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The Honolulu Advertiser
Posted on: Sunday, June 28, 2009

Next justice should possess empathy, objectivity

By Avi Soifer

Hawaii news photo - The Honolulu Advertiser

Judge Sonia Sotomayor's nomination has critics fired up.

Associated Press library photo

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There is a crucial difference between bias and empathy but that difference seems to be getting lost in all the shouting over the nomination of Judge Sonia Sotomayor to the United States Supreme Court. An old New Yorker cartoon helps to illustrate this point. A judge with a long nose and funny mustache looks down from the bench at a defendant with exactly the same nose and mustache. The judge proclaims: "Obviously, not guilty." It is bias that makes this funny.

Empathy, on the other hand, involves the ability to identify with other people and their problems, even when they are very different. Yet some critics have charged that President Obama's nomination of Sotomayor shows that "empathy has won out over excellence." This much-quoted charge turns out to come from professor John Yoo, author of a key, notorious Bush administration memorandum that purported to find legal justification for waterboarding and other harsh interrogation techniques. Many people, whether in the legal world or not, believe that Yoo's analysis of torture would have benefited both from more legal excellence and more empathy.

Identifying the qualities we seek in judges is complex, to say the least. We should hope for judges sufficiently aware of their own backgrounds and biases to be able to put them aside. But we also want judges who are open to being surprised and who are willing to consider the real-life aspects of the problems they face and the decisions they hand down. It is important to remember that the qualities of excellence and empathy are not mutually exclusive. Nor should we accept the false dichotomy of objectivity versus empathy.

There is significant albeit subtle folk wisdom in the old saying, "There is a world of difference between the detachment of a surgeon and the detachment of an undertaker." Yet the tricky thing is that law is not mechanical. There is no set manual of instruction that tells those judging how to judge in particular cases. Bias certainly can occur when a judge or juror is too close or too involved with an issue or a litigant. Yet bias also can result from being too remote from the real-life aspects of who or what is to be judged.

We can easily fool ourselves when we insist that we are not biased. Those who loudly proclaim their neutrality often protest too much they hide behind assertiveness. In fact, bias sometimes blinds us to other perspectives. To understand that one's own position may not be entirely objective often requires both self-awareness and empathy. The views of others and the realities of their lives demand an open mind, not an echo chamber.

Statements by nominees and questions asked at Supreme Court confirmation hearings have become something of an empty theatrical ritual. Yet sometimes nominees say things that surprise us. And what a candidate says at a confirmation hearing may not help greatly in predicting how she or he will decide cases as a sitting justice.

Almost two decades ago, for example, a Supreme Court nominee with quite limited judicial experience insisted that "You want to be stripped down like a runner" to be a good judge. When a senator then asked Justice Clarence Thomas what remains if a judge leaves behind all his previous opinions and ideology, Thomas insisted that he would certainly maintain his "underlying concerns and feelings about people left out, about our society not addressing all the problems of people."

This preceded the controversy surrounding professor Anita Hill's testimony. Yet when Thomas was confirmed after a notoriously bruising battle, he proclaimed that he had new understanding of being "vulnerable" as well as heightened awareness of "the importance of those protections, the importance of something we discussed in theory the issues of privacy, due process, equal protection and fairness." Whether Thomas has made good on his promise of empathy is a question for another day.

Surely, however, the American people now should seek a combination of objectivity, excellence and empathy in a Supreme Court justice. We ought not to be deluded by any artificial either/or conflict among or between these vital qualities. Often just these strengths are mutually reinforcing in those whom we most admire. They seem to flourish harmoniously in the personalities of our favorite people. Such integrated strengths also will help identify our best judges.