Why do Republicans want to remove empathy and personal experience from the judicial bench? Because when judges make decisions using empathy and personal experience to inform their application of the law it results in decisions like those of the Warren Court. The whole propaganca campaign of Republicans to frame the question of judicial prejudice in terms of empathy and personal experience is to disguise the Repubican prejudices in favor of those who would use the law to oppress and exploit the weaker people in our society. Unfortunately, Judge Sonia Sotomayor is aiding this Republican propaganda.
Whether it is from an abundance of caution or her own beliefs, Judge Sotomayor has joined in with Republicans to misinform the public about both how judges make law and how judges use their life experiences in deciding cases.
Judge Sotomayor has stated that she believes judges do not make law and that it is inappropriate for judges to use their experiences in deciding cases. Both these statements are wrong. Under questioning by Senator Kyl, Judge Sotomayor said,
It is very clear that I don't base my judgments on my personal experiences or my feelings or my biases.
The problematic falsehood is that she and the Republicans are equating personal experience and empathy with bias.
to be fair to Judge Sotomayer, she does give some small acknowledgement of the role of personal experience and feelings, but she does so in an overly cautious manner that gives too much credence to the Republican framing.
When asked by Senator J. Sessions (R-AL) about whether judges should allow their “prejudices” to “impact their decision-making,” Judge Sotomayor stated:
SOTOMAYOR: Never their prejudices. I was talking about the very important goal of the justice system is to ensure that the personal biases and prejudices of a judge do not influence the outcome of a case. What I was talking about was the obligation of judges to examine what they’re feeling as they’re adjudicating a case and to ensure that it’s not influencing the outcome. Life experiences have to influence you. We’re not robots to listen to evidence and not have feelings. We have to recognize those feelings and put them aside. … But there are situations in which some experiences are important in the process of judging because the law asks us to use those experiences.
SESSIONS: Well, I understand that. [...]
SOTOMAYOR: I think the system is strengthened when judges don’t presume they’re impartial, but when judges test themselves to identify when their emotions are driving a result, or their experiences are driving a result, and the law is not.
But then to the extent that she endorsed empathy and personal experience with one hand she took it away with the other hand when she said later,
“at no point or time, have I ever permitted my personal views or sympathies to influence the outcome of a case. In every case where I have identified a sympathy, I have articulated it and explained to the litigant why the law requires a different result. I do not permit my sympathies, personal views, or prejudices, to influence the outcome of my cases.”
This is just a fantasy description of judicial decision making, and reiterates her belief that sympathies and personal experiences are somehow to be equated with prejudices. They are not.
Since the days of Eal Warren, the greatest Chief Justice this nation has seen, the Republicans and conservative fringe have fought against American justice by accusing the Warren court and any subsequent liberal judge or justice of making law rather than applying law. The charge is bogus on its face. First, when deciding every case, each and every judge or justice on all sides of political persuasion is making the law of the case by applying the law of the land to the facts of the case.
Second, laws are written in abstract generalities and can only be applied to actual facts. In many cases there is no clear fact pattern that determines the resolution of the dispute according to one law or another. In those cases the judge or justice is making the law that applies and then applies it. For example, one law may say "It is illegal to do X", another law may say "It is illegal to do Y" and it may be legal to do Z. When a case comes up where someone has done W and there is no law that says whether W is legal or illegal, in this case the question of law may become "Is W more like X, Y, or Z?" In this case the judge decides whether W is illegal because like X or Y or legal because like Z. In this case, the judge is making a new law: either "W is illegal" or "W is legal.". If the case is appealed then the reviewing courts are making new law vis a vis W also, whether or not they affirm or overrule the lower court.
Third, when a new right is established by the Supreme Court it is making a law. In the Second Amendment case District of Columbia vs. Heller, the conservative majority on the Supreme Court made new law by exercising their judicial activism by establishing a new individual right to keep and bear arms for personal home defense. That law had never before been made by the Constitution or by Congress, yet the conservative justices established it. The majority did so only by erasing all meaning from a complete clause of the Constitution and improperly turning a substantive and purposive clause of the Constitution into a mere historical preface. The majority could only make their new law by turning the purposive clause into mere surplusage in a manner contrary to the long established and settled tradition of interpretation that prohibits such a construction.
Fourth, there is an entire area of law known as the Law of Equity in which the judge makes the law simply by deciding what is fair between the disputing parties. On appeal the reviewing courts affirm the law that was made on the basis of whether or not it was fair and just. In these cases, similar to the second example above, the law is made by the court by exercising its discretion in judgement even though it may be said that the court is applying established rules or guidelines for fairness. The law lets the court do one thing or another and the judge decides whether it is more fair to do this or to do that. That decision makes the law that becomes enforced in that situation.
So, the courts and judges and justices are commonly and frequently making laws and it is a disservice to the American people for Judge Sotomayor to endorse the Republican conservative propaganda that frames American jurisprudence as only applying the law and not making the law in those cases where the law is grey or silent.
The second major area in which Judge Sotomayor is doing a disservice to the American people is by retreating from her "wise Latina" observations. The Republicans have browbeat most people and have effectively taken over control of the frame work of the discussion. One notable exception is Senator Sheldon Whitehouse from Rhode Island whose opening statement in the confirmation hearings should be required reading for all Americans interested in our system of justice. However, Judge Sotomayor has not followed the lead of Senator Whitehouse and instead has followed the lead of the Republicans and said that personal experience should not influence a judges decisions. This is a patent charade being put over on the American public. Of course every judge brings their personal experiences to the bench in their decisions and to even suggest otherwise as the Republicans do is to perpetuate a massive educational fraud.
As Senator Whitehouse observed in his opening statement, there is a definite role in the law for empathy, especially for the minority and the down trodden. We have a democracy that has the core value of majority rule, but that majority rule is only democratic if, and to the degree that, it is balanced by the respect for and upholding of minority rights. Here are some excerpts from Senator Whitehouse's opening statement:
Let me emphasize that broad discretion. As Justice Stevens has said, "the work of federal judges from the days of John Marshall to the present, like the work of the English common-law judges, sometimes requires the exercise of judgment - a faculty that inevitably calls into play notions of justice, fairness, and concern about the future impact of a decision."
It has been a truism since Marbury v. Madison that courts have the authority to "say what the law is," even to invalidate statutes enacted by the elected branches of government when they conflict with the Constitution. So the issue is not whether you have a wide field of discretion: you will. As Justice Cardozo reminds us, you are not free to act as "a knight-errant, roaming at will in pursuit of [your] own ideal of beauty or of goodness," yet, he concluded, "[w]ide enough in all conscience is the field of discretion that remains."
The question for this hearing is: will you bring good judgment to that wide field? Will you understand, and care, how your decisions affect the lives of Americans? Will you use your broad discretion to advance the promises of liberty and justice made by the Constitution?
This last point is the one crucial to understanding why the Republicans want to erase empathy from our nation's courtrooms. When judges have no empathy they are not concerned about the affect their decisions will have on the actual lives of people. In this way Republicans would have us believe that the courts do not and should not care how their decisions affect people. This is of course obviously wrong headed and detrimental to the American way of life, yet Republicans would have people believe that empathy should not play a role because where empathy plays a role in justice, the oppressors and exploiters could not use the law to continue their oppression and exploitation.
What Republicans do not want Americans to know is that American law has built into it the common law principle that oppression and exploitation is wrong. In this regard Senator Whitehouse stated:
The Founding Fathers set up the American judiciary as a check on the excesses of the elected branches, and as a refuge when those branches are corrupted, or consumed by passing passions. Courts were designed to be our guardians against what Hamilton in the Federalist Papers called "those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people . . . and which . . . have a tendency . . . to occasion ... serious oppressions of the minor party in the community." In present circumstances, those oppressions tend to fall on the poor and voiceless. But as Hamilton noted, "[c]onsiderate men, of every description, ought to prize whatever will tend to beget or fortify that temper in the courts: as no man can be sure that he may not be tomorrow the victim of a spirit of injustice, by which he may be a gainer to-day."
The courtroom can be the only sanctuary for the little guy when the forces of society are arrayed against him, when proper opinion and elected officialdom will lend him no ear. This is a correct, fitting, and intended function of the judiciary in our constitutional structure, and the empathy President Obama saw in you has a constitutionally proper place in that structure. If everyone on the Court always voted for the prosecution against the defendant, for the corporation against the plaintiffs, and for the government against the condemned, a vital spark of American democracy would be extinguished. A courtroom is supposed to be a place where the status quo can be disrupted, even upended, when the Constitution or laws may require; where the comfortable can sometimes be afflicted and the afflicted find some comfort, all under the stern shelter of the law. It is worth remembering that judges of the United States have shown great courage over the years, courage verging on heroism, in providing that sanctuary of careful attention, what James Bryce called "the cool dry atmosphere of judicial determination," amidst the inflamed passions or invested powers of the day.
Chief Justice Earl Warren said something similar in his memoirs when discussing why some decisions of the Supreme Court are controversial:
"I venture to express the hope that the Court's decisions always will be controversial, because it is human nature for the dominant group in a nation to keep pressing for further domination, and unless the Court has the fiber to accord justice to the weakest member of society, regardless of the pressure brought upon it, we never can achieve our goal of 'life, liberty and the pursuit of happiness' for everyone."
From: The Memoirs of Earl Warren (1977) page 335
Justice Warren also said in his Memoirs,
"I am certain that my lifetime experiences, even some of the earliest ones, have had an effect on the decisions I have rendered...."
One must ask why is this so frightening to Republicans? This basic question is not asked and Judge Sotomayor is not asking it, much less answering it. Isn't it abundantly clear that the kind of decision making by the Warren Court that opened up a new era to make "justice for all" a more nearly actual reality goes hand in hand with empathy and experience being used in judicial decision making? By removing empathy and experience from judicial decision making the Republicans hope to return the courts to the side of the oppressors and exploiters, and by all measurements they are succeeding.
In the same manner that Republicans in Congress are turning back the clock on the New Deal, Senator Whitehouse reminded us in his opening statement how the Republicans on the Supreme Court have used their judicial activism to turn back the clock on the Warren Court:
The "umpire" analogy is belied by Chief Justice Roberts, though he cast himself as an "umpire" during his confirmation hearings. Jeffrey Toobin, a well-respected legal commentator, has recently reported that "[i]n every major case since he became the nation's seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff." Some umpire. And is it a coincidence that this pattern, to continue Toobin's quote, "has served the interests, and reflected the values of the contemporary Republican party"? Some coincidence.
Please do not be fooled by this educational fraud being perpetrated on the American people by Republicans. A court without empathy is not a fair and unprejudiced court, rather it is a court extremely prejudiced in favor of "the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff." That most certainly is not unbiased law based on keeping empathy and personal experience out of decision making.
The very sad fact of the current state of affairs in our nation is that the best nominee the Democrats can come up with for the Supreme Court is a centrist judge without a liberal or progressive track record who seems to buy into the Republican fraud that empathy and personal experience do not belong on the judicial bench.
One can only hope and dream that when she is placed on the Supreme Court that the freedom of her position will open her eyes in the manner of an Earl Warren to see that empathy and experience do definitely have a place in her decisions making.