The Magazine

The Problem with Judicial Empathy

What will constrain judges once they turn to their hearts for guidance?

Jun 8, 2009, Vol. 14, No. 36 • By TERRY EASTLAND
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In announcing her nomination to the Supreme Court last week, President Obama said Sonia Sotomayor has the "first and foremost quality" needed in a justice: "a rigorous intellect, a mastery of the law, an ability to home in on the key issues and provide clear answers to complex legal questions." He said she also has another quality that a justice needs: the "recognition of the limits of the judicial role."

Obama then cautioned that by themselves these qualities aren't enough. "We need something more," namely the "experience .  .  . of being tested by obstacles and barriers" and "ultimately overcoming those barriers." Such experience enables a judge to have a "common touch and a sense of compassion, an understanding of how the world works and how ordinary people live." All this he sees in Sotomayor.

Formal presidential introductions of Supreme Court nominees are usually tossed aside, as the "real" story is assumed to be elsewhere. But Obama's introduction of Sotomayor deserves to be kept in mind as the Senate begins its review of the nomination. (Hearings are expected in July.) The odds are very good that Sotomayor will be confirmed, not least because she is the first Supreme Court nominee of a popular president whose party has an almost filibuster-proof majority in the Senate. But there will be, or at least there should be, issues raised with this nomination, and they stem from the very qualities that the president identified in Sotomayor.

As Sotomayor's opinions are examined in the Senate and the media, that "first and foremost quality"--"an ability to home in on the key issues and provide clear answers to complex legal questions"--will be of prime importance as there is a case in which her legal performance left much to be desired, and it happens to be a case, not of minor importance or interest, but one being decided presently by our highest court.

Ricci v. DeStefano was argued before the Supreme Court in April, and a decision is expected by the end of this month. The case concerns the promotion of firefighters in New Haven, Conn. Because of a union agreement requiring promotions to be based on examinations, the city contracted with a company that devises exams. White applicants did well on the test; black applicants less well. The exam review board heard testimony from a city official who said that if the results were certified, and the highest-scoring candidates thus were promoted, the city might be subjected to a "disparate impact" lawsuit from black firefighters, since none scored high enough to win a promotion. The board chose not to certify the results, and no promotions were made. A group of 16 white firefighters joined by one Hispanic sued the city, charging racial discrimination in violation of Title VII of the Civil Rights Act of 1964 and the equal protection clause of the Fourteenth Amendment. The district court dismissed their complaint and then a three-judge panel of the Second Circuit upheld the dismissal. Sotomayor was one of the judges on that panel.

It's easy to see why this case is a big one. Race discrimination cases usually are. And the Supreme Court, to judge by the oral argument, is likely to overturn the ruling.

But Ricci is newly important with respect to Sotomayor's judicial abilities. The panel's decision, for which Sotomayor is responsible equally with the other two judges she sat with, conspicuously failed to probe the key issues in Ricci.

Struck by this failure, some of Sotomayor's colleagues sought to have the entire court consider the case. With the circuit voting 7-to-6 to deny a rehearing, Clinton appointee Jose Cabranes wrote an opinion joined by the five other dissenters that, without expressing a view on the merits, took sharp issue with the panel's opinion, and effectively invited the Supreme Court to take the case. Cabranes said that Ricci

raises important questions of first impression in [the] Circuit--and indeed, in the nation--regarding the application of the Fourteenth Amendment's Equal Protection Clause and Title VII's [of the Civil Rights Act of 1964] prohibition on discriminatory employment practices.

Cabranes described the questions on appeal as "indisputably complex and far from well-settled," observing that the

core issue presented by this case--the scope of a municipal employer's authority to disregard examination results based solely on the race of the successful applicants--is not addressed by any precedent of the Supreme Court or our Circuit.

Obama's own Justice Department also found shortcomings in the panel's opinion. In a friend-of-the-court brief, the solicitor general said the opinion did not "adequately consider whether, viewing the evidence in the light most favorable to [the plaintiff firefighters], a genuine issue of fact remained" as to whether New Haven's "claimed purpose to comply with Title VII was a pretext for intentional racial discrimination in violation of Title VII or the Equal Protection Clause." The brief concluded that the Supreme Court should vacate the judgment and remand the case for "further consideration": in other words, for the kind of honing-in that should have been demanded by Sotomayor's panel.

As for the second quality Obama sees in his nominee, "recognition of the limits of the judicial role," he defined it as "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."

Obama seemed to be channeling Republican presidents from Richard Nixon to George W. Bush who have insisted on a limited role for the courts. But Obama's insistence on judicial modesty doesn't apply in every case. Obama said that there are times when "we need something more." And, when it is invoked, that "something more"--which Obama explained in terms of the third quality, "experience"--will swallow up judicial restraint, with judges no longer interpreting the law but making it.

So Obama is for a limited role for the courts but also for the courts to abandon that role. But when, for Obama, may a court decide to do that?

Obama has said that legal process will dispose of 95 percent of cases but that it is unable to "lead you to a rule of decision" in the remaining 5 percent. He gives examples of these "truly difficult" cases:

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.

Decisions in such cases, he says, "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."

Obama has spoken often about empathy. His campaign, in a sense, was premised on getting the country to overcome what he called its "empathy deficit," meaning a country with a politics that has been insufficiently egalitarian and socially liberal. He promised to change that and would have the courts pursue the same mission through a jurisprudence of empathy. This is a blatantly political understanding of the role of the courts, at odds with the concept of a government of separated powers provided for in the Constitution. The grounds for decision under a jurisprudence of empathy come not from legal materials but the kind of considerations only a legislature may properly take into account.

It is hard to overstate how important "empathy" is to how Obama thinks about the task of judging. He explained in 2007 that he voted against John Roberts after having found him deficient on his empathy index. He picked Sotomayor having found her sufficient.

Oddly, in introducing her, Obama never once mentioned "empathy." It was as though the word had been struck from his dictionary. Nor did Sotomayor use it. Instead, Obama heralded "experience" as "a necessary ingredient in the kind of justice we need on the Supreme Court." And Sotomayor worked that talking point, relating "the wealth of experiences, personal and professional" that have shaped her career as a lawyer and her approach to judging.

It's unclear why empathy disappeared at the very moment you'd expect Obama to emphasize it. Perhaps he and his advisers decided that "empathy" and "what is in the judge's heart" suggests a degree of subjectivity in judging that Americans aren't yet ready to accept. "Experience" is a less loaded term. But for Obama it gets to the same thing. As he said standing by Sotomayor, the right kind of experiences will create "a sense of compassion" (read empathy) in a judge. Compassion, as Obama sees it, that will lead the judge to reach the right (which is to say the left) result.

Obama says he's prepared to fight for his nominee. And debate over Sotomayor could be illuminating. For starters, what about the shoddy work of her panel in Ricci and of Jose Cabranes's criticism of its opinion? And, more broadly, which issues in the courts today are so legally indeterminate that judges need to move outside the law and into their hearts to figure out how to decide them? What is to constrain them once they repair to their hearts for guidance? And how can a judge who agrees with Obama that a heartfelt jurisprudence could help "tilt the balance" in favor of "people who are struggling in this society" in good conscience take the judicial oath of office? That oath obligates them to do equal right unto the poor and the rich. And, finally, a constitutional question: Are the legislative and judicial powers different kinds of powers? Or are they essentially the same?

These questions are quite different from the ones usually raised in connection with the Supreme Court nominees of Republican presidents. And so is this one: How will the Republican Senate minority discharge its duty to advise and consent on the Supreme Court nominee of this Democratic president?

Terry Eastland is the publisher of THE WEEKLY STANDARD.