Alexander Tsesis, a professor of constitutional law at Loyola University School of Law, had an excellent guest post on Balkinization last evening. After making the observation that concern over the first “this or that” was hardly new in Supreme Court nomination history — referring to the first Catholic, Jewish, and black nominees — he makes a good observation about what each nominee brings to the Supreme Court:
Is it really true that judges do not bring personal sensitivities to the bench? In a 1927 Harvard Law Review article, the future Justice and then Professor Felix Frankfurter asserted that the Equal Protection and Due Process Clauses lead to differences of opinion that require some personal interpretation. As he put it, “The words of these provisions are so unrestrained by their intrinsic meaning as well as by their history and traditions, that each Justice is impelled to depend upon his own controlling conceptions, which are in turn bound by his experience and imagination, his hopes and fears, his faith and doubts.” There is little doubt in my mind, for instance, that Justice Ruth Bader Ginsburg’s opinion in the Virginia Military Institute gender discrimination case, VMI, or Justice Sandra Day O’Connor’s dissent in the Nguyen deportation case demonstrate a personal consciousness of gender discrimination. Justice Clarence Thomas’s dissent in Virginia v. Black, a case that in part upheld a Virginia cross burning statute, seems to include his personalized understanding of the KKK’s terror, having himself been raised in segregated Georgia.
To pretend that judges are mere vending machines is, of course, ridiculous. Professor Tsesis also quotes Senator Jefferson Beauregard [Jackson Stuart] Sessions (R – AL) from the hearings yesterday:
The accusations made against Sotomayor are not the overt racism of the past. Instead, the charge is that she will not be objective because she is sensitive to Hispanic issues. In the words of Senator Jeff Sessions at the confirmation hearings on July 14, 2009, “Call it empathy, call it prejudice or call it sympathy, but whatever it is, it’s not law. In truth, it's more akin to politics, and politics has no place in the courtroom.”
Here’s a guy who was nixed by the same Judiciary Committee some twenty years ago for his insensitivity to race:
In 1986, Sessions was nominated for a federal judgeship by President Ronald Reagan. The nomination was killed by the Senate Judiciary Committee, which refused by a 9-9 vote to let the nomination come to the Senate floor for a vote. Sessions' opponents accused him of "gross insensitivity” on racial issues. Sessions allegedly made a variety of comments that opponents pointed to, when he jokingly said that the Ku Klux Klan was not so bad until he found out that some of them smoked marijuana. Sessions also allegedly referred to the National Association for the Advancement of Colored People (NAACP) and the American Civil Liberties Union (ACLU) as "un-American" and "Communist-inspired" because they "forced civil rights down the throats of people."
Sen. Jefferson Beauregard [Jackson Stuart] Sessions wants the people to get top drawer treatment — so long as they’re white. Here’s the Senator with some of his friends:
Cartoon from the Star Tribune
Sen. Jefferson Beauregard [Jackson Stuart] Sessions also gets tangled up again in the empathy/sympathy business that Spot discussed before. publius at Obsidian Wings, a pretty good legal scholar, had this to say about the “empathy” brouhaha yesterday:
The main point to remember is that Obama's "empathy" is not so much a positive vision of progressivism, but instead a critique of conservative jurisprudence (a topic upon which he has legitimate expertise). Specifically, I think "empathy" is better understood as two distinct types of attacks on conservative jurisprudence:
The first is a higher-level theoretical attack. Two of the main conservative schools of thought today -- originialism and textualism -- assume that consequences are generally irrelevant. Law is the law, and how law affects the outside world is someone else's problem. This conceit is particularly strong in originalism, which interprets constitutional text as it was understood at the time -- consequences be damned.
In short, originalism often masks policy preferences behind a cloak of "this is what the law says." In this respect, Obama's "empathy" comment simply makes explicit what originalism tries to hide -- that is, we should pay attention to consequences.
And here’s the second type of empathy that publius refers to:
The second sense in which "empathy" is an attack on conservative jurisprudence is less theoretical. It's an attack on conservative judges' tendency to rule for business and the state, at the expense of employees, the environment, and the criminally accused. To me, Obama was essentially saying that he wants judges who focus more specifically on how our courts' decisions affect these specific individuals.
Tell Spot, boys and girls, which group Sen. Jefferson Beauregard [Jackson Stuart] Sessions belongs to and wants his judges from:
There are a million different indeterminate areas of the law where multiple plausible outcomes exist. And so if you've lived in a bubble world where the reality of discrimination, or harsh drug laws, or mountain top mining has never affected you personally, that isolation will necessarily (and even epistemically) influence your decision at these various points of indeterminacy. If, however, you know these realities more viscerally (i.e., if you have "empathy"), then that too will influence your decision the other way. [and remember the comments about Justices Ginsburg, O’Connor, and Thomas, above]
Although Spot has already copied a lot of it, please go and read publius’ whole post; it and he deserve the traffic. He concludes with this, a sentiment in which Spot concurs:
To me, Obama was simply saying that courts have been coming down too often on the side of businesses and the state in recent years, while ignoring the real-world effects of those decisions on parties with less power and less political influence.