Wednesday, May 27, 2009


Several weeks ago, I woke to the television news that Judge Sonia Sotomayor's was nominated to the Supreme Court and was being opposed by Tom Fitton, president of Judicial Watch. When asked why, he responded: "Because President Obama picked her". I was somewhat taken with the honesty of that reply since it spoke the truth, namely that the organization would oppose anyone the President named. But he went on to explain that opposition by condemning the President's avowed desire to pick someone with "empathy" for those that society has chosen to ignore or discriminate against. Somehow Mr. Fitton and others seem to find this characteristic as a disqualifier; that being emphatic to the downtrodden is inconsistent with the rule of law; that one who has empathy should not be seated on The Supreme Court of The United States. We should have only those persons serving who have no empathy----no one like Jesus Christ, Mother Teresa, Bishop Tutu, etc. need apply. They would not make the cut.

But then ironically, a conservative spokesperson condemned the judge for her decision in the New Haven case, pointing out how white firefighters who risked their lives in the 9/11 attack were denied promotions and increased income they earned and deserved because of her ruling. Or to put it bluntly, in following what she perceived to be the correct application of the law she neglected to feel "empathy" for those who were adversely affected by her ruling.

Because of the limited size of the Supreme Court, it cannot possibly be representative of every race, religion or ethnic group in America; nor was it meant to be. But diversity brings understanding to the Court. There can be no doubt that a judge who has experienced discrimination, sexual harassment or other life-forming experiences draws upon them in considering and deciding cases. Empathy because of those experiences is a characteristic to be embraced, not condemned. Experience informs but does not dictate the outcome.


Anonymous said...

While this is not responsive to your post, I just wanted to say I enjoy your blog very much and hope you keep posting. I don't know if there are any other former federal judges in the blogosphere, but your perspective is unique and refreshing.

H. Lee Sarokin said...

Thank you very much. I am now blogging for The Huffington Post. Please look for me there. Thank you.

Bety Wald said...

Will you be blogging only there? I enjoyed reading.
Betty Wald