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.