Monday, July 13, 2009

Sonia Sotomayor, and the empathy factor revisited

Much is made about the "empathy" factor in Sonia Sotomayor's judicial belief structure and Barack Obama's ideal qualities in a judge. I want to expand on that idea for a bit.

When applicable, precedent must be respected, unless law is passed or previous precedent was somehow flawed. That is the common law tradition in our nation, adopted from Britain when we were just colonies who later became states under a common union. There does arise, however, times when precedent does not present a just ruling; for that reason, an empathetic judgment is better than the precedent that lies before us.

One of the most famous rulings of the 20th century deals directly with pushing precedent aside in favor of an empathetic ruling. In Brown v. Board of Education, the Supreme Court disregarded the established "separate but equal" guideline in order to tear down the destructive walls of segregation in America's schools. The ruling had far-reaching consequences, including helping "knock out" the precedent that upheld Jim Crow laws in the south. Thus, by ignoring precedent, the Court made the nation as a whole a more just one.

That ruling favored empathy over precedent; as Chief Justice Warren wrote in the concurring Opinion of the Court, the question wasn't whether "tangible" differences existed in the two schools, but rather whether segregated school children were affected by the fact that their schools were segregated from white children...
"To separate them [school children] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone."
I'm, by no means, advocating the removal of precedent from our judicial system; neither is Barack Obama nor his judicial candidate Sonia Sotomayor. But there are instances when empathy do outweigh precedent, and they come, as Obama himself put it in the past, in the rarest of cases, "in those 5 percent of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision."

It is in those cases, where the law is not clear, where precedent is not necessarily established or is unjust, when empathy can make the difference. For that reason, Judge Sonia Sotomayor is the perfect candidate for the job ahead of her.

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