In the past week we have heard a lot about empathy. Ms. Sotomayor and
the President have been espousing the importance of this emotion in jurisprudence from the moment Obama made his announcement on Tuesday.
Aside from my own personal thoughts on the idea (I think it's stupid), I would
like to muse a bit on how one of Ms. Sotomayor's recent decisions
demonstrates that empathy for her is little more than a hollow word.
When folks started to research Sotomayor after the announcement, two
facts were immediately noticed and brought to the public's attention.
First was her "Wise Latina woman vs. white guy" remark, and her
statement about how the appeals courts make policy. While on the face
of it, both of these remarks are quite problematic, the fact is they
are soundbites lacking proper context. As such, they will likely do
nothing to derail Sotomayor's confirmation. I have however been surprised on how little attention conservatives seem to paying to her
recent decision in Ricci v. DeStefano. For those who don't know the
story, the Ricci case is pending at the Supreme Court after having
been appealed from the Second Circuit, which is where Sotomayor
currently holds her post. Frank Ricci is a dyslexic fireman from New
Haven, CT who passed a test for promotion administered by the city. In
a nutshell, because almost all of the results worthy of promotion came
from white guys, the entire test was thrown out. Mr. Ricci and a few
of his colleagues sued the city to get their promotions. The federal
district court sided with the city, and the Second Circuit essentially
said that the district had the case correct. We could certainly have a
great discussion on the merits of Affirmative Action and its various extensions, but this particular case exposes some interesting issues.
Mr. Ricci has the kind of disability which required him to work at level
above and beyond to attain the result he did. He studied for hours and
spent a sizable sum on study aids just for a chance at beating his
lousy lot for a promotion. I can imagine few other stories as worthy
of empathy as Mr. Ricci's. Ms. Sotomayor, with her insistence that
empathy is important, had a chance to help Mr. Ricci get the promotion
he earned. She didn't.
The fact of the matter is that justice should be blind. Blind to all
of the factors that would ever illicit an emotional response of any
kind. I find it troubling that a person vying for a job called
"Justice" would publicly ignore this very basic premise of Justice.
I find it especially disappointing that she evidently can't have
empathy for a hard-working dyslexic white guy.