Senate Confirmation Hearings for Sotomayor Have Confirmed at Least One Thing so Far: Some People Don't Know What Empathy Is

Confirmation hearings for Judge Sonia Sotomayor, President Obama's nominee for Supreme Court justice to replace the retiring David Souter, began July 13^th, and while Judge Sotomayor didn't get a chance to answer many questions, during the opening remarks it became quite clear what the focus would be for some of the participants.

Jeff Sessions, (R) Alabama, made a reference to President Obama's stated desire for a Supreme Court justice who had a sense of empathy when he stated, "That is, of course, the logical flaw in the 'empathy' standard: Empathy for one party is always prejudice against another."

First off, let's untangle 'empathy' and 'sympathy', which people often confuse. Sympathy means "similar feeling". You can have sympathy for someone whose loved one has passed away because you feel bad, too, if only on their behalf. In a non-emotional context, sympathy can also refer to people who feel the same way about something, from politics to religion to whether or not there should be bans on smoking. The term 'sympathizers' is sometimes used in this context, often as a pejorative term (e.g., "rebel sympathizers").

Empathy, on the other hand, is the ability to put yourself in another's place, to feel what they feel, but it does not refer to your personal stand or interest in the matter. I can understand, for example, why Mookie threw the trashcan through the pizzeria window, but although I empathize, I do not agree with his actions; I don't feel I would take the same action myself, nor do I think he should have thrown the trashcan, therefore I do not sympathize.

So when Sessions claims "empathy for one party is always prejudice against another," he is comparing apples to rutabagas. You can easily empathize with parties on both sides of a matter and not agree, or sympathize, with either one. Sessions clearly just wanted an opportunity to color the dialogue by inserting the word 'prejudice', as the opposite of prejudice is impartiality, the most intrinsic quality necessary to be a judge, and not, as he disingenuously stated, empathy. People who hear the word 'prejudice' with respect to a judge will think a judge has failed in that basic requirement. This agenda was clear in the question Sessions posed of Sotomayor the next day, "Do you think there's any circumstance in which a judge should allow their prejudices [emphasis strongly his] to impact their decision-making?"

Of course not, said Sotomayor; the job of a judge is to hear the case on its merits and to apply the law. She further went on to disagree with President Obama's stated belief that a judge's heart makes part of the decision, which should satisfy Republicans without putting off Democrats. She is correct; a judge's role is to remain completely impartial and to follow the law, which is written by people who are allowed to feel strongly one way or another. Now why "a wise Latina woman, with the richness of her experience" would be better at applying the same law that a white male judge would is beyond me, but at least Sotomayor is promising not to let her prejudices interfere. The same cannot be said for Jeff Sessions.