Turtle Talk

From the NYTs:

What Kind of Judges Do We Want?

Last week I participated in a discussion of judging under the auspices of the Brennan Center for Justice. The event was held at the New York University School of Law, where an invited audience of about 80 interacted with three panelists – John Payton, head of the NAACP’s Legal Defense Fund, Burt Neuborne, professor of law at NYU and me. We were held in check by moderator Dahlia Lithwick of Slate.com and Newsweek.

The question we were there to take up was, “What kind of Supreme Court justices do we want?” The topic was set before the nomination of Sonia Sotomayor, but of course the upcoming hearings of the Judicial Committee were on everyone’s mind. And so there was a lot of talk about empathy against the background of President Obama’s praise of it and Judge Sotomayor’s now famous or infamous speculation that a wise Latina might know something an old white guy did not.

At one point moderator Lithwick asked, “Is empathy a useful term? Is it helpful?” I replied that it’s probably a bad idea to use a word that has to be explained or explained away five times a day. It’s been useful and helpful to conservative bloggers but not to either Obama or Sotomayor. Of course it’s too late to retire it; we’re stuck with it.

Burt Neuborne observed that those who react negatively to invocations of empathy assume that an empathetic judge will go all touchy-feely right away and rush past the law in order to get as quickly as possible to the desired result. But as Neuborne pointed out, it’s not that easy, because both judging and lawyering are highly constrained activities that don’t finally leave much room for maneuvering of an overtly partisan kind.

Before a fact situation is presented to a court, it has been sliced and diced and served up as a (legal) dish already carved, in response to a set of standard and obligatory questions. Under what rubric is it to be placed — tort, contract, fraud, due process, duty of care — there are thousands of them and each demands different procedures and question. What level of scrutiny shall be applied — rational, intermediate, strict — that is often related to another question: Which party bears the burden of proof? And then there are the innumerable tests designed to guide inquiry. Do the plaintiff’s claims fall under the statute? Was the state action that benefits religion enacted for a secular purpose?

Neuborne’s point is that by the time all of these routines have been run, the institutional answer to the question of record has been arrived at or is clearly in sight. It is only then, when most of the work has been done by process, that something like personal predilections or empathy might kick in.

But I don’t think that’s quite right because the institutional constraints – the rubrics, levels and tests – can themselves be interpreted in different ways, and the differences may well be calibrated to the kinds of considerations included under the term empathy. If this is so, if a judge’s understanding of the nuts and bolts of the legal machinery is itself interpretive, the sympathies and allegiances she has will be in play from the very beginning of her consideration.

That is what Sotomayor’s critics are worried about. Sen. Jeff Sessions (R-Alabama) complains, “She seems willing to accept that a judge’s rulings may be influenced by the judge’s personal backgrounds or feelings.” But whether this is a matter of concern depends on just what Sotomayor is imagined to be accepting. Is she accepting an account of the way human beings invariably perform.? Is she endorsing a psychology? Or is she accepting a view of how judging should be done? Is she endorsing a method? Is she being descriptive or prescriptive?

If Sotomayor is being prescriptive, if she is saying, “I will actively (as opposed to involuntarily) consult the influences that have shaped me at every point of decision,” she is announcing a method of judging that invites Sessions’s criticism.

But if she is being descriptive, if she is saying only that no one can completely divest herself of the experiences life has delivered or function as an actor without a history, she is announcing no method at all. She is merely acknowledging a truth (as she sees it) about the human condition: the influences Sessions laments are unavoidable, which means that no one can be faulted for viewing things from one or another of the limited perspectives to which we are all (differently) confined.

In fact – and this is what Sotomayor means when she talks about reaching a better conclusion than a white man who hasn’t lived her life – rather than distorting reality, perspectives illuminate it or at least that part of it they make manifest. It follows that no one perspective suffices to capture all aspects of reality and that, therefore, the presence in the interpretive arena of multiple perspectives is a good thing. In a given instance, the “Latina Judge” might reach a better decision not because she was better in some absolute, racial sense, but because she was better acquainted than her brethren with some aspects of the situation they were considering. (As many have observed in the context of the issue of gender differences, among the current justices, only Ruth Bader Ginsburg knows what it’s like to be a 13-year-old girl and might, by virtue of that knowledge, be better able to assess the impact on such a girl of a strip-search.)

Throughout the evening, John Payton reminded us that these are not merely theoretical points. He read a chilling sentence from Herbert Wechsler’s influential essay “Toward Neutral Principles.” Wechsler is making the point that laws mandating the separation of the races burden both races equally: “In the days when I was joined with Charles Houston in a litigation in the Supreme Court before the present building was constructed, he did not suffer more than I in knowing that we had to go to Union Station to lunch together during the recess.”

One might wonder whether Houston would equate the lunchtime inconvenience suffered by his colleague with the humiliations he had to endure every day of his life. One might be amazed, as Payton was, by Wechsler’s blindness to what he is saying. He was a great legal mind, but something was missing. You can call it empathy or (as some in the audience suggested ) you can call it understanding or imagination. I called it hearkening to the spirit rather than the letter. But whatever you call it, everyone present that evening agreed that it was what we wanted.