Buy My Book Here

Fox News Ticker

Please check out my new books, "Prosecutors Gone Wild: The Inside Story of the Trial of Chuck Panici, John Gliottoni, and Louise Marshall" and also, "The Definitive Dossier of PTSD in Whistleblowers"

Thursday, May 28, 2009

Empathy and Consensus Building

Over the next few weeks, when debating the validity of Judge Sotomayor, we are likely to hear the term consensus builder. The term consensus builder is actually a fancy term for being able to convince other justices that your position is correct. Obviously, no one knows whether or not Judge Sotomayor will in fact be a consensus builder. Let's think about Sotomayor's supposed empathy and how it will help build consensus.

Now, how will an argument built on empathy help to build consensus? First, her empathy is clearly with minorities and females only. After all, the Ricci case showed that Sotomayor's empathy ends when it comes to a majority class. Since Ruth Ginsberg is the only other woman, it's unlikely that she will sway any other judge through "empathy". Since Ginsberg would be the equivalent of preaching to th choir, Sotomayor wouldn't be building consensus with an "empathy" argument.

Anthony Kennedy, a white male, appears to be the swing vote currently. Why would a white male be swayed by an argument of "empathy" from a Latina woman? So, in fact, if it's empathy that President Obama wants from Sotomayor, it's also likely an argument that won't sway anyone. The "empathy" argument is likely one that won't build much consensus on this court and frankly on most courts. It's yet another reason why empathy is not much of a qualification for being on the Supreme Court.

Consensus building on the Supreme Court happens by strong arguments on the law and on the Constitution. That's how you sway another judge that is on the fence. You do it by making a strong argument about the Constitution and the way it is applied to the facts and the law in any particular case. It isn't built by showing empathy for one group or another.

3 comments:

Anonymous said...

I think any human that does not possess empathy is a sociopath or autistic.

mike volpe said...

That's correct however in this context, empathy is used in relations to specific sorts of folks. it isn't that obama says that Roberts has no empathy but that he has no empathy for the poor since he grew up rather wealthy.

Anonymous said...

Well I think if you do not have empathy for the poor, or minorities or human dignity, then you are probably sociopathic or at least leaning in that direction.

Certainly you should have no business being a judge, IMHO. That includes Roberts (and Scalia and Thomas, and to an extent Alito).

But, elections have consequences so we have to live with decisions we don't agree with.