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Wednesday, July 15, 2009

Sotomayor, empathy, and fundamental rights


It's highly likely that Judge Sonia Sotomayor will be confirmed as a Justice of the U.S. Supreme Court. The Senate hearings this week are more political theater than anything else.

What's more interesting to me is how the "audience" -- other bloggers, for example -- is reacting to the hearings.

As always, Eugene Volokh's blog provides fascinating legal analysis. Here are two highlights:

1. Sotomayor appears to be dreadfully, painfully confused about the relationship between "fundamental rights" and the 14th Amendment.

As I know I've mentioned before, the Supreme Court has found that certain "fundamental rights", found in the federal Constitution, also apply to the states by way of the 14th Amendment. For example, the Supreme Court can and has struck down state laws limiting speech and expression because those laws violated the First Amendment (e.g. see Cohen v. California.)

Not every right in the Bill of Rights has been incorporated this way. For example, portions of the Fifth and Seventh Amendments have not been incorporated, and only the Ninth Circuit federal court has ruled in favor of incorporating the Second Amendment.

The point, however, is that rights are incorporated if the Supreme Court believes they are "fundamental." This implicitly requires the Court to exercise moral judgment, although I don't have a problem with that.

In her hearing, Sotomayor completely reversed the idea of incorporation.

Here is her characterization of a "fundamental right":

SOTOMAYOR: Those rights have been incorporated against the states. The states must comply with them. So in -- to the extent that the court has held that...

HATCH: Right.

SOTOMAYOR: ... then they are -- they have been deemed fundamental, as that term is understood legally.

This exchange occured during Tuesday's hearing. As Randy Barnett noted,

More than once she said a right was "fundamental" if it was "incorporated" into the fourteenth amendment. But this gets it backwards. The Supreme Court incorporates a right BECAUSE it finds it to be fundamental.

And just to show that I'm not picking nits, here's a similar quotation from today's hearing:

That legal doctrine uses the word fundamental, but it doesn't have the same meaning that common people understand that word to mean. To most people, the word by its dictionary term is critically important, central, fundamental. It's sort of rock basis.

Those meanings are not how the law uses that term when it comes to what the states can do or not do. The term has a very specific legal meaning, which means is that amendment of the Constitution incorporated against the states.

Again, Sotomayor gets it backwards. The Court incorporates a right because it believes that right is fundamental ("implicit in the concept of ordered liberty", as stated in Palko v. Connecticut.)

2. Sotomayor's rejection of the "empathy standard"

I found this particularly interesting. President Obama wanted a judge who could empathize. In her remarks at her confirmation hearing yesterday, Sotomayor explicitly declared that the law, and not feelings, should determine a judge's judgments. Here is part of her exchange with Senator Kyl (R-Arizona):

KYL: Have you always been able to have a legal basis for the decisions that you have rendered and not have to rely upon some extra-legal concept, such as empathy or some other concept other than a legal interpretation or precedent?

SOTOMAYOR: Exactly, sir. We apply law to facts. We don't apply feelings to facts.

This whole exchange, including parts I didn't excerpt, is fascinating. Not only does Sotomayor reject any role for empathy in her judging, but she also embraces an almost "mechanical" conception of the relationship between the judge and the law. In fact, it's almost too strong: if every case could be decided simply by mechanically applying the law to the facts, it is very hard to see how judges could ever disagree. Disagreement would indicate either that (a) one of the two judges didn't understand the facts and/or the relevant laws (and was incompetent) or (b) deliberated in bad faith.

Don't take my word for it: Professor Louis Michael Seidman says something similar in a web-debate put on by the Federalist Society:

If she was not perjuring herself, she is intellectually unqualified to be on the Supreme Court. If she was perjuring herself, she is morally unqualified. How could someone who has been on the bench for seventeen years possibly believe that judging in hard cases involves no more than applying the law to the facts? First year law students understand within a month that many areas of the law are open textured and indeterminate.

Apparently, Sotomayor endorses Ronald Dworkin's "right answer" thesis!

Posted by Terrence Watson on July 15, 2009 | Permalink


Canada's supreme court has no visible minorities on it. That must change: four justices must be non-white, including at least one aboriginal. Moreover, NONE must ever have attended an Ontario university or even be born there. The time has come to break the backs of those fascist, racist white people.

Posted by: Zebulon Pike | 2009-07-15 11:24:48 AM

Free the Galloway Boys - innocent victims of Toronto's racist, all-white "just-us" system!

Posted by: Zebulon Pike | 2009-07-15 11:27:02 AM

This woman's remarks betray her bias. If her rulings reflect this belief system she should not even be serving on the bench, much less the Supreme Court. The legal system's fundamental role is to ascertain the truth, not how people feel about it.

Posted by: Shane Matthews | 2009-07-15 11:49:26 AM

I haven't heard her stand on abortion. Latinos tend to have strong family values.

Are they so busy picking away at technicalities, that they don't see the real woman?

Posted by: dp | 2009-07-15 12:09:50 PM


They'll probably get to that eventually, but I wouldn't hope for much.

Many of Sotomayor's answers have been deviously opaque. The senators don't seem to be pressing her hard enough to get around the obfuscation. It won't be any different when she's asked about Roe, I'm sure.

Posted by: Terrence Watson | 2009-07-15 12:17:00 PM

When did CNN start showing Saturday Night Live reruns? Al Franken is asking the nominee questions, right now. Who is that playing Sotomayor?

Posted by: dp | 2009-07-15 12:41:25 PM

This is all not very surprising, her entire career has existed because she's a Latina, not a capable justice. It's the same reason she made the federal bench, it's the same reason she'll be confirmed. To deny her would appear racist. It's sick because she's an abysmal person who has no concept of impartiality or the rule of law. She rules with the pains in her heart.

Posted by: Pete | 2009-07-15 12:55:04 PM

Newsy.com quotes MediaMatters.org saying, “…reporters and pundits are banking on nomination drama, so they're willing to chase, and legitimize, the “racist” storyline. To do that though, the press has to play dumb on an epic scale about the "Latina woman.”

It's absolutely ridiculous that our checks and balances system is so skewed currently that Sotomayor could say anything she wanted and get the nomination. Her and Obama have the gift of words. The gift of saying a bunch of pretty things that add up to nothing fundamental.

Posted by: Caitlin | 2009-07-16 9:22:15 AM

Empathy is an aspect of Emotional Intelligence. My belief is that it is important for a Supreme Court Judge to have empathy -- and to be Emotional Intelligence. The law is very complicated and is not always clear or interpreted the same way by everyone- therefore, one must have empathy. Thank you Obama for being Socially and Emotionally Intelligent. However, my belief is irrelevant to the fact that all of us make rational decisions based on emotions. "Emotional Intelligence is the foundation for successful leadership"(Daniel Goleman). CMartens

Posted by: C. Martens | 2009-07-16 10:00:29 AM

Unfortunately, C., your attitude reflects precisely the wrong approach to law. You should be able to take the same facts to ten different judges and get ten identical rulings. Otherwise the whole thing is a case of spin the bottle and playing the system, with little if any hope of justice or fairness. Introduce emotion and empathy and you decrease, not increase, the effectiveness of any body whose fundamental reasons for existence are truth and justice.

As for emotional intelligence being the foundation for successful leadership, is that success measured by how well the leader does, or how well his followers do? Such talk sounds like New-Age mumbo-jumbo attempting to put feelings on a level with logic. It is said that whenever emotion enters a room, logic leaves it--often through the window.

In any case, empathy--the ability to sense what others are feeling--is in no way an aid in discovering the truth, although ironically it is of help when determining if someone is lying. Sympathy, quite apart from empathy, is found in abundance among judges today, and all of it is for the offender. This generation of judges may be emotionally "intelligent," but they are certainly not emotionally mature. Emotional maturity comes from controlling your emotions, not letting them control you.

Posted by: Shane Matthews | 2009-07-16 4:56:48 PM


What's ironic is that Sotomayor in the Wednesday hearing (see the second set of quotations) rejects the use of empathy as part of judging.

So she apparently disagrees with you about empathy (or she was lying.)

Posted by: Terrence Watson | 2009-07-16 6:22:05 PM

Dear Shane,
Understanding the biology of the brain -- you might want to consider the following: "All rational decisions are made with emotions". And because of this -- it is important to have empathy and not this attitude of revenge. That does not mean of course that punishment should not received if one commits a crime. In fact the opposite - it should foster both sides. In fact, as we get older Emotional Intelligence should "increase" unless we are emotionally immature or lack Social and Emotional Intelligence (EI).

The first step is to understand what EI means: The Harvard Business Review has written many articles on this topic - -here is one I recommend that you read "Social Intelligence and the Biology of Leadership"(D. Goleman and R. Boyatzis). In defining Empathy - 1. Do you understand what motivates other people, even those from different backgrounds? 2. Are you sensitive to others’ needs? you should notice that this prepares anyone for a more rational decision. No matter what side of the law you are on or of what opinion you might have -- Empathy is an emotion that must be present. I hope this explanation helps you better understand the role of empathy.
C. Martens (NYC - USA)

Posted by: C. Martens | 2009-07-17 9:45:51 AM

C., I know it's become popular in pop science circles of late (and even a few hard scientific circles, too), to cite emotion as the root of all decision-making, and thus raise it to the level of logic. However, psychology being the inexact science that it is, this is just one way of looking at it. It also has a suspicious whiff of New-Age feel-good fuzziness, and I wouldn't be surprised if in a couple of decades it goes the way of past-life hypnotic regression and ESP, both of which had many "peer-reviewed" supporters in their heyday.

Empathy is not logical, but neither is revenge. The taking of revenge exposes one to risks one need not face, and is thus prejudicial to survival. However, it also illogical to fail to deal adequately with a proven threat, and to invest disproportionate quantities of time and money attempting to rehabilitate a subject who racked up fifty-seven convictions by the time he was twenty-one.

People often confuse the terms empathy and sympathy, treating the two words synonymously. They're not. Bluntly put, empathy is the ability to sense how others are feeling, while sympathy is giving a shit what others are feeling. The former allows you to "read" people, but offers absolutely no proof as to whether they actually did something or not, which is the whole purpose of the proceedings. Nor does sympathy. Such use as these things see in the court process should come after the verdict or ruling is handed down, not before.

Courts are not supposed to be mentors, nor are they supposed to be caring parent figures. Their job is to ascertain the truth and take appropriate remedial action. How a person feels has no bearing on what they've done. Leave the empathy and sympathy to the therapists.

Remember: Any tadpole has feelings. It is man's ability to think, reason, deduce, compute, learn, and communicate via language that makes him unique. It's not your heart that makes you uniquely human; it's your head.

Posted by: Shane Matthews | 2009-07-17 10:42:14 AM

empathy is the ability to put oneself in the shoe of the other and feel what they are feeling. To only use reason is only to use both ways we humans have for making decisions and that is what has led to the meltdown of our system...all thinking types who don't care about people

Posted by: Dr. Brian Schwartz | 2009-07-17 12:06:43 PM

Nice try, Brian. But no real doctor would ever express himself so clumsily. Not only are your grammar and punctuation poor, but your second sentence doesn't even make sense: "To only use reason is only to use BOTH ways..." Not only does that sentence contradict itself, it also contradicts the premise of your argument.

And if you really have so much pent-up sympathy clamouring for release, why don't you direct some of it towards the victims of crime for once, instead of heaping it all on the perpetrators? That, along with the abolition of the concept of merit and deservedness, is what has led to the present mess.

In my experience, most people who eschew the value of thought do so because they are not well equipped for thinking.

Posted by: Shane Matthews | 2009-07-17 2:02:26 PM

Oh my, oh my, Shane. You obviously stopped learning in the 50s or 60s -a lot has happened since then: we had a senseless war in Vietnam, the summer of love, landed on the moon, the wall in Berlin came down as did the Evil Empire. And we have an African American president. Also: Science advanced. We have computers, i-phones and MRI's.

One of the major developments in this area is called Neuroscience - yes, there is such thing. Neuroscience has meanwhile proliferated into Social neuroscience, neurobiology, neuropsychology and so on. And yes, it is Science - the presented theories and models are built according to the requirements laid out by Karl Popper and positivism today. It is not some esoteric unscientific babble such as "intelligent design".

We have found things such as mirror neurons, spindle cells and oscillators - all essential in social intelligence (empathy is part of that). We know today pretty much that humans cannot make rational decisions with damaged emotional centers in the brain. We cannot even survive without receiving empathy and resonance.

Oh, by the way, having empathy does not mean taking sides and stray from facts or the law. It just enables us and also our judges to interpret the law the way it was meant in light of the facts and the situation. Without empathy that is not possible.

Open your mind and start learning again: our brain - and hence possibly your brain too - is endlessly "plastic", i.e. it never stops changing and being capable of learning, no matter how long ago you have stopped using it yourself.

Posted by: Karsten | 2009-07-17 2:41:45 PM

Dear Shane,
I believe that Karsten stated beautifully in his comment to you the developments in Neuroscience (yes, this is a science) as it relates to Emotional and Social Intelligence. In reading your comments to both Dr. Brain Schwartz and myself you might want to consider doing further research on this topic of Emotional Intelligence. You might not only develop an understanding of a scientific theory but also to learn how to develop your own Emotional and Social Intelligence.

You seem to lack an important social skill at sensing other people’s emotions,understanding their perspective, and taking an active interest in their concerns.

You do not have to agree with the opinion if a judge should have empathy -- but at least have the ability to manage your own emotions. Everyone is entitled to have an opinion. Learn something new with an open mind (EI and SI) this might lessen your aggression towards people who might have a different perspective then you.

What Dr. Brian Schwartz wrote in his comment was brilliant.

Posted by: C. Martens | 2009-07-17 3:01:14 PM

You guys are missing the point.

KYL: Have you always been able to have a legal basis for the decisions that you have rendered and not have to rely upon some extra-legal concept, such as empathy or some other concept other than a legal interpretation or precedent?

SOTOMAYOR: Exactly, sir. We apply law to facts. We don't apply feelings to facts.

According to Sotomayor, she doesn't use empathy when coming to a decision. Now, she might be lying (making her unfit for the Supreme Court); or, on the other hand, she might not be lying. And if she's not, it sounds like she's disagreeing with the folks on this thread.

Posted by: Terrence Watson | 2009-07-17 3:08:11 PM

Hi Terrence,
Thank you for posting this post. I agree either Sotomayor is lying or maybe not lying. She may have been just going along with the "good all boys" -- to get in. Either way - that does not change my opinion on empathy and supreme court judges. I believe that she carefully crafted her answer -- by saying "applying feelings to facts". I am not sure she really answered the question directly. However, I am disappointed on the way she did answer. My hope is that she will make a difference and apply Empathy.

Posted by: C. Martens | 2009-07-17 3:19:54 PM

"Oh my, oh my, Shane. You obviously stopped learning in the 50s or 60s -a lot has happened since then: we had a senseless war in Vietnam, the summer of love, landed on the moon, the wall in Berlin came down as did the Evil Empire. And we have an African American president. Also: Science advanced. We have computers, i-phones and MRI's."

That's all very nice and emotional, Karsten; a pity that not one of those things is relevant to the subject. Ad hominem smears are the hallmark of the amateur. And, not coincidentally, they are most often utilized by hysterical creatures like yourself, who have somehow developed the notion that having the emotional control of a spoiled schoolchild somehow makes them superior to those around them.

First of all, the Vietnam war was not senseless. It was essentially a proxy war between the U.S. and Russia. Russia sought to expand communism; the U.S., still intensely distrustful after the Cuban Missile Crisis of 1962, sought to stop them. Troops were first sent there by none other than that shining liberal icon, John F. Kennedy. And when the Americans left in 1975, the Viet Cong, hitherto held in check, butchered three million Vietnamese while Pol Pot wiped out the educated classes of Cambodia in recent history most notorious killing fields.

Secondly, the language you are speaking is not German. You do not capitalize non-proper nouns like "neuroscience." Nor is this "Karl Popper" character (and is that his real name?) the first and last word on how the brain functions. In ten years his trendy theories will be fodder for the Next Big Thing. The way to knowledge is through the scientific method, not through some charismatic behaviour guru.

Thirdly, I'd like to see some sources for some of these assertions of yours, specifically that people cannot think rationally without damaging their emotional centres. Is the reverse also true; i.e., that people also cannot emote without damaging the logical centres of the brain? Because that would certainly explain why too much emoting would turn someone into a narcissistic moonbat like yourself. Also, if we cannot survive without empathy and resonance, explain how people have survived being marooned on desert islands or locked in solitary confinement for decades.

Fourthly, interpreting the law according to the facts of the case requires only the facts of the case. Those facts include any extenuating circumstances or unusual considerations that may enter consideration, provided they are known with certainty. Empathy has nothing to do with ascertaining truth or falsehood. Nothing. What is, is, regardless of whether you're turning handsprings down the hall or sluicing a Niagara of tears into your Winnie the Pooh handkerchief. Only a narcissist could convince themselves otherwise, the supreme egoism that something as undeniable as basic reality could be totally altered by the firing of a couple of synapses in your brain.

And, judging by the brainlessly parroted claptrap you've put on display for all to see, your last synapse died of loneliness.

Posted by: Shane Matthews | 2009-07-17 4:58:32 PM

Actually, C., I am very empathetic in that I do sense what others are feeling. I'm Irish, and Celts are very perceptive as a rule. However, emotions are primarily of importance in interpersonal relationships. They require no proof, no justification, and do not even have to be reasonable. They very wildly from person to person, even as the corpse on the sidewalk remains dead and smoke continues to rise from the gun in the hand of the criminal who killed him. This tidal wave of emotion does not alter the past one whit.

As for managing one's own emotions, I suggest you take that message to Karsten, because without any reason or provocation at all she became obnoxious, snooty and insulting. I can control my feelings; I do not cry, whereas Karsten, I'm betting, is probably one of these people who weeps copiously when she doesn't get to talk about her feelings enough.

What Brian wrote in his comment did not even make sense and offered no proof. It contained no demonstrable insight and actually managed to contradict itself. On the basis of what criteria do you term it "brilliant"?

Posted by: Shane Matthews | 2009-07-17 5:05:23 PM

Well, Shane, there is obviously nothing to add to your rant. Just type in neuroscience in Amazon.com and look for some of the leading researchers such as Damasio or LeDoux - I doubt that you are interested based on your aggressive responses. But one hopes for the better....

... and by the way, even McNamara acknowledged the senselessness of the Vietnam war (you probably don't know who he is - you can look him up under Robert McNamara on Wikipedia - while you are at it, look also up Karl Popper :-)

Posted by: Karsten | 2009-07-17 5:24:28 PM

Shane -- you confirmed my statement by your last two posts.
PS: Look up Karl Popper - learn something.

Posted by: C. Martens | 2009-07-17 5:31:28 PM

"Well, Shane, there is obviously nothing to add to your rant. Just type in neuroscience in Amazon.com and look for some of the leading researchers such as Damasio or LeDoux..."

And what will they say about the role of empathy in the trial process? Got some quotes for us, or just your insufferably sanctimonious moral superiority?

Posted by: Shane Matthews | 2009-07-17 6:14:15 PM

"Look up Karl Popper - learn something."

I already did. He was a philosopher. Enough said. I at least craft my own arguments instead of regurgitating someone else's like a brainwashed zealot, and filling in the gaps with dreamy fluff.

Posted by: Shane Matthews | 2009-07-17 6:15:19 PM

"And by the way, even McNamara acknowledged the senselessness of the Vietnam war..."

McNamara was a typical example of what happens when you put a man long on brains and short on sense in a position of authority. The Vietnam war failed largely because he tried to micromanage it from the Pentagon instead of simply setting broad objectives and leaving the implementation to experienced military commanders. He scrapped a proven rifle in favour of a pathetic poodle shooter on the strength of a few numbers on paper and shut down the Springfield Armoury, dismissing experienced soldiers and replacing them with technocrats like himself. Funny how the U.S. Army has won every war it fought WITHOUT McNamara. And this is the guy whose opinion is supposed to mean something?

Don't try to bluff me on matters military, C.; I was a soldier myself. I know more about war than you ever will, so don't presume to lecture me on it.

Posted by: Shane Matthews | 2009-07-17 6:20:16 PM

Sorry, that last post was directed at Karsten. I should have known by the snotty tone. :-)

Posted by: Shane Matthews | 2009-07-17 6:21:48 PM

And women wonder why men won't let them run the world.

Posted by: Shane Matthews | 2009-07-17 6:23:18 PM

Let's politicize every position because we otherwise can't. Every political decision in the US is no longer based on popular will, or even popular interest; it involves who is in power, or who wants to be in power. It is a volleyball match, back and forth. Any individual who subscribes to our political system is merely being taken along for the ride and has no freedom of choice whatsoever. We are always being manipulated in a two party system.

Posted by: Mike | 2009-08-27 8:10:33 PM

As a Postscript for the intellectually challenged, most of you have already politicized the decision because you merely spout the dogma you heard. You aren't even conscious of the fact that you aren't thinking. Brilliant move by the politicians! On either side they know they have a given amount of the votes simply because people like you refuse to think.

Posted by: Mike | 2009-08-27 8:18:35 PM

Her interpretation of fundamental rights is merely further evidence how perverse the legal system is and what bottom feeders lawyers in general really are.

Posted by: The original JC | 2009-08-27 10:12:23 PM

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