Building on DougJ’s post about Lanny Davis reciting nonsensical right-wing talking points, the whole silliness of the empathy outrage has really been pretty funny. Aside from the fact that archives show both Samuel Alito and George H. W. Bush waxing eloquent about the benefits of empathy, the notion that you can take Obama’s appeal for empathetic judges and mix it with a throwaway line from a Sotormayor speech a decade earlier and somehow determine, without one shred of evidence taken from her legal rulings, that Sotomayor is a radical activist and “reverse racist,” seems to me to be pretty absurd.
Rod Dreher has been under assault a good bit lately from the fringe lunatics in the GOP, and usually I would be standing in line picking out the next spitball to throw his way, but I thought he had a pretty solid piece yesterday that was worth noting:
The NYT has a link to the entire speech in which she made the comment about the “wise Latina” reaching a “better” verdict than “a white male who hasn’t lived that life.” I’m still a bit troubled by the remark, but not in any important way. Taken in context, the speech was about how the context in which we were raised affects how judges see the world, and that it’s unrealistic to pretend otherwise. Yet — and this is a key point — she admits that as a jurist, one is obligated to strive for neutrality. It seems to me that Judge Sotomayor in this speech dwelled on the inescapability of social context in shaping the character of a jurist.
***In fact, come to think of it, I can remember a couple of occasions at The Dallas Morning News, sitting in on editorial board meetings with judicial candidates, in which I was favorably impressed by aspiring judges who talked about, well, empathy. One candidate who comes to mind had grown up poor and a racial minority, but had worked her way out of deprivation and built a strong legal career. She came to us as a sitting judge who sought higher office. We asked her to talk about a case or cases that would give us an idea of the perspective she would bring to the bench. She spoke about how she came to learn early in her bench career that the decisions she made affected not just the person at trial, but his family. She spoke about how it gave her a greater appreciation for the dimensions of the law, and what constitutes justice — to be specific, that justice is not something mechanical, a result that can be obtained by feeding facts into a program, and having a computer spit out the “correct” answer. Rather, it requires wisdom, and its application. As I recall that meeting, the judge’s answer struck me as wise about human nature, and how the law provides a framework for justice, but doesn’t guarantee it — and how sometimes, subjective factors necessarily influence a judge’s decision about the right outcome in a particular case.
Many years ago when I worked in a probation office, one of the things I really enjoyed doing was pre-sentence investigations. I liked it so much, I sort of specialized in them. Basically, my job was to write up a report about the convicted individual, learn about his/her past, his family situation, what he/she was interested in and what kind of education and work experience they had, discussions of any previous convictions, etc. It was basically a miniature biography of each individual, and it also included their take on the crime and why it happened and whether they were remorseful. We did this for almost everyone, and the reports would sometimes, depending on how well my interviews went, end up 10-15 pages long. These investigations were then submitted to the court before sentencing, so the judge could read them and take any new information into account.
I liked doing them because it it was exciting work. You got to go to the jail, interview people, find out what motivated them, learn why they did what they did, etc. I also liked the sense of finality- there was so much paperwork and we always had so many cases, that closing out a big case and wiping it off the board gave a sense of finality not unlike the feeling you get when you finish mowing the lawn, turn the engine off and survey your work, and for just a moment everything is alright in your own little kingdom.
One of the things I didn’t like was that it meant I would have to go to court for the sentencing, and that always irritated me. It irritated me because I knew the convicted person was guilty- they had been convicted, and they always admitted to their guilt to me in our interviews. None of them every denied their crime. But what drove me nuts were the family members. It made me livid that they would waste the court’s time, begging for lenience for a guy who had just been convicted of molesting a 4 year old. Or begging for mercy, explaining what a good person the convicted was, and that raping those three nephews was just a mistake and please go light on them. That just infuriated me.
One day after a particularly nasty person had been sentenced, I was standing in the courtroom chatting with one of the judges I liked. He was an outgoing fellow, pretty funny, and the kind of guy you wanted to be around. You knew he was in charge, and he had that same aura I had grown used to coming from confident officers in the army. He was also one of those people who you either loved or hated- some people in the small Republican community grumbled that he was too lenient and too liberal. I was a strong Republican at the time, but I never noticed anything particularly “liberal” about him. At any rate, we were talking, and I mentioned how much it drove me insane when the families would come in and swear what a nice guy the rapist was, and didn’t it drive him insane having to listen to that day after day.
He looked right at me and said, without hesitation or anger, even after having just thrown the book at this convict and given him a really long sentence: “No, it doesn’t bother me at all. If his family isn’t going to come to his defense, who the hell is?”
That judge got it. At the time, I didn’t.