Justice Sotomayor?—More for some, less for others?
- May 27, 2009 - 6 -
{REL[6128][photo]K6cgOUrJREL}President Obama, while a presidential candidate, gave a very important speech (March 18, 2008) on race in America. In that speech he said that “Most working- and middle-class white Americans don’t feel that they have been particularly privileged by their race…So when they…hear that an African-American is getting an advantage in landing a good job or a spot in a good college because of an injustice that they themselves never committed…resentment builds over time.”
Those were brave and important words for then-Senator Obama to say. However, through close observation and experience I have learned to pay more attention to what President Obama does than to what he says.
The most recent case in point is his nomination of Sonia Sotomayor to the U.S. Supreme Court. As a federal judge, Ms. Sotomayor has been the poster child for President Obama’s desire to have judges who will have empathy with some groups, which means less empathy for other groups.
Lady Justice is blindfolded for a reason: she’s supposed to be impartial, not empathic. Empathy belongs in the legislature and the executive branch, and not in the judicial branch. Sotomayor is a living, breathing example of making the law subjective and relative, rather than objective and impartial.
The best illustration of Judge Sotomayor’s less-than-objective view of the law is her treatment of the Ricci v. DeStefano case.
The Ricci case involves New Haven, Conn., firefighters (17 whites and 1 Hispanic) who scored highest on written exams, but were not promoted because the city council feared being sued for racial discrimination because no black firefighters scored well enough to be promoted. The firefighters who were denied promotion filed a lawsuit claiming reverse discrimination.
When the case came before Judge Sotomayor, she rejected their claims in such a casual fashion that a fellow judge, Jose Cabranes (a Clinton appointee), severely criticized her and stated that “This perfunctory disposition rests uneasily with the weighty issues presented in this appeal.” In other words, Judge Sotomayor gave the 18 deserving male firefighters the back of her judicial hand.
Ms. Sotomayor also stated in a 2001 speech to LaRaza, “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…Our gender and national origins may and will make a difference in our judging.”
Fair and impartial to all?—Hardly! Fortunately, Chief Justice John Roberts is living proof that Judge Sotomayor’s assessment of white males and their supposed limitations is incorrect.
The Ricci case has now gone before the U.S. Supreme Court, and the majority of the justices have given every indication that they are going to give the New Haven firefighters the justice they were so casually denied by Ms. Sotomayor. Chief Justice Roberts was particularly tough in oral questioning of the New Haven City Council’s attorney.
This was no surprise. In a case that came before the Supreme Court last year (Parents Involved in Community Schools v. Seattle School District No. 1), which involved racial preferences for balancing enrollments in particular schools, Chief Justice Roberts wrote in his majority opinion denying racial quotas or preferences: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
That’s blind justice—equal treatment for all under the law. Sotomayor will be for affirmative action, quotas, set asides. That’s the business end of empathy. In the business end of empathy, some people get discriminated against in favor of other people.
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1 On May 28th, 2009, at 3:26pm, Jason Adkins wrote:
Solid analysis, Dr. Land. It will be a quite interesting confirmation process, especially if the Supreme Court sides against Sotomayor’s perspective concerning the Ricci case.
One thing I found interesting concerning Sotomayor is her decision in Center for Reproductive Law and Policy v. Bush (2002). She actually upheld the Mexico City Policy. Although her rejection of CRL’s case seemed to be based on legal technicality (i.e., foreign NGOs wouldn’t qualify for equal protection under the law), she did mention that President Bush had the legal right to set such a spending priority.
This is a slightly encouraging sign. More liberal, “activist”-minded judges would have used that occasion to challenge the Bush administration’s pro-life policies.
Perhaps, we could have had a worse nominee (if that’s any consolation!).
2 On May 28th, 2009, at 10:30pm, Tony Peterson wrote:
The “empathy” to which the President refers is the acknowledgment that the Constitution and the laws of the land are NOT just words on a page. They represent who we are as a people. Further, if they needed no interpretation for the issues of our day—issues that affect the very real people of our day—we would have no need for a court to interpret. Since the framers deemed that there would be such a need, the interpretation should be faithful to the texts, but applicable to real people. There is the empathy. The dry reading that some advocate is not only not preferable, it is impossible. We are now forced to face the glaring fact: The justices of the Supreme Court have ALWAYS brought their own background and experiences into the courtroom. How could they not? I’m beginning to think that white males are the only Americans who don’t understand that fact. White male experiences count on the court. But for far too long they have been the only experiences that count.
3 On May 29th, 2009, at 5:35am, Tim Williams wrote:
Somehow I think the idea was missed of what it means to interpret the law. Justices are to interpret how and if a law is applicable in a case. Not take a law and interpret like a foreign lanquage in a way to make it fit something it was not designed for.
True that experiences and background do come into play unfortunately we are human, but the ideal we as a people should desire is for them to take no place in the interpretation. As Dr. Land pointed out experience and background is the playground of the legislative and executive branches. The judicial branch should be where impartiality reigns and decisions are garnered by cold reasoning not heated feelings.
4 On May 29th, 2009, at 11:46pm, Tripp Finch wrote:
But yet the Constitution is just that…words on a page, simple instructions for government, simple rules to follow that mean what they say and say what they mean. Being faithful to the original text of the Constitution is being applicable to real people. The principles of the Constitution do not change with the political landscape. Furthermore, the notion that white males deserve to pay for the past and dominate/oppress minorities is a stale agrument (a black man is President) that avoids the real issue, which is that the Supreme Court has removed Judeo-Christian values from American society since the 1960s. Blind and impartial justice does not include empathy. Empathy (by the Warren Court and subsequent S.C. Courts) is what created the muddy waters of a so called living breathing Constitution. America must return to her Christian roots. This is what made America great.
5 On Jun 1st, 2009, at 7:43pm, Tony Peterson wrote:
First, I said nothing about white males paying for the past. Equity on the court has nothing to do with payback. It has to do with common sense. Please read what I said above: “White male experiences count ...”
The Constitution’s “words on a page” were written by fallible men, but men wise enough to know that they cannot write direct laws regarding every issue that might come down the pike in generations to come. So they developed principles, as you say. Even those principles sometimes war against each other.
Supreme Court determines, in those instances that come to them, what is the wise course of action, being faithful to the Constitution. Like it or not, their wisdom will be shaped by their life experiences. If you think white male’s experiences do not come into the courtroom, you are deceived. And if you don’t believe anyone else’s experience is as relevant, or if you believe that white males are the only ones who can judge rightly, then you miss the idea of America.
6 On Jun 2nd, 2009, at 6:26pm, Tripp Finch wrote:
First, I said nothing about white males being the only ones who can judge rightly. The assumption of this proves this make’em pay attitude. Exaulting a judicial nominee or any public servant on the basis of race is irrelevant and racist. Again, a black man is President.
As you wrote the Constitution was written by “men wise enough to know that they cannot write direct laws regarding every issue”. This is why power to address every issue is Constitutional given to the legislative branch which is directly accountable to the people. The Supreme Court is not.
Justice is to be impartial, and the limitation of man is not an excuse to do otherwise. Making a judicial decision on the basis of past experience or empathy is wreckless and dangerous.