Varieties of Empathy

Another bit of Sotomayor's case law has come to my attention via Sentencing Law and Policy blog: Hayden v. Pataki, concerning the voting rights of felons. The decision includes a one page dissent by Sotomayor that incorporates this gem,

"The duty of a judge is to follow the law, not to question its plain terms. I do not believe that Congress wishes us to disregard the plain language of any statute or to invent exceptions to the statutes it has created."

This "commitment to textualism" as Doug Berman identifies it hardly seems reconcilable with a first round examination of the nominee who believes appellate courts make policy. The road to a synthesis of these two views of Sotomayor can be found through the majority opinion in Hayden. As it turns out, the issues that Sotomayor fears "may give the impression that this case is in some way complex" concern racial quotas and the 14th amendment. Once again, Sotomayor ignores rather than engages the subtleties of the 14th amendment. Readers may be forgiven for experiencing deja vu.

This is the nature of the "wise Latina" perspective that Sotomayor is proud of: result-oriented judgement. The Volokh Conspiracy gets it right on two counts, though I'm not sure if they've connected the two dots. First, whether or not Sotomayor is racist is not the point. There is certainly a disparity between how free a white politician can be with words as compared to a minority politician, but the progressive path in that sphere is not to treat every race with the rush to vilification applied to whites. Rather than racism, the point is the validity of Sotomayor's decision-making processes.

Vlolokh's second entry is on the doctrinal relevance of empathy. In short, empathetic decisions are emotional but can nonetheless be rendered within a logical, legal, textual framework. Sotomayor's opinions comprise a history of instead using text within an empathetic framework, as in Hayden above. And Obama considered that an asset. This is why I felt compelled to take Shakesville to task on that impassioned defense of empathy. The problem with emotion isn't that it leads to progressive positions, but that it only inconsistently incorporates notions of rights and justice into its brand of progressivism.