Obama had it wrong. Sonia Sotomayor is not empathetic. She doesn’t care about how people in the real world live and feel. She’s not a Latina judge, wise or otherwise. She’s a computer sorting ones and zeros: The law says so, the law says not; precedent upholds, precedent overturns.
Or that is the script the Supreme Court nominee recited — a script that, not incidentally, summarizes the conservative version of proper judicial conduct: Hew to the letter of the Constitution circa 1787 and, above all, refrain from feeling anything for anyone who comes before you. Having successfully performed this role, Sotomayor will be confirmed.
Once there, of course, there’s no telling what she’ll do. During his confirmation hearings, Chief Justice John Roberts kneeled after every third sentence and kissed a Rosetta Stone engraved with the words stare decisis. Then he donned the robe and commenced to undo decades of settled law — in workplace discrimination, abortion and plenty of other areas.
The conservatives’ attack on empathy — and its conflation with sexual bias, reverse racism and liberal “activism”— smelled disingenuous from the get-go, a desperate grab for something to hold against an experienced, intelligent and moderate jurist. Denouncing empathy wasn’t particularly smart, coming from the party that polls as the one that “doesn’t care about people like me.” Nor were allegations of Sotomayor’s racism, given that the attackers’ chief spokesperson was Senator Jeff Sessions. The Alabama Republican’s own 1986 nomination for a seat on the federal bench was derailed by testimony that he’d called a black Assistant U.S. Attorney “boy” and a white civil-rights lawyer a “disgrace to his race.” Sessions also allegedly told colleagues the NAACP was un-American, while the KKK was all right by him. His only criticism: Some members smoked pot.
Desperate and dumb — and contrived — as the charges of selective empathy may be, they also revealed the true colors, so to speak, of the nominee’s detractors. There is no stain of bias on any of the thousands of cases over which Sotomayor has presided — with the possible exception of upholding a lower court’s ruling rejecting some white firefighters’ claim of reverse discrimination in Ricci v. DeStefano. (She never claimed she was empathetic, either.)
The only appearance of bias was on her: the generous features and thick black hair, the tongue that rolls its Rs. With all that estrogen and hot chilis sloshing around inside her round, brown body — and without the rational ballast of a father’s influence during her formative years — how could Sonia have learned to think straight? You can take the brown girl out of the projects, but you can’t take the brown girl out of the brown girl.
The idea that femaleness and minority racial status automatically translate into liberal politics is — sadly, perhaps — unfounded. Indeed, even as her critics were implying that Sotomayor is irrevocably, essentially biased, they were suggesting that some other candidate could — and, to be a good judge, should — shed her personal and social histories at the courthouse door.
On its face, the current Supreme Court would seem to present proof that this can be done. Clarence Thomas, an African American born in a sharecropper’s shack, attained an elite education by dint of affirmative action, then dedicated his life to ensuring that no other poor person of color would get the same boost. Is he the apotheosis of dispassionate color-blindness — or a case study in racial self-hatred? And what about his sexual tastes — or shame? This is the man who famously chatted with Anita Hall about his taste in porn and expressed his sense of humor by placing a soda can on her desk and asking, “Who put a pubic hair on my Coke?” More recently, he erupted in giggles during discussions of school officials strip-searching student Savana Redding. If the image of a high school girl’s panties (and the pubic hair inside?) tickled him, he refused to allow considerations of the plaintiff’s gender to influence his opinion: He could find no Fourth Amendment violation of Redding’s privacy in the search. (Inexplicably, Thomas concurred with the majority, then went on to explain why virtually every part of its opinion was wrong.)
Ruth Bader Ginsberg, burdened by memories of being a teenage girl, didn’t get the joke.
And then there’s Samuel Alito. At his confirmation hearing, the nominee allowed that, contrary to reputation, he had feelings, too. For instance, he “couldn’t help but think” about his impoverished Italian immigrant grandparents whenever an immigration case came before him. So why is the guy so consistently — and vituperatively — antagonistic to the poor, minorities and immigrants (not to mention women)? Is this what judicial objectivity looks like? Or does Alito also harbor biases — or politics?
On the other end of the spectrum is John Roberts, who wears his dispassion like R. Crumb’s “Whiteman,” the character with a permanent broomstick up his butt. Being white, middle-class, Christian and male, he is presumed innocent of race, class or sex. So Roberts can remain invisibly loyal to the interests of his own race, class and sex. The stigma of “bias” can’t stick to his skin.
The notions behind this anti-empathy stuff are, first, that women and people of color feel, while white men think; and second, that you can’t think and feel at the same time. Given the choice, furthermore, reason must rule over emotion.
But neurologists like Antonio Damasio tell us you can’t not think and feel at the same time. The brain is always engaged in instantaneous conversation with the senses, so that a queasy stomach, sweaty palms or a feeling of calm rightness inform every so-called rational decision or act. Hyperrationality is sometimes a symptom of brain damage.
Biology aside, dispassion can be a mask for passion. Anyway, the Roberts Court is hardly a bastion of dispassion. On this bench, it is the worst who are most full of passionate intensity: Thomas and Antonin Scalia are fairly boiling over with rage most of the time; Roberts’ sangfroid is that of an assassin.
After Sotomayor’s singularly uninformative hearings, we have little way of knowing what her passions are, or where her empathy lies. Will she defend other women’s right to control their own bodies? Will she stand up for equal protection for people of color, the disabled, the poor? Will she labor to bring the marginalized into the legal fold? All we know is she seems comfortable in her skin. We can hope that’s a good sign.
John Stuart Mill called the “feeling for justice” a “natural instinct.” He believed it might need to be “controlled and enlightened by a higher reason.” The administration of justice involves both emotion and thinking.
And what is the feeling for justice? I’d say it is rooted in the recognition that other people who do not look or behave like you are nevertheless human like you and therefore possess the same inalienable rights. Justice, in other words, requires fellow feeling: empathy. The passionate politics of the past two centuries enlisted enlightened reason to bring more and more categories of people under the umbrella of constitutionally protected, rights-bearing humanity. The job of a wise judge — Latina, black or white; male or female — is to uphold justice and continue to expand its reach. If she is wise, this brown girl from the projects will exploit her exalted position to encode and strengthen empathy.