Correcting Greg Sargent and Other Liberals on the “Empathy” Issue

When last we left you, Greg Sargent was getting it all wrong on the differences between primary campaigning and general election campaigning – in essence, he pretended there were no differences. I corrected him here.

I’m back to do it again, this time over the firestorm created over the word “empathy” which was not only used by Barack Obama earlier this month when talking about what kind of judges he likes to see on the bench, but it’s also been used by him to describe SCOTUS nominee Sonia Sotomayor. Liberals like Sargent have eagerly been digging to find the past uses of the word “empathy” by other Presidents – and other SCOTUS nominees – to “prove” the right’s alleged “hypocrisy” on their criticism of the word. Unfortunately, Sargent and other lefties have distorted this to be just about one word, rather than the implications put behind it – specifically, whether or not a potential justice feels that their “empathy” makes them a better potential justice than one who “didn’t/doesn’t have it.”

Here’s Sargent Friday, in an attempted “gotcha” moment (via Memeo):

Sonia Sotomayor is taking a beating from conservatives for her 2001 speech saying that gender and race will inevitably impact one’s judgment and jurisprudence.

But guess who said something very similar? Moderately conservative Sandra Day O’Connor, who was appointed to the Supreme Court by Ronald Reagan in 1981.

O’Connor said she brings to the court the “perspective of a woman” in an interview with Ladies Home Journal soon after she was appointed. While O’Connor also said there were other factors that influence her judging more than her gender, she clearly said it was a factor. Here’s how the Associated Press reported her comments in March of 1982 (via Nexis):

The first woman on the high court tends to play down that role somewhat. “I think that I bring to the court differences in background that are more germane than my gender,” she said.

“My experience as a legislator gives me a different perspective. Also, I bring to the court the perspective of a woman primarily in a sense that I am female, just as I am white, a college graduate, etc.

“Yes, I will bring the understanding of a woman to the court, but I doubt that that alone will affect my decisions,” she said. “I think the important fact about my appointment is not that I will decide cases as a woman, but that I am a woman who will get to decide cases.”

On another occasion, O’Connor similarly suggested that race impacts one’s judging, too. After the retirement of legendary Supreme Court Justice Thurgood Marshall, O’Connor said approvingly that Marshall “imparted not only his legal acumen but also his life experiences” to the bench. That is certainly a partial reference to Marshall’s race.

What did Sargent leave out? A few things: First, Sotomayor did not just “[say] that gender and race will inevitably impact one’s judgment and jurisprudence,” she said it should make her a “better” justice who would make “better” judgements than a white male. Here’s the exact quote:

“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,” she said October 26, 2001.

Other liberals have tried to point out that Sam Alito, during his confirmation hearings, invoked the “empathy” argument in describing his qualities for the bench, but what they leave out is that he was arguing that it gave him a good perspective on hot button issues that face the court – he was not arguing that such empathy would make him a “superior” justice, able to make “better” judicial decisions than black and/or female and/or non-Italian justices. In most writings from the left about Alito’s remarks, they have either overlooked or have failed to emphasize Alito’s full quote, which includes this very relevant statement:

And so it’s my job to apply the law. It’s not my job to change the law or to bend the law to achieve any result.

Back to O’Connor, Sargent even acknowledges towards the end that O’Connor’s comments were the same as Sotomayor’s:

To be clear, O’Connor’s sentiments aren’t identical to Sotomayor’s. O’Connor was to a degree downplaying the impact her gender might have. But O’Connor also said that such experiences did inform one’s jurisprudence, and Sotomayor’s main point, albeit not artfully expressed, was that gender and race will inevitably impact judging.

I love those qualifiers he adds in there. “To a degree” downplaying the potential impact of her gender? How can one look at the statement, “I think the important fact about my appointment is not that I will decide cases as a woman, but that I am a woman who will get to decide cases” and suggest that it’s only “to a degree” that she was downplaying her impact on the court as a woman? The other qualifier was the “albeit not artfully expressed.” That’s an insult to anyone who reads that. “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” is not merely “inartfully expressed” – it’s specifically suggesting that Latinas are in positions able to make “better decisions” about court cases based on their “life experiences” – better than than those who are not Latin/Hispanic males.

In essence, Sargent – even with the qualifiers – admitted with that paragraph that his comparison of O’Connor to Sotomayor was invalid, because they both said two entirely different things. One specifically downplayed her gender as anything “special” in the judicial ruling process, while the other specifically emphasized it as something that made her “better” and more qualified to make “better” judicial rulings than those not fortunate enough to be Latin or female. I find it very hard to believe he truly feels that Sotomayor merely “inartfully expressed” her opinon on Latina judges versus white male judges.

Then again, in seeing how so many on his side of the aisle have distorted the argument over “empathy” and “life experiences” in the first place, it’s not so hard to believe after all. Whatever it takes to silence the critics, right?

Cross-posted from the Sister Toldjah blog.

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