Senate confirmation hearings for Supreme Court Justices have been consistently absurd for quite some time now, but Sonia Sotomayor’s hearings have been of special note. Sotomayor repeatedly tells us that she strives to be an unbiased judge (which she undoubtedly does) and her opponents repeatedly counter that her life experiences will inevitably inform her decision-making process (which they undoubtedly will), as though the one negates the other.This discourse does not allow anyone involved to be honest about what is at stake. Yes, all judges must strive to be impartial, but all judges are also human beings, and all human beings are biased. So Sotomayor will never prove that she is an entirely impartial person (because no one is) and her opponents will never prove that she has to be an entirely impartial person (because, again, no one is).
And more to the point, nominees to the Supreme Court are selected for their biases as well as for their intelligence and professional experience. If judges were actually expected to be impartial, then it wouldn’t matter which party, or which president, nominated which Justice. Ronald Reagan famously reasoned that Sandra Day O’Conner would vote to outlaw abortion because of her personal bias against it. Just as famously, this plan backfired.
Jeff Sessions tells us of his “fear” that judges will employ an “empathy standard” rather than being faithful to the rule of law. He then asks us to empathize with the New Haven firefighters whose promotion exams were thrown out. He also argues the following:
President Obama says that when “constitutional text will not be directly on point,” the critical ingredient for a judge 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?
Here Sessions makes the interesting assumption that an empathetic judge cannot show empathy to both litigants. Empathy, it seems, is synonymous with bias and prejudice–but only when a judge is the one being empathetic. The rest of us need to exercise some serious empathy. I mean, just look at those poor firefighters. Doesn’t reverse discrimination, or even anything that superficially resembles it, break your heart?
Why is Sotomayor’s particular bias considered so dangerous? Here I defer to Stephen Colbert, who was made the point better than anyone: