Justice should be blind, not empathetic

originally posted on DesMoinesRegister.com on July 12th, 2009

Sen. JEFF SESSIONS, R-Alabama, is ranking member of the Senate Judiciary Committee. Contact him through his Web form: www.sessions.senate.gov


On Monday, the U.S. Senate will begin confirmation hearings for Judge Sonia Sotomayor, President Obama's nominee to the Supreme Court. As the top Republican on the Senate Judiciary Committee, I have pledged that these hearings will be fair and respectful - but also thorough and rigorous.

If confirmed, Sotomayor will have the power to define the meaning of our Constitution for the entire nation. This is an awesome responsibility - determining the rights and freedoms for every man, woman and child in America.

This is our one chance to get it right. Supreme Court justices do not face elections or term limits. It is essentially a lifetime appointment.

That's why we must have a national discussion about the role of a judge and what kind of justice we ought to place on our nation's highest court.

We must look to what has made our legal system the envy of the world. At its heart is the Constitution. While the courts of many countries run roughshod over people's rights, American courts are tightly bound to the words of the Constitution and must defend the rights of every single American - regardless of a judge's personal or political feelings in a case.

Courthouses across our country feature the image of a woman with a blindfold weighing the scales of justice. She wears the blindfold so that she can judge her cases without bias or favoritism of any kind. This ideal is emblazoned on the Supreme Court building with the words "Equal Justice Under Law." Blind, equal justice is the foundation of our remarkable legal system and the bulwark of our shared freedoms.

But Obama and Sotomayor have expressed a very different view of judging. This view says that justice should not be blind, that it should not be based only on the law and the Constitution, but that it should take a judge's own personal and political feelings into account.

Obama says that when "constitutional text will not be directly on point," the critical ingredient for judges is the "depth and breadth of one's empathy," as well as "their broader vision of what America should be." But when a judge shows empathy toward one party in a courtroom, do they not show prejudice against the other?

Sotomayor has stated her belief that impartiality may not be possible in "all or even most cases," that "personal experiences affect the facts judges choose to see," and that judges "must not deny the differences resulting from experience and heritage but attempt ... continuously to judge when those opinions, sympathies and prejudices are appropriate."

But if you or I step into a courtroom, shouldn't we be able to do so with confidence that we will get a fair day in court no matter our background, experience, or politics - and no matter the background, experience, or politics of the judge?

We should keep this in mind as we consider Sotomayor's one-paragraph ruling in the recent New Haven firefighter case. Eighteen firefighters studied for months to pass the city's promotion exam. They did. But the city junked the results because officials didn't feel the outcome met the appropriate racial quota. Sotomayor sided with the city and even denied the firefighters a trial.

The Supreme Court rejected Sotomayor's ruling and determined that the city's action to abandon the legitimate promotion process violated the legal rights of the firefighters - who had played by the rules.

For years, Sotomayor was a leader at the Puerto Rican Legal Defense and Education Fund while it fought aggressively to pursue racial quotas for city hiring - just like in New Haven. Is Sotomayor's ruling against the firefighters an example of her failure to set aside her biases and rule impartially?

Contrast the philosophy Obama and Sotomayor have advocated with the plain words of the judicial oath:

"I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me under the Constitution and laws of the United States. So help me God."

Every day that Americans enjoy the extraordinary blessings of freedom, they do so in part because of the words and principles in that oath. Empathy-based rulings, no matter how well-intentioned, do not help society, but imperil the legal system that has been so essential to our liberties and so fundamental to our way of life.