When Justice Souter's resignation was announced, it seemed clear to me that a minority female needed to be nominated and I hoped it would be as clear to the President.   Sure, there would be the inevitable "reverse racism" and "oppressed white man" outrage, but as Justice Kennedy himself points out, even while ruling against the school diversity plans in Parents vs. Seattle Schools,  "A compelling interest exists in avoiding racial isolation."

Certainly we do not need to slice up the Supreme Court along pure demographic lines, but we cannot pretend that a body that is 88% white male is an example of the equal opportunity this country claims it is built on.  In fact, this would seem to be more of an example of that "racial isolation" that Justice Kennedy believes should be avoided, and that only exists in one other place that I can think of, the U.S. Senate, which has generally proven useless at addressing disparities in the treatment of its citizens.   Let's not forget that we just this year, finally, got equal pay protections.

Of course we shouldn't overlook the many cases that white men got right in such cases as Brown v. Board.  What judicial makeup set these judges apart?  Is it possible they got Brown v. Board right because they emphasized the importance of that key ingredient, according to President Obama, empathy?  Empathy, that quaint virtue that brought the first round of ridicule from the rabid right, is what separates the liberating Supreme Court decisions from the historically embarrassing, such as Plessy, the Slaughterhouse Cases, and Bradwell v. Illinois.  Empathy is essential, according to President Obama, "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 criteria by which I'll be selecting my judges." 

And that is what sends the right into fits.  But it is really not just that they lack empathy, it is a fervent belief that empathy is not consistent with the interpretation of law.   Some determine the content of the law and apply it to the facts of the case at hand.  To go any further, to attempt to fill in missing gaps or correct particularly offensive or burdensome  law, is practically abhorrent.  Ed Whelan, former law clerk to Justice Scalia, goes so far as to call it a "lawless approach".   Giuliani, in a speech to the Federalist Society, said " law schools, too many of them, had been confusing constitutional law with sociology."

This belief, in my estimation, is the exact approach that results in such brilliant opinions as Justice Roberts in Meredith v. Jefferson Board, saying that "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."  Over one hundred years of juris prudence, case after case brought to address varying degrees of human injustice, from employment to slavery to lynchings, can all be swept away if we would just stop talking about it.  I expect that from the minds of talk radio, it is stunning when it comes from the Chief Justice of the Supreme Court of the United States.  Considering the benefits of diversity in our institutions and governing bodies is what prevents discrimination, it is not what causes it.

Which brings us right back to the selection of a woman, a Latina, for the Supreme Court.  Not only is it important that she meet President Obama's requirement of empathy, it is equally important that she believe that the interpretation of law goes beyond words on a page and that the motivations of the actions in question must be understood.   Empathy is not just a sympathetic emotional response to some temporary set-back, rather it is a mental projection into the state of mind of another person.  It was the basis ofJustice Harlan's dissent in Plessy, wherein he understood the purpose of segregation was to impress upon a race of people that they were "so inferior and degraded that they cannot be allowed to sit in public coaches occupied by white citizens."   Clearly it is more than the capacity for empathy that is in question, but rather it is the belief that utilizing that empathy is essential in analyzing and interpreting law.

That is the place Judge Sotomayor comes from, as she clearly stated, that "we who judge must not deny the differences resulting from experience and heritage but attempt, as the Supreme Court suggests, continuously to judge when those opinions, sympathies and prejudices are appropriate."   A diverse background, she believes, anyone's "gender and national origins may and will make a difference in our judging."  This is the acknowledgement of empathy.  That diversity and the challenges it presented, have hopefully made her a "wise Latina woman" who "would more often than not reach a better conclusion than a white male who hasn't lived that life."  Crosspost:  http://www.obama-mamas.com/blog/?p=248