decisions, than with judges that let feelings of empathy toward fellow human beings influence their judgement.
The notion that judges (or, for that matter, anyone who makes decisions) can or should operate according to some kind of pure reason, abstracted from all emotion, is a silly fantasy that bears no relation to actual human thought or decision-making. It’s not even a sincere belief. Those who are maintaining it now don’t practice it in their personal or professional judgments; they are merely trotting it out now for political purposes.
In his opinion, and in his judgment, Justice Scalia exhibited far more emotion - of a highly aggressive sort - than did either Kennedy or O’Connor, or his fellow conservative Thomas. The issue isn’t one of emotion vs. reason. That’s a strawman. The issue is which kinds of emotions and experiences make for more open minds, broader fact-gathering, and farther-seeing judgments.
“In reality, decisions are made by imperfect minds in ambiguous circumstances. It is incoherent to say that a judge should base an opinion on reason and not emotion, because emotions are an inherent part of decision-making. Emotions are the processes we use to assign value to different possibilities. Emotions move us toward things and ideas that produce pleasure and away from things and ideas that produce pain.”
And, by the way, I believe that Sonia Sotomayor will be an excellent addition to the Supreme Court, and a role model for all Americans, including women and Latinos. I wish her all the best.