'Empathy' in Action

The Supreme Court is the final line of defense for protecting our constitutional freedoms. What kinds of rulings should we expect when we choose our justices on the basis of their record of "empathy"?

It is one of the signs of our times that so many in the media are focusing on the life story of Judge Sonia Sotomayor, President Obama’s nominee for the Supreme Court of the United States.

You might think that this was some kind of popularity contest, instead of a weighty decision about someone whose impact on the fundamental law of the nation will extend for decades after Barack Obama has come and gone.

Much is being made of the fact that Sonia Sotomayor had to struggle to rise in the world. But stop and think.

If you were going to have open heart surgery, would you want to be operated on by a surgeon who was chosen because he had to struggle to get where he is or by the best surgeon you could find — even if he was born with a silver spoon in his mouth and had every advantage that money and social position could offer?

If it were you who was going to be lying on that operating table with his heart cut open, you wouldn’t give a tinker’s damn about somebody’s struggle or somebody else’s privileges.

The Supreme Court of the United States is in effect operating on the heart of our nation — the Constitution and the statutes and government policies that all of us must live under.

Barack Obama’s repeated claim that a Supreme Court justice should have “empathy” with various groups has raised red flags that we ignore at our peril — and at the peril of our children and grandchildren.

“Empathy” for particular groups can be reconciled with “equal justice under law” — the motto over the entrance to the Supreme Court — only with smooth words. But not in reality. President Obama used those smooth words in introducing Judge Sotomayor but words do not change realities.

Nothing demonstrates the fatal dangers from judicial “empathy” more than Judge Sotomayor’s decision in a 2008 case involving firemen who took an exam for promotion. After the racial mix of those who passed that test turned out to be predominantly white, with only a few blacks and Hispanics, the results were thrown out.

When this action by the local civil service authorities was taken to court and eventually reached the 2nd Circuit Court of Appeals, Judge Sotomayor did not give the case even the courtesy of a spelling out of the issues. She backed those who threw out the test results. Apparently she didn’t have “empathy” with those predominantly white males who had been cheated out of promotions they had earned.

Fellow 2nd Circuit Court judge Jose Cabranes commented on the short shrift given to the serious issues in this case. It so happens that he too is Hispanic, but apparently he does not decide legal issues on the basis of “empathy” or lack thereof.

This was not an isolated matter for Judge Sotomayor. Speaking at the University of California at Berkeley in 2001, she said that the ethnicity and sex of a judge “may and will make a difference in our judging.”

Moreover, this was not something she lamented. On the contrary, she added, “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.”

No doubt the political spinmasters will try to spin this to mean something innocent. But the cold fact is that this is a poisonous doctrine for any judge, much less a justice of the Supreme Court.

That kind of empathy would for all practical purposes repeal the 14th Amendment to the Constitution of the United States, which guarantees “equal protection of the laws” to all Americans.

What would the political spinmasters say if some white man said that a white male would more often reach a better conclusion than a Hispanic female?

For those who believe in the rule of law, Barack Obama used the words “rule of law” in introducing his nominee. For those who take his words as gospel, even when his own actions are directly the opposite of his words, that may be enough to let him put this dangerous woman on the Supreme Court.

Even if her confirmation cannot be stopped, it is important for Senators to warn of the dangers, which will only get worse if such nominations sail through the Senate smoothly.

Thomas Sowell is a Senior Fellow at The Hoover Institution at Stanford University in California. He has published dozens of books on economics, education, race, and other topics. His most recent book is The Housing Boom and Bust, from April 2009.

8 comments from readers  

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Love the heart surgery analogy. It conjures many other real-life examples, such as how politicians send their kids to private schools, people who live in countries with socialized medicine come to the US for treatments, ad nauseam.

Noticed Tom Sowell is on Beck tonight---can't wait!!
How about Thomas Sowell for the Supreme Court? He has struggled. He is ethnic (!). And of course he is principled and knows the Constitution - though it seems that doesn't count any more.
Dr. Sowell: You neglected to mention FDR stuffing the Supreme Court with his boys when about 1600 pieces of socialist edicts were tossed out by Franklin and Jefferson's Constitution. That is why we have socialist Obama as President of the USA today. We all knew it was coming, it was that very fact that got him elected. The changes he was going to bring in were to the best constitution ever hammered out by man. (William Gladstone). Never mind a ship of fools, how about a nation of fools? The Roman Empire revisited, only this time it isn't the visicoths or Attila the Hun from outside destroy a nation, it is that nation committing suicide. Frank Toplin
Frankly, there hasn't been "equal justice under law" in America since we gave over to the notion of special privileges for some at the expense of others...a/k/a welfare. Now, we are engaged in a titanic struggle to see which gimmee-groups will receive the most favoritism and bribes from government, even though we're TRILLIONS in debt from 40 years of it.
They call it "social justice".
While the doofuss Republicans stand around picking their noses and scratching their butts the Obamonauts are busy building a constituent juggernaut that will ensure their ability to remain in power for far into the future. Sir Sowell artfully highlights the threat to the principle of a Nation ruled by law and not of men that Obama and Sotomayor intend to junk on their road to sustained dictatorial power. FDR was very close to that collectivist ideal when it was derailed by world war two. Will we be so lucky as to perhaps be distracted by Iran, Isreali defense efforts, North Korean rougery or will we we succumb to the setback and blood in the streets national atrocity wrought by the war between the states in 1861? Doofuss Republicans, effete Libertarians who railed about being a party of principle and trashed that for Bob Barr, Ivory tower Objectivists who stand aloof of any but intellectual sermonising, must take the minuteman approach or soon vanish in the debacle facing us and our nation. Tom Sowell stands ready.
Maybe we should change from the rule of law to the rule of empathy, without law! It would make things so much more convenient. We could do away with the whole system of law, and just have rule by empathy. What a wonderful solution. AND
we could get rid of all the lawyers in the process, we could then just call them yers.
I've been so busy despising Pelosi that I haven't kept up with Sotomayor. Hate her, too.
One thing that bothered me with Obama's appointment speech was his emphasis on her upholding the "spirit" of the constitution. Such an abstract term as "spirit" can be interpreted in many different ways, depending on the person. Any decision regarding the constitution, including the bad ones, could be defended as following the "spirit" of the constitution.
To post comments, please log in first. The Atlasphere is a social networking site for admirers of Ayn Rand's novels, most notably The Fountainhead and Atlas Shrugged. In addition to our online magazine, we offer a member directory and a dating service. If you share our enjoyment of Ayn Rand's novels, please sign up or log in to post comments.