On Sotomayor: Empathy for who, when and why

Barring some unlikely scandal, Judge Sonia Sotomayor will cruise to an easy confirmation as the U.S. Supreme Court’s first Hispanic Justice. Even so, the nomination and the upcoming confirmation process raise discomforting questions.

 

Much has been made, and much should be made, of President Obama’s insistence on “empathy” as a judicial virtue and as a means of deciding the “five percent” of hard cases in which the law provides no answer.

 

Conservative advocates have denounced “empathy” as a codeword for judicial activism, which is true but hardly surprising. Lost in the commotion is the sheer absurdity of the President’s position. Empathy decides no case, hard or other. It rather creates hard cases of its own, and it is often its own worst enemy.

 

One problem is selectivity: Empathy for whom, and on what grounds? Judge Sotomayor largely owes her nomination to two facts: here sex and (Puerto-Rican) ethnicity, which the judge herself has proffered as superior judicial qualifications; and her admirable rise from the Bronx housing projects to the pinnacle of American public life. To White House politicos, this looks like one neat package. But in real life and law, the loyalties quickly unravel.

 

Imagine a white firefighter who through persistent effort overcomes severe obstacles (including dyslexia) to qualify for a promotion, only to be denied that opportunity because his city employer intends to preserve racial balance.

 

Which of Judge Sotomayor’s empathies should decide—that for a plaintiff who struggled and prevailed against the odds, or that for the ethnic and racial classes protected (like her own) by affirmative action laws?

 

As it happens, we already know the answer. In a decision likely to be overturned by the sitting justices, Judge Sotomayor cavalierly dismissed the firefighter’s complaint, in the teeth of a vehement dissent by a (Hispanic, Clinton-appointed) fellow judge. What we lack is an explanation in law, or in empathy.

 

Another problem: empathy at what level? The risk here is misplaced concreteness, coupled with the law of unintended consequences. If female sexual harassment plaintiffs may sue and win even on doubtful allegations (for reasons of empathy and all that), the supposed legal protection may well operate as an employment tax on women.

 

Why hire an applicant who comes with a litigation risk, employers will reason, when an equally qualified male job-seeker is available? Similarly, when universities practice racial preferences with empathetic abandon, prospective employers and the rest of the world may come to doubt minority applicants’ paper credentials. Is that really what minority students want or need from Princeton or Yale Law School (where Sotomayor excelled)—a degree with a discount?  

Because raw empathies are so uncertain, myopic, and paradoxical, civilized societies attempt to order and regularize their affairs by means of imperfect but tolerably just and predictable rules, which they call “law.”

 

We do not need empathy to overcome law’s limitations and hard cases. We need law because empathy is determinate only if it is a euphemism for primitive group loyalty, but otherwise lets us down. 

 

The contrary notion comes easily to people who believe that they and their friends are smarter and better-intentioned than the rest of us. Alas, they aren’t smart enough to know that they are proposing to deplete a precious stock of institutional capital.

 

Can anything cure this dumb spirit? In a free country, elite law schools may inculcate an illiterate contempt for law, dressed up as urbane sophistication; and so they do. American citizens are free to pin their hopes for “change” on the promise of improvisational community activism on a national scale; lo, they appear to be getting the government they voted for.

 

Supreme Court pundits are free to swoon over empathy drivel and mistake it for intellectual heft; and so they do. Perhaps, we should still expect more of our justices. If so, we are about to be disappointed.

 

Michael S. Greve is the John G. Searle Scholar at the American Enterprise Institute.