Article: Empathy (at SCOTUS)

Empathy: The Republicans are saying Empathy is a code word for being an activist judge.

But what else might it mean?

Sonia Sotomayor has said, "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life", which some take to mean that she is racially prejudiced and shows gender preference.

But what else might it mean?

I am a white man who had one brother. Didn't I see things through the eyes of a white person? Didn't I see things through the eyes of a male?

"All men are created equal" is a foundation of our laws, but the men that wrote those words probably meant "All Free Wealthy White Men (males) are Created Equal", so that's how today's Supreme Court rules because many of them believe in interpreting the laws as they were intended. Of course when one of the litigants is a corporation, then (pardon the pseudo plagiarism from "Animal Farm"), "All Men are Created Equal, but corporations are more Equal".

I see things differently than my wife. I see things differently than an immigrant born in a communist country. I see things differently than just about anyone who does not have my same life experiences. Is it ok for Justice Scalia to see things through the eyes of a middle-aged white Roman Catholic Italian-American? What other choice does he have?

Is it wrong for seven members of the present Supreme Court to see things through the eyes of white males? Do those seven men all agree on every case? Do those seven men each think that they are applying the law as they should? Maybe the problem that the Republicans see is that they feel that the Declaration of Independence and the Constitution were written by Free Wealthy White Males and the vast majority of our laws were written by Wealthy White Males, and that is how it should be and how it should remain, but I don't think so. I have no Empathy for that mode of thinking, but I do have Empathy for the Empathy that Barack Obama and Sonia Sotomayor are thinking about.

Let's look at some hypothetical cases:

A man walks into an elevator occupied by a woman. He tells her to press the button that goes to the roof and that he is going to have intercourse with her. He tells her she will like it. When they get to the roof of the 10 story building, she asks him to wear a condom. He says he is not worried about babies, but she explains that it will protect him from a DNA match. They have intercourse and she doesn't fight him or talk to him as she was instructed.

He leaves her on the roof and says don't come down for 10 minutes. When he gets to the bottom floor, he hits every button on the elevator, so that it will take as much time as possible to return to the roof. After the woman gets down, she calls the police, and claims that she was raped. At the hospital, the rape exam shows no semen, no bruising of the thighs, no vaginal tearing (thanks to the spermicidal lubricant on the condom) and the medical practitioner is doubtful of any rape having taken place.

When the man is captured by the police, he claims the sex was consensual. He says that she never said "no" and even supplied a condom.

The man is found guilty and the case winds up in the Supreme Court.

Might the eyes of Ruth Bader Ginsberg see things differently that those of Chief Justice Roberts?

Is it pertinent that the defendant was a 6 foot 7 inch, 305 pound Black football player and the alleged victim was a 5 foot 2, 106 pound white woman who is the co-captain of a university debating team?

Maybe to some Justices the races are irrelevant. Maybe to Justice Ginsberg, the size is important. Maybe to some Justices, the races are subconsciously important. Maybe some justices will see "All men are created equal" as the only relevant issue and say that since the alleged victim made no attempt to escape, never said "no", had no bodily injuries and as a "Equal" could have stopped the alleged rape, she is just complaining about a sexual encounter that she now regrets.

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