Two recent events have exposed a paradox in our attitudes toward our system of justice. On the one hand, President Obama has nominated Sonia Sotomayor to be a judge on the U.S. Supreme Court. He has said that he especially values her because of her “empathy.”
Empathy can be loosely defined as a tendency to sympathize with those of a similar background or with whom one has had similar experiences. In other words, in any given case, the judge can be counted on to rule in favor of the side that she feels sorry for or personally identifies with.
President Obama, of course, does not want a judge who would empathize with those who oppose his ideas or policies. He clearly wants a judge who will favor groups that traditionally support the Democratic Party.
This would include obvious examples such as labor unions, tort lawyers and Hollywood celebrities, but also social activist groups using acronyms such as ACORN, ACLU, NAACP and NOW. These litigants will be expected to prevail if their cases come before Judge Sotomayor, without too much regard for the merits of the cases.
When then-Sen. Obama voted against the confirmation of current Supreme Court Chief Justice John Roberts, he said he did so because Roberts tended to side with the strong instead of the weak. However, it must be noted that the favored litigants named above (labor unions, etc.) can hardly be considered “weak.” Obama will, nevertheless, expect them to win their cases in front of Sotomayor. It will, he says, be simply a matter of her bringing her “life experiences” to her decision-making on the bench. (One might also observe that, in many cases, the “strong” may be in the right and the “weak” may be in the wrong.)
In Sotomayor, the president seems to have found his ideal candidate. She is a Hispanic woman, and she has said on many occasions that she believes that a Latina is more likely to make a proper decision than a white male. She recently ruled against a group of firefighters who were denied promotion by the city of New Haven, Conn. They were denied promotion because they are white, and her ruling supports the contention by some that racial discrimination is still all right in America, so long as the victims are white. (We’ll see. That case is now pending before the Supreme Court.)
But while much attention is focused on the Sotomayor nomination, the Supreme Court has handed down a decision involving a case from the West Virginia Supreme Court that holds that a judge should not participate in a decision if that judge received campaign contributions from one of the parties.
Obama apparently applauds that ruling. One could argue, however, that such a judge is simply “empathizing” with his contributor. Is it all right for a judge to be biased because of sympathy for a racial group, but not because of campaign contributions?
Are we to understand that there is “good empathy” and “bad empathy”? Will Obama favor us with guidelines to determine which is which?
As for the problem of campaign contributions to judges, I agree that this is a serious concern. However, I am not ready to concede that the only solution is to have all judges be appointed rather than elected. The problem with appointment is that partisanship is perceived to be a part of the appointment process (witness the controversy over Sotomayor). We have laws that limit campaign contributions and expenditures in federal elections, and perhaps something similar should be adopted by the states, at least in the case of election of judges.
The best answer to all this is that a judge should not allow her personal bias to influence her decision in any particular case. It is true, as David Axelrod, President Obama’s adviser, has said, that every person brings his life experiences with him when he comes to the bench, and this predisposes him to view a case in a certain light. But a good judge overcomes that predisposition and rules according to the law.
Nothing is so lethal to our justice system as the belief that a judge will not make every effort to be impartial and to apply the law fairly and according to its meaning.