Obama's Empathy Test
8:30 AM, Jul 13, 2009 • By PETER BERKOWITZ
In discharging their constitutional duty to provide advice and, if they deem appropriate, give consent to President Barack Obama's nomination of Judge Sonia Sotomayor to the Supreme Court, Senators should examine the critical importance the president attaches to empathy as a judicial virtue and to Judge Sotomayor's claim to be well-endowed with it. They will find that the president and the judge have exaggerated empathy's significance, understated its ambiguities, and obscured fundamental judicial virtues.
On May 26, in his White House remarks introducing Judge Sotomayor, President Obama praised her "rigorous intellect" and lauded her conception of the "judicial role," which involved "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 are estimable qualities essential to the task assigned judges in our constitutional system. But Obama hastened to correct the traditional understanding by adding that these qualities "alone are insufficient" for appointment to the Supreme Court. Also needed, and what Sotomayor brings to the bench, is "experience being tested by obstacles and barriers, by hardship and misfortune" and a distillation of that 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." Sotomayor â s now famous conviction â 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 â t lived that life â adds that excellence at empathy is a function of race, ethnicity, and sex.
The ability to feel and understand what others feel and understand, especially what ordinary people feel and understand, is just what then Senator Obama charged that then Judge John Roberts lacked when, in 2005, Obama took to the Senate floor to explain why he opposed Robert's nomination to become the nation's seventeenth Chief Justice.
"There is absolutely no doubt in my mind," Obama declared, "that Judge Roberts is qualified to sit on the highest court in the land." But contrary to these conciliatory words, Obama proceeded to spell out Roberts's disqualifying deficiency.
True, Obama acknowledged, Roberts was exceptionally intelligent, exhibited a judicial temperament, loved the law, respected precedent and procedure, exercised restraint interpreting statutes and cases, and displayed impartiality. These qualities, Obama maintained, would provide Roberts guidance in 95 percent of Supreme Court cases.
But resolution of "the five percent of the cases that are truly difficult," declared Obama, inevitably turns upon "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." Indeed, "the critical ingredient is supplied by what is in the judge's heart."
Obama concluded that Robert's heart was deficient because in his work in the White House and Solicitor General's office in the 1980s, Roberts advocated a limited role for government in fighting racial discrimination and empowering women. In fact, it is Obama's claim to have looked into Robert's heart and found it wanting that is deficient. After all, Roberts was a lawyer developing arguments for his client. And the limited government views that he elaborated reflected principles concerning the proper exercise of government power in a free society, empirical judgments about the kinds and degree of discrimination to which racial and ethnic minorities and women were then subject, and opinions about the passions and interests inscribed in human nature.