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May 28, 2009

Alito vs. Sotomayor on Empathetic Justice

Glenn Greenwald misses a critical distinction while making a valid point of his own:

... consider this exchange that took place at the beginning of Alito's confirmation hearing (h/t sysprog):

U.S. Senate Judiciary Committee Hearing on Judge Samuel Alito's Nomination to the Supreme Court

U.S. SENATOR TOM COBURN (R-OK): Can you comment just about Sam Alito, and what he cares about, and let us see a little bit of your heart and what's important to you in life?

ALITO: Senator, I tried to in my opening statement, I tried to provide a little picture of who I am as a human being and how my background and my experiences have shaped me and brought me to this point.

ALITO: I don't come from an affluent background or a privileged background. My parents were both quite poor when they were growing up.

And I know about their experiences and I didn't experience those things. I don't take credit for anything that they did or anything that they overcame.

But I think that children learn a lot from their parents and they learn from what the parents say. But I think they learn a lot more from what the parents do and from what they take from the stories of their parents lives.

And that's why I went into that in my opening statement. Because when a case comes before me involving, let's say, someone who is an immigrant -- and we get an awful lot of immigration cases and naturalization cases -- I can't help but think of my own ancestors, because it wasn't that long ago when they were in that position.

And so it's my job to apply the law. It's not my job to change the law or to bend the law to achieve any result.

But when I look at those cases, I have to say to myself, and I do say to myself, "You know, this could be your grandfather, this could be your grandmother. They were not citizens at one time, and they were people who came to this country."
When I have cases involving children, I can't help but think of my own children and think about my children being treated in the way that children may be treated in the case that's before me.

And that goes down the line. When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account. When I have a case involving someone who's been subjected to discrimination because of disability, I have to think of people who I've known and admire very greatly who've had disabilities, and I've watched them struggle to overcome the barriers that society puts up often just because it doesn't think of what it's doing -- the barriers that it puts up to them.

So those are some of the experiences that have shaped me as a person.

Distinguish the bolded part of Alito's remark to this:

“While recognizing the potential effect of individual experiences on perception, Judge Cedarbaum nevertheless believes that judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law,” Sotomayor said.

“Although I agree with and attempt to work toward Judge Cedarbaum’s aspiration, I wonder whether achieving that goal is possible in all or even in most cases. And I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society.”

It's important to recognize that Sotomayor agrees (at least here) that impartiality is the goal judges should strive for. But it's also not unreasonable to ask whether McQ's observation isn't a valid one:

Although she claims to agree “judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law”, she then builds the case that a) such isn’t really possible, and b) in fact race and gender based experience is a positive that should be injected in such “reason of law”.

Her ruling in the case of the 18 white firefighters in New Haven CT seems to indicate she is indeed inclined to use race and gender bias in her decisions.

That's the difference between reasonable and principled opposition and reflexive accusations of racism.

Posted by Cassandra at May 28, 2009 12:30 PM

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Comments

If one knows of this and other similar statements that offer a glimpse into her apparent decision-making process, is it still a *reflexive reaction* to suggest that she might be a racist? I mean, no one has held a gun to her head and made her say these things. This is how she feels, and how she judges a case. At what point do we, as a society, finally get to say that *this* (read non-white) person discriminates based upon skin color without being accused of saying so just because of that person's skin color?

Posted by: DL Sly at May 28, 2009 04:39 PM

I suppose it depends on what you call racist, Sly.

I don't think there is a person alive who (though they may not be anywhere close to being a racist) doesn't subconsciously identify more with people who are like them than they do people unlike them.

There have been piles and piles of studies that show that in diverse neighborhoods, trust and cooperation go DOWN instead of up. It doesn't matter whether the neighborhood is predominantly black/white/Asian. It's just the way we're wired.

But just as with sex, there are basic instincts and then there's what Alito cited: our mental ability to compensate for our baser instincts. So we don't have to have sex with every person who catches our eye. And we can discount and compensate for instinctive reactions to people who are different - even to the point where we're not really aware of those reactions.

Ironically, I don't entirely disagree with Sotomayor - experience absolutely DOES and should temper our analysis of various fact patterns and scenarios. The question is: where do we go from there?

Alito had the right answer: be aware, but also be aware of your job and the oath you swore. Race, ethnicity, or gender can *be* a factor you consider. But if they're the primary factor, there is something tragically wrong, and in the end the goal is for justice to be evenly meted out to persons of all backgrounds or races.

Posted by: Cassandra at May 28, 2009 05:02 PM

"At what point do we, as a society, finally get to say that *this* (read non-white) person discriminates based upon skin color without being accused of saying so just because of that person's skin color?"
I would suppose at the point that we can put forward the supporting facts for our making the claim... Sorta like this gentleman usually does when he makes his points.

Then we suffer the slings and arrows and spitballs and such...

Posted by: The-Manchurian-bubba_hun at May 28, 2009 05:02 PM

If one knows of this and other similar statements that offer a glimpse into her apparent decision-making process, is it still a *reflexive reaction* to suggest that she might be a racist?

I'd say if you have enough examples to form a convincing pattern, perhaps not. But then it's important not to cherry pick examples that confirm your premise and ignore ones that undermine it.

There was a particularly stupid article in the Wash Times about how Sotomayor was overturned 60% of the time by SCOTUS. Not until the END OF THE FREAKING ARTICLE does the author get around to "mentioning" that out of 380-odd decisions where she wrote the majority opinion, only 5 (5!!! Christ, there's a scientific sample size) were appealed to SCOTUS and accepted for review. And out of those 5, 3 were reversed and 2 were upheld.

To lead with an inflammatory and misleading headline like "Sotomayor reversed 60% of the time is just ludicrous. Not to mention dishonest.

Posted by: Cassandra at May 28, 2009 05:06 PM

I read that article and thought the same thing.

But, I've *kinda* followed Satomayor's decisions for a few years now and from what I've seen from her judicial decisions compounded by her affiliation with La Raza, I believe her to be racist. But, I can't say that without people accusing me of being a racist.

bt- I've always loved Sowell. Read his column every time one was in the local paper at Lejuene. And one would think that if people with creds such as his are speaking out like this, that maybe, just maybe, those *others* of us in fly-over country aren't just reacting knee-jerk fashion afterall.

Posted by: DL Sly at May 28, 2009 06:19 PM

But I have no problem with anything Sowell said.

He made the argument on grounds that don't violate our principles.

And I love him, too.

Posted by: Cassandra at May 28, 2009 06:24 PM

...from what I've seen from her judicial decisions compounded by her affiliation with La Raza, I believe her to be racist. But, I can't say that without people accusing me of being a racist.

And are you a racist? No. You simply disagree with Ms. Sotomayor. But just because some moron might reflexively call you a racist is no reason for us to do the same. They can't know what's in your heart.

We can't know what is in her heart. We can only ask her what her philosophy is, and judge her on her deeds. They are fair game. But pouncing on a sentence or two as "evidence" of racism is part and parcel of the idiocy we've been fighting for years.

How does it advance our arguments to descend to that level when there are less inflammatory and subjective ways to make our points?

Posted by: Cassandra at May 28, 2009 06:27 PM

experience absolutely DOES and should temper our analysis of various fact patterns and scenarios.

Well, I'll agree it certainly does, I haven't reached a conclusion on the should part though. But that's neither here nor there for me.

The problem I have is when you consider the latino/latina experience to be superior to the white experience. The wise latina makes better decisions because she has the rich experience of being a latina, I can only assume that the white male makes worse decisions because of his pitiful experience that makes him less wise.

Can you imagine the firestorm if a white male had reversed that statement?

Does it make her a racist? I have no idea. I don't know her heart. But someone who would say something so colossally stupid in public should not be within spitting distance of the bench.

She should be given her hearing, and an up-or-down vote as befitting the nominee of the office of POTUS. But I hope every Republican has the intestinal fortitude to vote no, and the savvy to bring some Dems with them.

Posted by: Yu-Ain Gonnano at May 28, 2009 06:38 PM

I can only assume that the white male makes worse decisions because of his pitiful experience that makes him less wise

Actually I think her point was quite similar to Alito's point about society not thinking because we don't fully understand the difficulties inherent in certain people's circumstances (not providing handicap access is a good example of this).

It's not an unreasonable point, actually. How many times have you not really appreciated an issue until it touched you personally in some way?

That's not the same as saying you're *incapable* of being objective. But it does make the point that in your attempts to be objective, there may be things you leave out of your analysis b/c they don't even occur to you.

Doesn't even mean they'd change your decision. But arguably it would be nice if you considered the full range of information, even if ultimately you decide that "fixing" certain things is outside the scope of the job you've been hired to do. IOW, there is a role for both judicial modesty and empathy. The trick lies in balancing these considerations appropriately.

A legislator might fix the issue. The jurist operates under more constraints. Or should.

Posted by: Cassandra at May 28, 2009 06:46 PM

"But it does make the point that in your attempts to be objective, there may be things you leave out of your analysis b/c they don't even occur to you. Doesn't even mean they'd change your decision. But arguably it would be nice if you considered the full range of information,..."

If there is relevant information about a case that isn't presented to the judge, then the lawyer screwed the pooch. Sorry, but I just don't see where a justice's *empathy* is a requirement for the position -- from SCOTUS to traffic court. Rather, I see it as a hinderance. A judge's sole purpose is to weigh the evidence presented in court and make an impartial judgement based upon the laws of the land - in this case, the Constitution. And I worry about the objectivity of a judge who feels that a main function of the job is to *empathize* with those who appear before them.

Posted by: DL Sly at May 28, 2009 07:16 PM

*sigh*

1. I never said empathy was a *requirement* for the job. But appellate judges don't weigh evidence, Sly. Appellate judges decide matters like whether the law was correctly applied to the trial court's finding of fact (which appeals courts don't review) or whether there was a reversible error in legal procedure that invalidates the verdict being appealed.

2. I, too, worry about a judge who feels (and that was the right word) his or her main function is to empathize. If you read my prior comment, I said that if empathy is the *primary* basis for a decision, something is very very wrong.

I didn't posit a situation in which the full range of information wasn't presented. I posited a situation in which the full range of information wasn't evenly *considered*.

Big difference.

Posted by: Cassandra at May 28, 2009 07:40 PM

I didn't accuse you of saying it was a requirement. That was Xerxes I Won!.....

Posted by: DL Sly at May 28, 2009 07:47 PM

Oh. And by the way an appellate judge isn't supposed to consider arguments not raised or objected to by the petitioner at the time (yet another reason to suspect excessive empathy). Click my name for link:


In an appeal on the record from a decision in a judicial proceeding, both appellant and respondent are bound to base their arguments wholly on the proceedings and body of evidence as they were presented in the lower tribunal. Each seeks to prove to the higher court that the result they desired was the just result.

Precedent and case law figure prominently in the arguments. In order for the appeal to succeed, the appellant must prove that the lower court committed reversible error, that is, an impermissible action by the court acted to cause a result that was unjust, and which would not have resulted had the court acted properly. Some examples of reversible error would be erroneously instructing the jury on the law applicable to the case, permitting seriously improper argument by an attorney, admitting or excluding evidence improperly, acting outside the court's jurisdiction, injecting bias into the proceeding or appearing to do so, juror misconduct, etc. The failure to formally object at the time, to what one views as improper action in the lower court, may result in the affirmance of the lower court's judgment on the grounds that one did not "preserve the issue for appeal" by objecting.

In cases where a judge rather than a jury decided issues of fact, an appellate court will apply an abuse of discretion standard of review. Under this standard, the appellate court gives deference to the lower court's view of the evidence, and reverses its decision only if it were a clear abuse of discretion. This is usually defined as a decision outside the bounds of reasonableness. On the other hand, the appellate court normally gives less deference to a lower court's decision on issues of law, and may reverse if it finds that the lower court applied the wrong legal standard.

In some rare cases, an appellant may successfully argue that the law under which the lower decision was rendered was unconstitutional or otherwise invalid, or may convince the higher court to order a new trial on the basis that evidence earlier sought was concealed or only recently discovered. In the case of new evidence, there must be a high probability that its presence or absence would have made a material difference in the trial. Another issue suitable for appeal in criminal cases is effective assistance of counsel. If a defendant has been convicted and can prove that his lawyer did not adequately handle his case and that there is a reasonable probability that the result of the trial would have been different had the lawyer given competent representation, he is entitled to a new trial.

Posted by: Cassandra at May 28, 2009 07:48 PM

I didn't accuse you of saying it was a requirement. That was Xerxes I Won!.....

Oops! my bad :) Hence my argument, though, that the right tactic is to measure his rationale for selecting this judge alongside the oath of office. I think we agree on this, but maybe I'm wrong :p

Posted by: Cassandra at May 28, 2009 07:50 PM

Over.
She's in unless there's proof that she's hired illegal Hondurans to mow her lawn and sweep her house.

Hmmm.... maybe not even then.

Conservatives should get by this bad pick, and gather their strength for the next one. The one that really matters.

Posted by: spd rdr at May 28, 2009 09:00 PM

You talking to me?
Well, I'm th only one here!
Only maybe not.
Who are you?
Who am I?
What's the time left on the meter?

Posted by: Justice Stevens at May 28, 2009 09:03 PM

*snort*

Posted by: Cassandra at May 28, 2009 09:12 PM

...How many times have you not really appreciated an issue until it touched you personally in some way?...

But those are *individual* experiences. If she had said that she had lived a rich experience that would lead her to make better decisions than someone that didn't have her experiences, I could accept that (I'd even respect it). If she had said that the rich experience of being a latina would bring a valuable perspective to the group because it's different, I might accept that.

But that's not what she said.

She said that she's better than a white guy because she's latino.

Now, that may not be what she meant. But that doesn't really make things better to me.

Either she meant what she said and should therefor not be on the bench
or
She was extremely careless in her language and should therefor not be on the bench.

I believe it's greatly more likely to be the latter than the former, but it's still a 'No'.

Posted by: Yu-Ain Gonnano at May 29, 2009 10:25 AM

Hey! I'm not arguing with you on that score :)

Personally I think she's unsuitable for a number of reasons. I am more interested in the idea of whether experience has a valid role in judging. So I tend to agree with you as regards Sotomayor.

Posted by: Cassandra at May 29, 2009 10:31 AM

Oh, I absolutely accept that experience does and should matter.

Just that it's your particular individual experience that makes you superior or inferior. I believe Sergeant Kilrain had it right: "What I'm fighting for is to prove I'm a better man than many of them."


It's not the black experience, or the white experience, or the latino experience or the *insert demographic here* experience. "Any man who judges by the group is a pea-wit."

Posted by: Yu-Ain Gonnano at May 29, 2009 10:58 AM

I love that quote. Always have.

I'd argue, too, that it's not so much your experience but what use you make of it that counts.

Posted by: Cassandra at May 29, 2009 11:01 AM

Cassie said: "So we don't have to have sex with every person who catches our eye."

We don't???? Harumph. Obviously we live in different worlds, although after having my eyes poked out by my lovely bride, there is only one who catches my eye.

;^P
(said in total snark-jest, as I am in agreement)

Posted by: Kbob in Katy at May 29, 2009 04:29 PM

*avoiding the topic of blind sex with a ten foot cane for the visually impaired he asks*

Was that Justice Stevens sporting a Mohawk do that just went past mumbling what I think was, "Are you talking to me"?

Posted by: The-unblinking-Manchurian-bubba-on-loan-from-the-Spanish-Inquisition_hun at May 29, 2009 04:44 PM

YO TAXI....

Posted by: Kbob in Katy at May 29, 2009 06:42 PM

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