President Obama has had the opportunity to nominate his first appointment to the Supreme Court of the United States. The president has consistently stated that he wanted someone with "empathy" on the Court and just what he seeks may finally be understood as Judge Sotomayor's affirmation seems imminent.
In viewing some of the resistance to Sotomayor there is evidence that it is tempting for many to see as a victory the recent Supreme Court judgment to set aside the decision of a three-judge panel, on which Judge Sonia Sotomayor sat. And victory it was for those who make the rules, the law, and then purpose to "uphold" the law from their own worldview. In so doing, the press and other sources rail against President Obama's reference to the "empathy' he would seek in a Supreme Court nominee and which Sotomayor appears to embrace.
The displeasure exposed by the call for "empathy" in the present arena is all the more suspect when Supreme Court Justice Alito's statements are examined. In his confirmation hearings, Alito enumerated a history of his cultural background and how such would mitigate his legal decisions. He said in part, "When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account." To that affirmation Senator Tom Coburn responded, "Thank you."
In the case of Sotomayor, however, Coburn demonstrated an absence of "empathy" and showed that he had not understood Alito's assertion. He did so by invoking the more than half-century old stereotypical Latino Ricky Ricardo of the "I Love Lucy" television show and casting Sotomayor in the role of Lucy tells her "You have lots of 'Splainin' to do." Here was the very absence of "empathy" to the nth degree from someone having had no difficulty with the similar emotion expressed by Justice Alito.
A not unheard of revulsion of empathy suggests that it is out of place for Justices because they must be neutral, impartial, and unbiased. This is based upon the assumption, of course, that there are any human beings capable of being one, all, or any combination of those ideals. Certainly it is something that one should strive for in life, but to say there can be no empathy is absurd. We are all products of our lives and values, and no one, not a judge nor a reporter, can be purely objective.
Many of us are familiar with the representations shown to diverse groups which elicit different responses from those groups and individuals within them. What Black folks see or hear or feel is not always what White folks see or hear or feel and vice versa. I recall learning in graduate school when several black pre-reader kids were unable to point to the "ambulance" clustered among other pictures on a page. The white children were perfect in their identification and this reality led to the conclusion, among other results, that the former were less intelligent than the latter. The results confounded test givers until a teacher of color administered the test herself and the black students improved to demonstrate intelligence the equal of and higher than some whites who could not find the "ambulance." The difference was largely due to a difference in pronunciation for in the city for whites and some blacks the word is "am-bulance" with heavy emphasis on the first part. Black children, however, stress the last part "lance' as something more akin to "lawns." I also recall learning in undergraduate school that upon watching a film of the Soweto riots of 1976 in South Africa, White students responded with questions about African dance and costumes while I and others like me were in tears.