And in the same vein, if you don't respect someone, you won't even try to understand them. There's also that distinction between the letter of the law and the spirit of the law. Constructionists tend to go outside the written law, to the Federalist papers and letters of the Constitutional conventionees and so forth, when it suits their too often predetermined interpretation of a given law, but only then: witness the furor over the phrase "separation of church and state." The same distinction could also be found between "strict" fundamentalists and more liberal interpreters of Scripture. I for one have always thought the phrase "literal interpretation" to be an oxymoron. In the end, there's only the spirit to guide you, and you're either in touch with it or you're not. Words, even scriptures, are only what the Zen master called fingers pointing at the moon.

Empaty - is that why Sotomayor is a member of the national committee for La Raza, a group that promotes amnesty for illegal aliens?

La Raza - "THE RACE" - as if there were no other.

Shriver says "Democrats tend to like activists and Republicans tend to like [strict] constructionists." This simply doesn't reflect the judicial reality of the past twenty years. Conservative activism has been the predominant reality of the Supreme Court and the Appellate Courts since the beginning of the Reagan effort to stack the courts ideologically. Shriver should refrain from repeating counterfactual Republican propaganda.

Ok, I triple dog dare Mr. Shriver and Ms. Sotomayor's supporters to answer this question. ************** Suppose George Bush had nominated a white male who had said this: ""I would hope that a wise white man with the richness of his experiences would more often than not reach a better conclusion than a Latina female who hasn't lived that life." Would that candidate be confirmed by the Senate?

Sorry - "empaty" should have been "empathy" - too hurried in posting.

But the same question remains - will this "empathy" affect her judgment regarding illegal alien issues? The membership in La Raza makes me skeptical of her ability to see the law vs. empathy in the case of illegal aliens and amnesty issues.

"Empathy is the capability to share your feelings and understand another's emotion and feelings. Wikipedia"

Justice is the concept of moral rightness based on ethics, rationality, law, natural law, fairness, religion and/or equity.[Journal of Economic Literature, 41(4), p. 1188

Maybe the Journal of Economic Literature can add empathy to their definition.

Empathy isn't usually synonymous with racist and sexist.

"Is empathy just another code word for activist?" - YES it is.

I am sick of these fake empathy columns from so called followers of G*D.

Sotomayor is a full fledge RACIST, who belongs to a Racist following against Americans who are NOT Latino or Hispanic.

She failed the test and needs to be rejected!

I think it's really commendable that you appreciate empathy. That's something that religion and churches have. However, we are a nation of laws, and expect the Supreme Court to support and defend those laws. I sued the federal government for discrimination against me because of my skin color, not based on their "empathy" for me, but because the government is required to provide equal protection under the law, not "more-equal" protection for some based on ethnicity. I expected to and won, but if "empathy" had prevailed, wouldn't have. Empathy is an excuse for some to discriminate against others.

I elect my President and members of Congress to have empathy when they make laws. That is their role in our democratic society. However, that role is different in the third branch of government. Their role is to review the facts in the matter before them and then apply the law. Empathy as proposed now needs to be balanced against the time when personalities and society will change, and it will and must. I am more empathetic to business issues, because i believe that will have the most social and financial good for society. Others may be empathetic to the poor, biased against business or the wealthy and look for a less than balanced playing field to give someone an extra opportunity. I am glad that both views are allowed and expressed. Its important that they exist together. Take care though when you believe your ability to do something gives you the right to do it. Judges are not super legislators - we have enough of those in Congress now. Judges really need to look at the facts without bias and apply the law. Not doing so puts all of us over time in jeopardy. Future Justice Sotomayor may have been taken out of context in some of her statements and if she was, her qualifications are outstanding and i look forward to her being on the bench for a long time. But, if the hearings show that she was not, then whether you are from the left or the right politically, you should be concerned.

By the way, the government paid me off rather than allow me to set a precedent that would have blown away their affirmative action; I am white.

I signed a 10 year non-disclosure, 10 years is up.

My litmus test for Judge Sotomayer:

Do you believe the following?

1. Abraham founder/father of three major religions was either the embellishment of the lives of three different men or a
mythical character as was mythical Moses, the "Tablet-Man" who talked to burning bushes and made much magic in Egypt.
Many of the 1.5 million Conservative Jews and many of their rabbis have relegated Abraham to the myth pile along with most if not all the OT.

Current crisis:
Realization that the Jews are not god's chosen people.

New Torah For Modern Minds
http://query.nytimes.com/gst/abstract.html?res=F20E1EFE35540C7A8CDDAA0894DA404482

2. Jesus was an illiterate Jewish peasant/carpenter/simple preacher man who suffered from hallucinations and who has been characterized anywhere from the Messiah from Nazareth to a mythical character from mythical Nazareth to a mamzer from Nazareth (Professor Bruce Chilton, in his book Rabbi Jesus). Analyses of Jesus’ life by many contemporary NT scholars (e.g. Professors Crossan, Borg and Fredriksen, On Faith panelists) via the NT and related documents have concluded that only about 30% of Jesus' sayings and ways noted in the NT were authentic. The rest being embellishments (e.g. miracles)/hallucinations made/had by the NT authors to impress various Christian, Jewish and Pagan sects.

The 30% of the NT that is "authentic Jesus" like everything in life was borrowed/plagiarized and/or improved from those who came before. In Jesus' case, it was the ways and sayings of the Babylonians, Greeks, Persians, Egyptians, Hittites, Canaanites, OT, John the Baptizer and possibly the ways and sayings of traveling Greek Cynics.
http://www.earlychristianwritings.com/theories.html

For added "pizzazz", Catholic/Christian theologians divided god the singularity into three persons and invented atonement as an added guilt trip for the "pew people" to go along with this trinity of overseers. By doing so, they made god the padre into god the "filicider".

Current crises:

Pedophiliac priests, atonement theology and original sin!!!!

3. Luther, Calvin, Joe Smith, Henry VIII, Wesley, Roger Williams, the Great “Babs” et al, founders of Christian-based religions or combination religions also suffered from the belief in/hallucinations of "pretty wingie thingie" visits and "prophecies" for profits analogous to the myths of Catholicism (resurrections, apparitions, ascensions and immaculate conceptions).

Current crises:

Adulterous preachers, "propheteering/ profiteering" evangelicals and atonement theology, all male hierarchies and strange banking and funding.

Politicians practice politics. Sotomayor's nomination is a political act, by a very capable politician.

That I view his approaches positively, he seems to me intent on putting positives into play, biases my reactions to his choices.

His greatest domestic test for me lies in health care. Will he continue the willful segregation of mental and physical health care, or work to integrate them as one field, with one ethic, one standard. They have been separate but "equal" for far too long.

Harold A. Maio
khmaio@earthlink.

It is correct to say a "constructionist tries to interpret the law based on how it was written or intended." And what other legitimate method could there be to interpret the law? A law is a contract - a formal agreement - among the citizens. If a contract - a formal agreement - does not mean what it says and how it was intended (according to its documented legislative history), of what worth is it? Apparently, Tim Shriver does not live in Adultland where people say and write what they mean and mean what they say and write. I'm afraid more and more of the USA's voters are emigrating from Adultland to join him in NannyState where Big Mama takes care of all her "chil'un" the way She sees fit whether they like it or not. But the saving grace in NannyState is that Big Mama is empathetic.

While it might be nice to have a judge that had empathy with my plight or my standing in society...what does that have to do with the scales of justice.

I won't pretend that justice is blind in this country as it is far too often (for my tastes) predicated on how much money you have or what color your skin is or how well-connected one is; as to what kind of sentence if any one gets.

But, without equal protection under the law and enforcement of the same, anarchy will ensue.

Gawd, people, for the last time, empathy does not mean that you lean to one side or the other in a dispute. It means the ability to put yourself in someone else's place and understand their point of view. Solomon had empathy, otherwise he never would have been able to understand that a mother would rather give up her child than see it killed. An empathetic judge is one who tries to understand and respect the people standing before him (or her), which is something I don't often see at least four of our present Supremes doing. Witness the recent underwear debate.

The problem with empathy in this case is that deciding cases at the level of the Supreme Court based on one's compassion for a particular individual's specific situation puts justice for a whole nation of people at risk. In trying to bend or twist the principles of the Constitution in order to accommodate one's sympathy for one person's individual circumstances, a justice could set a binding precedent that damages the protection of our founding principles for the people as a whole. The Constitution says what it says. It means what it meant in the common understanding of the people who wrote and ratified it, on which there are thousands of pages of their own writings. If we feel that it needs to be changed or be read differently, there are legal processes for making amendments to it. Short of following one of those, we, and most especially the courts, are bound to accept it on its face and follow it, whether we like it or not. To do anything else is nothing short of destroying the integrity of the whole Constitution and rendering us just one more nation of the whim of individuals in power instead of a nation of laws. Sometimes the law, in order to safeguard the freedoms of the people, leads to a result that causes some suffering we'd rather avoid. But to risk causing even more harm later simply in order to soothe our emotions at the time is a far greater moral crime. Anyone not capable of making those difficult choices according to the principles of the law is not fit for the job.

IN A JURY TRIAL LAWYERS ARE NOT PERMITTED TO ASK THE JURY TO PUT ITSELF IN THE SHOES OF THE LAWYER'S CLIENT AND THEN RULE ACCORDINGLY. SOMETIMES THIS IS CALLED A "GOLDEN RULE ARGUMENT", AND IT IS ALWAYS GROUNDS FOR A MISTRIAL. THE REASON IS SIMPLE: COURTS OF LAW ARE NOT IN THE SYMPATHY BUSINESS. COURTS OF LAW DISPASSIONATELY RULE ON THE LEGAL RIGHTS OF THE PARTIES.
THIS RESTRICTION IS EVEN MORE PRONOUNCED AT THE SUPREME COURT LEVEL. (I AM A MEMBER OF THE SUPREME COURT BAR.) THE SUPREME COURT IS NOT A COURT OF "ERROR CORRECTION" NOR IS IT A SECOND OR THIRD TIER TRIAL COURT. THE SUPREME COURT TAKES CASES THAT PRESENT COMPELLING QUESTIONS OF LAW. IT IS NOT A COURT OF EQUITY, NOR IS IT A 9-MEMBER JURY.

I QUESTION THE "EMPATHETIC" APPROACH TO THE LIMITED BUSINESS OF THE UNITED STATES SUPREME COURT. MORE DISCONCERTING, HOWEVER, IS THIS LATEST DISPLAY OF PUBLIC IGNORANCE REGARDING THE ROLE AND FUNCTION OF THE THIRD BRANCH OF GOVERNMENT. "DEMOCRACY" AND "POLICY MAKING" ARE TERMS APPLICABLE TO THE LEGISLATIVE BRANCH AND TO THE EXECUTIVE. THE SUPREME COURT IS NON-POLITICAL, AND THE CONSTITUTION THAT IT IS SWORN TO INTERPRET AND APPLY MUST BE CONSTRUED IN AN APOLITICAL MANNER.

How would you liberals feel if the Empathy was leaning toward the fetus. Would you be hot to have a judge with empathy toward overturning Roe.

ccnl1, I might sgree with you but you forgot to add the man who wondering into a cave heard voices, stole from previous reigions, claimed it as his own, and led people back to the origin of his original pagan location of where he practices as a pagan. And now Obama is appeasing this radicl and obviously fake (written and geographically) religion. BTW most beleive that Abraham came from babylon area.

Now down to activism. A supreme court must be a constitutional judge. One that might be jewish that can fight for a neo nazis right to publish hate (but not action) and protectfree speech. Not because of what they think but know the broader sense of why they must protect that constitutional right. Sotomayor seems to ignore constitution and lean more of what SHE thinks is right. At minimum she is is naive to think she is smarter than the constitution built on 100s of years of experiece. At worst, she simply is that stupid.

As Tim Shriver eloquently reminds us, empathy is not sympathy, nor is it "taking sides". Rather, it involves one's ability to put oneself in another's place, and therefore fully appreciate the consequences a judicial decision implies for that other person. A judge lacking empathy - unable to comprehend the impact of his or her decisions - is unlikely to judge fairly when impact is an important consideration. The most salient recent examples include cases such as the strip search of a 13-year old school girl to determine whether she was carrying ibuprofen (a legal painkiller). The 4th Amendment prohibits "unreasonable searches and seizures", but wisely leaves to judicial discretion the judgment of what is "reasonable". As Ruth Bader Ginsburg argued, her perspective as a woman was important in informing her male counterparts of what that 13-year old might be undergoing as she was stripped and searched.

An ideal judge will empathize with all sides in a dispute, and best understand how the outcome will affect each. Given the limitations of human nature and experience, no judge will perfectly match that ideal, but a diversity of experience will help a panel of judges inform each other on the consequences of pending decisions.

Does empathy therefore require an understanding of what it's like to be Hispanic or a woman (or a 13-year old girl subjected to a strip search)? I would say "of course". However, do we really need to empathize with white males?

My answer would be that my opinion is unimportant, and that one should ask someone of more consequence. Here is a quotation from Barack Obama's speech on race last year in Philadelphia: "Most working- and middle-class white Americans don't feel that they have been particularly privileged by their race. Their experience is the immigrant experience - as far as they're concerned, no one's handed them anything, they've built it from scratch. They've worked hard all their lives, many times only to see their jobs shipped overseas or their pension dumped after a lifetime of labor. They are anxious about their futures, and feel their dreams slipping away; in an era of stagnant wages and global competition, opportunity comes to be seen as a zero sum game, in which your dreams come at my expense. So when they are told to bus their children to a school across town; when they hear that an African American is getting an advantage in landing a good job or a spot in a good college because of an injustice that they themselves never committed; when they're told that their fears about crime in urban neighborhoods are somehow prejudiced, resentment builds over time."

I would suggest that empathy in a judge, like empathy in a President, enhances our opportunities to do justice to all who seek it.

Fred Moolten

This nation has become a bunch of pansies. You liberals are ruining this society. Everybody wants what they want and they get it now. Let's just add another lib to the supreme court so this problem can perpetuate itself in that nobody can stop Obama. Let's get this tyrannist out of here!

I wonder what is more (mis)interpreted, Nostradamus or our constitution? I think it is very close to judge.

Regardless, Obama's desire for empathy is hardly a new one. George Bush I praised Clarence Thomas for his empathy, while Tom Coburn requested that Samuel Alito display his empathy during confirmation. Where was the outrage then?

Contrary to MARKM2's assertions, Supreme Court justices DO need to understand and put themselves in the shoes of both the defense and the prosecution. Now, they should not make their decision on this basis, but it should inform their decision. This is a significant distinction.

And La Raza has openly supported prosecution of illegal immigrants. How would her membership in this organization (which they describe as "the community" or "the people") change her position on immigration? And her record shows her to be quite centrist on all issues, though she does has a slant toward 1st amendment rights (see Pappas v Guiliani), even in defense of white supremacists.

@UtahReb -
"La Raza - "THE RACE" - as if there were no other."

Human race. There is no other.

In response to EBW343: I'll take your "triple dog dare." The answer to your question is "no," a white man saying he trusts white men over Latino women would not be confirmed. But you're missing the point. If 106 of the 110 Supreme Court Justices in history had been Latino women instead of white men, we certainly wouldn't be having this discussion. Here's one white male who agrees that it's about time to discriminate against white males. We've had it coming to us for some time now.

Empathy is a factor for legislators and the executive in the creation of statutes and regulations -- it is not a judicial function. Judges should not substitute their vision of empathy for the will of the elective branches. Judges are not legislators. It is perfectly fine for judges to discuss unjust results from laws that lack empathy - it is not fine for judges to fix the perceived empathy failings of the legislative process. Equal protection is not an empathy issue. If the legal reasoning behind a particular ruling is, "I personally feel sorry for that fellow and not that fellow", you have a clemancy system, not a legal system. Equal protection means treating the same thing the same. That isn't an empathy system, that is a system of determining what is the same thing and the same treatment. All people are people, but different classes of people can be treated differently. For example, children are treated differently than adults. The limits of that disparity are not driven by empathy, but by the appropriate legal standards used in equal protection analysis.

"Empathy" implies subjectivism, which is exactly what you don't want from a supreme court justice.

I find it amusing how shaken up conservatives get when discussing empathy from a left-leaning person. None of these people minded when Justice Alito talked about how empathy plays a role in his judicial decisions during his confirmation. Why is there always an element of hypocrisy when conservatives go on the attack like this? And all of the attacks over racism and sexism? Wow, every time the conservative takes the cake.

I see that many are simply posting their own ideological views here, whether GOP or Democrat.I don't think I'll fall into that hole this time.

I'll just say I found this piece well written and thoughtful. Bravo Tim, and I'm not even Hispanic, but rather just one of those White people who not only voted for President Obama but actually believe in his philosophy of necessary change.

It will come hard for many people, but when this presidency becomes history, I think he will be well reviewed.

Some quick facts: 106 of the 110 Supreme Court Justices have been white men. 2 women, 2 black men. Interesting. White men make up 77.7% of the Supreme Court currently, but less than one third of the countries population. That doesn't make any sense. Time for a Supreme Court that reflects the nation. That would mean 2 white men, 3 white women, a hispanic man, a hispanic woman, a black man, and a black woman. Until that is the makeup of the Supreme Court, we will continue to have no real empathy in our nation's highest court.

Shriver wrote:
"Empathy is a code word for understanding. Its opposite is close-mindedness."
--------

Abosolutely wrong. "Empathy" in a judicial setting is a code word for bias and, in fact, is the OPPOSITE of "understanding."

The oath that every Justice of the Supreme Court swears to states that they will "administer justice without respect to persons, and do equal right to the poor and to the rich" and will do so "impartially." To do otherwise shows a lack of understanding, respect and appreciation of the Constitution, US law, the Court and all parties before the court.

Where in the Supreme Court's oath does "empathy" for those of the same sex, race, social status or ethnicity (and to the detriment of the other party) fit? It doesn't.

Sotomayor's appointment is all about more Hispanic and female votes in 2010 and 2012, nothing more and nothing less. Everything in D.C. is about getting and keeping power. These are politicians, not care givers.

Shriver wrote:
"Empathy is a code word for understanding. Its opposite is close-mindedness."
--------

Abosolutely wrong. "Empathy" in a judicial setting is a code word for bias and, in fact, is the OPPOSITE of "understanding."

The oath that every Justice of the Supreme Court swears to states that they will "administer justice without respect to persons, and do equal right to the poor and to the rich" and will do so "impartially." To do otherwise shows a lack of understanding, respect and appreciation of the Constitution, US law, the Court and all parties before the court.

Where in the Supreme Court's oath does "empathy" for those of the same sex, race, social status or ethnicity (and to the detriment of the other party) fit? It doesn't.

I agree with your spirit and intent.

Sotomayor does not....hence LaRAZA and "better than a white male".

If her words were taken out of context then I ask what do her words mean "in context".

Read the entire script of her speech....much, much worse than the one phrase usually quoted.

A racist is no less dispicable simply because they discriminate against white people!!

Diversity - the "new" racism.

Has everyone forgotten that "justice is blind" portion? The statue with the blindfold? That we don't start incorporating more empathy in place of justice? Justice isn't usually a warm fuzzy thing that makes everyone feel better. How can someone feel better when sentencing a murderer? The murderer is sad he is going away, his family is sad (if he has any) that he is going away, and most notably the victim's family is sad because the criminal will get to live, thanks to empathy and the ending of most death penalties, while they must live on without their loved one.

But in all cases, judgment and sentencing has no room for empathy. The law is the law.

Thinking that we can take a document that is a rule book - the Constitution - and say that because we don't like the way the rules are applied today and change them, opens this country up for change of all kinds and in all areas, many of it that will weaken the fabric and structure that has held it together for 200+ years.

The discussion here is quite revealing. One conservative noted that all that happens in Washington is trying to grab onto and hold power. So that means everything that follows from the conservative side is just fighting to grab and hold onto power for white males. Keeps this in mind as you listen to their arguments.

Many years ago I watched an episode of the old "Peoples Court" with judge Wapner where he said to the plaintiff, "I sympathize with your situation, but I cannot decide a case on the basis of sympathy."

That has always stuck with me. What's wrong with that? I think this is more realistic and perceptive than all this talk of judicial empathy.

Why people have an issue with "empathy" is because it is perceived as meaning "empathy" for the little guy at the expense of the big guy regardless or realtive rights or merits.

A second issue is that people like to know with a large degree or certainty what their rights will be under the law - and if the system is made erratic and incosistent by emapthy then the cost of living and doing business in America will rise for everyone. The reasons companies choose NY law for contracts so much is because it has a well dveloped and understood set of precendents that make it easy to know what you rights are - of course at times a decision overturns those but on merits not on who can muster more empathy

in avery simplified example - if a

ST1300A4,

NOT SYMPATHY, EMPATHY!!!!! It's not a minor distinction. And most people find the Constitution quite vague...how about this quote?

"My Constitution is a very flexible Constitution." -- Justice Scalia

Lady law is supposed to be blind and empathy should have absolutely NOTHING to do with determining whether or not a law (or ruling) is constitutional. Empathy is fine in a doctor's office but NOT a court of law.

To bcallagan:

If not for empathy, you would not have the RIGHT to sue for discrimination.

To all who keep saying "Empathy will make a judge biased", I have news: All judges are biased, all judicial opinions are colored, if not out and out decided, on the basis of personal philosophies. There is no escaping that, by virtue of the simple fact that reason is not devoid of emotion and should not be. People without the capacity to feel are called sociopaths, and we have had more than enough of those in the halls of power for the last 35 years. It's time to put people who don't only think of themselves, who feel societal and personal responsibility are not mututally exclusive, in places where they can prevent the abuses of our freedom that have caused so much misery in the past few years.

I agree with the sentiment that on a national level we need more understanding and empathetic political dialogue. That is, in fact, the foundation of the liberal side and our quest for equality and civil rights for everyone. Diversity is not possible without it, and with the conservatives literally screaming that diversity is "the new racism", this new level of dialogue is simply not possible. You can't force anyone to give you the respect that such a dialogue needs, and conservatives simply will never give it.

"The fabric and structure that has held (America) together for 200+ years"? You know, I could write a history book arguing that in fact America has been falling apart for 200+ years, and it would probably be a more accurate representation of history. Change happens, and the Constitution is a guide, not a rule book. Right off the bat, it was amended ten times. Once again, if you don't think empathy has nothing to do with judgement and sentencing, had not Solomon already ruled that the child should be split in half? Good grief.

The judges of the Supreme Court are suppose to interpret the US Constitution.

I think we can all agree that the Constitution is not a computer program or a mathematical operation. It is a text written by human beings through logic and philospphical reasoning.

Just read the preamble to the US Constitution as an example:

"We the People of the United States, in Order to form a more perfect Union,
establish Justice, insure domestic Tranquility, provide for the common
defence, promote the general Welfare, and secure the Blessings of Liberty to
ourselves and our Posterity, do ordain and establish this Constitution for the
United States of America."

One needs empathy just as much as life experience, knowledge of material law, international law, jurisprudence and other legal sources in order to be a skilled judge on the Supreme Court.

Anybody who disagrees?

The article was objective and well written. Reader responses to the article range from being well thought out and reasoned to being simply off-the-wall verbal temper tantrums.

The is what the first admendment is about, but, my God, there are some hydrophobic sick "puppies" running around on the loose.

It is always politics. Legal interpretation is always political. To think otherwise is foolish. This is as true for so-called strict constructionists as it is for activists. GOP ineptitude over the last 8 plus years means that you conservatives have very little say. That's your problem. So, howl about la raza and racism or whatever you like -- I'll enjoy it as Satomayor is confirmed anyway.

I just want to know if I'm in a group she empathizes with. Is there a list somewhere?

I am sure you all remember the freak, Thurgood Marshall and how he swayed the court with his raceist philosiphy.

This woman makes him look as if he were a child.

We are in trouble if she prevails.

Does anyone remember why our statutes of the female figure representating justice are blindfolded?

We are a nation of laws, not men,or women.

There may be an exception to every rule, but not every law.

When Solomon of Biblical fame, resolved the case of 2 mothers claiming the same baby by threatening to divide the baby in two, he would have done it had not the real mother said to give the baby to the other woman to save his life.

The courts are for the law, not feelings. That is for the Congress to express the peoples' desires and emotions.

Judge Sotomayor is promoted by her sponsor as representing her gender and race..????If this is her arena, this will be her basis for trial.

Sotomayor is not just a racist.....but has a history of being a "radical racist". This is exemplified by her involvement with La Raza and her promoting amnesty for all the illegal (as in breaking the law) Hispanics who are in the United States.

@ Greg29 said:

"To all who keep saying "Empathy will make a judge biased", I have news: All judges are biased, all judicial opinions are colored, if not out and out decided, on the basis of personal philosophies."

--------

Sorry to tell you that you're wrong. All judges have a personal LEGAL philosophy and understanding of the law and Constitution that they bring with them to the bench. Unfortunately, some judges appear to have personal ethnic, social status, race or gender BIASES, such as Sonia Sotomayor, which is clearly different. Judge Sotomayor's repeated statements and membership in La Raza raise doubts about whether she can maintain her impartiality while on the bench. Given the evidence so far, I question her ability to look beyond race, ethnicity and gender when deciding cases.

On the Supreme Court, Justice Ginsburg is a former counsel to the extremely liberal ACLU and clearly has a different LEGAL philosophy than Justice Scalia, who is a brilliant conservative jurist with his own view of Constitutional interpretation. That does NOT mean that Justice Ginsburg or Justice Scalia are biased.

While I agree that "empathy" does not necessarily mean "activist" depending on the circumstances, "empathy" is simply a code word for bias - no two ways about it.

Three cheers for Timothy Shriver

This is the first truly cogent appraisal of the Sotomayor nomination that I have read so far.

My advice to the nay sayers: It's safe to go back into your caves now. The country much better hands than it has been in the last 8 years.

What is going on? Has the country along with the media lost it's collective mind.

Go do some reading. Crack the old High School and College Books. What is the job of the Supreme Court.

We need someone to interpret the letter of the law as it meant to be against our constitution, not someone background, ethnic preference or any other damned set of rules they can think up.

One day you people will wake up and try to figure out just what happened to your Freedom.

I give up. We have idiots writing about GM's poor choices of Auto to manufacture when they probably can't drive a car or at least do more than put fuel into it. Now we have people like the dim wit that wrote this article trying to tell us he loves the fact Sonia thinks she is better than everyone else, especially a group of white guys that wrote the document she is supposed to uphold. Give me a break.

I'm seeing a lot of misunderstanding of the word empathy, most appear to think it is a form of sympathy.

Judges are practically required to assess each case upon its "merits". To me that means understanding the motivation for the "plaintif" issuing the complaint, as well as understanding the "defendants" motivation in doing whatever they did. That in itself is an example of empathy, and without empathy you end up with a rather tyranical judgment that does noone any good.

Even the most specific law doesn't cover every possible circumstance, so it is absolutely necessary for judges to interpret the meaning AND application of every law, whether in civil court or the US Supreme court.

I would much rather have a judge on the supreme court who "understands" that empathy is essential in dispensing justice!!!

First of all, there is always a "to-do" about anybody and everybody, regardless of political affiliation. I'm not a member of the Democrat socialist Party, and I'm not a member of the Republican Nationalist Wavering Party anymore. I am a conservative and a Christian, and notin name only, but a practicing and believing one. In that light I take offense at anyone who slams MY FAITH and like Islam, I will defend my faith and bear arms if need be. However, unlike Islam, my first response is not "I'll kill you", as is theirs(at least the nutzo-radicals).
Further, this Latino(a) thing is a farce and a sham. Anyone with the slightest inkling of historical knowledge KNOWS that the first Latinos were Italian. The language of ancient Italy and its capitol Rome was Latin, which was spread throughout the world and is still recognized as one of the basic languages that make up English. So knock off the crap wannabees, 'cause if you aren't Italian, you damn sure ain't LATIN-O! Capeesh??

TomPaine76,

How many people on this comment page have confused empathy for sympathy? 90%? 95%? Empathy is the ability to see and understand another's view, sympathy is agreeing completely with that view. To use your words, there are two ways about it. Sympathy is showing bias -- empathy is not. And to say that the ACLU is "extremely liberal" by supporting the KKK's right to march is myopic in the extreme. You could more correctly say they are extremely "constructionist", taking a very literal interpretation of the constitution and individual rights, and should therefore be considered extremely conservative. But I digress...

Ah, yes, empathy. Great word. Hard to fight - however; it is not empathy when it is expressed or promoted only for those of a certain race, or ethnicity, or culture, or income level. Then, it is called racism, class warfare, or just plain prejudice. Her statements and affiliations disqualify her for a position on the Supreme Court; an affilition with La Raza tells of her lack of loyalty to the rule of law, and her contention that a Latina or any other ethnic group is wiser or more qualified that a white male tells of inate racism.
Her participation in the decision against the white and latino Police Officers ( one of which had to overcome a severe learning disability in the process)in Connecticut tells of racism, classism and poor judgement; regardless of race or any other factors, the best qualified should be promoted, not for their benefit, but for the community's - otherwise the people will be poorly served and endangered - all for the sake of "empathy"

“La Raza” meaning “the people” or “community”

'Utahreb' and others : Try reading about the 'National Council of La Raza' before you start reading incorrect Wikipedia definitions on the phrase "La Raza"

http://www.nclr.org/content/viewpoints/detail/42500/

Where does empathy fit into constitional law? We're not talking about speeding tickets or self-defense or insider trading. We're talking about whether laws/policies/procedures/actions violate or conform to the Constitution.

I guess my last comment was offensive, since it hasn;t been posted. Anyway, here's in response to ADL1652:

The idea that the makeup of the Supreme Court can somehow "reflect" the United States in even a superficial way is ridiculous. Even if every different "race" and mixture of races and ethnicities and lifestyles represented in the American populace cold be represented on the Court, we would need hundreds or even thousands of justices. Where's the gay justice? The gay Asian justice? The straight Asian justice who has a black spouse? The gay Asian justice who is also Chinese and also an Uighur Muslim? And so on. Get the point? And that's just if you wanted the Court to represent the diversity of America in the limited, narrow-minded sense of the word "diversity" favored by liberals. If we required the Court to literally represent the genuine diversity of the American people, with all their wildly disparate experiences, philosophies, intellects, and capacities, we would need not 9 or 900 justices, but 300 million justices. talk about packing the Court. Oh, well, FDR is Obama's hero, right?

Wow, we really have to dumb this down. OK ---
Empathy≠Sympathy
Empathy≠Sympathy
Empathy≠Sympathy
Empathy≠Sympathy
And in case you missed it --
Empathy≠Sympathy

Read the definitions, absorb, come back for further clarification.

And yeubanc, all that matters is her records, and she has a very strong record in discrimination cases. Only one case, Pappas v. Guiliani, appears as an outlier regarding discrimination, where she sided with...a white man sending out racist propaganda. How about let's stick to facts instead of the noise machine that is Limbaugh, Air America, whatever?

We see the anger, hurt feelings that show up in this type of column. "Race" racist remarks ie. Newt and Rush (our old white guys who have never understood nor noticed their "whiteness" don't get it. We are now in a special period of time when all of us can take a good look at ourselves - esp. our white selves....as white folks become a minority...there is a lot of fear and it pops out in many ways...hopefully, we are all here to learn.When the fear lessens...some posts will have users who use their real names and that will be progress!

Referring to the case Ricci v. DeStefano is whether the city of New Haven, Conn.

Sounds like Sotomayor is specifically looking for a RACIAL means to come out with a politically correct outcome.

So regardless of facts, and dumbing down the tests to make it equal for on based on education, Sotomayor wants to find a way to get more minorities promoted.

"New Haven went to extraordinary lengths to create a fair exam for this particular promotion, Torre said. The city hired a consultant to specifically design the test to help minority candidates qualify for promotions, she said. The reading level was reduced to a fifth-grade literacy rate, and candidates were given a study guide and a three-month study period. The city recruited black and Hispanic fire chiefs from across the country to serve as test assessors. Assessment panels included a majority of African-American or Hispanic assessors, Torre said. Candidates were allowed to bring books and notes into the oral assessment part of the test. There were no time limits. Candidates were urged to take their time and jot down notes before answering, she said."

Sotomayor:“But that is going too far, counsel,” Sotomayor replied, “because the law also says you can’t have a racially neutral policy that adversely affects minorities unless there is a business necessity.” Actually I have no idea what law she is talking about but NO, the law actually states that you MUST have a racially neutral policy. She is making up her own law to create what she thinks is the correct political agenda.

The only way people should be promoted is to be equal and completely racially blind, which is especially required for a supreme court judge.

Sotomayor sounds like the wrong type of judge for the supreme court but exactly what Obama wants.

I think its about time we through out racial agendas and start judging people on merits instead of skin color. And yes you'd think a "judge" would be better at this than the average citizen.

"When Solomon of Biblical fame, resolved the case of 2 mothers claiming the same baby by threatening to divide the baby in two, he would have done it had not the real mother said to give the baby to the other woman to save his life."
If you're replying to my post about Solomon, JStratt2, I'm not reall clear what you're getting at. My point was that if Solomon had not been an empathetic judge, he never would have understood the real mother's point of view enough to set up the maternity test the way he did. Do you really believe he would have had the child cut in half?

Welll, the computer wouldn't let me print out my full name, even with several different number variations...said it was too "common", heh heh.

Sooo, as a commoner I just wanted to:

*waves hands* ME TOO, ME TOO...:-)

@Rtist

Sorry "LA RAZA" means THE RACE.

The people = LA GENTE

Please read a Spanish dictionary before reading the left propaganda as well. Wikipedia, though not always accurate, seems to be more so that your definition.

La Raza is, quite literally in its name, a racially biased organization. With specific racial agendas.

For jabberwolff,

She was referring to affirmative action, I did some research for ya...

What is shocking is how many view empathy as a weakness. Regardless of the leadership position, judge, lawmaker, or executive, empathy is a human trait *required* of a successful leader. Sadly, we live in an age when business and legal matters have been dehumanized and deempathized, perhaps thereby benefitting a few, but also creating enormous problems for all.

Mr. Shriver's piece was an attempt to show how the quality of empathy is a strength, in all circumstances. In fact, one could argue that the lack of empathy is the source of most of the societal problems we face today. For example, economics has been dehumanized with the self-destructive notion of labor as a commodity, thereby zapping the power of empathy away from labor issues. This is a profoundly stupid approach, because empathy is a requirement to understand the value of human capital, the greatest economic and profit-generating resource we have at our disposal. So by denying empathy, we also give up a vast wealth of solutions to our problems, including generating vast wealth in our economy. Lack of empathy is simply an expression of poverty and ignorance.

MichaelB3

I don't know I you have a legal profession but I do. Your post explains the practical essence of legal interpretation.

Problem is too many out here who seem to must have read some "Legal Interpretation for Dummies" book think legal interpretation is only about looking at a legal text and see if something in it is explicitly written.

If that would be the case, there wouldn't be a need for several years in law school.

Too many know-it-alls out there who must be affiliates to a reborn Know Nothings party.

All I need to know about judicial qualifications I learned from the Irrelevant Elephant Party: empathy should not be a consideration in a courtroom unless the defendant is white. And everyone has equal chances of success in life regardless of skin color because racism was eradicated on January 20. Just ask any black man on the street how great it feels now that no one assumes he's a thug until proven otherwise.

Shriver writes: "Is empathy just another code word for activist? No. Empathy is a code word for understanding. Its opposite is close-mindedness."

--------------------------

The opposite of empathy in a legal sense is "neutrality." And that is the essence of good judging.

I read Obama's speech in the Senate declaring he would vote against John Roberts for Chief Justice because he believed that Roberts would side with the great against the small and weak. It revealed just how naive and out of touch with reality Obama is. The possibility that the small and weak might possibly try and scam the system with a litigious lawyer in order to rip off the great seems not to have occurred to him, which is strange, given all the stories of unethical, illegal, and fraudulent lawsuits the "small and weak" are filing these days.

Of course, Obama knows full well of these lawsuits and may be doing the trial lawyers work when he embraces concepts like "empathy" and nominates judges like Sotomayor.

Roberts had it right when he compared the role of the Judge to that of an umpire. Umpires don't take the side of the visiting team facing a hostile home crowd out of "empathy." They know they have to make all the calls according to the rules. You don't bend the rules out of empathy.

It's too bad that Roberts is going to have endure these partisan judges that Obama is going to be nominating. Given what I've learned about Sotomayor, I'd vote against her nomination.

@MichaelB3
Affirmative action is by definition racially biased and sets separate standards based on skin color and race. Funny, I thought this was exactly what martin Luther King Junior fought against.

Most recent precedence of affirmative action has shown it to be racially biased, especially in the Ricci case. Sotomayor, appears to want to ignore that, and go back to the political agenda of being racially biased.

Shriver is right, obviously so, in concluding that empathy is a valuable skill for judges. This is without a doubt one of the silliest "controversies" ever.

All this fussiness from conservatives is not aimed only at judges. What seems to have happened is that Obama used the word "empathy" in a speech, and conservatives jumped on it as a means of attacking liberalism.

Empathy is at the heart of liberalism, and it is absent (in many ways) from conservatism. It makes perfect sense that conservatives would attack empathy, though if they had any empathy they would perhaps understand how foolish they look. They are again arguing nonsense: "empathy is bad", "greed is good", "torture is good", "helping others is bad", and so on.

How sad. "We are a nation of laws, not men, or women" (posted by Posted by: jstratt2 ) above.

I never realized that that's what our country really is made of. How much simpler this complex nation is to understand now.

We weren't built by a diverse, multi-cultured, multi-racial, multi-religious group of people after all. We are what we are as a nation because of our laws!

Sorry for the over-the-top satirical comments, but some of the posters on this pretty good article might not get anything too subtle.

So, listen up jstratt and you other so-called "conservatives". The United States of America is, literally, it's people. We are not a flag, not a collection of buildings, not a President, Supreme Court, or legistlature, much less a collection of laws.

Our laws are nothing more, or less, than a reflection of the human beings that wrote them and the human beings that CHOOSE to obey, modify, and delete some of them completely from time to time.

We still are and always will be "a nation of the people, by.......

Those who want to attact Sotomayer's "empathy" and suppossed Judicial activism should read the column by Ruth Marcus in todays WP. Then again, they probably won't. Ignorance is bliss.

We already have a Supreme Court packed with empathy. Empathy for the rich and powerful. That, we're expected to accept as naturally as we breathe!

Oh, and yeah, tell me the strict constructionist, originalist, non-outcomes-driven, non-judicial-activist principles behind Bush vs. Gore. Now, there's a decision that was pure, unadulterated empathy. From Republicans, for Republicans.

Give me a break.

For folks who have not served in the Peace Corps nor lived overseas....one of the great things about electing politicians who have served in the Peace Corps is that they got some extra knowledge...ie Ignorance is not bliss...so let us all help stamp out ignorance! (which is often more American than Apple Pie)

Aww Shucks,Duke, poor Justice Roberts...how will he survive- well, he has a lot of like minded friends, he has good health care, money probably a decent house, a car and a wonderful family to help him get through this rough period! Not to worry!

And, yes, bcamarada, Justice Thomas got to vote for Bush twice! As did 4 others! What a deal that was! High 5 for W!

"La Raza - "THE RACE" - as if there were no other."

To be fair, Spanish nouns usually require either a definite or indefinite article before them. This isn't always true in English, particularly for less-concrete nouns (ie. el conocimiento, "the knowledge"). The definite article "the" also has a connotation of uniqueness in English that doesn't always translate well into other languages.

Spanish experts tell me (I speak Mandarin) that "La Raza" doesn't have quite the same connotation in Spanish as it does in English. I don't know enough about Spanish to know the difference, but having confronted similar problems with literal translations from Chinese, I understand what they mean.

Ironically, this demonstrates one of the problems with literal translations, whether we are translating a Spanish word into English, or a 200-year old Constitutional ideal into "concrete", modern law.

In response to CCNL1

You sound like a very angry person. Please read the Christian Bible and try to understand it instead of randomly picking out things you don't like and are suspicious of. The Bible talks much about "keys" and was not meant to be understood by everyone. Only for those who "seek" him with a sincere heart. Jesus also preached that "false" teachers and preachers would come. So you're not telling us anything new. Sorry.

Pasketanki wrote:""La Raza - "THE RACE" - as if there were no other."
To be fair, Spanish nouns usually require either a definite or indefinite article before them. This isn't always true in English, particularly for less-concrete nouns (ie. el conocimiento, "the knowledge"). The definite article "the" also has a connotation of uniqueness in English that doesn't always translate well into other languages.
Spanish experts tell me (I speak Mandarin) that "La Raza" doesn't have quite the same connotation in Spanish as it does in English. I don't know enough about Spanish to know the difference, but having confronted similar problems with literal translations from Chinese, I understand what they mean.
Ironically, this demonstrates one of the problems with literal translations, whether we are translating a Spanish word into English, or a 200-year old Constitutional ideal into "concrete", modern law.
--------------
It also shows the trouble with taking concepts from one culture, such as our American ideas of Democracy, freedom, and a Constitution, and expecting non native speakers of the language to have a full and accurate understanding of these concepts. This is particularly important in a judge whose native language is NOT English. Just what does Ms. Sotomayor mean by "empathy"? And just whom does she "empathize" with? In her well-known comments about the "wise Latina" vs. "white male" judges, it's pretty clear she believes that "empathy" is limited to one's race, gender, or even social status.
Can she "empathize" with white or black males? With the well-off as well as the poor?

AL14 writes:
"It also shows the trouble with taking concepts from one culture, such as our American ideas of Democracy, freedom, and a Constitution, and expecting non native speakers of the language to have a full and accurate understanding of these concepts."
--------------------------
Possibly true. But this has nothing to do with Ms. Sotomayor, since she's a native American.

The Rich will get empathy, the poor will get justice.

"They know they have to make all the calls according to the rules. You don't bend the rules out of empathy. "

The problem is that the 'rules' are not black and white.

What is a 'reasonable' search? What is 'probable' cause? What is 'due process'? What constitutes a 'speedy' trial? Or an 'impartial' jury? What punishments are considered 'cruel' or 'unusual'? What laws are 'necessary and proper'? What is 'equal protection'?

A judge's ability to empathize with both parties in a case is a critical component to answering the above questions.

Oye Vay.

Apocalyptically speakething; "APATHY" is a SiN/Curse, so to speaketh Truth (opposite MYTH). And

"EMPATHY" is a Blessing/Mitzvah so to spaketh Truth (opposite MYTH).

Question: Today; How many Catholics, forget Latino's, sit on the S.S. S-U-P-R-E-M-E--C-O-U-R-T?

Still kind of wondering how you have a 'litmus test' for empathy. :)

I think the judge's point was actually kind of right, though, in a way, ...a lot of the people who've been in law schools to end up Justices and the like... have come from privilege and tend to see the world in very abstract terms.

I don't *think* a person of privilege, some straight white male conservative Christian, is necessarily going to be able to *judge* civil rights issues fairly, precisely *because* they've never had to learn fair play, *even* when the game's stacked against them.

Straight white male conservative Christians tend to take umbrage at minor compromises to their 'self-righteous' comfort, and equate these little 'being miffed' inconveniences with 'My civil rights are under attack if anyone questions my total dominance by saying 'Happy Holidays' instead of referring only to Christ in my 'Christian Nation,' Oh, Horrors!'

Presuming you've actually made a *study* of Justice, as I would expect of anyone Obama put forward, *yes,* it's an asset to have *really* had your rights and dignities under assault, and *still* accept the job, than to come from a place of trying to defend some fragile sense of privilege.

Even the conservative *spasticness* about this shows there's a difference: in that experience as a minority, *any* minority... could be an asset *to* fairness.

Cause you know how it feels. And study the law anyway.

Also, since you got back in, JJ,

"Apocalyptically speakething; "

This is not about 'apocalyptically-speaking.' The duty of a judge is for our ancestors and our posterity.

If you don't think there's going to *be* a posterity, count it among the many reasons no one cares what you care about 'apathy' regarding not-appointing apocalyptic maniacs to the Supreme court.

If you think this *is* your apocalypse, you probably *should* be apathetic about whether or not the GOP agenda makes legal precedent.

Also, btw, strictly speaking, 'La Raza' means, 'The Root.'

SHE IS VERY WELL QULIFIYED BUT I FEEL THAT HER MIND IS VERY CLOSED IN CERTAIN AREAS WHICH I VOTE NO.