More questions than answers.

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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.

Nine large men might see the case differently than nine petite women. Nine white men might see the case differently than nine Black women. But diversity on the court might give a verdict with more Empathy.

I have been a big guy all my life. I always felt like I could take care of myself physically. Now in my mid sixties, I can identify more with how a small person feels in a physical confrontation. When I went to college, the number of Black students was less than one tenth of one percent at my university. I came from an integrated neighborhood. In my Junior High School and on the block where I lived, I was the minority. In my High School I was one of a majority of 90%, but my fellow white college students were used to being in the 99% majority and used to using dozens of nicknames for Blacks, Italians, Jews, Hispanics, in fact every non-WASP or non-male type of person under the Sun. Everything was seen through the eyes of "I'm a WASP heterosexual male and I'm ok". My first roommate's father made over 40 times as much money as my step-father did. For my birthday, my mother sent me a box of home-made cookies. My roommate got a brand new Corvair Spider Convertible for his birthday. Is it any wonder that my roommate and I didn't see eye to eye on many topics?

I don't think that a Supreme Court made up of nine 5 foot 2 minority women would be a perfect court, but neither do I believe that a Supreme Court made up of nine clones of our founding fathers is optimum.

The hypothetical case that I used above may sound far fetched to many people. And in fact I didn't try not to make it seem that way.

But let's look at another hypothetical case: A women was ordered to pay almost a quarter of a million dollars for downloading less than 25 songs and sharing them with other people. A while later, another person downloaded a few songs from a website based outside the USA. When that person had a technical problem with his under warranty PC, he allowed a tech rep from the PC manufacturer to look into the PC's hard-drive to determine the technical problem. The tech rep reported the PC user's downloaded songs to his company which is a subsidiary of a record company. The record company told the PC owner to pay $1,000 per song or they would sue him. They said that it would cost him close to $100,000 to get an attorney that could do a decent job of defending him but then they would probably win anyway and get $10 per song.

Is there any analogy here between this case and the alleged rape case? Can you see how the size difference between the defendant and the alleged rape victim is analogous to the size difference between record company and the music down-loader?

In the case of the woman who had to pay almost a quarter of a million dollars for downloading less than 25 songs, the record company said that they were trying to set an example and that is a factual case. But:

If the defendant in the hypothetical case that I used above had not heard that verdict, would that make a difference in how you see the case? If the defendant had paid for the songs, but the website that charged him had no rights to sell the songs, would that make a difference in how you see the case? If the defendant had down-loaded the songs from a website that posted a disclaimer saying that they had the rights to offer the songs for free, would that make a difference in how you see the case? Would it matter to you that the record company hurts the music down-loader whether they win or lose because of the attorney fees?

Some people might answer yes to all of these questions. Some might answer no to some or all of the questions. Again, it might depend upon whether the person was a large man or a small women. I don't think that a Supreme Court made up of nine 5 foot 2 minority women would have a unanimous verdict. Nor do I believe that the verdict of a Supreme Court made up of nine clones of our founding fathers would be unanimous. But I believe that we should have neither a Supreme Court made up of nine 5 foot 2 minority women nor of nine clones of our founding fathers. Only a Supreme Court made up of people of different colors, different races, different genders, different religions and different philosophies partially based on different life styles and different life experiences can give a fair and balance interpretation of the laws of our land. The Republicans would have us believe that the four justices that make up the present conservative voting block are applying the law, but that the others sometimes are making the law up as they go along. The common religion of the four justices can not be the reason why they vote as a block so often. Right?

Is the FAA constitutional? There were no planes when the Constitution was written.

Is regulating weapons constitutional? There were no fighter planes or automatic weapons when the Constitution was written.

Should the Supreme Court be put on a quota system? I don't think so. But would it hurt to have the makeup of the Supreme Court look more like America actually looks today rather than the way many people remember? Is what many people remember factual?

I have asked more questions than given answers. I can't tell you how to think and I would not want to tell you how to think, but if you do think about the questions, your answers might not be totally different than mine. Then you will have some Empathy for Me! Is that such a bad thing?