Sunday, May 31, 2009

Empathy and sympathy II

This is a follow up to this post.

Cartoon from the Star Tribune

Before moving on to the real topic of this post — the efforts of conservatives to make sympathy for one white guy the basis to keep a candidate off the Supreme Court — let’s assume for one tiny moment that Sonia Sotomayor is the Hispanic Homer that conservatives say she is. (By the way she isn’t; she wouldn’t have gotten anywhere near the Second Circuit Court of Appeals in the environment of the last thirty years if she was.) So what? It’s not as though we haven’t had two hundred plus years of White Guy Homers, or Business Homers. Recently, there are even Gun Homers! Talk about your identity politics. But let a minority group member — one who’s not a Republican, anyway — get the nod and the entire right wing gets the vapors.

As Spot has observed, it is really moving to see how so many conservatives have become civil libertarians and so dedicated to rooting out bigotry so quickly.

Let’s turn now to Frank Ricci, the centerpiece of winger hysteria about the Sotomayor nomination. Frank is by all accounts an admirable guy. A sympathetic guy. He’s a curious knife to use to try to gut the Sotomayor nomination.

So here’s the deal with Frank: he’s dyslexic, and he worked really hard to pass the lieutenant’s exam for the fire department in Connecticut for which he works. But the city of New Haven threw out the results of the exam because it resulted in no promotions for blacks. New Haven didn’t hire any minority members instead of Frank. It just said, “We have to start over.” Fire departments all over the country have been the subject of suits for employment discrimination on a variety of grounds: unfair and unnecessary tests of strength, size, you name it. And the departments have lost their share of them.

Maybe New Haven was damned if it did, and damned if it didn’t: it was either a suit by the white guy or by the black guys who have also been busting their humps working in the department for years. And maybe counsel for the city said, “You know, we’ve looked at this test, and we can’t say definitively that it selects the best people to be a lieutenant.” That is probably, in fact, what happened.

Update: See this post at SCOTUSBLOG for more discussion of this point.

Note that Frank can take the test again, just like anybody else. Preferring not to hit the books, however, Frank sued the city of New Haven, alleging employment discrimination. The federal district court dismissed Frank’s case, and a Second Circuit panel that included Sonia Sotomayor, affirmed.

Here’s what Charles Krauthammer says about the case and the upcoming hearings on Sotomayor’s nomination:

When the hearings begin, Republicans should call Frank Ricci as their first witness. Democrats want justice rooted in empathy? Let Ricci tell his story and let the American people judge whether his promotion should have been denied because of his skin color in a procedure Sotomayor joined in calling "facially race-neutral."

Let’s lay aside Krauthammer’s incorrect assertion that Frank Ricci didn’t get a promotion because of his race. (Nobody got one.) It isn’t clear at all how empathy entered into the case. Remember, this isn’t a case of Frank Ricci against some unnamed inferior black guys; it’s a case of Frank Ricci, disgruntled applicant against the city of New Haven concerned about giving everybody a fair shot at promotion. Fair is the key word here — again, against the backdrop of decades of litigation over discriminatory fire and police department tests.

Perhaps Sonia Sotomayor and her fellow judges were able to have empathy — that is walk in the shoes of — the city of New Haven just trying to be fair and nondiscriminatory and comparing that to a disappointed Frank Ricci, who, as Spot mentioned before, can take the exam again. But Charlie really has a bee in his bonnet about this “empathy” thing:

Empathy is a vital virtue to be exercised in private life -- through charity, respect and loving-kindness -- and in the legislative life of a society where the consequences of any law matter greatly, which is why income taxes are progressive and safety nets built for the poor and disadvantaged.

But all that stops at the courthouse door. Figuratively and literally, justice wears a blindfold. It cannot be a respecter of persons. Everyone must stand equally before the law.

But, Charlie, if the law cannot be a respecter of persons, why do you spend so much time laying out Frank’s sorry tale?

Ricci is a New Haven firefighter stationed seven blocks from where Sotomayor went to law school (Yale). Raised in blue-collar Wallingford, Conn., Ricci struggled as a C and D student in public schools ill-prepared to address his serious learning disabilities. Nonetheless, he persevered, becoming a junior firefighter and Connecticut's youngest certified EMT.

After studying fire science at a community college, he became a New Haven "truckie," the guy who puts up ladders and breaks holes in burning buildings. When his department announced exams for promotions, he spent $1,000 on books, quit his second job so he could study eight to 13 hours a day and, because of his dyslexia, hired someone to read him the material.

He placed sixth on the lieutenant's exam, which qualified him for promotion. Except that the exams were thrown out by the city, and all promotions denied, because no blacks had scored high enough to be promoted.

The answer is, of course, because Charlie wants you to feel sorry for Frank, to pity him, to have sympathy for him. He’s trying to sandbag you. Unlike empathy, a word Charlie and Co. rail against because Sonia Sotomayor used it, sympathy has no place in decision making in the law. Judges tell juries to avoid it. Here’s a pattern jury instruction used in federal trial courts in the 7th Circuit (a thump of the tail to MNO for the link):

Members of the jury, you have seen and heard all the evidence and arguments of the attorneys.  Now I will instruct you on the law.

You have two duties as a jury.  Your first duty is to decide the facts from the evidence in the case.  This is your job, and yours alone.

Your second duty is to apply the law that I give you to the facts.  You must follow these instructions even if you disagree with them.  Each of the instructions is important and you must follow all of them.

Perform these duties fairly and impartially.  [Do not allow [sympathy/prejudice/fear/public opinion] to influence you.]  [You should not be influenced by any person's race, color, religion, national ancestry, or sex.]  [Spot’s italics]

The blindfold that Lady Liberty wears is to protect against sympathy, not empathy. As Spot’s prior post on the subject says, empathy for both parties is a key to being impartial: fair. As MNO ably points out, there are many cases where the law in not clear. The law is not clear in this case, regardless of what Krauthammer would have you believe. In fact, if the law was so darn clear in a given circumstance, there wouldn’t be a case at all.

Krauthammer, and Michael Gerson, and David Brooks, and all the rest, are trying to confuse the issue of what judicial decision-making is about. It is simple partisan skullduggery.

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