# Smooth sailing for Sotomayor? **URL:** \ **Category:** Great Debates\ **Created:** [May 26, 2009, 2:20pm UTC](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675 "2009-05-26T14:20:12Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Lamar\_Mundane](https://avatars.discourse-cdn.com/v4/letter/l/85f322/32.png) [@Lamar\_Mundane](https://boards.straightdope.com/u/Lamar_Mundane)\ **Post date:** [May 26, 2009, 3:30pm UTC](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675/21 "2009-05-26T15:30:49Z")
> [@Mr.Moto](#): > > It points to a problem with this “empathy” standard though - sometimes a particularly nasty individual or corporation in a case deserves to win based on the facts at hand and the law in question, even over an appealing individual. Applying empathy here would be misguided, wouldn’t it? And yet we have seen time and time again where justice was perverted because an empathy standard was applied over a legal one. > > I hope this is hammered out in hearings - it needs to be. Here we go - three times in one paragraph (empathy). This could prove interesting. The Republican leadership understands that this is a time to gain political capital, not time for a big fight. She’s replacing a reliable left-leaning justice - there’s nothing to be gained here - it’s a wash. They know they should be saying to the Dems “OK, I’ll give you my vote here, but if something happens to Thomas or Scalia, you owe me.” Unfortunately for them, Limbaugh and Hannity will be screaming about this and getting their constituents all riled up and could force them to oppose her just to say they did when the next election comes along. There are a lot of leaders in the Republican party who wish that Hannity and Limbaugh would just go away. ---
**Author:** ![GIGObuster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gigobuster/32/421_2.png) [@GIGObuster](https://boards.straightdope.com/u/GIGObuster)\ **Post date:** [May 26, 2009, 3:32pm UTC](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675/22 "2009-05-26T15:32:43Z")
> [@Mr.Moto](#): > > It points to a problem with this “empathy” standard though - sometimes a particularly nasty individual or corporation in a case deserves to win based on the facts at hand and the law in question, even over an appealing individual. Applying empathy here would be misguided, wouldn’t it? And yet we have seen time and time again where justice was perverted because an empathy standard was applied over a legal one. > > I hope this is hammered out in hearings - it needs to be. NPR made the remark that Sotomayor sided in favor of TWA or Boeing when the settlement with the relatives of the victims of TWA 800 was made. IIRC as a technicality the relatives would get a larger settlement if the disaster had taken place in the Long Island territory, Sotomayor stuck to the law and pointed out that the evidence showed that the disaster took place outside the territory. So the relatives got a settlement but the corporations had to pay less than was expected. ---
**Author:** ![Tom\_Tildrum](https://avatars.discourse-cdn.com/v4/letter/t/e95f7d/32.png) [@Tom\_Tildrum](https://boards.straightdope.com/u/Tom_Tildrum)\ **Post date:** [May 26, 2009, 3:34pm UTC](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675/23 "2009-05-26T15:34:27Z")
> [@Diogenes\_the\_Cynic](#): > > OK, I read the transcript of the whole speech, and the passage in question is being taken out of context and distorted. She wasn’t saying that _any_ Latina woman would render a better decision than _any_ white male. She was saying – _hypothetically_ – that a white male who had not had certain experiences, would not necessarily have the same “wisdom” as a Latina woman who had. She wasn’t speaking in absolutes, and she wasn’t speaking in terms of race or gender _per se_, but in terms of life experience. It was all in reference to a statement attributed to Justice Sandra Day O’Connor that “wise old man and wise old woman will reach the same conclusion in deciding cases.” Sotomayor was saying that wasn’t necessarily true if the _life experiences_ were different. Well, but the life experience that she’s talking about appears to be the experience of “being a Latina,” so I don’t think it’s as clear a distinction between experience and ethnicity as you’re drawing. Still, as others have said, I’m sure she’ll be able to give an answer that neutralizes this statement sufficiently. ---
**Author:** ![Marley23](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@Marley23](https://boards.straightdope.com/u/Marley23)\ **Post date:** [May 26, 2009, 3:35pm UTC](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675/24 "2009-05-26T15:35:53Z")
She’s likely to get confirmed pretty easily. > [@Quartz](#): > > So much for racial or sexual equality. The law is supposed to be blind as to sex or colour or any other discriminating factor. All are supposed to be equal before the law. Do you really want a bigot on your Supreme Court? Snort. Yes, Dred Scot would role over in his grave if he knew a bigot was about to be seated on the Supreme Court. What I think Sotomayor is talking about in these quotes, as well as what Obama referred to with his empathy remark, is that it’s valuable to have justices who are aware their rulings affect people’s lives and aren’t considering theory alone. While the courts shouldn’t be making rulings based on people’s feelings, I think that makes sense. ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [May 26, 2009, 3:55pm UTC](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675/25 "2009-05-26T15:55:01Z")
Where do you draw that line? And how do you apply this “empathy?” Suppose the issue is, oh, let’s say, voting rights. Up for decision is a proposed rule requiring that ballots be printed in English only in the state of Colorado (total hypothetical). Ignoring any direct precedent (that is, assuming that the issue in question is one of “first impression”), the Court must decide if the law violates the Equal Protection Clause of the Fourteenth Amendment (or possibly the Due Process Clause, but let’s not quibble). Sonia Sotomayor is trying to decide how to rule in the case. She has empathy for the non-English-speaking voters of America. She understands how difficult it is to properly comprehend a ballot without knowing the language it is written in. She also has grown up in an environment of discriminatory effect caused by lack of political power for her “minority.” All this experience compels her to believe that, legal issues aside, it is imperative for those who are entitled to vote to be able to read the ballot in their native tongue. On the other hand, the briefs, and the oral argument, have convinced her that, under the standards of review applicable to the case, the state’s statute should be upheld. Empathy aside, ruling as the computer would rule, following logic alone, she would end up denying this imperative from occurring. The proponents of striking down the law offer this rationale for her to do so: they argue that, even if the state’s interest is sufficiently compelling, and even if the remedy is narrowly enough tailored to address that remedy, that in cases like this the Court should include in its standard of review the impact of the statute upon the disfavored section of the population. In this calculation, they argue that the state simply cannot be allowed to remedy this issue in this way because the impact on an important right is so great that should be sufficient to overcome the otherwise compelling logic of the state’s case. So, then, where does the empathy come into play? Does she use the empathy to apply the “out” the objectors have offered, even though that’s not part of the usual logical calculation involved in review of these type of cases? Does she use the empathy to ignore or re-cast the otherwise impeccable logic that would lead to a decision she knows is bad for the people of the state? Does she craft an entirely new set of rules for reviewing laws of this sort, on the basis that the old rubric doesn’t reach “correct” results? ---
**Author:** ![matt\_mcl](https://avatars.discourse-cdn.com/v4/letter/m/7ab992/32.png) [@matt\_mcl](https://boards.straightdope.com/u/matt_mcl)\ **Post date:** [May 26, 2009, 3:57pm UTC](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675/26 "2009-05-26T15:57:27Z")
> [@Quartz](#): > > So much for racial or sexual equality. The law is supposed to be blind as to sex or colour or any other discriminating factor. All are supposed to be equal before the law. Do you really want a bigot on your Supreme Court? I think it’s frightening that you think that being aware of the existence of differences between people is incompatible with upholding their equality. I hate to break it to you, but people _are_ different from one another. “Equal” and “alike” do not mean the same thing. ---
**Author:** ![Gangster\_Octopus](https://avatars.discourse-cdn.com/v4/letter/g/a8b319/32.png) [@Gangster\_Octopus](https://boards.straightdope.com/u/Gangster_Octopus)\ **Post date:** [May 26, 2009, 4:00pm UTC](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675/27 "2009-05-26T16:00:50Z")
> [@Marley23](#): > > She’s likely to get confirmed pretty easily. I think you underestimate the Republican’s and the media’s ability to bring a large dose of idiocy to the table. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [May 26, 2009, 4:03pm UTC](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675/28 "2009-05-26T16:03:24Z")
> [@DSYoungEsq](#): > > On the other hand, the briefs, and the oral argument, have convinced her that, under the standards of review applicable to the case, the state’s statute should be upheld. . . So, then, where does the empathy come into play? It doesn’t. Obama has used the word empathy to mean a few different things, but it doesn’t include ignoring clear law. As he said: “\*n the overwhelming number of Supreme Court decisions, you read the statute. You look at the case law, and most of the time the law is pretty clear – 95% of the time. Justice Ginsburg, Justice Thomas, Justice Scalia – they’re all gonna agree on the outcome. But it’s those 5% of the cases that really count.” As Obama has stated a dozen times now, when the law is clear, the judges role is simply to faithfully apply it. Empathy comes into play in that 5% of difficult cases in which the law, or how to apply the law to this set of facts, is not clear. If you want to examine how empathy is properly employed, you need to ask a hypothetical that doesn’t fall outside of where Obama says it is useful. ---
**Author:** ![Marley23](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@Marley23](https://boards.straightdope.com/u/Marley23)\ **Post date:** [May 26, 2009, 4:09pm UTC](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675/29 "2009-05-26T16:09:34Z")
> [@DSYoungEsq](#): > > Where do you draw that line? And how do you apply this “empathy?” That’s where the rubber meets the road. I don’t have a firm answer for it. > [@Gangster\_Octopus](#): > > I think you underestimate the Republican’s and the media’s ability to bring a large dose of idiocy to the table. I’m sure a long confirmation fight would be more interesting for political analysts, but with the control Democrats have in the Senate, I don’t see it. It doesn’t shift the balance of the court anyway, so if they filibuster and scream, there’s not much for the GOP to gain. ---
**Author:** ![Fotheringay-Phipps](https://avatars.discourse-cdn.com/v4/letter/f/d9b06d/32.png) [@Fotheringay-Phipps](https://boards.straightdope.com/u/Fotheringay-Phipps)\ **Post date:** [May 26, 2009, 4:13pm UTC](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675/30 "2009-05-26T16:13:35Z")
> [@Richard\_Parker](#): > > As Obama has stated a dozen times now, when the law is clear, the judges role is simply to faithfully apply it. Empathy comes into play in that 5% of difficult cases in which the law, or how to apply the law to this set of facts, is not clear. But the overwhelming majority of cases that actually reach the SC are in that 5%. Empathy would play a bigger role for a SC Justice than it would for a lower court judge. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [May 26, 2009, 4:16pm UTC](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675/31 "2009-05-26T16:16:35Z")
> [@Fotheringay-Phipps](#): > > But the overwhelming majority of cases that actually reach the SC are in that 5%. > > Empathy would play a bigger role for a SC Justice than it would for a lower court judge. It is true that the Supreme Court handles more gray areas than lower courts. But you’re wrong about the overwhelming majority being that 5%. Obama was talking about the Supreme Court with that figure, and he is correct. 95%/5% is a bit of hyperbole. It’s closer to 75%/25%, but the point stands. The vast majority of Supreme Court cases are not 5-4 close calls. ---
**Author:** ![furt](https://avatars.discourse-cdn.com/v4/letter/f/439d5e/32.png) [@furt](https://boards.straightdope.com/u/furt)\ **Post date:** [May 26, 2009, 4:22pm UTC](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675/32 "2009-05-26T16:22:43Z")
Awww, **Tom**. Why’d you have to go spoil my fun? I thought for sure there’d be at least one or two suckers who’d fall for it. > [@Diogenes\_the\_Cynic](#): > > I don’t see anything remotely akin to what **furt** is implying. snerk. giggle. Nevermind, **Tom**. ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [May 26, 2009, 4:23pm UTC](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675/33 "2009-05-26T16:23:45Z")
The “empathy” question is a question for Obama, not for Stotomayer. It’s not a criterion she’s ever alleged as necessary. If they ask her what it means, all she has to say is “ask the President.” I don’t think that will be a fruitful avenue of questioning by Republicans, because it has nothing to do with her own words. ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [May 26, 2009, 4:26pm UTC](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675/34 "2009-05-26T16:26:10Z")
> [@furt](#): > > Awww, **Tom**. Why’d you have to go spoil my fun? I thought for sure there’d be at least one or two suckers who’d fall for it. > > snerk. giggle. Nevermind, **Tom**. Nothing to snerk about. You were taken in by a decontextualized quote. I’ve already fully addressed it. It’s a phony outrage. ---
**Author:** ![Fotheringay-Phipps](https://avatars.discourse-cdn.com/v4/letter/f/d9b06d/32.png) [@Fotheringay-Phipps](https://boards.straightdope.com/u/Fotheringay-Phipps)\ **Post date:** [May 26, 2009, 4:30pm UTC](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675/35 "2009-05-26T16:30:21Z")
> [@Richard\_Parker](#): > > It is true that the Supreme Court handles more gray areas than lower courts. But you’re wrong about the overwhelming majority being that 5%. Obama was talking about the Supreme Court with that figure, and he is correct. 95%/5% is a bit of hyperbole. It’s closer to 75%/25%, but the point stands. The vast majority of Supreme Court cases are not 5-4 close calls. The majority of SC rulings are not unanimous. Further, the majority (about 75%, IIRC the link in another thread) overturn the Appeals Court ruling. Which makes it at most 25%/75% even if every case that upholds the appeals court ruling was open-and-shut, which is likely not the case. ---
**Author:** ![Mr.Moto](https://avatars.discourse-cdn.com/v4/letter/m/9de0a6/32.png) [@Mr.Moto](https://boards.straightdope.com/u/Mr.Moto)\ **Post date:** [May 26, 2009, 4:32pm UTC](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675/36 "2009-05-26T16:32:23Z")
Well, she’s his nominee and this is a concept that she has indicated that she’s interested in as well. And while I have indicated in the past that I favor bringing people of various backgrounds to the Court, I think this is necessary because they could bring a range of expertise there, not necessarily because they could have varying degrees of empathy. ---
**Author:** ![RickJay](https://avatars.discourse-cdn.com/v4/letter/r/bb73d2/32.png) [@RickJay](https://boards.straightdope.com/u/RickJay)\ **Post date:** [May 26, 2009, 4:34pm UTC](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675/37 "2009-05-26T16:34:32Z")
> [@Gangster\_Octopus](#): > > I think you underestimate the Republican’s and the media’s ability to bring a large dose of idiocy to the table. Unless that idiocy includes switching the party affiliation of ten senators, it won’t mean a whole hell of a lot. ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [May 26, 2009, 4:40pm UTC](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675/38 "2009-05-26T16:40:32Z")
> [@Richard\_Parker](#): > > It is true that the Supreme Court handles more gray areas than lower courts. But you’re wrong about the overwhelming majority being that 5%. Obama was talking about the Supreme Court with that figure, and he is correct. 95%/5% is a bit of hyperbole. It’s closer to 75%/25%, but the point stands. The vast majority of Supreme Court cases are not 5-4 close calls. Nor are the vast majority of cases decided 9 - 0. Or even 7 - 2. Which in your view of what the President was saying would be the case, because he says in those cases, all judges would agree. And even accepting your concept, it doesn’t avoid the question. WHERE in ANY Supreme Court case is there EVER room for applying “empathy?” And once you do find a way to apply it, how do you limit its application? Because it is NOT the case that, in the vast (95%) majority of cases, everyone will agree on how to apply the law. If you think so, you’ve forgotten the old BrennanMarshallInDissent monster (which, frankly, has much in common with the ScaliaThomasInDissent monster 😉 ). ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [May 26, 2009, 4:42pm UTC](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675/39 "2009-05-26T16:42:10Z")
> [@RickJay](#): > > Unless that idiocy includes switching the party affiliation of ten senators, it won’t mean a whole hell of a lot. As it stands, unless and until Franken is seated for Minnesota, the Democrats cannot break a Republican filibuster. Which means it can mean a hell of a lot. ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [May 26, 2009, 4:47pm UTC](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675/40 "2009-05-26T16:47:26Z")
> [@Mr.Moto](#): > > Well, she’s his nominee and this is a concept that she has indicated that she’s interested in as well. And while I have indicated in the past that I favor bringing people of various backgrounds to the Court, I think this is necessary because they could bring a range of expertise there, not necessarily because they could have varying degrees of empathy. Empathy is a form of expertise, it is not simply an intellectual awareness of fact. For instance, someone who has never loved and wanted to marry could not really understand the injury to someone who is denied such an option. They might well examine the issue within a framework of relentless rationality: it may cost the state money and effort to provide equal marriage, and these are tangible, whereas the desire to marry equally is an emotional matter, hence, not tangible, and hence, not a question for the law. It is the triumph of intelligence over wisdom. [Previous page](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675.md?page=1) [Next page](https://boards.straightdope.com/t/smooth-sailing-for-sotomayor/497675.md?page=3)