I recently discussed the contradictions of Justice Sonia Sotomayor’s Schuette dissent here, and I have some additional comments today on Pajamas Media, here. Before jumping into the Breyer Patch of Justice Stephen Breyer’s widely but unwarrantedly praised concurring opinion, however (which I plan to do shortly), Justice SS’s effort deserves a bit more discussion.
Her long, rambling dissent, as full of treacly heart as it is empty of cogent analysis, probably is, as Daniel Henninger argued in the Wall Street Journal, “[t]he most complete explanation of Barack Obama’s and Eric Holder’s reasoning on race.” That may well be damning with very faint praise, rather like describing a thin volume as the most complete compilation and analysis of Italian naval victories in World War II. Still, I believe SS’s dissent is important, and will possibly be regarded by historians in the future as emblematic of what I described (here) during Obama’s first campaign as “the emerging tradition of emotive, non-rational liberalism.”
In explaining his vote as a Senator against the confirmation of Chief Justice Roberts, I wrote, citing Ed Whelan in the Weekly Standard, Obama stated that deciding “difficult cases” required resort to “one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works and the depth and breath of one’s empathy.” We need judges, Obama argued “who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom, the empathy to understand what it’s like to be poor or African-American or gay or disabled or old — and that’s the criterion by which I’ll be selecting my judges.”
The elevation of empathy to the pinnacle of judicial qualification did not, of course, start with candidate or president Obama. Back in September 2005 I discussed “What Democrats Want: A Clintonian Judge,” i.e., one who feels your pain, or rather their pain. That post began by quoting George Will on Sen. Diane Feinstein’s explanation of what she wants to see in a judge:
Dianne Feinstein’s thoughts on the nomination of John Roberts as chief justice of the United States should be read with a soulful violin solo playing, or perhaps accompanied by the theme song of “The Oprah Winfrey Show.” Those thoughts are about pinning one’s heart on one’s sleeve, sharing one’s feelings and letting one’s inner Oprah come out for a stroll….
… [T]he crux of Feinstein’s case against Roberts concerns … his general deficiency of empathy. Specifically, she faults his failure to talk to her “as a son, a husband, a father,” and to understand “the importance of reaching out.”
Exploring Roberts’s “temperament and values,” Feinstein asked him about “end of life” decisions, urging him to talk to her “as a son, a husband, a father.” Instead, she says disapprovingly, he “gave a very detached response.”
Feinstein, I noted, was not alone, and quoted Joe Biden’s questioning of Roberts:
BIDEN: Do you think the state — well, just talk to me as a father. Don’t talk to me — just tell me, just philosophically, what do you think? Do you think that is — not what the Constitution says, what do you feel?
Do you feel personally, if you are willing to share with us, that the decision of whether or not to remove a feeding tube after a family member is no longer capable of making the judgment — they are comatose — to prolong that life should be one that the legislators in Dover, Delaware, should make, or my mother should make?
ROBERTS: I’m not going to consider issues like that in the context as a father or a husband or anything else.
All this empathy gushing had been given a superficial gloss of academic respectability earlier by the UC Berkeley linguist George Lakoff, discussed at some length here and here. One of Lakoff’s central themes is that conservatives are like strict, disciplinary fathers and liberals are like nurturing mothers. Liberals, on this view, are empathetic and “care,” while conservatives are uncaring meanies.
In Sonia Sotomayor, raptoursly described in The New Republic as a “national treasure,” Obama nominated to the Supreme Court the perfect embodiment of the affirmative action appointment and empathetic judge. The emotional core of her Schuette dissent (which is to say, its only core) is a long riff arguing against colorblind equality because “race matters,” which includes toward the end this peroration that will no doubt warm the cockles of liberal hearts and bring tears to liberal eyes:
And race matters for reasons that really are only skin deep, that cannot be discussed any other way, and that cannot be wished away. Race matters to a young man’s view of society when he spends his teenage years watching others tense up as he passes, no matter the neighborhood where he grew up. Race matters to a young woman’s sense of self when she states her hometown, and then is pressed, “No, where are you really from?”, regardless of how many generations her family has been in the country. Race matters to a young person addressed by a stranger in a foreign language, which he does not understand because only English was spoken at home. Race matters because of the slights, the snickers, the silent judgments that reinforce that most crippling of thoughts: “I do not belong here.”
The counter-argument (assuming for the moment that the above is even an argument at all) is not that race does not “matter.” Of course it does. It’s the basis, after all, for the preferential treatment that Sotomayor’s critics would like to prohibit and she would like to preserve. The point is not that race doesn’t matter. It is that the way a young person feels when others tense up in his presence or address her in a foreign language is not relevant to the question, the only question at issue in Schuette, of whether the Equal Protection Clause of the 14th Amendment prevents the people of a state from amending their constitution to prevent state agencies from distributing benefits or burdens based on race.
If you like empathy and affirmative action, you’ll love Sonia Sotomayor. But the next time you find yourself in court, forget arguments based on legal text, reason, or precedent. You better hope, or pray, that the judge feels your pain and not the pain of your legal adversary.