Op-ed colulmn: Sotomayor’s ‘empathy’ as a justice must be impartial

Later this month, I will be among the political junkies glued to the hearings for the confirmation o

Later this month, I will be among the political junkies glued to the hearings for the confirmation of Sonia Sotomayor to the Supreme Court.

As soon as Justice David Souter announced his resignation, the prognosticators began enumerating the traits that President Obama should look for in a candidate — a woman is definitely needed to balance this lopsided male-dominated court, a person from an ethnic minority is needed and he should be looking for someone with “empathy.”

That loaded word caught the attention of conservatives, liberals and all those in between.

Years ago I took a one-evening course on “Empathic Listening.” The culminating exercise was to choose partners and, for a given amount of time, to listen to your partner recite his problem. We then repeated back to our partner what we had heard. We were to simply acknowledge that person’s claims without giving suggestions, or commentary of any kind.

It wasn’t always easy; The “bleeding hearts” were always tempted to interject opinion and suggestion. Some of us began to see the folly of interrupting and the value of giving complete attention. Empathy, it seemed, is something that could be learned.

Strict standards

Nonetheless, the storm that erupted over the word “empathy” was not surprising. It’s a soft word, and we want our Supreme Court justices to be strong — supremely rational, not given to emotional displays, able to render decisions untainted by personal biases. When Sonia Sotomayor returned to the Capitol after she fell and broke her ankle, she was presented with a bag of ice and a pillow by a Republican congressman who remarked, “some Republicans are empathetic, too.”

It was a chivalrous, clever gesture and spoke volumes. Would he have done the same for a male candidate?

Then along came David Brooks, the New York Times columnist usually described as a conservative, but whose writing and televised commentary make him singularly difficult to place in a box. Lately, he’s been studying and writing about a weighty subject — cognition — the process of knowing or perceiving that which is known.

Brooks writes that Supreme Court justices are cognitive beings like the rest of us with ideas “ingrained by genes, cultures, education, parents and events.” He further states that our “American legal system is based on a falsehood . . . that this is a nation of laws, not men . . . and that disembodied, objective judges are able to put aside emotion and unruly passion and issue opinions on the basis of pure reason.”

“People without emotions cannot make sensible decisions; people without social emotions like empathy are not objective decision makers — they are sociopaths who sometimes end up on death row.”

These emotions are often acquired in an unconscious way, so the question for Sotomayor is not whether or not she has “empathy,” but whether or not she can “process multiple streams of emotion.” She will be a good justice if she can weigh the claims of many people in a crisis. She will fail if she can only empathize with one type, one gender, one ethnic group or one social class.

In a June 8 column, Brooks writes that some of Sotomayor’s speeches reflect identity politics, where race and gender “take center stage.” However, if you look at the whole written record, you are impressed that Sotomayor is a “hard-working, careful though unspectacular jurist whose primary commitment is to the law.” As she came up through the traditional legal system, she “did not turn herself into an Al Sharpton in robes,” he wrote.

Local column

Closer to home, Gazette columnist Carl Strock wrote “On empathy, gender, race and firearms” (June 16). Among the letters he had received attacking him for an earlier column about the lack of empathy displayed by many conservatives, there was one from a Republican town chairman. Strock said he and the chairman agreed on their concern about a potential Supreme Court justice (Sotomayor) believing that a “wise Latina woman will make better legal decisions than a white male who hasn’t lived that life.” Strock writes that he is “after all, a white male” and he doesn’t care to be told that his sex and his race limit his ability to think clearly.

I would simply say that I am, after all, a white woman who more often than not agrees with him. I will try to believe that neither his sex nor his race affect his fair decision-making today and I will not ask him to bear any institutional guilt for past decisions made by his predecessors that severely limited the choices open to women. I would just ask him to remember that denied the vote, women were powerless to change the laws; barred from participating either by legislation or strong-armed tradition, they couldn’t serve in the highest corridors of power — government, private corporations, the military or law enforcement.

Wait and see

I don’t at this point know enough about Sonia Sotomayor to know if she’s a good candidate for the Supreme Court. There will be plenty of “gotcha” moments, if past proceedings are any indication. I’m sure that she’s a cognitive being of wide experience, some of which may have contributed to empathy. It may have been immodest of her to claim that a “wise Latina woman” could make better legal decisions than “a white male who hasn’t lived that life.”

Let’s listen and try to find out.

Ruth Peterson lives in Niskayuna. The Gazette encourages readers to submit material on local issues for the Sunday Opinion section.

Categories: Opinion

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