Judge Sonia Sotomayor: A Case of Misplaced Empathy

            Judge Sonia Sotomayor, who is a very wise Latina woman from the Bronx, has spent this week being cross-examined by a bunch of white men.  (Well, not all white men, but mostly.)  The white men who are interrogating her are members of the Senate Judiciary Committee, and many of them do not have much empathy for Judge Sotomayor.  They are trying to prove she is unqualified to serve on the United States Supreme Court because she has too much empathy.  And they are more than a little miffed because several years ago, Judge Sotomayor exercised her First Amendment right to say something goofy.

Specifically, speaking to a group of law students in 2001, Judge Sotomayor said that because of her experience as a Latina woman, she could make wiser decisions than a white man.  Judge Sotomayor now says she was just engaging in a little hyperbole to inspire the female law students in her audience.  But it was a goofy line, and it made Rush Limbaugh really, really mad.  And when Rush Limbaugh gets mad, many of the white men on the Senate Judiciary Committee get really mad too.

            But the real charge against Judge Sotomayor comes back to the e-word, empathy.  The Random House College Dictionary, which I understand was edited by a bunch of white men, defines empathy as “intellectual identification with or vicarious experiencing of the feelings, thoughts or attitudes of another person.”  That really doesn’t sound like a bad quality for a judge.  I know if I were on trial, I would like for my case to be heard by a judge who intellectually identified with my thoughts and feelings whether that judge was male, female, black, white, Hispanic or an even old white guy like me.  But somebody (maybe Rush Limbaugh) has decided that “empathy” is a very bad thing for a judge, particularly a Supreme Court Justice.  “Empathy” has become a code word for liberal, pointy-headed judges who create their own liberal, pointy-headed laws.

            And so all this week, non-empathetic white guys on the Senate Judiciary Committee have asked Judge Sotomayor questions designed to show that she really is a terribly empathetic person.

            So far, the strategy has not been working.  The wise Latina woman has been very cautious, dare I say even conservative, in her responses to the Senators’ questions.

            But on Wednesday, the Judge may have stubbed her wise Latina toe.  When asked by one of the Senators to identify her heros, she named two:  Justice Benjamin Cardozo and Perry Mason.  Identifying Justice Cardozo was a safe, conservative response.  Identifying Perry Mason was an empathetic response, but nevertheless, it was still a crowd-pleaser.

But then Judge Sotomayor traveled an intellectual bridge too far.  She explained that as a child she was so inspired by the Perry Mason TV Show, she decided to become a prosecutor.  At that point, the Senate’s newest member, Al “Saturday Night Live” Franken, pounced on the Judge with a cross-examination that would even make Rush Limbaugh proud.  He pointed out to the good Judge that the prosecutor on the Perry Mason Show, the ill-fated Hamilton Burger, lost to Perry every week.

            Thus, it made absolutely no sense for this wise Latina woman to say that the Perry Mason Show inspired her to be a prosecutor, rather than a defense counsel.

            As it turned out, it was a case of misplaced empathy.

            I predict that Judge Sotomayor will be confirmed by the United States Senate and will soon take her place on our Nation’s highest court where she will get the chance to prove that she does make wiser decisions than white men like Nino Scalia.  But in that big courtroom in the sky, Raymond Burr must be looking down and asking himself, “How in the world did I inspire this gal to become a prosecutor?”