The concept that dominated the confirmation hearings for Supreme Court nominee Sonia Sotomayor wasn’t race or gender, as many expected it would be. Nor was it affirmative action or judicial activism, despite efforts by some to make it so. It wasn’t even the nominee’s contention that a “wise Latina” would reach a better conclusion than a white male, despite the fact that Republicans seemed at times obsessed with defending the honor of every white male in the United States.
It was empathy. And, over four days, the role that empathy played in the proceedings changed depending on who was asking the questions and what the objective was.
At first, Republicans on the Judiciary Committee — who, as you might have noticed, were all white males — were concerned that Sotomayor would be too quick to empathize with women and minorities even if meant brushing aside legal precedent and making law from the bench. But when they turned their attention to the Ricci v. Stefano case involving an allegation of reverse discrimination by a group of mostly white firefighters in New Haven, Conn., they flipped the script and demanded that Sotomayor show empathy with the firefighters to the point of brushing aside legal precedent and making law from the bench.
At the beginning of the hearings, empathy started out as a weapon that the seven Republican senators on the Judiciary Committee used to tweak President Obama because it stuck in their craws that he had — while serving as senator from Illinois — voted against John Roberts and Samuel Alito, President Bush’s nominees. Empathy was also a vehicle to raise concerns about whether Sotomayor was secretly intent on making law with a racial bias; in fact, Sen. Jeff Sessions of Alabama, one of the judge’s most relentless tormentors, at one point likened empathy to prejudice. Then empathy became a tool to drive a wedge between Sotomayor and Obama; the president has said that empathy is an important quality in a justice while the judge disagreed. And finally, on the last day of the hearings, empathy was a way for one of Sotomayor’s toughest critics — Sen. Lindsay Graham of South Carolina — to make his peace with the nomination and signal that he might even vote to support it.
Wrapping up his final round of questions, Graham told Sotomayor that he thought she was “able, after all these years of being a judge, to embrace a right that you may not want for yourself; to allow others to do things that are not comfortable to you, but for the group they’re necessary.”
In other words, Graham was arguing, judges need to be able to empathize with people who are demanding their rights even if not so naturally inclined. They have to be ready to recognize that people have certain rights even if they would never claim those rights for themselves. A question like that comes from fear. Graham knows that Sotomayor’s politics are left-of-center and far to the left of his own, something that he alluded to several times during the hearings. He’s obviously afraid that Sotomayor, once she’s on the Supreme Court, will not show sufficient (what’s that word?) empathy to those pushing conservative causes. And so here he implores her to do so.
Finally, accepting — at last — the idea that Sotomayor is more judge than activist, Graham said that he didn’t think she would use the law to change America. Besides, he said, “I think and believe, based on what I know about you so far, that you’re broad-minded enough to understand that America is bigger than the Bronx, it’s bigger than South Carolina.”
After 17 years on the federal bench, and four days of showing restraint and suffering fools, Sotomayor surely understands that America is bigger than the Bronx. What we should worry about is whether Graham and other GOP senators, given their dreadful performance in these hearings, understand that America is bigger than the constituency they represent.
It’s not clear they do, which goes a long way toward explaining why that constituency isn’t getting any bigger.