Republicans Missing the Boat on Sotomayor

By Dr. Brian Russell

As both a lawyer and a psychologist, I have to say that some Republicans are missing the boat on President Obama’s nomination of Judge Sonia Sotomayor to the Supreme Court. Some are calling her a “racist” because she once said that, as a Latina, she hoped she could make a better decision than a Caucasian man. Whether she’s a “racist” or not – and I’d need to hear a lot more racially-charged comments from her before I’d conclude that – misses the point, and the point is this:   

The job of a Supreme Court justice is to interpret federal law, and that should be a purely intellectual exercise, completely devoid of an emotional component. In fact, given the difficulty experienced by human beings in attempting to detach themselves from their own emotions and from the emotions of others around them, the best Supreme Court justice would be a robot, but we’re nowhere close to developing that kind of intelligence artificially (and the Constitution requires a human being). So, we all should evaluate Supreme Court nominees based on their apparent abilities to divorce reason from emotion and to make decisions that are as purely intellectual as is humanly possible. I wonder about Sotomayor’s ability to do that, particularly in cases involving minorities. For instance, she seems to mention her Hispanic heritage quite frequently, whereas I by comparison rarely if ever mention my Irish heritage. In my experience, people who seem to be preoccupied with their own ethnicity are often angry about perceived injustices, so I’m concerned about their ability to remain objective when confronted with issues involving ethnicity.

A nominee’s race and gender and “compelling life story” would be relevant qualifications only if the job required empathy, and in the days since Sotomayor was nominated, supporters of her nomination, from the President on down, have repeatedly noted “empathy” among her eminent qualifications. That’s the problem, the “boat” that Republicans are missing as they get caught up in largely-gratuitous dockside discussion about whether she’s a “racist.” The job of a psychotherapist requires empathy; the job of a Supreme Court justice does not. It requires the opposite of empathy – detachment – that decisions be made with regard to the emotions of neither the justice nor the parties involved. It requires fidelity to the United States Constitution regardless of how one might feel toward the litigant(s) on either side of a case.

Some have cited Justice Samuel Alito, incorrectly I believe, as endorsing a role for empathy in judicial decision-making when he said during his confirmation hearings that he often thinks about people whom he has known who are situated similarly to litigants who come before him. Alito’s cited comments came after he had explained the intellectual model of judicial decision-making so well that a senator asked him essentially to give the Judiciary Committee some glimpse of the human being underneath the black judicial robe. In responding, Alito demonstrated how Supreme Court justices can properly express empathy toward litigants during oral arguments, eschew empathy when actually making decisions, and then again express empathy in articulating decisions that will be profoundly disappointing to the losing litigants.

Thus, any nominee who believes that his or her race and gender will somehow enhance his or her decision-making ability as a Supreme Court justice is sub-optimally qualified for the position, not because that nominee is a “racist,” but because the nominee fundamentally misunderstands the job.

Link: http://www.drbrianrussell.com/