Why Not A Latina Justice?
The “E” Word
Commenting on the announcement of Justice Souter’s retirement from the US Supreme Court, President Obama stated the one of the qualities he wanted in a nominee for the Supreme Court was empathy. This statement has caused much concern and shock among the news media and the Washington political and policy establishment. These entities collectively are struggling with concept that a President would use empathy as criteria for a Supreme Court Justice. Various commentators criticized the President for this criterion. Why empathy is such an important criteria? How did the President come up with such a crazy idea?
The people who are struggling with this concept are looking and listening in the wrong places. They are forgetting or ignoring a key fact. The President and his wife are African-American lawyers. In the African-American and minority legal and political circles, subject of judicial empathy has been discussed continuously for at least nineteen years. African-American legal scholars, such as A. Leon Higginbotham, Jr. (a deceased former US Court of Appeal judge and Harvard professor), argued that the judiciary should have empathy as a quality. Higginbotham believed that jurists should design their decisions not to purposely damage minorities and the poor. Rather, he believed that a great justice’s place in history should be determined in part by his or her defense of the weak, the poor, minorities, women, the disabled and the powerless.
African-American political leaders have also championed this concept. In several installations of judges in Queens County, NY, I have heard several state and local elected African-American officials made statements virtually stating the “E” word in all but in name. In their speeches, these officials praised the election of local judges because it guaranteed that the bench would consist of persons who were of the people and understood the people. It forced a more diverse judiciary that would be attentive to demands of everyday life. It insured that judges understood the challenges of ordinary people and were not legal eggheads. I am fairly confident that a state senator named Barack Obama probably made similar unrecorded speeches at installation of Circuit Judges in Chicago.
Unfortunately, this concept of empathy is based on the premise that a person develops empathy solely on the basis of person‘s history and ethnicity. Implicit in these statements is a belief that if a person grew up as a poor African-American or a Hispanic they will automatically have develop empathy for others. This belief is erroneous. The circumstances of Justice Clarence Thomas’s childhood are extremely dramatic and desperate. Born in the segregated South, Thomas’s father abandoned him in this early childhood. His mother was destitute and poor. By fate, his grandparents became responsible for his growing up. He was the only black person his high school and the first person in his family to attend college. At the first college he attended, Thomas experienced pronounced racism. Upon his graduation from Yale Law School, Thomas states that law firms consider him for a position because he was viewed as just an affirmative action admission.
Despite this grave childhood and early adulthood, Justice Thomas is not viewed an empathic judge or person. His judicial decisions do not disclose any great insight into poverty or racial and sexual discrimination. In fact, some view Thomas as black man that has lost his soul and forgotten his roots.
If empathy is not guaranteed by a person’s race, ethnicity or economic status, then how can you find an empathic judge? In fact, is there such a thing as an empathic judge or person?
Webster’s Dictionary defines empathy as “identification with or vicarious experience of the feelings, thoughts, etc. of another.” Empathy knows no race or gender because it requires a person to leave their being and enter that of the other. It requires us to look at the world from the other person shoes as well as our own. Empathy is a rare commodity among humans and when a person has this quality it is like finding rare jewel. It is simply precious.
In our history, two Presidents had this ability, Abraham Lincoln and Franklin Roosevelt. However, in our judiciary, this quality is as rare as a white rhinoceros. There is one justice who was known for his empathy, Associate Justice Frank Murphy. Justice Murphy was a compassionate man who throughout his legal career sought to protect the rights of others. He was one of the first justices to use the word “racism” in several of decisions. Murphy believed that the rights of the poor, powerless, minorities and others should have an equal footing with those of the rich, powerful, and the majority.
Justice Murphy had this gift even though he was a white, middle class, Irish devote Catholic, second generation lawyer. His empathy did not come from his social status, sex or race. Rather, it came from his mind, his heart and his soul. The factors allowed him to have various life experiences that encouraged him to see the other side of the street. Due to his death at the age of 59 and his tenure of only 9 years at the Supreme Court, we can not say he was a great justice; but, history does not consider a bad or inferior justice. He was an average justice with a great big heart that made some positive impact on the Court and our society.
The lives of FDR and Justice Murphy demonstrate that empathy is a powerful quality for a person to have whether they are President or Justice. In a multiethnic, multiracial and economically diverse nation such as ours, this quality can contribute to the solution of our social and economic problems. It can provide a tool necessary to achieve the consensus of the disparate groups that are necessary for the success of these solutions. It is empathy that makes us more than evolutionary animals. It is empathy that makes us human beings with humanity.
Commenting on the announcement of Justice Souter’s retirement from the US Supreme Court, President Obama stated the one of the qualities he wanted in a nominee for the Supreme Court was empathy. This statement has caused much concern and shock among the news media and the Washington political and policy establishment. These entities collectively are struggling with concept that a President would use empathy as criteria for a Supreme Court Justice. Various commentators criticized the President for this criterion. Why empathy is such an important criteria? How did the President come up with such a crazy idea?
The people who are struggling with this concept are looking and listening in the wrong places. They are forgetting or ignoring a key fact. The President and his wife are African-American lawyers. In the African-American and minority legal and political circles, subject of judicial empathy has been discussed continuously for at least nineteen years. African-American legal scholars, such as A. Leon Higginbotham, Jr. (a deceased former US Court of Appeal judge and Harvard professor), argued that the judiciary should have empathy as a quality. Higginbotham believed that jurists should design their decisions not to purposely damage minorities and the poor. Rather, he believed that a great justice’s place in history should be determined in part by his or her defense of the weak, the poor, minorities, women, the disabled and the powerless.
African-American political leaders have also championed this concept. In several installations of judges in Queens County, NY, I have heard several state and local elected African-American officials made statements virtually stating the “E” word in all but in name. In their speeches, these officials praised the election of local judges because it guaranteed that the bench would consist of persons who were of the people and understood the people. It forced a more diverse judiciary that would be attentive to demands of everyday life. It insured that judges understood the challenges of ordinary people and were not legal eggheads. I am fairly confident that a state senator named Barack Obama probably made similar unrecorded speeches at installation of Circuit Judges in Chicago.
Unfortunately, this concept of empathy is based on the premise that a person develops empathy solely on the basis of person‘s history and ethnicity. Implicit in these statements is a belief that if a person grew up as a poor African-American or a Hispanic they will automatically have develop empathy for others. This belief is erroneous. The circumstances of Justice Clarence Thomas’s childhood are extremely dramatic and desperate. Born in the segregated South, Thomas’s father abandoned him in this early childhood. His mother was destitute and poor. By fate, his grandparents became responsible for his growing up. He was the only black person his high school and the first person in his family to attend college. At the first college he attended, Thomas experienced pronounced racism. Upon his graduation from Yale Law School, Thomas states that law firms consider him for a position because he was viewed as just an affirmative action admission.
Despite this grave childhood and early adulthood, Justice Thomas is not viewed an empathic judge or person. His judicial decisions do not disclose any great insight into poverty or racial and sexual discrimination. In fact, some view Thomas as black man that has lost his soul and forgotten his roots.
If empathy is not guaranteed by a person’s race, ethnicity or economic status, then how can you find an empathic judge? In fact, is there such a thing as an empathic judge or person?
Webster’s Dictionary defines empathy as “identification with or vicarious experience of the feelings, thoughts, etc. of another.” Empathy knows no race or gender because it requires a person to leave their being and enter that of the other. It requires us to look at the world from the other person shoes as well as our own. Empathy is a rare commodity among humans and when a person has this quality it is like finding rare jewel. It is simply precious.
In our history, two Presidents had this ability, Abraham Lincoln and Franklin Roosevelt. However, in our judiciary, this quality is as rare as a white rhinoceros. There is one justice who was known for his empathy, Associate Justice Frank Murphy. Justice Murphy was a compassionate man who throughout his legal career sought to protect the rights of others. He was one of the first justices to use the word “racism” in several of decisions. Murphy believed that the rights of the poor, powerless, minorities and others should have an equal footing with those of the rich, powerful, and the majority.
Justice Murphy had this gift even though he was a white, middle class, Irish devote Catholic, second generation lawyer. His empathy did not come from his social status, sex or race. Rather, it came from his mind, his heart and his soul. The factors allowed him to have various life experiences that encouraged him to see the other side of the street. Due to his death at the age of 59 and his tenure of only 9 years at the Supreme Court, we can not say he was a great justice; but, history does not consider a bad or inferior justice. He was an average justice with a great big heart that made some positive impact on the Court and our society.
The lives of FDR and Justice Murphy demonstrate that empathy is a powerful quality for a person to have whether they are President or Justice. In a multiethnic, multiracial and economically diverse nation such as ours, this quality can contribute to the solution of our social and economic problems. It can provide a tool necessary to achieve the consensus of the disparate groups that are necessary for the success of these solutions. It is empathy that makes us more than evolutionary animals. It is empathy that makes us human beings with humanity.
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