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Tuesday, May 26, 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.

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